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FIFTH
SECTION
CASE OF SCHÄDLICH v. GERMANY
(Application
no. 21423/07)
JUDGMENT
STRASBOURG
24 June 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Schädlich 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 31 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21423/07) 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, Mr Ludwig
Schädlich (“the applicant”), on 7 May 2007.
- The
German Government (“the Government”) were represented by
their Agent Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
3 February 2009 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings 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 remainder
of the application to a Committee. It was also decided to rule on its
admissibility and merits at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Bautzen.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
A. Background to the case
- The
applicant had been a member of the German Democratic Republic police
service since December 1975. In 1990 he became an employee
(Angestellter) of the police service of the Federal
Republic of Germany and with effect from 1 January 1992 was appointed
police officer in the capacity of civil servant on probation
(Beamtenverhältnis auf Probe).
- On
the occasion of a car accident that occurred on 8 August 1992 while
the applicant was on duty, his shoulder and head were injured. The
accident was recognised as an occupational accident by the relevant
authorities. Due to his injuries the applicant was on sick leave
until 21 March 1993. From 8 April 1994 he was
certified permanently unfit for service by his doctor.
- By
a letter dated 8 December 1994 the applicant was informed by the
Dresden Police Headquarters (Polizeipräsidium) that it
was intending to dismiss him from his duties on the ground that he
lacked the necessary professional qualifications for his post.
- By
a decision of 23 February 1995 his probationary period was extended
until 31 December 1995.
- On
the basis of a medical expert opinion obtained at the request of the
Medical Service of the Dresden Police Headquarters on
27 January 1995, which established that the applicant was
suffering from personality disorders and organic brain damage which
were unlikely to be consequences of the said car accident, the
Medical Service certified on 26 July 1995 that the applicant was
permanently unfit for the police service and expressed its concerns
regarding his appointment as a civil servant for life.
- On
2 August 1995 the applicant was informed that it was intended to
dismiss him from the police service on the ground that he lacked the
necessary physical fitness to carry out his duties. The applicant
asked for the involvement of the District Staff Council
(Bezirkspersonalrat) and pointed out that his state of
health would justify his retirement. The District Staff Council
approved the dismissal on 15 August 1995.
- On
24 August 1995 the Dresden Police Headquarters ordered the
applicant’s dismissal on the ground that he was physically
incapable of performing his functions as a police officer. It further
ordered the immediate enforcement of its decision.
B. The proceedings before the administrative courts
- By
a letter dated 6 September 1995 the applicant objected to the Police
Headquarters’ notice of dismissal, giving as a reason that his
state of health was a consequence of an occupational accident and was
no fault of his own.
- On
11 September 1995 he applied to the Dresden Administrative Court for
reinstatement of the suspensive effect (Wiederherstellung der
aufschiebenden Wirkung) of his objection in accordance with the
relevant provisions of domestic law. The Dresden Police Headquarters
thereupon lifted the order for the immediate enforcement of the
dismissal order by letter dated 15 September 1995.
- By
a decision of 26 February 1996, which was served on the applicant on
1 March 1996, the Dresden Police Headquarters dismissed the
applicant’s objection of 6 September 1995 and reordered the
immediate enforcement of the dismissal order of 24 August 1995. They
found that the applicant’s incapacity was not a consequence of
the said car accident but of unrelated physical and mental conditions
and that he was thus not eligible for retirement and to claim pension
benefits.
- On
18 March 1996 the applicant lodged a request for interim measures
with the Dresden Administrative Court.
- On
27 March 1996 he brought an action against the Free State of Saxony
with the Dresden Administrative Court.
- On
29 April 1996 the Administrative Court reinstated the suspensive
effect of the action against the dismissal order of 24 August 1995.
The Administrative Court found that there was no prevailing public
interest that could justify the immediate enforcement of the
dismissal.
- On
a complaint by the Free State of Saxony, the Saxon Administrative
Court of Appeal (Oberverwaltungsgericht) by a decision of
1 February 1999 amended the decision of the Administrative
Court and restricted the suspension of the said decisions to the
effect that the Police Department was obliged to provisionally
continue salary payments to the applicant in an amount equal to his
pension entitlements and for the rest confirmed their immediate
enforcement.
- By
decisions of 27 July 1999 and 9 October 2000 the Dresden
Administrative Court ordered expert opinions on the applicant’s
physical and mental condition, which were issued on 26 October 1999
and 22 November 2000 respectively.
- On
12 June 2001 a hearing took place. By judgment of the same day the
Administrative Court set aside the dismissal order of 24 August 1995.
The Administrative Court found that the applicant’s dismissal
was unlawful and that he was entitled to retirement since his
physical and mental disorders were a consequence of his occupational
accident.
- On
31 August 2001 the Free State of Saxony lodged a request to be
granted leave to appeal with the Dresden Administrative Court since
there was no evidence that the applicant’s incapacity had been
caused by the occupational accident. The Saxon Administrative Court
of Appeal granted leave to appeal by decision of 16 April 2003 which
was served on the applicant on 2 May 2003.
- On
24 September 2003 the Court of Appeal ordered a neurological and a
psychological expert opinion and on 24 October 2005 a psychiatric
expert opinion on the question as to whether the applicant’s
mental disorders had been caused by the occupational accident of 8
August 1992. The expert opinions were rendered on 7 and 18 February
2004 and on 6 March 2006 respectively.
- On
10 July 2006 a hearing took place on the occasion of which the
experts explained their findings.
- On
12 July 2006 the Court of Appeal set aside the judgment of the
Dresden Administrative Court. It held that it was not established
that the applicant’s physical and mental troubles were related
to the accident and dismissed the applicant’s action.
- On
4 October 2006 the applicant lodged a complaint against the Court of
Appeal’s refusal to grant him leave to appeal to the Federal
Administrative Court.
- On
7 November 2006 the Federal Administrative Court
(Bundesverwaltungsgericht) rejected the applicant’s
complaint as inadmissible on the ground that the applicant had failed
to substantiate his allegation that the proceedings had been flawed
by procedural shortcomings that might have affected the decision of
the Court of Appeal. The decision was served on the applicant’s
counsel on 17 November 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings before the
administrative courts, in particular before the Dresden
Administrative Court and the Saxon Administrative Court of Appeal 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 conceded that there had been delays in the proceedings
which were attributable to the domestic courts and that the conduct
of the applicant for whom the dispute was of particular importance
had not significantly contributed to their length. The Government
specified that while there was no indication that the length of the
proceedings in connection with the applicant’s administrative
appeal and the proceedings before the Federal Administrative Court
failed to comply with the “reasonable time” requirement,
there had indeed been delays of in total three years and one month in
the proceedings attributable to the Dresden Administrative Court, a
delay of eighteen months following the applicant’s application
to be granted leave to appeal with the Saxon Administrative Court of
Appeal and another period of at least fifteen months and three weeks
attributable to this court during the subsequent appeal proceedings.
However, the regrettable length of the proceedings had not only been
due to the complexity of the case that had required the taking of
several expert opinions with sometimes divergent results but in
particular to an exceptional workload of the Dresden Administrative
Court and the Saxon Administrative Court of Appeal as a consequence
of subsisting staff shortages in the administrative court system in
Saxony that had been newly established following German
reunification.
- The
period to be taken into consideration began on 6 September 1995,
when the applicant lodged his administrative appeal and ended on
17 November 2006, when the decision of the Federal
Administrative Court was served on the applicant. It thus lasted over
eleven years and two months for one level of compulsory
administrative appeal and three 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 further reiterates that special
diligence is necessary in employment disputes (Ruotolo v. Italy,
judgment of 27 February 1992, Series A no. 230 D, p. 39, §
17).
- 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. As to the conduct of the proceedings, the Court
accepts that there is no indication that the length of the
proceedings in connection with the applicant’s administrative
appeal and the proceedings before the Federal Administrative Court
failed to comply with the “reasonable time” requirement
under Article 6 § 1 of the Convention. The Court further
accepts that the proceedings were of some complexity and necessitated
the taking of several expert opinions at different levels of
jurisdiction. However, these difficulties do not explain the
considerable periods of inactivity by the Dresden Administrative
Court and the Saxon Administrative Court of Appeal which are not
contested by the Government. In this connection the Court also takes
note of the Government’s submissions that the Dresden
Administrative Court and the Saxon Administrative Court of Appeal
were subject to an overload of work as a consequence of subsisting
staff shortages in the newly constructed administrative court system
in Saxony following German reunification. The Court recalls in this
respect that it is for the Contracting States to organise their legal
systems in such a way that their courts can guarantee to everyone the
right to a final decision within a reasonable time in the
determination of his or her civil rights and obligations (see
Frydlender, cited above, § 45). While acknowledging that
a temporary backlog of court business may not entail a Contracting
State’s international liability if that State takes appropriate
remedial action with the requisite promptness (see Klein v.
Germany, no. 33379/96, § 43, 27 July 2000), the Court
nevertheless notes that the applicant in the instant case first had
recourse to the domestic courts in March 1996, more than five years
after the reunification treaty entered into force. The proceedings
lasted until 2006 and, as conceded by the Government, delays
attributable to the domestic courts have repeatedly occurred
throughout this period. The Court reiterates in this context that
according to its established case-law, a chronic overload of court
business cannot justify an excessive length of proceedings (see Gast
and Popp v. Germany, no. 29357/95, § 75, ECHR 2000 II).
- 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.
II. 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 just satisfaction in respect of non-pecuniary
damage and left the amounts to be awarded at the Court’s
discretion.
- 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 him EUR 4,000
under that head.
B. Costs and expenses
- The
applicant did not submit a claim for reimbursement of costs and
expenses incurred before the domestic courts or the Court.
Accordingly, the Court considers that there is no call to award him
any sum on that account.
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 application
admissible;
- 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 4,000 (four thousand euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable to him on this amount;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount 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 24 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
