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FIFTH
SECTION
CASE OF EWALD v. GERMANY
(Application
no. 2693/07)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Ewald v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 2693/07) against the
Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a
German national, Ms Heidi Ewald (“the applicant”), on 29
December 2006.
- The
applicant was represented by Mr W. Rothley, a lawyer practising in
Kaiserslautern. The German Government (“the
Government”) were represented by their Agent, Mrs
A. Wittling-Vogel, Ministerialdirigentin,
Federal Ministry of Justice.
- On
7 December 2009 the
President of the Fifth Section decided to communicate the complaint
concerning the length of the proceedings to the Government. In
accordance with Protocol no. 14, the application was allocated to a
Committee of three Judges.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Zweibrücken.
- On
24 February 2000 she suffered a heart attack. With regard to her
treatment before and after this incident she accused her family
practitioner of medical malpractice.
A. Civil proceedings
- At
the beginning of February 2002, after having been granted legal aid,
the applicant lodged a claim of medical malpractice against her
family practitioner with the Zweibrücken Regional Court.
- On
3 April 2002 the Regional Court ordered an expert report and on
31 May 2002 appointed the expert. By letter of 28 June 2002 the
expert informed the court that due to illness he was unable to take
up his work. On 21 August 2002 the court appointed a new expert who
had been recommended by the medical association in late July.
- On
7 January, 4 and 21 February 2003 the court enquired about the report
but did not receive an answer. On 15 April 2003 it ordered the expert
to submit his report until 30 May 2003 on pain of a fine of 250 EUR.
On 8 July 2003 the court again requested, to no avail,
information from the expert as to the current state of affairs.
- On
13 February 2004 the court ordered the expert to return the files by
27 February 2004. On 20 April 2004, after it had received no response
from the expert, the court once more ordered the return of the files.
On 28 May 2004 the court unsuccessfully tried to contact the
expert by telephone. On 15 June 2004 the court again ordered the
return of the files, setting a deadline of 15 July 2004 and
threatening to forward the case to the Office of the Public
Prosecutor. On 22 October 2004 the parties were informed that the
matter had been handed over to the Regional Court’s president
for further action. On 28 October 2004 the court imposed on the
expert all costs caused by his refusal to draw up the report and
return the files. On 4 November 2004 the court notified the parties
that the delivery of the files was now to be enforced. On 16 December
2004 the parties were informed that in the meantime the files had
been returned to the court.
- On
28 June and 7 December 2005 the court held two hearings, in the
course of which it heard eight witnesses.
- On
12 January 2006, after the single judge had referred the case to the
chamber, a new expert report was ordered, to be submitted at the
latest on 15 May 2006. On the same day the court also scheduled an
oral hearing for 27 June 2006. On 7 May 2006 the expert submitted his
report. On 12 June 2006 the court ordered a supplement to the
report and rescheduled the hearing for 5 December 2006. On 4 December
2006 this hearing was cancelled.
- On
27 August 2007 a new hearing was scheduled for 8 January 2008. Upon
request of defendant’s counsel the hearing was subsequently
rescheduled for 19 February 2008.
- On
14 February 2008 the oral hearing was postponed until 4 March 2008.
On 1 April 2008 the applicant applied for an amendment of the
transcript of this hearing. The application was dismissed on 22 April
2008. On 9 May 2008 the court ordered another expert report. On 21
August 2008 the expert submitted his report. On 9 December 2008 the
court held another hearing.
- On
9 February 2009 the Regional Court dismissed the applicant’s
claim. The judgment was served on 26 February 2009.
- On
20 March 2009 the applicant lodged an appeal. After it had informed
the applicant that her appeal was inadmissible, because it had not
been filed by a lawyer, the Court of Appeal dismissed the appeal on
26 June 2009.
B. Criminal proceedings
- On
8 January 2002 the applicant pressed criminal charges against her
family practitioner. On 15 January 2002 the proceedings were
suspended pending the outcome of the civil proceedings. On 4
September 2006 the proceedings were discontinued in view of the death
of the family practitioner.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government did not contest that argument but emphasized that the
subject matter had been complex. They also submitted that since the
Regional Court had tried to retrieve the files from the second expert
the delay caused by his behaviour should not entirely be attributed
to them.
- The
period to be taken into consideration began on 5 February 2002 and
ended on 26 June 2009. It thus lasted seven years, four months and
three weeks at two levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case. In
particular with regard to the Regional Court’s
problems to retrieve the file from the expert the Court reiterates
that the responsibility for ensuring compliance with the
requirements of Article 6 rests ultimately with the courts. Thus,
when requesting expert opinions, the courts remain responsible for
ensuring that the proceedings are not excessively prolonged (Volkwein
v. Germany, no. 45181/99, § 39, 4 April 2002 and Bozlar
v. Germany, no. 7634/05, § 23,
5 March 2009). As far as the applicant’s
late submissions in 2006 are concerned the Court finds that any delay
arising therefrom is negligible in view of the substantial delays
caused by the conduct of the domestic courts.
- Having
regard to the above considerations and its case-law on the subject,
the Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. THE REMAINDER OF THE APPLICANT’S
COMPLAINTS
- The
applicant further complained under Article 6 of the Convention about
the outcome of the proceedings at issue and the discontinuation of
criminal proceedings instituted against the defendant doctor. Relying
on Articles 13, 14, 17 and 18 of the Convention she also complained
that the Regional Court had not considered facts submitted by her and
had forwarded false data to the court appointed expert.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. If follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 40,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards her EUR 6,000
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 3,334.70 for the costs and expenses
incurred before the domestic courts, namely the cost and expenses
incurred by the other side which she as the losing party is liable to
pay. The applicant did not specify her costs incurred before the
Court.
- The
Government did not express an opinion on the matter.
- Regard
being had to the information in its possession and the above
criteria, the Court considers that the applicant has not established
that the costs and expenses claimed for the proceedings before the
domestic courts were incurred in order to seek prevention or
rectification of the specific violation caused by the excessive
length of the proceedings.
- Since
the applicant did not specify her claim as regards costs and expenses
incurred before the Court no award can be made under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
6,000 (six thousand euros) in respect of non-pecuniary damage plus
any tax that may be chargeable to the applicant
in respect of the above amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
