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FIFTH
SECTION
CASE OF SINKOVEC v. GERMANY
(Application
no. 46682/07)
JUDGMENT
STRASBOURG
30 March 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Sinkovec v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Karel Jungwiert, President,
Renate
Jaeger,
Mark Villiger, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having deliberated in private on 2
March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 46682/07) 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 Slovenian national, Mr Silvester
Sinkovec (“the applicant”), on 8 December 2003.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
24 April 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. The Federal Republic of Germany having
accepted the provisional application of the provisions of Protocol 14
governing the power of three judge committees to decide on cases in
which there is well-established case-law, it was decided to assign
the application to a Committee. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1942 and lives in Velenje.
- On
18 December 2000 the applicant requested the Regional Pension Office
(Landesversicherungsanstalt Niederbayern-Oberpfalz) (“the
Pension Office”) to grant him a pension on account of his
reduced earning capacity (Rente wegen verminderter
Erwerbsfähigkeit).
- On
9 March 2001 the Pension Office dismissed his request.
- On
26 April 2001 the Pension Office dismissed the applicant's
administrative appeal lodged on 2 April 2001.
- On
4 July 2001 the applicant appealed to the Landshut Social Court.
- On
2 August 2001 the Pension Office made its submissions. However, it
sent the required medical records only on 5 November 2001.
- Between
5 November 2001 and 21 March 2003 no progress was made in the
proceedings.
- In
the meantime, on 17 January 2003, the applicant had applied to the
Pension Office for an early old age pension for disabled persons
(Altersrente für Schwerbehinderte); this was refused on
21 March 2003. Subsequently, the applicant lodged an administrative
appeal against this decision. The Social Court decided to await
the outcome of the administrative appeal proceedings, as the
administrative authority likewise had to examine the applicant's
potential occupational invalidity.
On 2 June 2003 his
administrative appeal was dismissed. These proceedings were the
object of application no. 847/04 (see “II. Proceedings before
the Court” below).
-
In May 2004 the Social Court resumed the proceedings.
-
On 8 June 2004 the Social Court commissioned an expert report on the
applicant's earning capacity. On 15 June 2004 the expert gave his
report.
- On
27 July 2004, after holding an oral hearing, the Social Court
dismissed the applicant's action, as it could not be established that
his earning capacity had been reduced at the time when he had made
the required number of contributions to the statutory pension
insurance (gesetzliche Rentenversicherung).
- On
9 October 2004 the judgment was served on the applicant.
- On
18 December 2004 the applicant appealed to the Bavarian Social Court
of Appeal. In his appeal he informed the court for the first time
that he had previously applied for a pension from the Slovenian
pension authorities. On 30 December 2004 the court received the
appeal and requested the Pension Office to submit its observations.
On 10 February 2005 the Pension Office requested
information from the Slovenian pension authorities in respect of the
applicant's former pension requests.
-
On 27 April 2005 the Pension Office received the information from the
Slovenian authorities. However, they were translated only on
27 June 2005 and submitted to the court on 28 June 2005. On
the same day the Pension Office requested additional information from
the Slovenian pension authorities which it received on 26 July 2005.
On 26 September 2005 it translated them and submitted
the information to the court on 4 October 2005.
- On
11 October 2005 the Social Court of Appeal sent the applicant's file
to the Pension Office for an examination of the question whether the
criteria for the requested pension had been met on the basis of the
information given by the Slovenian pension authorities.
-
On 20 December 2005 the Pension Office replied that the requirements
for the requested pension had not been fulfilled.
-
On 30 December 2005 the Social Court of Appeal requested the
applicant to indicate who his employers in Germany had been and what
work he had done there.
-
On 4 August 2006 the court received the requested information after
sending the applicant two reminders, in May and July 2006.
-
On 18 January 2007 the court requested the Pension Office to make its
submissions on the information given by the applicant.
-
On 8 February 2007 the Pension Office submitted its comments.
-
On 3 April 2007 the Social Court of Appeal ordered an orthopaedic
expert report. On 22 May 2007 it commissioned the expert report,
which the court received on 12 June 2007. On 15 June 2007 the court
requested the Pension Office to make its comments on the report.
-
On 25 June 2007 the Pension Office requested the Social Court of
Appeal to transmit the case files, which the court did on 10 August
2007. On 22 November 2007 the Pension Office submitted its comments.
- On
28 November 2007 the Social Court of Appeal forwarded these comments
to the applicant.
- On
29 January 2008, after holding an oral hearing, the Bavarian Social
Court of Appeal dismissed the applicant's appeal, mainly endorsing
the judgment of the Social Court.
- On
5 March 2008 the judgment was served on the applicant.
II. PROCEEDINGS BEFORE THE COURT
- The
present case was initially registered under application no. 847/04.
In his application form the applicant merely complained about the
refusal of the Pension Office to grant him an early pension for
disabled persons and a pension on account of his reduced earning
capacity.
- On
4 January 2006 the applicant submitted that it had been
incomprehensible for him why it took the Social Court of Appeal and
the Pension Office such a long time to decide his application. In his
view there had been too many delays in the whole case. Due to these
delays he had now been suffering for several years from a financial
distress. He further maintained that he had been “cheated”
for many years by the Pension Office.
- On
6 October 2007 the Court decided to sever the proceedings in so far
as they concerned the proceedings regarding a pension on account of
the applicant's reduced earning capacity and to conduct them under
the instant application no. 46682/07.
- By
letter of 7 November 2007 the applicant informed the court that his
proceedings concerning the pension on account of his reduced earning
capacity were still pending and that he was very impatient because he
“has now been fighting for his rights for eight years”.
- On
20 November 2007 the Court declared application no. 847/04 concerning
the disability pension inadmissible for being manifestly ill founded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings was
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 acknowledged that the length of the proceedings exceeded
the limits of what was deemed reasonable within the meaning of
Article 6 § 1 of the Convention. However, they submitted that
the applicant's complaint was inadmissible.
- The
period to be taken into consideration began on 2 April 2001 when the
applicant lodged his administrative appeal with the Pension Office
and ended on 5 March 2008 when the judgment of the Social Court of
Appeal was served on the applicant. It thus lasted six years and
eleven months at one level of compulsory administrative proceedings
and two levels of jurisdiction.
A. Admissibility
- The
Government maintained that the applicant had failed to raise his
complaint about the length of the proceedings in accordance with Rule
47 of the Rules of Court, as in his application form he had merely
complained about the refusal to be granted the pension. The
applicant's letter to the Court of 4 January 2006 had merely made
reference to delays in the social court proceedings concerning the
transmission of additional documents, whereas he was actually seeking
compensation for the many years he had been “cheated” by
the Pension Office. Furthermore, the applicant had never complained
about the length of the proceedings at first instance, which should
have served as the basis for the length complaint and which had ended
six months before 4 January 2006. Finally, given that two different
sets of proceedings had been pending simultaneously before the social
courts, it could not be inferred from the applicant's letter of 4
January 2006 which social court proceedings he was referring to.
- The Court reiterates that it examines the applications
lodged before it within the meaning of Articles 33 and 34 of the
Convention according to their content and their meaning. An
application is lodged from the moment an applicant provides some
information, even if summarily, concerning the nature of the
complaint he or she wishes to raise. The Court alone is competent to
decide on the characterisation to be given in
law to the facts of the case by applying some degree of
flexibility and by avoiding excessive formalism (see Kos v.
the Czech Republic, no. 75546/01, § 29, 30 November
2004).
- In
the instant case, the Court considers that it clearly follows from
the wording of the applicant's letter of 4 January 2006 that he was
complaining about the length of his proceedings pending before the
social courts. Moreover, it follows from the case files before the
social courts that they gave simultaneous information in respect to
both sets of social court proceedings. Finally, in his letter to the
Court of 7 November 2007 which clearly referred to the proceedings
concerning the alleged reduction of his earning capacity (still
pending at that time), the applicant submitted that “he has now
been fighting for his rights for eight years” (compare Kos,
cited above, § 27 and § 30). The Court is therefore
satisfied that the applicant made a complaint about the length of the
proceedings regarding his pension on account of the reduction of his
earning capacity.
- It
follows that the Government's objection in this respect must be
rejected.
- 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).
- It
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 and considering that the
Government have acknowledged that the length of the proceedings had
exceeded the reasonable time requirement laid down in Article 6 §
1, the Court considers that there is no reason to reach a different
conclusion in the present case. Having regard to 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.
II. OTHER ALLEGED VIOLATIONS
- The
applicant further complained about the refusal to grant him a pension
for his reduced earning capacity.
- The
Court observes that the applicant failed to lodge a constitutional
complaint with the Federal Constitutional Court against the impugned
decisions.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
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 sought compensation for non-pecuniary damage.
In
particular, he claimed 48,000 euros (EUR) for distress and
frustration he and his family had experienced. Furthermore he claimed
pecuniary damages amounting to EUR 44,648.64 for having been refused
monthly rent payments.
- The
Government did not express an opinion on the matter.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court considers that the applicant must have sustained
non pecuniary damage in respect of the length of the
proceedings. Ruling on an equitable basis, it therefore awards him
EUR 5,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 132.61 for postal charges incurred before
the Court and the domestic courts. He submitted documents in support
of his claim.
- The
Government did not express an opinion on the matter.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable that the sum claimed should be awarded in
full.
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 excessive
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,
the following amounts:
(i)
EUR 5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 132.61 (one hundred and thirty-two euros and sixty one cents)
in respect of costs and expenses;
(iii)
any tax that may be chargeable to him on the above amounts;
(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 30 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
