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FIFTH
SECTION
CASE OF KÜBLER v. GERMANY
(Application
no. 32715/06)
JUDGMENT
STRASBOURG
13 January
2011
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 Kübler v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Bertram Schmitt, ad
hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32715/06) 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
Tobias Kübler (“the applicant”), on 9 August 2006.
- The
applicant was represented by Mr C. Lenz, a lawyer practising in
Stuttgart. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- The
applicant complained, in particular, about a violation of his right
to effective access to a court.
- On
23 June 2009 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning access to a court
to the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
- Mrs R. Jaeger, the judge elected in respect of Germany,
having withdrawn from sitting in the case, the Government appointed
Mr Bertram Schmitt to sit as an ad hoc judge.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1960 and lives in Stuttgart.
- The applicant has been practising as a lawyer since
1989.
In November 2001 the applicant applied for one of the six
posts of advocate notary (Anwaltsnotar) officially advertised
by the Baden-Württemberg Ministry of Justice (hereafter: “the
Ministry of Justice”) enabling qualified lawyers to practise
simultaneously as a solicitor and as a notary in the Stuttgart court
circuit.
1. Proceedings prior to the remittal by the Federal Constitutional
Court
- On
18 March 2002 the Ministry of Justice informed the applicant that it
intended to appoint six other lawyers as advocate notaries. The
applicant's subsequent request to compel the Ministry of Justice to
review its decision was dismissed by the Stuttgart Court of Appeal.
- On
31 March 2003 the Federal Court of Justice rejected the applicant's
appeal.
- On
3 April 2003 the applicant informed the Ministry of Justice that he
intended to lodge a constitutional complaint with and apply for
interim legal protection to the Federal Constitutional Court. He
requested the Ministry of Justice to await the outcome of the
proceedings before the Federal Constitutional Court before appointing
the advocate notaries.
- On
7 April 2003 the Ministry of Justice informed the applicant it would
no longer wait to make the appointments.
- On 9 April 2003 the applicant lodged a constitutional
complaint and requested the Federal Constitutional Court to grant him
interim legal protection, arguing that there was a danger that the
Ministry of Justice would appoint the advocate notaries and thus
create irreparable damage to him.
- On
10 April 2003 the Federal Constitutional Court granted the applicant
interim legal protection and ordered the Ministry of Justice to keep
one post of advocate notary free until the statutory time-limit for
the submission of the grounds for the applicant's constitutional
complaint had elapsed. On the same day the Federal Constitutional
Court sent its decision by fax to the Ministry of Justice.
- Nonetheless,
on 10 April 2003 the Ministry of Justice appointed five notaries. On
the following day it appointed the sixth notary.
- On
29 April 2003 the Ministry of Justice informed the Federal
Constitutional Court that it had received the court's interim
injunction on
10 April 2003, but that this had been submitted to
the competent head of division in the Ministry only on 14 April 2003.
However, it also announced that it would advertise a further post as
advocate notary as of 30 June 2003.
- On
14 May 2003 the applicant submitted the reasons for his
constitutional complaint to the Federal Constitutional Court, which
extended its interim injunction on 3 June 2003, 19 November 2003 and
4 May 2004, until such time as it had issued its final decision
on the applicant's constitutional complaint.
- On 8 October 2004 the Federal Constitutional Court
found for the applicant. First, it held that the applicant's
constitutional complaint had not become inadmissible following the
appointment of the six notaries by the Ministry of Justice. In
particular, the applicant had an interest in a declaration that the
application procedure had been unconstitutional and in a fresh
examination of his application or, if that was impossible, in being
granted compensation. The right to an effective remedy under Article
19 § 4 of the German Basic Law permitted the continuation of the
proceedings before the Federal Constitutional Court, since the
Ministry of Justice had failed to abide by its interim injunction.
- On
the merits, the Federal Constitutional Court found that the
recruitment procedure as practised by the Ministry of Justice had
violated the applicant's freedom of profession as guaranteed by
Article 12 of the Basic Law and the principle of equal access to
public office as provided for by Article 33 § 2 of the Basic Law
(see “Relevant domestic law” below), mainly because it
had not taken sufficient account of the relevant professional
experience of the candidates. The Federal Constitutional Court
remitted the case to the Court of Appeal for fresh consideration, as
“it was not excluded that [the applicant], who had obtained
better results in the second state exam and had more relevant
professional experience than the candidate who, on account of his
seniority, was appointed as sixth advocate notary in the recruitment
procedure, could succeed in the initial proceedings if his
application was reassessed.”
2. Proceedings after the remittal by the Federal Constitutional
Court
- On
7 April 2005 the Stuttgart Court of Appeal quashed the decision of
the Ministry of Justice of 18 March 2002 and compelled it to reassess
the application, taking into account the findings of the Federal
Constitutional Court.
- On
28 November 2005 the Federal Court of Justice quashed the Court of
Appeal's decision. It found that the applicant had lacked an interest
in a decision compelling the Ministry of Justice to appoint him as an
advocate notary or to reassess his application, as the Ministry had
already allocated the six notary posts to other applicants. Thus the
principle of stability of office (Grundsatz der Ämterstabilität
– see “Relevant domestic law” below) prohibited the
annulment of one of the six appointments. Furthermore, it was
impossible to allocate the applicant the next available notary post
or to create a new post for him as this would infringe the rights of
other potential candidates and be in violation of section 4 of the
Federal Notaries Act (Bundesnotarordnung - see “Relevant
domestic law” below). The court held that its findings complied
with the Federal Constitutional Court's decision of 8 October 2004,
which had not specified the manner in which the applicant should
obtain redress. It was thus possible that the applicant could be
granted redress in official liability proceedings rather than having
his application re-examined.
- On
29 March 2006 the Federal Constitutional Court refused to admit the
applicant's constitutional complaint. It found that the applicant
could not attain more with the second constitutional complaint than
he had already obtained in its decision of 8 October 2004. In that
decision the Federal Constitutional Court had not specified the
manner in which the lower courts were to grant the applicant legal
protection. It had referred to two options, namely the reassessment
of the applicant's application by the Ministry of Justice or
compensation for damage. It was thus still open to the applicant to
request damages in official liability proceedings.
3. Proceedings challenging the appointment of the sixth notary
- On
27 November 2003 the Stuttgart Court of Appeal dismissed the
applicant's request to annul the appointment of the sixth advocate
notary.
It found that even if this appointment had been unlawful,
it could not be annulled. In particular, the applicant had not
submitted any reason allowing for the revocation of an appointment of
a notary under the relevant provisions of the Federal Notaries Act.
- On
10 August 2004 the Federal Court of Justice rejected the applicant's
appeal as the principle of stability of office did not allow for
revoking the appointment of notaries. Equally, it was not possible to
create a special post as an advocate notary for the applicant.
- On
26 October 2004 the Federal Constitutional Court declared the
applicant's constitutional complaint inadmissible, as its decision of
8 October 2004 had already given him the possibility to have the
lawfulness of the recruitment procedure reviewed by the lower courts.
He therefore lacked standing for this constitutional complaint.
4. Official liability proceedings
- In
2006 the applicant instituted official liability proceedings against
the Land Baden-Württemberg before the Stuttgart Regional
Court, on the ground that the Ministry of Justice had appointed the
sixth advocate notary in spite of the Federal Constitutional Court's
interim injunction in his favour.
- On
22 February 2008 the Stuttgart Regional Court dismissed the
applicant's action. It found that, irrespective of the possibility
that the Ministry of Justice could have breached its official duty
when disregarding the Federal Constitutional Court's interim
injunction, there had been no causal connection between the
applicant's damage and the alleged breach of duty. Had the Ministry
of Justice complied with the interim injunction, it would have halted
the recruitment procedure, refrained from appointing the advocate
notaries and started a fresh recruitment procedure for the six posts.
During such a procedure it would have assessed the new applications
in accordance with the Federal Constitutional Court's decision of
8
October 2004. However, it remained totally unclear whether the
applicant could have succeeded in such a fresh procedure with a new
field of candidates.
- On
25 April 2008 the applicant appealed that decision before the
Stuttgart Court of Appeal.
- On
21 January 2009 the Stuttgart Court of Appeal requested the Land
of Baden-Württemberg to submit a written statement on
whether a fresh recruitment procedure would have led to the applicant
being selected for one of the six notary posts. On 22 July 2009 the
Land submitted its written opinion, alleging that the
applicant under no conceivable circumstances would have ranked among
the six top candidates.
In July 2010, the proceedings were still
pending before the Stuttgart Court of Appeal.
- By
e-mail dated 23 July 2010 the presiding judge of the Stuttgart Court
of Appeal informed the applicant's counsel that he was obliged to
postpone the hearing originally scheduled for 17 November 2010 to the
second half of February 2011. This was due to the fact that the
senate had to hear other, more urgent cases, which had to be prepared
by the same rapporteur judge. Even taking into account the length of
the instant proceedings, the presiding judge considered the
applicant's case to be less urgent for the following reasons: If the
applicant should obtain compensation, he would be awarded interests
at a rate which exceeded the interest rates which could be obtained
elsewhere. If he should lose his action, some additional months would
not matter.
B. Relevant domestic law and practice
1. Provisions of
the Basic Law
30. Article 12 § 1 of the Basic Law
provides that all Germans have the right to freely choose
their profession, their place of work, and their place of training.
- Under Article 33 § 2 of the Basic Law every
German is equally eligible for any public office according to his or
her aptitude, qualifications and professional achievements.
- Article
33 § 5 of the Basic Law provides that the law governing public
service is to be regulated with due regard to the traditional
principles of the professional civil service. One of the latter is
the principle of stability of office, according to which appointments
to public office are not to be revoked
or annulled following legal remedies instituted by unsuccessful
candidates.
2. Notarial law
- Some
Länder, like Baden-Württemberg, provide for the
possibility for qualified lawyers to be appointed as so-called
“advocate notaries” (Anwaltsnotare) enabling them
to exercise the profession as notary alongside their activity as
solicitors. Advocate notaries (like single profession notaries) are
“independent holders of a public office” who are
appointed by the competent judicial authority. Once officially
appointed, notaries do not receive a salary from the state, but
charge fees (fixed by law) to the parties. As a rule, notaries do not
enjoy the status of civil servants.
- The
Federal Notaries Act lays down the access requirements, the rights
and obligations of notaries and their organisation and functions. It
is complemented by respective orders of the Länder.
- Section
4 of the Federal Notaries Act provides that the number of
appointments of notaries is to be restricted to what is necessary to
ensure the sound administration of justice. In particular, the number
of notaries must correspond to the need of individuals to be provided
with notarial services, and a balanced age structure must be ensured
in the profession of notary.
In Baden-Württemberg the
Ministry of Justice has responsibility for and discretion in deciding
on this need (Organisationsermessen) and therefore in fixing
the number of advocate notaries.
In so doing it takes account of the average number of
notarisations taking place within the areas of the various district
courts. Once the Ministry of Justice has decided to create a new
notary post, it publishes – in compliance with section 6 (b) of
the Federal Notaries Act – a vacancy notice for the Court of
Appeal district (Oberlandesgerichtsbezirk) in which such a
need has been identified.
- According
to section 111 of the Federal Notaries Act, disputes surrounding the
appointment and selection of notaries are adjudicated by the civil
Court of Appeal (Oberlandesgericht) and in the second instance
by the Federal Court of Justice. Since 1 September 2009, the
proceedings are governed by the Administrative Courts Act
(Verwaltungsgerichtsordnung, see section 111b of the Federal
Notaries Act).
3. Provisions governing official liability
- Pursuant
to Article 34 of the Basic Law, taken in conjunction with
Article 839 of the Civil Code, the State or a public body is
liable to pay compensation to an individual for any damage arising
from an intentional or negligent breach of official duties committed
by its officials. No such obligation to afford redress arises where
the injured party has wilfully or negligently omitted to avoid the
damage by means of another legal remedy.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the Baden-Württemberg Ministry of
Justice's failure to comply with the Federal Constitutional Court's
interim injunction of 10 April 2003 and the non-enforcement of the
Federal Constitutional Court's decision of 8 October 2004 violated
his right to effective access to a court as provided in Article 6 §
1 of the Convention, which, insofar as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested these arguments.
A. Admissibility
1. Applicability of Article 6 § 1
(a) The Government's submissions
- The
Government considered that Article 6 of the Convention was not
applicable in the instant case, as neither the interim proceedings
nor the main proceedings concerned a civil right within the meaning
of Article 6 § 1. Relying on the Court's judgment in the
Pellegrin case (Pellegrin v. France [GC], no.
28541/95, § 59; § 64 et s., ECHR 1999 VIII),
they submitted that disputes on recruitment to civil service fell
outside the scope of Article 6 § 1, as neither the Convention
nor the protocols thereto guaranteed such right. This principle
remained unchanged by the Court's judgment in the Vilho
Eskelinen case (Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, ECHR 2007 IV, 8 August 2006). The office of
a notary had to be regarded as part of the civil service, as he
performed functions which were manifestations of public authority. It
followed that the right to equal access to the notary profession
derived from Article 12 in conjunction with Article 33 § 2 of
the Basic Law did not qualify as a “civil” right within
the meaning of Article 6 § 1.
- Relying
on the Court's judgment in the case of Micallef v. Malta
([GC], no. 17056/06, § 83 et s.,
ECHR 2009 ...) the Government further submitted that Article 6 §
1 was not applicable to the interim proceedings, because they did not
effectively determine a civil right.
(b) The applicant's submissions
- According
to the applicant, the right of access to the office of advocate
notary qualified as a “civil right” within the meaning of
Article 6 § 1 of the Convention and the relevant
case-law of the Court.
The competent authority did not have any
discretion when selecting those candidates which were best suited to
hold the office. Advocate notaries were free entrepreneurs who did
not receive any remuneration from the Government and did not exercise
any functions which belonged to the
core-area of public law. They
did not even exercise any official authority within the meaning of
Article 51 § 1 of the Treaty on European Union.
- The
applicant further submitted that Article 6 § 1 was applicable
also to the interim proceedings because the failure to comply with
the interim injunction annihilated the applicant's claim to be
appointed as notary advocate.
(c) The Court's assessment
- The
Court reiterates that Article 6 § 1 secures the “right to
a court”, of which the right of access, that is the right to
institute proceedings before courts in civil matters, constitutes one
aspect only (see Osman v. the United Kingdom, judgment of 28
October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166,
§ 136, and Cordova v. Italy (no. 1),
no. 40877/98, §
48, ECHR 2003-I). This right extends only to disputes
(“contestations”) over “civil rights and
obligations” which can be said, at least on arguable grounds,
to be recognised under domestic law (see, among other authorities,
James and Others v. the United Kingdom, judgment of
21
February 1986, Series A no. 98, pp. 46-47, § 81, and Powell
and Rayner v. the United Kingdom, judgment of 21 February
1990, Series A no. 172, p. 16, § 36).
- As
regards the “civil” nature of such right, the Court held
that the approach developed in the case of Vilho Eskelinen (cited
above) also applies to the right of access to a public office (see
Josephides v. Cyprus,
no. 33761/02, § 54, 6 December
2007; Lombardi Vallauri v. Italy,
no.
39128/05, § 62, ECHR 2009 ... (extracts) and
Penttinen v. Finland (dec.), no. 9125/07, 5 January 2010). It
is thus for the Contracting States, in particular the competent
national legislature, and not the Court, to identify expressly those
areas of public service involving the exercise of the discretionary
powers intrinsic to State sovereignty where the interests of the
individual must give way. If a domestic system bars access to a
court, the Court will verify that the dispute is indeed such as to
justify the application of the exception to the guarantees of Article
6. If it does not, then there is no issue and Article 6 § 1 will
apply irrespective of whether the applicant seeks reinstatement or
some other form of pecuniary redress (see Vilho Eskelinen, §§
61-62 and Penttinen, both cited above).
- Turning
to the circumstances of the instant case, the Court notes, at the
outset, that the applicant had a constitutional right to equal access
to the office of advocate notary. With regard to the second
condition, the Court observes that under section 111 of the Federal
Notaries Act, disputes surrounding the appointment and selection of
notaries are adjudicated by the civil courts. It follows that the
applicant's right of access to a court to challenge the lawfulness of
the decision not to appoint him advocate notary had not been excluded
by the domestic law. The Court therefore concludes that Article 6 of
the Convention is applicable to the present case.
-
The Court further reiterates that the applicability of Article 6 on
interim proceedings will depend on the following conditions: First,
the right at stake in both the main and the injunction proceedings
should be “civil”. Second, the nature of the interim
measure, its object and purpose as well as its effects on the right
in question should be scrutinised. Whenever an interim measure can be
considered effectively to determine the civil right or obligation at
stake, notwithstanding the length of time it is in force, Article 6
will be applicable (see Micallef, cited above, §§
84-85).
- The
Court, having already established above that the right claimed by the
applicant has to be regarded as “civil” within the
meaning of Article 6 § 1, observes that the interim measure
issued by the Federal Constitutional Court was aimed at preventing
the Ministry of Justice from filling all notary posts before the
termination of the main proceedings. Having regard to the fact that
only a certain number of notary posts was available and that it was
impossible to revoke the appointment of an advocate notary even if
another candidate's claim was successful, the Court finds that the
interim measure had a direct effect on the civil right at stake. It
follows that Article 6 is applicable to the interim proceedings and
that the instant complaint is not inadmissible ratione materiae
with the provisions of the Convention.
2. Exhaustion of domestic remedies/Status as a victim
(a) The Government's submissions
- According
to the Government, the applicant failed to exhaust domestic remedies.
They point out that in the official liability proceedings, which
remained pending before the domestic courts, important factual
questions had to be answered which were decisive for assessing
whether the impugned conduct violated the applicant's Convention
rights. This applied, in particular, to the question of whether the
applicant's application for the post of a notary would have been
successful if it had been freshly assessed on the basis of the
selection criteria prescribed by the Federal Constitutional Court.
According to the Government, the Court's case-law on
non-compliance
with final judicial decisions could not simply be applied to the
present case because this matter did not involve the implementation
of a final decision. Interim injunctions did not constitute an end in
themselves, but served as a means with regard to the determination on
the merits.
It followed that a failure to comply with the interim
injunction could only lead to a violation of Article 6 if it caused a
disadvantage with respect to the merits of the case.
- Furthermore,
the applicant could not claim to be a victim of a violation of his
Convention rights within the meaning of Article 34 of the Convention,
as he did not suffer any disadvantage because of the failure to
comply with the Federal Constitutional Court's interim injunction.
Referring to the submissions filed by the Land of
Baden-Württemberg in the official liability proceedings, the
Government alleged that the applicant would not have been appointed
as notary even if the interim order had been respected, because other
candidates had been better qualified.
- Even
assuming that the Stuttgart Court of Appeal should award the
applicant damages for the non-compliance with the interim order, the
award of compensation would constitute adequate reparation and the
applicant would thus cease to be a victim of a violation of his
Conventions rights.
(b) The applicant's submissions
- The
applicant submitted that the question as to whether he would have
been appointed notary advocate if the domestic authorities had
respected the interim injunction was irrelevant with regard to his
status as a victim of a violation of Article 6 § 1 of the
Convention. The causality of the procedural violation was irrelevant
to the establishment of a violation of the Convention. The failure to
comply with the interim order had deprived him of any legal
protection against the appointment of the other candidates.
This
violation of his procedural rights had not ceased to exist.
- Relying
on the Hornsby case (Hornsby v. Greece, 19 March 1997,
§ 37, Reports of Judgments and Decisions 1997 II)
the applicant further considered that he was not obliged to await the
outcome of the official liability proceedings in order to exhaust
domestic remedies. Because of the failure to comply with the interim
order, he had been deprived of legal protection in the main
proceedings. The granting of compensation would not be equivalent to
the appointment to the position of notary. It followed that the
action for damages could not eliminate his status as a victim.
The
applicant further submitted that the Land of Baden-Württemberg
purposefully delayed the compensation proceedings, as was
demonstrated by the Stuttgart Court of Appeal's postponement of the
court hearing.
(c) The Court's assessment
- The
Court considers that the Government's objections raise questions
which are closely linked to the merits of the complaint and should be
considered together. The Court therefore decides to join the
Government's objections concerning the exhaustion of domestic
remedies and the applicant's status as a victim to the merits of the
complaint.
3. The substance of the complaint
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established. It is therefore to be declared admissible.
B. Merits
1. The applicant's submissions
- The
applicant submitted that the Government had failed to respect his
right of access to a court in two respects: firstly, they had failed
to comply with the interim injunction issued by the Federal
Constitutional Court, thus effectively annihilating his claim to be
appointed as advocate notary. Secondly, the domestic courts had
failed to execute the Federal Constitutional Court's final decision
of 8 October 2004. According to the applicant, the Federal Court of
Justice had been obliged freshly to assess the applicant's request to
be appointed notary. Instead, it declared all the applicant's motions
inadmissible. There were no relevant reasons to deny him the award of
an advocate's post. In particular, there was no valid reason which
would prohibit revoking the appointment of the successful candidate.
Furthermore, there were no sufficient reasons not to award him an
additional post.
- The
execution and enforcement of court decisions was an integral part of
a fair trial within the meaning of Article 6 § 1 of the
Convention. In this respect, the Court did not distinguish between
the main proceedings and interim legal protection. Referring to the
binding nature of the Court's interim injunctions (see Mamatkulov
and Askarov v. Turkey [GC],
nos. 46827/99 and 46951/99, ECHR
2005 I), the applicant argued that the same standards had to be
applied in the domestic proceedings. The applicant further submitted
that the right to interim legal protection was guaranteed under the
German constitution and that the compliance with the interim
injunction had been crucial for the outcome of the proceedings.
2. The Government's submissions
- The
Government contested these arguments. According to the Government,
the decision of the Federal Constitutional Court dated
8 October
2004 had been enforced, respectively, was in the process of being
enforced. The Government pointed out that the operative part of the
decision merely set aside the impugned decisions and referred the
case back to the Court of Appeal. There was no doubt that these
direct legal effects had been respected.
- According
to the Government, the Federal Constitutional Court did not issue a
decision as to how the applicant's rights were to be satisfied
following the referral of the case. It rather stated that either a
new decision on his application or – in case this was not
possible – an entitlement to compensation for damages would be
an option. This had been confirmed by the decision of the Federal
Constitutional Court of 29 March 2006. It was up to the domestic
courts to assess whether the applicant could further pursue his claim
to be appointed as notary under domestic law. The decision reached by
the Federal Court of Justice had been well-reasoned and could not be
regarded as arbitrary. The question whether the applicant was
entitled to damages remained to be determined in the liability
proceedings.
3. The Court's assessment
-
The Court reiterates that Article 6 § 1 secures to everyone the
“right to a court”, which encompasses the right to have a
final judgment given by any court executed (see, among many other
authorities, Hornsby, cited above, § 40, and Gulmammadova
v. Azerbaijan, no. 38798/07, § 35,
22 April 2010).
(a) Non-compliance with the Federal
Constitutional Court's interim decision of 10 April 2003
- The
Court observes that the object of an interim measure is to maintain
the status quo pending a court's determination of the
justification for the measure. In addition, the interim measure is
aimed at assuring that, for the duration of the main proceedings, the
court remains able to examine the applicant's claim under its normal
procedure (see, mutatis mutandis, Mamatkulov and Askarov,
cited above, § 108). Being intended to ensure the continued
existence of the matter that is the subject of the motion at issue,
the interim measure goes to the substance of the proceedings. The
Court therefore considers that a State organ's failure to comply with
an interim measure issued by a domestic court in the course of
proceedings on the determination of civil rights can, under certain
circumstances, amount to a violation of the applicant's right of
access to a court under Article 6 § 1 of the Convention.
- First,
and in line with the Court's case-law on the execution of final
judgments and decisions (see paragraph 59, above), the interim
measure has to be binding on the State organ concerned. Second, the
failure to respect the interim measure has to have had a direct
impact on the course of the main proceedings in that it effectively
curtailed the applicant's procedural rights to have his case examined
by a court.
- The
Court further observes that the object of an interim measure is to
preserve and protect the rights and interests of a party before a
court, pending a final decision. It follows from the very nature of
interim measures that a decision on whether they should be indicated
in a given case will often have to be issued within a very short
lapse of time. Consequently, the full facts of the case will often
remain undetermined until the final judgment on the merits is given.
It is precisely for the purpose of preserving a court's ability to
render such a judgment after an effective examination of the facts
and the underlying law that an interim order is granted (see, mutatis
mutandis, Paladi v. Moldova [GC], no.
39806/05, § 89, ECHR 2009 ....). Consequently, the
fact that the damage which an interim measure was designed to prevent
subsequently turns out not to have occurred despite a failure to
comply with the interim measure has to be regarded as being
irrelevant for the assessment whether there has been a violation of
the applicant's rights under Article 6 § 1. The Court therefore
considers that it does not have to be established in the present
context as to whether the applicant would have been appointed
advocate notary if the Ministry of Justice had complied with the
interim injunction and reserved a post for him.
- Turning
to the circumstances of the instant case, the Court notes that on 10
April 2003 the Federal Constitutional Court, by interim injunction,
ordered the Baden-Württemberg Ministry of Justice to keep one
post of advocate notary free pending further examination of the
applicant's constitutional complaint. The Federal Constitutional
Court extended its interim injunction until such time that it had
issued its final decision. Notwithstanding, on 10 and 11 April 2003
the Ministry of Justice filled all vacant notary posts by appointing
other candidates. The Court further observes that it has not been
disputed by the Government that the interim order given by the
highest German court had been binding on the Ministry of Justice.
- With
regard to the further course of the proceedings before the domestic
courts, the Court notes that the Federal Constitutional Court
considered that the recruitment procedure had violated the
applicant's constitutional rights and remitted the case to the lower
courts for fresh consideration. Following the remittal, the Federal
Court of Justice declared the applicant's motion inadmissible on the
grounds that the applicant had lacked an interest in a decision
compelling the Ministry of Justice to appoint him as an advocate
notary or to reassess his application because the Ministry of Justice
had already allocated all available posts to other candidates. It
follows that the Ministry of Justice's failure to comply with the
interim injunction deprived the applicant of having the merits of his
complaint examined in the main proceedings. Consequently, the
applicant's procedural rights have been effectively curtailed.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the Ministry of Justice's failure to comply with the
interim order violated the applicant's right to access to a court.
There has accordingly been a violation of Article 6 § 1 of the
Convention.
(b) Non-enforcement of the Federal
Constitutional Court's decision of 8 October 2004
- With
regard to the alleged non-enforcement of the Federal Constitutional
Court's decision in the main proceedings, the Court notes, at the
outset, that the operational part of that decision merely proscribed
that the case be remitted to the lower courts for fresh
consideration. This part of the Federal Constitutional Court's
decision has been complied with by the lower courts.
-
The Court further observes that the Federal Constitutional Court
found on the merits that the recruitment procedure as practiced by
the Ministry of Justice had violated the applicant's right to freedom
of profession because it had not taken sufficient account of the
candidate's professional experience. While considering that it was
not excluded that the applicant could succeed in the initial
proceedings if his application was reassessed, the Federal
Constitutional Court also considered that the applicant could be
awarded compensation if it was impossible to award him a notary post.
It follows that the Federal Constitutional Court did not issue any
binding decision as to how its decision was to be implemented. Under
these circumstances, the Court considers that it has not been
established that the lower courts had failed to execute the Federal
Constitutional Court's decision. There has accordingly been no
violation of Article 6 § 1 in this respect.
4. The Government's objections
- Examining
the Government's objection as to the exhaustion of domestic remedies
(see paragraphs 48-49 above) in the light of the above
considerations, the Court reiterates that under Article 35 of the
Convention, normal recourse should be had by an applicant to remedies
that are available and sufficient to afford redress in respect of the
breaches alleged.
The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness
(see, inter alia, Mifsud v. France (dec.) [GC],
no. 57220/00, § 15, ECHR 2002-VIII).
- Turning
to the circumstances of the present case, the Court notes that the
applicant instigated official liability proceedings in 2006.
Following the rejection of his claim by the Stuttgart Regional Court
on 22 February 2008, the proceedings are currently pending before the
Stuttgart Court of Appeal. The Court observes that through the
official liability proceedings, the applicant seeks compensation for
not having been awarded the post of an advocate notary. This claim
presupposes that the applicant would have been awarded the post if
the Ministry of Justice had complied with the interim injunction
issued by the Federal Constitutional Court. As regards the prospect
of success of the compensation claim, the Court notes that the
applicant's claim has been rejected by the first instance court for
lack of causation. The Court takes further note of the Government's
submissions according to which the applicant's compensation claim
lacked prospect of success because he would not have been appointed
notary even if the Ministry of Justice had complied with the interim
order.
- As
the Court has found (see paragraph 62, above), the establishment of a
violation of the applicant's right of access to a court under Article
6 § 1 of the Convention does not depend on whether he sustained
any material damage as a result thereof. In this respect, the
criteria applied by the Court differ from those applied by the
domestic courts in the official liability proceedings. Having regard
to these circumstances and to the uncertainties which remain
regarding the outcome of the liability proceedings, the Court
considers that the applicant could not be reasonably expected to
await the outcome of the liability proceedings before lodging his
complaint with the Court. It follows that the applicant has to be
considered as having exhausted domestic remedies as required by
Article 35 § 1 of the Convention.
- With
regard to the applicant's status as a victim, the Court observes that
the applicant has, so far, not been awarded any redress for the
violation of his rights under Article 6 § 1 of the Convention.
It follows that the applicant has not lost the status of a victim
within the meaning of Article 34 § 1 of the Convention. It
follows that the Government's objections are to be rejected.
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 1,078,254.70 euros (EUR) in respect of loss of
income for the period of time from 16 October 2004 to
31 December
2010. He further claimed EUR 150,000.00 per year for the period of
time from 2011 until reaching retirement age in 2030.
The
applicant also claimed compensation for non-pecuniary damage for
having been deprived of the possibility to become notary, which he
assessed at EUR 10,000 per year for the years 2004 to 2010.
- According
to the applicant, he would have been appointed advocate notary on 16
October 2004 if the Baden-Württemberg Ministry of Justice had
complied with the interim injunction issued by the Federal
Constitutional Court. The sum claimed was compensation for the “real
loss of opportunity” suffered by him as a result of the
violation of the rights under Article 6 § 1 of the Convention.
Relying on the Court's judgment in the Oğur
case (Oğur v. Turkey [GC], no. 21594/93, § 98,
ECHR 1999 III), the applicant considered that the decision on
his just-satisfaction claims could not be postponed as this would
further delay his receipt of compensation.
- The
Government considered that the question of pecuniary damage was not
ready for decision by the Court, as the issue whether the applicant
would have been appointed advocate notary if the interim injunction
had been complied with was the subject of the pending official
liability proceedings. The Government invited the Court to postpone
its decision on the applicant's just satisfaction claim until a final
decision was reached in the official liability proceedings, which
could be expected in the foreseeable future.
- Alternatively,
the Government submitted that there was no causal connection between
the violation of his Convention right and the alleged damage, as the
applicant would not have been appointed notary advocate even if the
interim injunction had been complied with. They further considered
that the calculation of the alleged loss of income was based on
incorrect data.
- Having
regard to the official liability proceedings pending before the
Stuttgart Court of Appeal, the Court considers that the question of
the application of Article 41 is not ready for decision in so far as
pecuniary and non-pecuniary damage is concerned. Accordingly, it
shall be reserved until the termination of these proceedings.
B. Costs and expenses
- The
applicant also claimed EUR 29,278.19 for the costs and expenses
incurred before the domestic courts and EUR 30,042.55 for those
incurred before the Court.
- The
Government submitted that the sums claimed for the proceedings before
the domestic courts had not been incurred in an attempt to avert the
violation of the applicant's Convention right. Furthermore, the sums
claimed were not reasonable as to quantum.
- According
to the Court's established case-law, costs and expenses will not be
awarded under Article 41 unless it is established that they were
actually and necessarily incurred and were reasonable as to quantum.
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see, for example, Gäfgen v.
Germany [GC], no. 22978/05, § 196,
ECHR 2010 ...).
- As
to the costs and expenses claimed for the proceedings before the
domestic courts, the Court considers that the costs claimed by the
applicant were only partially incurred in an attempt to rectify the
violation of the applicant's Convention rights and were as a whole
excessive. It therefore considers it reasonable to award the
applicant EUR 3,500 under this head.
- As
to the costs and expenses incurred in the proceedings before it, the
Court, taking into account that the applicant's claims before the
Court were only partly successful, considers it reasonable to award
the applicant EUR 5,500 under this head, plus any tax that may be
chargeable to the applicant on that amount.
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
- Joins to the merits the Government's objections
regarding the
non-exhaustion of domestic remedies and the
applicant's status as a victim and rejects them;
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention with regard to the failure to enforce
the Federal Constitutional Court's interim injunction dated 10 April
2003;
- Holds that there has been no violation of
Article 6 § 1 of the Convention with regard to the execution of
the Federal Constitutional Court's decision dated 8 October 2004;
- Holds that the question of the application of
Article 41 is not ready for decision in so far as pecuniary and
non-pecuniary damage is concerned; and accordingly,
(a) reserves
the said question;
(b) invites
the Government and the applicant to inform the Court about the
outcome of the official liability proceedings pending before the
Stuttgart Court of Appeal and, in particular, of any agreement they
may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be;
- 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, EUR 9,000 (nine
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 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 costs and expenses.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Section Registrar President
