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FIFTH
SECTION
CASE OF WILDGRUBER v. GERMANY
(Applications
no. 42402/05 and no. 42423/05)
JUDGMENT
STRASBOURG
21
January 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 Wildgruber v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 42402/05 and 42423/05)
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,
Mr Erwin Wildgruber (“the applicant”), on 7
and 8 November 2005 respectively.
- The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- On
29 January 2008 the Court decided to join the applications, declared
the applications partly inadmissible and decided to communicate the
complaints concerning the length of the custody proceedings and the
lack of remedies in that respect to the Government. It also decided
to examine the merits of the applications at the same time as their
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1935 and lives in Harmstorf, Germany.
- The
applicant and Mrs W-L (born in 1965) married in May 1994. Their son
P. was born on 30 November 1994. The applicant also adopted Mrs W-L’s
son J. M., who had been born on 19 April 1991. Since the spouses’
separation in May 1997 both children have lived with Mrs W-L. The
applicant then entered into a relationship with another woman, Ms N.
They had a daughter (A.) born in 1998.
1. Proceedings before the Winsen (Luhe) District Court
a. The first phase of the proceedings
(Judge R.)
- On
13 January 1998 the applicant filed a divorce petition with the
Winsen (Luhe) District Court. By submissions dated 15 January 1998 he
requested sole custody of the two children J. M. and P.
On 27
February 1998 his wife, Mrs W-L, requested sole custody of their
children.
- In
March and April 1998 the District Court (Judge R.) requested the
parties and their insurers to submit all information necessary for
the adjustment of the parties’ pension rights
(Versorgungsausgleich).
The information requested reached
the court by July 1998.
- On
14 September 1998 the Harburg Youth Office submitted a report.
It
argued that in view of their continual quarrels Mrs W-L and the
applicant were unable to exercise custody of their children jointly.
- On
18 September 1998 the District Court held a hearing. The parties
subsequently submitted their observations concerning Mrs W-L’s
claim for maintenance, which she had lodged only at the hearing.
- In
two notes for the records dated 14 January and 16 March 1999 the
District Court judge stated that in view of his increased caseload,
he could not currently take the present proceedings further.
- On
7 April 1999 the Harburg Youth Office confirmed that it was
impossible for the parties to agree on issues concerning their
children and urged the court to decide speedily.
- On
17 May 1999 and on 21 June 1999 the Winsen (Luhe) District Court
refused requests made by the applicant, inter alia, on 1 June
1999 by reference to Article 623 § 2 of the Code of Civil
Procedure
(see paragraph 48 below) to separate the divorce
proceedings from the proceedings concerning ancillary matters
(Folgesachen), in particular custody and maintenance, in order
to decide on his divorce beforehand.
It found that the legal
requirements to do so laid down in Article 628 of the Code of Civil
Procedure (see paragraph 49 below) had not been met. There had not
been an extraordinary delay in the divorce proceedings. This was, as
a rule, only the case when proceedings had been pending for more than
two years. Moreover, the applicant was not suffering undue hardship
as a result of the fact that the decision on the divorce and on all
ancillary matters would be given at the same time.
- On
28 June 1999 the applicant refused to return the children to their
mother following the exercise of his right of contact and absconded
with them.
- By
an interim order of 20 July 1999 the District Court, having held a
hearing in the presence of the parties on 16 July 1999 concerning the
applicant’s divorce petition and all ancillary matters, awarded
Mrs W-L sole custody of J. M. and P. and ordered the applicant to
return the children immediately to her. The applicant had been asked
by the court to bring the children along to the hearing, but had not
done so.
- On
27 August 1999 the court cancelled the hearing scheduled for that day
to pronounce its judgment and fixed another hearing instead, arguing
that in view of recent events both children would have to be heard
again on the question of custody.
- On
5 October 1999 the applicant lodged a disciplinary complaint and a
motion for bias against District Court Judge R., arguing that he had
delayed the proceedings and had proved to be biased in the hearing on
16 July 1999 as he had reprimanded him for not returning the
children to their mother.
- On
4 November 1999 the Celle Court of Appeal allowed the applicant’s
complaint of bias, referring to Judge R.’s submissions dated
13 October 1999. The latter had stated that following the
applicant’s unfounded accusations, he had no longer felt able
to conduct the proceedings in an impartial manner. By a decision of
the same day and following an exchange of observations between the
parties, the court also dismissed the applicant’s appeal
against the District Court’s decision awarding sole custody to
Mrs W-L by way of an interim injunction and the order that he
return the children.
- The
applicant returned the children to their mother on
11 November
1999.
b. The second phase of the proceedings
(Judge D.)
- By submissions dated 6 December 1999 the applicant
requested the court to expedite the proceedings.
- On
22 March 2000 District Court Judge D., who had been assigned the
case, held a hearing (fixed on 7 February 2000) on a request by the
applicant for rectification of the record of the hearing on 16 July
1999.
He decided on 19 April 2000 that only Judge R. had
authority to change the minutes.
- On
11 May 2000 the applicant requested the court, inter alia, to
separate the divorce proceedings from the proceedings concerning the
ancillary matters. He later withdrew his request to separate the
proceedings.
- On
16 October 2000 the District Court, having held a further hearing on
the question whether the minutes of the hearing of 16 July 1999
should be rectified, decided that it did not have jurisdiction to do
so.
- On
28 December 2000 the District Court ordered the applicant to submit
additional information on his income. The applicant sent the
requested documents to the court on 22 February 2001.
- On
5 April 2001 the applicant requested the District Court also to
apportion the increase in the spouses’ assets during their
marriage (Zugewinnausgleich) in the course of the divorce
proceedings.
- On
3 May 2001 the applicant lodged a complaint of failure to act
(Untätigkeitsbeschwerde) with the Celle Court of Appeal,
which was followed up by additional reasons on 16 May 2001.
- On
12 July 2001 the Celle Court of Appeal dismissed the applicant’s
complaint of failure to act as inadmissible, as no appeal lay to it.
An extraordinary appeal might lie in cases in which a court
failed to expedite the proceedings in a manner which amounted to a
denial of justice. The court conceded that the divorce proceedings
had been dealt with slowly since December 1999 and have only been
expedited by the District Court’s decision of 28 December 2000.
However, it was no longer necessary to decide whether proceeding in
this manner amounted to total inactivity.
The District Court had
fixed a date for a hearing on 15 August 2001 in the meantime and the
applicant had withdrawn his request to separate the divorce
proceedings from the proceedings on the ancillary matters.
The
requirements for a complaint of failure to act were thus no longer
met.
- On
15 August 2001 the District Court held a hearing on the applicant’s
claim for apportionment of the increase in the spouses’ assets
during their marriage and his renewed request to separate the divorce
proceedings from the ancillary matters.
- On
7 September 2001 the District Court delivered a partial judgment on
the applicant’s request for apportionment of the increase in
the spouses’ assets during their marriage, in which it ordered
Mrs W-L to inform the applicant of what assets she owned in February
1998.
- On
23 October 2001 the District Court refused the applicant’s
request of 9 August 2001, which he had based both on Article 628 and
on Article 623 § 2 of the Code of Civil Procedure, to separate
the divorce proceedings from the ancillary matters. The applicant had
argued that he wanted to obtain his divorce beforehand in order to be
able to remarry and to provide financial security for his new family.
The court, relying on Article 628 of the Code of Civil Procedure,
found that the refusal to separate the proceedings had delayed the
decision on the divorce petition. This did not, however, cause undue
hardship to the applicant, as he had caused the delays. By lodging an
unfounded criminal and disciplinary complaint against Judge R. he had
caused the latter to consider himself biased. Following the change of
judges, he had pursued his unfounded requests for rectification of
the record. He had then applied for apportionment of the increase in
the spouses’ assets during the marriage, which had further
prolonged the proceedings for an unspecified period of time.
- By
submissions dated 26 October 2001 the applicant lodged an appeal
against the partial judgment of 7 September 2001, which he withdrew
on 27 November 2001.
- On
11 January 2002 the Celle Court of Appeal dismissed as inadmissible
an extraordinary appeal by the applicant (außerordentliche
Beschwerde) lodged on 16 December 2001 against the District
Court’s decision dated 23 October 2001, as no appeal lay
against the District Court’s decision. Even assuming that such
an appeal lay against the decision, it would be ill-founded.
c. The third phase of the proceedings
(Judges Ro. and E.)
- Between
April and June 2002 the case was assigned to Judge Ro., who noted in
April 2002 that due to the court’s backlog, he was not
currently in a position to further the proceedings. From July 2002
onwards the case was assigned to Judge E.
- On
27 October 2002 the applicant lodged another complaint with the Celle
Court of Appeal that the District Court had failed to act. The Celle
Court of Appeal subsequently declared the applicant’s complaint
to be without object as the District Court had fixed a date for a
hearing in the meantime.
- On
12 December 2002 District Court Judge E. informed the applicant that,
in view of the court’s backlog, delays in dealing with the
voluminous file were inevitable.
- On
2 January 2003 the applicant amended his action; Mrs W-L subsequently
replied in writing.
- On
20 March 2003 the District Court heard J. M.
- On
18 and 23 April and 26 May 2003 the applicant made submissions
concerning the custody of the two children.
- On
30 April 2003 the District Court held a further hearing on the
divorce petition, custody, and the apportionment of the increase in
the spouses’ assets during their marriage, as well as
maintenance.
- On
15 May 2003 the District Court heard P.
- By
judgment of 8 July 2003, the Winsen (Luhe) District Court granted the
parties’ divorce and awarded Mrs W-L sole custody of J. M. and
P. This guaranteed them continuity and was in their best interests,
given that the children had been living with their mother for the
past six years and had built up a stable social environment at their
present place of residence.
The District Court further decided on
the adjustment of the divorced couple’s pension rights and on
the maintenance the applicant was to pay Mrs W-L and their two
children and fixed the amount of money Mrs W-L was to pay the
applicant to apportion the increase in the spouses’ assets
during their marriage.
2. Proceedings before the Celle Court of Appeal
- On
11 August 2003 the applicant appealed against the District Court’s
judgment as regards custody, maintenance and the adjustment of the
divorced couple’s pension rights. He submitted detailed reasons
for his appeal on 17 October 2003.
- By
a decision of 27 January 2004 the Celle Court of Appeal, having held
a hearing on 13 January 2004, dismissed the applicant’s appeal
against the District Court’s judgment. Endorsing the reasons
given by the District Court, it found, in particular, that awarding
sole custody of J. M. and P. to Mrs W-L was in the children’s
best interest.
3. Proceedings before the Federal Constitutional Court
- On
1 March 2004 the applicant lodged a complaint with the Federal
Constitutional Court against the judgment of the Winsen (Luhe)
District Court dated 8 July 2003 and the decision of the Celle Court
of Appeal dated 27 January 2004.
- On
21 April 2005 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 1 BvR
510/04).
It found, in particular, that the applicant’s
complaint about the length of the proceedings was inadmissible. Given
that the proceedings before the family courts had been terminated,
the applicant no longer had a legal interest in a decision by the
Constitutional Court.
- The
decision was served on the applicant’s counsel on 9 May 2005.
II. RELEVANT DOMESTIC LAW
- Article
622 et seq. of the Code of Civil Procedure lay down procedural rules
for divorce proceedings and ancillary matters.
- In
so far as, in the case of divorce, a decision has to be taken on
maintenance payments, the adjustment of pension rights or the
apportionment of the increase in the spouses’ assets during
their marriage, and one of the spouses requests a decision on these
issues in due time, the court has to try these issues together with
and at the same time as the divorce petition (ancillary matters). If
the divorce is granted, the court will decide on the ancillary
matters simultaneously (Article 623 § 1 of the Code of Civil
Procedure).
- Moreover,
a spouse’s request to be granted sole custody of a child is an
ancillary matter if lodged in due time. However, the court can
separate this matter from the divorce proceedings at the request of
one of the spouses (Article 623 § 2 of the Code of Civil
Procedure).
- Under
Article 628 of the Code of Civil Procedure, the court may grant a
divorce prior to its decision on ancillary matters, in particular if,
as a result of its duty to decide on ancillary matters at the same
time, the decision on the divorce petition would be postponed to the
extent that the delay, regard being had also to the importance of the
ancillary matters, would cause undue hardship.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- In
the applicant’s submission, the duration of the custody
proceedings, which had lasted for approximately seven years and four
months, had been excessive and had resulted in custody of his sons
being awarded to Mrs W-L for reasons of continuity. He relied on
Articles 6 and 8 of the Convention.
- The
Court finds that the complaint falls to be examined under Article 6
§ 1 alone which, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
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
1. The parties’ submissions
- The
applicant argued that compared to other custody proceedings, the
proceedings at issue had not been very complex. The District Court
had considerably delayed the proceedings for a total of approximately
27½ months, inter alia by unlawfully rejecting his
requests of 1 June 1999 and of 9 August 2001 under Article 623 §
2 of the Code of Civil Procedure to separate the divorce proceedings
from the ancillary matters, to grant the divorce and also to decide
on custody more speedily. Judge D. had only dealt with procedural
matters in 2000 instead of dealing with the case on the merits. The
subsequent changes in the judge to whom the case was assigned had
again delayed the proceedings.
- The
applicant further submitted that he had not himself delayed the
proceedings. As to his failure to bring the children along with him
to the court hearing on 16 July 1999 he submitted that he had been
unaware that he was obliged to do so. Moreover, he had had the right
to lodge justified requests and appeals in the proceedings. When he
had lodged his request to apportion the increase in the spouses’
assets during their marriage in the course of the divorce proceedings
on 5 April 2001, the proceedings should have been terminated a long
time before.
- The
Government accepted that the custody proceedings had lasted quite a
long time. They submitted that the proceedings had been particularly
complex as the parties had accused each other of serious misconduct.
There had been certain delays in the proceedings, notably between
November 1998 and May 1999 due to the District Court’s heavy
workload and between 7 February and 27 December 2000 as the District
Court had not examined the merits of the parties’ claims in
addition to the applicant’s request for rectification of the
record of a prior hearing. Moreover, the proceedings had not always
been furthered between April 2002 and February 2003. However, the
District Court had already taken an interim decision on custody on 20
July 1999 which had later been confirmed in the main proceedings.
- The
Government argued that the applicant had considerably delayed the
proceedings, and not only by lodging numerous requests, submissions
and unfounded appeals. He had abducted the children in 1999, thereby
frustrating the District Court’s intention to hear them in
person on
16 July 1999, and had provoked Judge R. to declare
himself biased by making manifestly unfounded accusations against
him. Moreover, he had lodged a request also to apportion the increase
in the spouses’ assets during their marriage in the course of
the divorce proceedings only on
5 April 2001, which delayed the
decision, to be taken simultaneously, on custody. He further failed
to lodge a request under Article 623 § 2 of the Code of Civil
Procedure to separate the custody proceedings from the remainder of
the proceedings. Even though he had invoked that Article on some
occasions before the District Court, his requests had only been aimed
at accelerating his divorce and not at obtaining a decision on
custody more speedily.
2. The Court’s assessment
- 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). In cases relating to civil status, what is at
stake for the applicant is also a relevant consideration, and special
diligence is required in view of the possible consequences which the
excessive length of proceedings may have, notably on enjoyment of the
right to respect for family life (Laino v. Italy [GC],
no. 33158/96, § 18, ECHR 1999-I).
- The
Court considers that the period to be taken into consideration began
on 15 January 1998, when the applicant requested custody of J.M. and
P., and ended on 9 May 2005, when the decision of the Federal
Constitutional Court was served on the applicant’s counsel. It
thus lasted more than seven years and three months for three levels
of jurisdiction.
- The
Court considers that the custody proceedings were of some complexity
due to the parties’ animosity and the resulting considerable
number of submissions lodged. However, what rendered the proceedings
difficult for the domestic courts and delayed the decision on custody
was notably the fact that, as prescribed by Articles 622 et seq. of
the Code of Civil Procedure (see paragraphs 46-47 above), the
domestic courts took their decision on custody at the same time as
their decision on the parties’ divorce and on all other
ancillary matters.
- As
to the applicant’s conduct, the Court considers that he
contributed to the delays in the custody proceedings to a certain
extent, in particular by absconding with J.M. and P. and by refusing
to comply with the District Court’s request to bring them along
to the hearing in July 1999. Moreover, by lodging his request to
apportion the increase in the spouses’ assets during their
marriage only at an advanced stage of the proceedings, he delayed the
District Court’s decision on custody, which the latter had
decided to take at the same time as that on divorce and all other
ancillary matters. The fact that the applicant lodged an appeal
against the District Court’s partial judgment which he
subsequently withdrew also prolonged the proceedings. Furthermore,
having regard to the applicant’s submissions to the District
Court of 1 June 1999 and of 9 August 2001 (see paragraphs 12 and 29
above), the Court is satisfied that the applicant lodged a request by
reference to Article 623 § 2 of the Code of Civil Procedure. He
had thus put the District Court in a position to separate the custody
proceedings from the remainder of the proceedings. However, it was
clear from the wording of his requests and their reasoning that the
applicant intended to accelerate his divorce and a separate decision
on custody only would probably not have served this aim.
- As
to the conduct of the domestic courts, the Court observes that,
whereas the custody proceedings were conducted with due diligence by
the Court of Appeal and the Federal Constitutional Court, they were
pending before the District Court for more than five years and five
months. As the Government essentially admitted themselves, the
proceedings had been delayed at first instance following the hearing
in September 1998 until May 1999 and had not been examined on
the merits between November 1999 and December 2000. Furthermore,
the proceedings had not been furthered between January 2002 and March
2003 following two changes in the judge to whom the case was
assigned. Moreover, as indicated above, the decision on custody alone
was delayed due to the fact that the District Court, as provided by
the Code of Civil Procedure, took a decision on the divorce and all
ancillary matters simultaneously. The Court reiterates in this
connection that Article 6 § 1 imposes on the Contracting States
the duty to organise their judicial systems in such a way that their
courts can meet each of its requirements, including the obligation to
hear cases within a reasonable time (see, among many other
authorities, Süßmann
v. Germany, 16 September
1996, § 55, Reports of Judgments and Decisions 1996 IV;
Scordino v. Italy (no. 1) [GC], no. 36813/97, §
183, ECHR 2006 V; and Cocchiarella v. Italy [GC],
no. 64886/01, § 74, ECHR 2006 V). The Court accepts that it
may, as a rule, be in the interest of the proper administration of
justice to decide on all matters linked to the divorce of a couple
simultaneously. Nevertheless, it finds that special diligence was
required because of the decision on custody (compare, inter alia,
Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000 VIII,
and Niederböster
v. Germany, no. 39547/98, §
39, ECHR 2003 IV (extracts)) as excessive duration of custody
proceedings may lead to a de facto decision on custody for
reasons of continuity. In view of the foregoing, the length of the
custody proceedings failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that he had not had an effective remedy
in domestic law to complain about the unreasonable duration of the
custody proceedings. He relied on Article 13 of the Convention in
this respect, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that this complaint, which is linked to the one examined
above, 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 likewise be
declared admissible.
B. Merits
- The
applicant referred to the Court’s findings in the case of
Sürmeli v. Germany ([GC], no. 75529/01, ECHR 2006 VII)
to the effect that there was no effective remedy in the German legal
system to complain about the length of civil proceedings. Germany had
to date failed to execute that judgment by introducing an effective
preventive or compensatory remedy. In particular, he had not been
able to obtain redress before the Court of Appeal or the Federal
Constitutional Court.
- The
Government conceded that an effective domestic remedy to complain
about the duration of civil proceedings had not yet been created.
Germany was still called upon to execute the Court’s judgment
in the case of Sürmeli (cited above) of 8 June 2006 in
this respect. However, there was still a need for consultation
between the Federal Government and Parliament on the manner in which
such a remedy should work.
As confirmed by Chancellor Angela
Merkel on her visit to the Court in April 2008, the authorities’
work on creation of such a remedy was being pursued intensively.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). In respect of German law it found that there was no
effective remedy providing adequate redress for the excessive
duration of pending civil proceedings (see Sürmeli, cited
above, §§ 103 et seq.) and of terminated civil proceedings
(see Herbst v. Germany, no. 20027/02, §§ 63 et seq.,
11 January 2007).
- The
Court, having regard to the parties’ submissions and to its
above case-law, concludes that the applicant had not had at his
disposal an effective remedy in German law to deal with his arguable
complaint under Article 6 about the unreasonable duration of the
custody proceedings.
It takes note of the Government’s
submissions concerning the legislative procedure to introduce an
appropriate remedy in order to execute the Court’s previous
judgments. This procedure has now been under way for quite a
considerable time. The Court again (see Sürmeli, cited
above, §§ 136-139, and Bähnk v. Germany,
no. 10732/05, § 45, 9 October 2008) encourages the respondent
State to speedily enact a law introducing an effective remedy capable
of affording adequate redress for the unreasonable length of civil
proceedings in order to comply with its obligation under Article 46
of the Convention.
- Accordingly,
there has been a violation of Article 13.
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 at least 25,000 euros (EUR) in respect of
non-pecuniary damage. He argued that the duration of the custody
proceedings, during which he had been uncertain about their outcome
and which had to be treated with particular diligence, and the fact
that he had not had any remedy to accelerate these proceedings, had
caused him considerable distress. Moreover, Germany had failed to
comply with its obligation under Article 1 of the Convention to
implement the Court’s findings in the case of Kudła
(cited above) in due time. Therefore, the sum awarded should be
higher than usually for reasons of general prevention.
- The
Government did not comment on the applicant’s claim.
- The
Court considers that the applicant must have sustained
non-pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 4,500
under that head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant, who submitted documentary evidence, also claimed EUR
2,861.18 (including VAT) for counsel’s fees and expenses
incurred before the domestic courts in the proceedings for failure to
act brought in May 2001 before the Celle Court of Appeal and in the
proceedings before the Federal Constitutional Court. He further
claimed EUR 3,365.56 (including VAT) for costs incurred before the
Court concerning his complaints under Article 6 and Article 13. These
included EUR 3,118.22 (including VAT) for counsel’s fees and
expenses and EUR 247.34 for copy and mailing costs incurred by the
applicant in person.
- The
Government did not make any observations on that point.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 5,000 covering costs
and expenses under all heads, plus any tax that may be chargeable to
the applicant.
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 remainder of the applications
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention,
(i) EUR
4,500 (four thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(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 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
