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FIFTH
SECTION
CASE OF NIEDZWIECKI v. GERMANY (no. 2)
(Application
no. 12852/08)
JUDGMENT
STRASBOURG
1
April 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In
the case of Niedzwiecki v. Germany (no. 2),
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12852/08) 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 Polish national, Mr Jaroslaw
Niedzwiecki (“the applicant”), on 27 February 2008.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
4 June 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3). On 8 June 2009 the Polish
Government were informed that they might submit written comments on
the case; they did not avail themselves of the right under Article 36
§ 1 to intervene in the proceedings.
- The
applicant has previously lodged an application with the Court in
which he complained of being denied child benefits on the ground that
he did not have a German residence permit. In its judgment of 25
October 2005 the Court held that there had been a violation of
Article 14 in conjunction with Article 8 of the Convention
(see Niedzwiecki v. Germany, no. 58453/00, 25 October
2005).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Świdnica, Poland.
He
immigrated to Germany in February 1987.
- On
28 July 1995 the applicant applied to the Aschaffenburg Labour Office
for child benefits for his daughter under the Federal Child Benefits
Act.
- On
18 August 1995 the Labour Office dismissed the applicant's request
under Section 1 § 3 of the Federal Child Benefits Act. It
considered that the applicant only had a limited residence
entitlement for exceptional purposes, and not an unlimited residence
permit or provisional residence permit, as required under that
section.
- On
15 September 1995 the applicant filed an administrative objection
against the decision of the Labour Office. On 12 October 1995
the Federal Labour Office rejected his objection. On 14
November 1995 the applicant lodged an action with the Würzburg
Social Court.
- Following
a reform of the law on child benefits with effect from 1 January
1996, an equivalent provision on child benefits was introduced in
Section 62 § 2 of the Income Tax Act, replacing Section 1 §
3 of the Federal Child Benefits Act. Persons subject to income tax
were to receive child benefits on the basis of Section 62 § 2 of
the Income Tax Act; persons not subject to income tax received child
benefits on the basis of an amended provision in the Federal Child
Benefits Act.
- In
April 1997 the applicant obtained an unlimited residence permit. The
applicant received child benefits from April 1997 until July 1997,
after which the payments were stopped due to the applicant's lack of
cooperation.
- On
21 April 1997 the Social Court dismissed the applicant's action
regarding child benefits for the period from July 1995 to March 1997.
As to the child benefits from April 1997, the Social Court noted that
the action was moot; the transcript of the hearing indicated that the
parties had agreed that the matter before the Social Court solely
concerned the child benefits prior to April 1997. The applicant
requested amendment of the transcript and amendment of the Social
Court judgment to include his claim for child benefits from April
1997. The Social Court rejected the request for amendment of the
transcript on 29 August 1997 and the request for amendment of the
judgment in a further judgment dated 8 September 1997. The applicant
appealed against both judgments.
- On
20 October 1997, in order to decide whether following the reform of
the law on child benefits the social courts were competent to decide
on the applicant's claim for child benefits from 1 January 1996, the
Social Court of Appeal asked the applicant to submit documents to
show that he was subject to income tax. The Social Court of Appeal
reiterated this request several times, the last time on 8 January
1998, but the applicant failed to submit the relevant documents.
- By
decisions of 22 January 1998 and 23 April 1998, as the applicant did
not submit the relevant documents for the period from 1 January 1996
and in order to expedite proceedings, the Social Court of Appeal
decided to sever the proceedings on the appeal lodged against the
judgment of 21 April 1997, separating the claim for child
benefits into two periods: until 31 December 1995 and from 1 January
1996. The latter part was joined with the appeal against the judgment
of 8 September 1997.
- On
29 January 1998 the applicant filed a motion of bias against the
judge who had decided to sever the proceedings. The motion was
dismissed on 24 March 1998. Against the judges involved in the
decision of 24 March 1998, the applicant again lodged a
motion of bias, which was rejected as inadmissible on 23 April 1998.
- On
23 April 1998 the Social Court of Appeal dismissed the applicant's
appeal concerning his claims until 31 December 1995.
On 18 March
1999 the Federal Social Court dismissed an appeal by the applicant on
points of law. On 21 October 1999 the Federal Constitutional Court
refused to entertain his constitutional complaint and held that his
request for an interim measure was accordingly moot.
- In
the pending proceedings concerning the applicant's claim for child
benefits from 1 January 1996, the Social Court of Appeal continued to
request further documents (first such request dated 28 October 1998).
The applicant failed to submit the requested documents and
refused to do so by letter of 4 February 1999. The Social Court of
Appeal eventually obtained the documents from different authorities,
such as the Labour Office and the Administrative Court.
- On
2 February 2001 the applicant filed a motion of bias, which was
rejected at the hearing of 15 February 2001. At the hearing the
applicant reiterated his motion for bias, which was rejected as being
abusive and declared inadmissible.
- On
15 February 2001 the Social Court of Appeal set aside the
Social Court's judgment of 21 April 1997 in so far as the
applicant claimed child benefits for the period from 1 January 1996,
remitting the case back to the Würzburg Social Court. It also
granted the appeal against the judgment of 8 September 1997. The
applicant requested amendment of the appeal judgment and filed a
motion of bias. On 27 March 2001 the motion for bias was rejected as
manifestly abusive; on 19 April 2001 the Social Court of Appeal
rejected the request to amend the appeal judgment.
- On
4 April 2001 the applicant filed a request for leave to appeal before
the Federal Social Court and filed a motion of bias against the
judges of the 10th and 14th Chamber of the Federal Social Court.
On
28 May 2001 the Federal Social Court rejected the motion of bias
as manifestly abusive and dismissed the request for leave to appeal.
- On
3 July 2001 the Social Court decided that it did not have
jurisdiction to deal with the applicant's claims regarding child
benefits for the period from 1 January 1996 and referred the
proceedings to the Nuremberg Tax Court. The applicant objected to the
referral. The parties agreed to suspend proceedings before the
Nuremberg Tax Court until a decision was rendered on the objection;
on 19 September 2001 the Nuremberg Tax Court suspended the
proceedings. On 28 January 2002 the Social Court of Appeal dismissed
the objection. The Nuremberg Tax Court received the decision of the
Social Court of Appeal on 26 March 2002;
on 28 March 2002 the
Nuremberg Tax Court decided to resume the proceedings.
- On
6 June 2002 the Tax Court informed the parties that the Federal Tax
Court had, in different proceedings, expressed doubts as to the
conformity of Section 62 § 2 of the Income Tax Act with the
German Basic Law. The Nuremberg Tax Court asked the parties whether,
in these circumstances, they agreed to suspend the proceedings until
the Federal Tax Court had ruled on the issue. On 4 July 2002 the
applicant objected to suspending the proceedings.
- On
6 April 2006 the Tax Court granted the applicant's claim for child
benefits from January 1996, rejecting only his claim for interest.
It
noted that the Federal Constitutional Court had ruled on 6 July 2004
that Section 1 § 3 of the Child Benefits Act was incompatible
with the right to equal treatment under Article 3 of the Basic Law;
the Federal Constitutional Court had also added that if the Child
Benefits Act was not amended until 1 January 2006, the law
of 1993 should be applied to cases that were not subject to a final
decision. It held that the Federal Constitutional Court's ruling
was to be taken into account for the equivalent provision on child
benefits regulated in Section 62 § 2 of the Income Tax Act. In
the light of the Federal Constitutional Court's ruling, the applicant
was found to be entitled to child benefits under the relevant
provision of the Income Tax Act.
- The
defendant appealed against the Tax Court's judgment on 24 May
2006, but withdrew the appeal on 12 October 2007.
On
19 October 2007 the Federal Tax Court terminated the
proceedings on the ground of that withdrawal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS TO THE LENGTH OF PROCEEDINGS
- 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 contested that argument.
A. Admissibility
- The
Court considers that the child benefit proceedings concerned, from
the procedural standpoint, two periods of child benefits: the period
up to 31 December 1995, and from 1 January 1996 onwards. The period
to be taken into consideration for both sets of proceedings began on
15 September 1995 with the filing of an administrative
objection. The first set of proceedings (concerning child benefits
until 31 December 1995) ended with the decision of the Federal
Constitutional Court on 21 October 1999. The second set of
proceedings (concerning child benefits from 1 January 1996) ended
with the decision of the Federal Tax Court on 19 October 2007.
- The
Government contested the admissibility of the complaint, in respect
of both the first and the second set of proceedings. The applicant
made no submissions on that point.
1. The first set of proceedings (concerning child
benefits until 31 December 1995)
- As
regards the first set of proceedings, the Government claimed that it
was substantially the same as a matter that had already been decided
by the Court within the meaning of Article 35 § 2 (b) of
the Convention, referring to a previous decision (Niedzwiecki
v. Germany (dec.), no. 58453/00, 17 June 2003). The
Government contended that since the applicant had submitted no new
information, the principle of res judicata rendered this part
of the complaint inadmissible.
- The
Court considers that it can leave open the question of whether the
principle of res judicata is applicable in the present
circumstances.
It notes that the first proceedings, which lasted
from 15 September 1995 until 21 October 1999 and involved three
levels of jurisdiction, do not appear to have lasted too long. In any
event, this part of the complaint is inadmissible as it was submitted
too late. The first proceedings came to an end with the decision of
the Federal Constitutional Court on 21 October 1999, which
constitutes the final domestic decision within the meaning of Article
35 § 1 of the Convention. That is more than six months before
the date on which the application was submitted to the Court.
The
part of the complaint relating to the proceedings concerning child
benefits until 31 December 1995 must therefore be declared
inadmissible.
2. The second set of proceedings (concerning child
benefits from 1 January 1996)
- As
to the second set of proceedings, concerning child benefits from
1 January 1996, the Government contended that Article 6 of the
Convention was not applicable to tax proceedings. They argued that
until 31 December 1995 child benefits had been granted
under the social benefits scheme, but from 1 January 1996
onwards they were granted on the basis of the Income Tax Act. The
Government explained that the Income Tax Act provided for child
benefits or a child-related tax exemption: all beneficiaries received
child benefits during the calendar year, then, when assessing income
tax for a specific year, the tax authorities examined whether the
child-related tax exemption was more advantageous for the beneficiary
than the child benefits paid monthly; if it was more advantageous,
the tax exemption was granted instead of the child benefits. The
purpose of this legislative amendment had been to take into account
the reduced capacity of parents to pay taxes by exempting from tax an
amount of income that corresponded to the level of subsistence of the
child. The Government admitted that “[i]nsofar as the child
benefit, paid monthly, [was] not necessary to make the level of
subsistence of the child exempt from tax, in particular with
low-income families, it serve[d] to promote the family and [was] to
be characterised as a social benefit”. The Government
nevertheless claimed that whether or not Article 6 was applicable to
child benefits under the Income Tax Act could not depend on the
individual case but had to be examined on a general level. The
Government concluded that the primary objective of child benefits was
to take into account parents' reduced capacity to pay taxes, which
was an issue related to the field of tax law and thus fell outside
the scope of Article 6.
- As
the Court has previously found, tax matters form part of the hard
core of public-authority prerogatives, with the public nature of the
relationship between the taxpayer and the community remaining
predominant. Accordingly, tax disputes fall outside the scope of
civil rights and obligations, despite the pecuniary effects they
necessarily produce for the taxpayer (see Ferrazzini v. Italy
[GC], no. 44759/98, § 29, ECHR 2001 VII).
- However,
the Court is not convinced by the Government's argument that the
issue at hand is a tax matter which falls outside the scope of
Article 6 of the Convention. As the Government recognised, the
child benefits granted under the Income Tax Act may be characterised
as social benefits at least as long as the tax exemption also
provided for under the Income Tax Act was not found to be more
advantageous for the taxpayer.
In the present case the domestic
proceedings only addressed the issue of whether the applicant was
entitled to the monthly payment of child benefits; there was no issue
of whether the applicant was entitled to an even more advantageous
tax exemption. Proceedings concerning such child benefits, even if,
as in the present case, they are granted under a fiscal scheme or may
subsequently be replaced for fiscal reasons by a more advantageous
tax exemption, are not excluded from the scope of Article 6. The
Court further finds that this part of the complaint is not
inadmissible on any other grounds. The complaint concerning child
benefits from 1 January 1996 must therefore be declared admissible.
B. Merits
1. Period to be taken into account
- The
relevant period to be taken into consideration begins with the date
when the applicant filed his objection, a necessary first step before
proceedings can be brought in the social courts (see Janssen v.
Germany, no. 23959/94, § 40, 20 December 2001, and
König v. Germany, judgment of 28 June 1978,
Series A no. 27, § 98). Therefore, the proceedings concerning
the child benefits from 1 January 2006 began on 15 September 1995;
they ended with the decision of the Federal Tax Court on 19
October 2007.
The total length of the proceedings thus amounted
to over 12 years.
Because of the referral from the social courts
to the tax courts, it involved two branches of the law, with two
levels of jurisdiction in the social courts (including one remittal)
plus an administrative level, and two levels of jurisdiction before
the tax courts.
2. Reasonableness of the length of proceedings
- 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).
a. The complexity of the case
- The
Government submitted that the proceedings were not straightforward in
so far as the child benefit system had undergone a major reform.
Moreover, the proceedings had given rise to the question of the
compatibility of the relevant provisions of the Child Benefits Act
and the Income Tax Act with the German Basic Law and the Convention.
The applicant made no submissions on that point.
- The
Court considers that the facts of the case were not of any particular
complexity as they were in the most part uncontested before the
courts. However, the case involved points of law of some complexity,
such as the compatibility with the Constitution of the relevant
provisions of Section 1 § 3 of the Child Benefits Act, and
according to the Tax Court that also applied to the equivalent
provision on child benefits regulated in Section 62 § 2 of the
Income Tax Act.
b. The conduct of the applicant and the
authorities
i. Before the Social Court of Appeal
- The
Government submitted that the applicant had delayed the proceedings
before the Social Court of Appeal since, after the Social Court had
rendered its judgment, he had requested the amendment of the
transcript of the hearing and of the Social Court's judgment to
include his claim for child benefits from April 1997. As a result,
the Social Court of Appeal had been obliged to wait for the decisions
of the social courts. The Government added that, although the
applicant had been informed that his requests were clearly unfounded,
since the defendant had admitted at the hearing the applicant's claim
for child benefits from April 1997, he had continued to insist that
the Social Court adjudicate on that claim. The Government also
submitted that the applicant had refused to provide necessary
documentation to enable the Social Court of Appeal to decide whether
the social courts were competent to examine the applicant's claim for
child benefits from 1 January 1996. The Social Court of Appeal
requested the documents from the applicant several times, initially
on 20 October 1997 and for the last time on 8 January 1998. The
Government contended that those two and a half months
could not be attributable to the courts. In addition, the Government
submitted that, after the proceedings were severed, the Social Court
of Appeal had again requested several times (starting on
28 October 1998) that the applicant submit certain
documents, but he had refused to cooperate (applicant's letter of 4
February 1999).
The Social Court of Appeal had
ultimately had to obtain the documents concerned from other
authorities. The applicant made no submissions.
- As
to the Government's argument that the applicant's numerous requests
were clearly unfounded, the Court notes that, while the applicant
cannot be blamed
for making
full use
of the remedies available to him under the domestic law, his
behaviour, however, is an objective fact which must be taken into
account for the purpose of determining whether or not the
“reasonable time”
has been exceeded (see Lesar v. Slovenia, no. 66824/01, §
30, 30 November 2006; and Girardi v. Austria, no. 50064/99,
§ 56, 11 December 2003). As to the Government's other
submissions, the Court finds that the periods in which the applicant
did not cooperate with the requests of the Social Court of Appeal
cannot be held imputable to the domestic courts.
ii. Before the Nuremberg Tax Court
- The
Government admitted that the length of proceedings before the
Nuremberg Tax Court, from 3 July 2001 to 6 April 2006, appeared quite
long. They contended, however, that several periods of delay could
not be imputed to the Tax Court.
- The
Government argued that, after the applicant objected to the referral
of the proceedings from the Social Court to the Tax Court, the
parties had agreed to suspend the proceedings before the
Nuremberg Tax Court.
- The
Government further submitted that the Tax Court had suspended the
proceedings from 6 June 2002 to 22 February 2006 since the issue of
the conformity of Section 62 § 2 of the Income Tax Act with the
German Basic Law was pending in different proceedings before the
Federal Tax Court. The Government argued that in the light of the
principle of procedural efficiency the suspension had been justified.
Moreover, it had been in the applicant's interest since, had the Tax
Court not suspended the proceedings to await the ruling of the
Federal Tax Court, it would have had to apply the law in force at the
time and would thus have rejected the applicant's claim. The
applicant submitted that he did not agree with the second suspension
of proceedings.
- Lastly,
the Government submitted that on 6 July 2004 the
Federal Constitutional Court found Section 1 § 3 of the
Federal Child Benefits Act to be in breach of the principle of equal
treatment under Article 3 of the Basic Law. The Federal
Constitutional Court gave the legislator until 1 January 2006 to
amend the law accordingly.
The Government argued that it had thus
been reasonable for the Tax Court to further suspend the proceedings
since it had been likely that the corresponding section of the Income
Tax Act would also be amended.
The applicant made no submissions
on this point.
- As
to the first suspension of the proceedings before the Nuremberg Tax
Court, to which the applicant and the defendant had agreed, the Court
considers that it ran from 19 September 2001 to 28 March 2002
and that this period of over seven months cannot be imputed to the
domestic courts.
- As
to the second suspension, to which the applicant objected on 4 July
2002, the Court reiterates that with regard to the conduct of the
national courts, it might be reasonable for them to await under
certain circumstances the outcome of parallel proceedings as a
measure of procedural efficiency. This decision must however be
proportionate having regard to the special circumstances of the case
(see, with further references, Kirsten v. Germany, no.
19124/02, § 43, 15 February 2007). The period of suspension
lasted approximately three years and nine months. The Court
understands that it was reasonable for the Tax Court in the present
circumstances to await the outcome of the Federal Tax Court's
decision, which had a direct impact on the case at hand. The Court
considers that a period of three years and nine months, particularly
in the light of the fact that the proceedings had been pending since
1995, is difficult to justify merely by referring to the principle of
procedural efficiency. However, the Court notes that within that
period, on 6 July 2004, the Federal Constitutional Court had
rendered a leading decision on the compatibility of the law on child
benefits with the German Basic Law.
-
The Court recalls that where there was a systemic wrong based on an
unconstitutional legislative act, it may be adequate to allow, as the
Federal Constitutional Court did, for a transitional period to enable
the State to react to the ruling and amend the law (see Niedzwiecki
v. Germany (dec.), no. 30209/05, 10 February 2009). The Court
notes that it was not Section 62 § 2 of the Income Tax
Act that the Federal Constitutional Court found to be incompatible
with the Constitution, but the corresponding section in the Federal
Child Benefits Act. It was nevertheless reasonable for the Tax Court
to believe that the incompatibility also extended to the equivalent
section in the Income Tax Act. In the specific circumstances of the
case, it was justified for the Tax Court to wait for the legislator
to act within the transitional period, that is, from 6 July 2004 to
1 January 2006.
c. What was at stake for the applicant in
the dispute
- The
Government submitted that the proceedings concerned a claim for child
benefits for the period from January 1996 to March 1997.
They
contended that the defendant had recognised at the hearing on
21 April 1997 the existence of a child benefit claim for
the period from April 1997 onwards. The parties had then agreed that
the matter before the court concerned only the child benefits prior
to April 1997. The applicant denied that he had agreed to that,
alleging that he had sought child benefits for the whole period since
the birth of his child, without indicating any end date.
- The
Court notes that the Government filed a transcript of the hearing of
21 April 1997 in which it is stated that the parties agreed that the
matter before the court concerned only the child benefits prior to
April 1997; the applicant's objection to that transcript was of no
avail. In any event, the Court notes that the applicant received
child benefits from April 1997 until July 1997, after which the
payments were stopped because of the applicant's lack of cooperation.
The Court accordingly finds that the relevant proceedings concerned
the period until March 1997. The amount owed by the defendant, though
not negligible, was limited to a fixed period and did not increase
while the proceedings were pending before the courts.
The
financial prejudice suffered by the applicant did not increase over
time.
d. The Court's conclusion
- The
Court considers that several periods cannot be held imputable to the
domestic courts, inter alia because the applicant had not duly
cooperated with the courts. Nevertheless, in view of the protracted
length of the proceedings before the Social Court of Appeal and the
Tax Court and having examined all the material submitted to it, 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 OF THE CONVENTION
- The
applicant complained, in general terms, that the decisions of the
authorities and courts had infringed his human rights. He referred,
inter alia, to his submissions made in the proceedings
concerning application no. 58453/00, in which he had complained that
his claim for child benefits had been indivisible and the proceedings
should not have been split, and that the Federal Constitutional Court
had refused to issue an interim order in his favour in 1999.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence and raise new
issues at all, the Court finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
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 EUR 5,000 in respect of non-pecuniary damage.
-
The Government contested the claim, submitting that it was excessive
considering that the amount did not increase over time and that the
applicant had contributed to the length of the proceedings.
- The
Court, ruling on an equitable basis, finds that in view of the
applicant's conduct in the domestic proceedings and the specific
circumstances of the present case the finding of a violation of
Article 6 § 1 of the Convention is sufficient just satisfaction
for any non-pecuniary damage suffered by the applicant. It therefore
dismisses this claim.
B. Costs and expenses
- The
applicant claimed a lump sum of EUR 2,000 for the costs and expenses
incurred before the social courts and for those incurred before the
Court. He submitted that he had incurred lawyer's fees before the
social courts of around (1,479.15 German Marks (DM),
approximately EUR 755). The applicant additionally submitted
that on 14 January 2008 the Nuremberg Tax Court had ordered the
defendant to pay EUR 50 plus interest, but the authorities had not
paid. The applicant also claimed that the defendant had not paid his
wife the child benefits from August 1997 until November 2001, without
paying interest.
- The
Government submitted that the applicant had not sufficiently
specified and substantiated his claim for EUR 2,000.
- 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 were reasonable as to quantum. The Court has already
considered the claim of DM 1,479.15 regarding the social proceedings
in its previous judgment (see Niedzwiecki v. Germany, cited
above, §§ 44-46); it is not for the Court to reconsider its
finding concerning this amount in the present case. As to the other
claims, the Court considers that the applicant has failed to
sufficiently establish a link to the present proceedings. With
respect to costs and expenses for the proceedings before the Court,
the Court considers that the applicant has not sufficiently specified
his claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings concerning the child benefits from
1 January 2006 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of violations constitutes
in itself sufficient just satisfaction for any non-pecuniary
damage sustained by the applicants;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
