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FIFTH
SECTION
CASE OF POPOVIC v. GERMANY
(Application
no. 34236/06)
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 Popovic v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
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. 34236/06) 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
Montenegrin national, Mr Milovan Popović
(“the applicant”), on 11 August 2006.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
21 April 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
- The
Federal Republic of Germany having accepted the provisional
application of the provisions of Protocol no. 14 governing the power
of three judge Committees to rule on cases in which there is a
well-established case-law, it was decided to assign the application
to a Committee after consultation of both parties, who did not
object. On 2 March 2010 the Committee, having deliberated, decided to
refer the application to a Chamber.
- The
Government of Montenegro, having been informed of their right to
intervene in the proceedings (Article 36 § 1 of the Convention
and Rule 44 of the Rules of Court), have not indicated that they
wished to exercise that right.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Hamburg.
A. The proceedings before the Hamburg Regional Court
- On
13 November 1996 K., a dentist, brought an action in the Hamburg
Regional Court against the applicant. He claimed the payment of
medical fees amounting to DEM 20,708 (some EUR 10,587) for the
applicant's dental treatment.
- On
6 March 1997 the Regional Court held a hearing with the parties,
represented by counsel. On 3 July 1997 it heard the submissions of
the parties and a witness, the applicant's fiancée.
- On
31 July 1997 the Regional Court decided to consult a medical expert,
M., on the question of whether K. had carried out the applicant's
dental treatment correctly.
- On
14 May 1998 M., having examined the applicant on 19 December
1997, submitted his report to the Regional Court, which had asked him
on three occasions to finalize the report and had finally fixed a
deadline for its submission. He found that there had not been any
malpractice in the applicant's dental treatment.
- On
24 September 1998 the Regional Court dismissed the objection the
applicant had made to expert M. on 15 June 1998. The applicant's
appeal against this decision to the Hamburg Court of Appeal was to no
avail.
- On
12 February 1999 the Hamburg Regional Court asked expert M. to
supplement his report and granted the applicant legal aid.
- On
24 September 1999 the applicant requested the court to fix a deadline
for submission of the additional expert report on pain of a fine in
the event of non-compliance.
- On
29 February 2000 expert M., having been asked by the Regional Court
on 24 June 1999, 30 August 1999, 17 September 1999 and
14 January
2000 to submit his additional report without undue delay, informed
the court that he had examined the applicant on 22 October 1999 but
that, in the light of the present state of the art, it was impossible
to answer the court's questions.
- On
20 July 2000, having consulted the parties, the Hamburg Regional
Court decided to obtain another expert opinion on the question of
whether K. had carried out the applicant's dental treatment
correctly. By a decision of 14 December 2000, it appointed S. as
expert.
- On
11 June 2001 expert S. submitted his report to the court. Having
examined the applicant on 27 February 2001, he found that there had
been malpractice in some aspects of the applicant's dental treatment
by K.
- On
15 January 2002 the Regional Court informed the applicant, on his
request, that despite its heavy workload, it intended to continue the
proceedings soon.
- On
6 June 2002 the Regional Court held a hearing in which it discussed
the results of the expert reports submitted by M. and S. with the
parties. The applicant rejected the court's proposal to conclude a
friendly settlement.
- On
27 June 2002 the Regional Court, having regard to the diverging
conclusions of the two experts it had consulted, decided to obtain a
decisive expert opinion (Obergutachten) on the question of
whether the applicant's dental treatment had been carried out
correctly.
- On
25 October 2002 the Hamburg Regional Court decided to appoint W. as
expert. The latter fixed the date for the applicant's examination for
9 December 2003.
- On
1 December 2003, in compliance with an expulsion order made by the
Hamburg Aliens Office, the applicant left Germany. His attempt to
obtain a postponement of his expulsion for ten days in order to allow
him to be examined by expert W. had been to no avail.
- On
9 September 2004 the Regional Court fixed the deadline for the
applicant to present himself for an examination by the expert at
30
November 2004.
- On
1 December 2004 the Regional Court decided that expert W. should give
her opinion on the basis of the case file. It noted that it was
unclear when the applicant, who still resided abroad, would obtain a
residence permit and could thus be examined in person by the expert.
- On
27 July 2005 expert W., having been asked by the Regional Court to
finalize her report without delay, submitted her report to the
Regional Court. She found that on the basis of the case file, the
applicant's medical treatment by K. had been carried out correctly.
She considered the information in the file to be exhaustive and
stated that an examination of the applicant in person would not have
yielded additional information.
- On
1 August 2005 the applicant obtained permission to re-enter Germany.
He took up residence in Hamburg on 3 August 2005.
- On
27 October 2005 the Hamburg Regional Court, having held a hearing on
29 September 2005, allowed K.'s action and ordered the applicant to
pay him medical fees amounting to EUR 10,587.93 plus interest at a
rate of four per cent starting from 22 November 1996. The applicant
was further ordered to bear the costs of the proceedings. The
Regional Court found (in a judgment running to seven pages) that in
view of the expert report submitted, in particular, by W., it had not
been shown that the applicant's medical treatment had not been
carried out correctly.
B. The proceedings before the Hamburg Court of Appeal
- On
10 May 2006, in a reasoned decision, the Hamburg Court of Appeal
dismissed the applicant's request for legal aid as his appeal had no
prospects of success.
- By
decision of 19 June 2006 the Hamburg Court of Appeal dismissed the
applicant's appeal as it had no prospects of success.
- The
applicant subsequently paid the court costs due in their entirety. He
did not, however, pay the plaintiff the medical fees plus interest as
ordered by the Regional Court's judgment and did not reimburse the
plaintiff any of the latter's costs of the proceedings (EUR 2,846.95)
for lack of any income or revenues.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings
instituted against him had been incompatible with the “reasonable
time” requirement, laid down in Article 6 of the Convention,
which, in so far as relevant, reads as follows:
“(1) In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
- The
period to be taken into consideration began on
13 November 1996
and ended on 19 June 2006. The proceedings thus lasted more than nine
years and seven months for two levels of jurisdiction.
A. Admissibility
- The
Court considers that the applicant, who was the defendant in the
proceedings at issue and lost the case before the domestic courts,
may nevertheless claim to be the victim of a violation of Article 6 §
1 (compare, for instance, Di Mauro v. Italy [GC], no.
34256/96, §§ 10, 21-24, ECHR 1999 V). It further
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
- In
the applicant's view, the duration of the proceedings brought against
him had been plainly excessive. He took the view that he could not be
blamed for not having been available for examination in 2004 as the
Hamburg Aliens Office had refused to postpone the deadline for his
departure in compliance with an expulsion order in order to allow him
to present himself for examination by expert W. He stressed that he
had suffered from the protracted length of the proceedings brought
against him.
- The
Government conceded that the length of the proceedings had probably
failed to comply with the “reasonable time” requirement
under Article 6. There had indeed been delays of a couple of months
in the complex proceedings before the Regional Court due to the heavy
workload of its specialised chamber, the work of which could be
assigned to different chambers only to a limited extent. However,
that court had had limited means to compel the experts, whose reports
had been in the applicant's interest, to speed up their examination.
A large part of the duration of the proceedings before the Regional
Court was attributable to the applicant.
In particular, he had
delayed the proceedings for some twelve months because, being in
Montenegro, he had not been available for a medical examination by
expert W. As the applicant had lost the action brought against him,
it could no longer be said that what had been at stake in the
proceedings had been of importance to him.
- 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 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. It
notes, in particular, that the proceedings, which for a chamber
specialized in cases concerning liability for medical malpractice do
not appear to have been very complex, were pending before the Hamburg
Regional Court for almost nine years. Delays which are attributable
to the authorities were caused by the Regional Court's failure to
further the proceedings because of its heavy workload (in particular
between 11 June 2001 and 6 June 2002) and notably by its failure to
employ the necessary means in order to obtain medical expert advice
more speedily. While it is true that the applicant, due to his
compliance with an expulsion order, could not be examined in
December 2003, the Court observes that he had failed in his
attempt to obtain a postponement of his expulsion with the German
authorities in order to be able to present himself for examination.
In these circumstances, the delay caused by his unavailability for
examination in 2003, when the proceedings were already pending for
more than seven years, cannot be attributed to him. In view of the
fact that the applicant – who, since 1999, was considered by
the Regional Court to lack sufficient means to conduct the
proceedings brought against him and was therefore granted legal aid –
was faced with a claim of a considerable amount of money (more than
EUR 10,000), the Court also considers that what was at stake in
the proceedings was of importance for the applicant.
- Having
regard to its case-law on the subject, the Court therefore 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. THE REMAINDER OF THE APPLICANT'S COMPLAINTS
- The
applicant further complained under Article 6 §§ 1 and 3 (d)
of the Convention that the civil proceedings instituted against him
had been unfair because the domestic courts had not considered the
testimony of his fiancée to be credible and had allowed the
plaintiff's action. He further submitted that the medical fee claimed
by the plaintiff was in breach of Article 7 of the Convention.
Moreover, the applicant claimed that he had not had an effective
remedy within the meaning of Article 13 of the Convention before the
domestic courts because they had wrongly found against him.
- The
Court has examined the remainder of the applicant's complaints, which
fall to be examined under Article 6, as submitted by him. However,
having regard to all material in its possession, the Court finds that
the applicant did not exhaust domestic remedies because, in any
event, he failed to obtain a decision by the Federal Constitutional
Court.
- It
follows that the remainder of the application must be rejected for
non-exhaustion of domestic remedies, pursuant to Article 35 §§
1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant considered that in view of the delays caused by the
Regional Court, the payment of pecuniary
and non-pecuniary
compensation to him was appropriate. He claimed, in
particular, 12,782.30 euros (EUR) for the costs incurred for his
dental treatment.
- The
Government contested the applicant's claim for pecuniary damages and
argued that he had failed to demonstrate that this damage had been
caused by the length of the proceedings. They argued that the
applicant had in fact profited from the delays in the proceedings
because he had only been ordered to pay interest at a (low) rate of
four per cent on the medical fees he has been owing to the plaintiff
since 1996 – a rate at which he would not have been able to
take up a loan himself at the relevant time.
- The
Government further submitted that in view of the considerable delays
caused by the applicant in the complex proceedings at issue and in
view of the fact that the applicant, as shown above, had benefitted
from the delays in economic terms, the finding of a violation was in
itself sufficient redress for non-pecuniary damage.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- As
to the non-pecuniary damage the applicant alleged to have suffered,
the Court notes that owing to the delays in the proceedings, the
plaintiff's claim against the applicant, which the civil courts
considered well-founded, remained unenforceable for a considerable
time and could no longer be enforced when the proceedings were
terminated by a final judgment as the applicant was without means. It
considers that the applicant nevertheless suffered distress from the
protracted length of the proceedings in view of the ongoing
uncertainty about his obligation to pay a considerable amount of
money. Having regard to all the elements before it and ruling on an
equitable basis, the Court therefore awards him EUR 5,000 under that
head, plus any tax that may be chargeable.
B. Costs and expenses
- Submitting
documentary evidence, the applicant claimed EUR 3,300.27 for
fees paid to his lawyers (EUR 2,300.81 to his lawyer representing him
before the Regional Court and EUR 999.46 to his counsel before the
Court of Appeal).
- The
Government contested these claims for lack of a causal connection
between these costs and the duration of the proceedings.
- With
regard to the sums claimed in respect of the costs of the proceedings
before the domestic courts, the Court, having regard to the documents
in its possession, considers that it is not in a position to
calculate the exact amount of additional costs accrued only as a
result of the length of these proceedings. It further observes that
from February 1999 onwards, the applicant was granted legal aid in
the proceedings before the Regional Court. In these circumstances,
the Court rejects the claim for costs and expenses under this head.
As the applicant did not submit a claim for costs and expenses
incurred in the proceedings before this Court, the Court does not
make an award in this respect either.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
