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FIFTH
SECTION
CASE OF KINDEREIT v. GERMANY
(Application
no. 37820/06)
JUDGMENT
STRASBOURG
8
October 2009
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 Kindereit 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,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37820/06) 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, Ms Christel
Kindereit (“the applicant”), on 18 September 2006.
- The
applicant was represented by Mr W. P. Lange, a lawyer practising in
Dortmund. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
- On
14 January 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 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Dortmund.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. Background to the case
- In
1992 the applicant and her husband transferred the ownership of a
flat to the applicant's niece. In the notarial deed they agreed upon
a life annuity in the amount of 400 German marks (DEM) and a
“purchase price” of DEM 53,000. Prior to the drawing up
of the notarial deed both parties had moreover agreed that the niece
was not entitled to sell the flat to a third party.
- In
1995, after the parties' relationship had deteriorated, the
applicant's niece sold the flat. In March 1996 the applicant and her
husband therefore revoked the transfer of ownership, which they had
considered a gift, on account of the recipient's gross ingratitude.
B. Proceedings before the Dortmund and the Hagen
Regional Court
- On
9 January 1997 the applicant and her husband introduced a claim
against the niece with the Dortmund Regional Court for the payment of
DEM 137,000.
- At
a hearing of 18 April 1997, after the niece had challenged the
court's competence to examine the case, the case was transferred to
the Hagen Regional Court, which informed the parties that they had to
be represented by a lawyer admitted to plead before the court (as
foreseen in section 78 of the Code of Civil Procedure at the relevant
time; see below).
- On
24 November 1997 the lawyer who had been appointed by the applicant
and her husband addressed the court for the first time.
The
Regional Court then scheduled a hearing for 4 February 1998.
- On
4 March 1998, following that hearing, the court decided that the
value of the flat was to be evaluated by an expert.
- On
6 November 1998, following the submission of further information by
the parties requested by the expert and an inspection of the
property, the expert submitted the report.
- After
having received the parties' submissions on this report, the court
scheduled a hearing for 24 February 1999. It also summoned the
expert. On account of his absence, the hearing had to be postponed to
24 March 1999.
- On
28 April 1999 the Hagen Regional Court decided that the niece was to
pay the applicant and her husband the amount of DEM 81,479.34.
It
dismissed the remainder of the claim.
C. Proceedings before the Hamm Court of Appeal
- On
4 June 1999 the niece appealed. In September 1999, following an
extension of the time-limit, she filed her pleadings.
- On
24 September 1999 the Hamm Court of Appeal – with the help of a
special body at the Court of Appeal entrusted with the organisation
of the hearings – scheduled a hearing for 18 February 2000.
This was the first date at which both parties' representatives had
been able to attend. It also set the applicant and her husband a
deadline for their observations.
- In
January 2000 the applicant and her husband lodged a cross-appeal
(Anschlußberufung).
- At
the hearing of 18 February 2000 the parties concluded a friendly
settlement.
- On
5 April 2000 the niece revoked the friendly settlement.
- On
26 April 2000 the Hamm Court of Appeal therefore scheduled a new
hearing for 25 August 2000. Again, no previous hearing date at which
both parties' representatives could attend had been found. Due to the
absence of a witness summoned at the request of the applicant and her
husband, it had to be postponed to 21 November 2000.
- At
the hearing the court proposed a settlement to the parties.
On
28 December 2000 the applicant and her husband refused to give
their consent.
- On
19 January 2001 the court therefore scheduled another hearing for 17
August 2001. Again, this had been the first date at which the
parties' representatives were able to attend. In April 2001, on
account of the absence of a witness named by the applicant and her
husband, the hearing had to be rescheduled for 20 November 2001.
Further submissions by both parties, partly requested by the court,
followed.
- At
the hearing the court decided to obtain an expert opinion on the
value of the life annuity. In January 2002, after the applicant had
paid the requisite advance, the court commissioned the expert.
- On
31 May 2002 the expert submitted his report.
- On
28 June 2002 the court scheduled a hearing for
5 November 2002.
Again, an earlier date had been impossible to arrange. Further
submissions by the parties and a supplementary statement by the
expert followed.
- On
5 November 2002 the Hamm Court of Appeal dismissed the niece's
appeal.
D. Proceedings before the Federal Court of Justice
- On
8 January 2003 the niece lodged an appeal against the refusal for
leave to appeal. On 19 May 2003, following an extension of the
time-limit, she reasoned her appeal.
-
On 3 December 2003 the applicant and her husband submitted
observations they had undertaken to make in June.
- On
17 February 2004 the Federal Court of Justice granted leave to
appeal.
- In
June 2004 a conciliation hearing (Güteverhandlung) took
place.
- On
14 December 2004 the Federal Court of Justice quashed the judgment of
5 November 2002 and referred the matter back to the Hamm Court of
Appeal. It held that while the transfer had rightly been considered a
partial gift, the Hamm Court of Appeal had failed to establish that
the niece was guilty of gross ingratitude.
E. Proceedings before the Hamm Court of Appeal
following the remittal
- On
25 February 2005 the Hamm Court of Appeal requested the parties to
file their submissions on the question of gross ingratitude, which
they did in April 2005.
- On
3 May 2005 it scheduled a hearing for 31 May 2005. On that day the
parties reached a friendly settlement.
- On
2 June 2005 the applicant and her husband revoked the friendly
settlement.
- On
30 August 2005 the Hamm Court of Appeal partly quashed the judgment
of the Hagen Regional Court of 28 April 1999 and dismissed the
applicant and her husband's claim. It held that the applicant's niece
had not acted in gross ingratitude when selling the flat. It also
refused leave to appeal on points of law.
F. Proceedings before the Federal Court of Justice
- In
October 2005 and January 2006 the applicant and her husband reasoned
their request for leave to appeal.
- In
February and March 2006 the niece replied.
- On
13 June 2006 the Federal Court of Justice refused leave to appeal on
points of law.
II. RELEVANT DOMESTIC LAW
- Section
78 of the German Code of Civil Procedure – as applicable by 1
January 2000 – prescribed that, before regional courts and
courts of appeal, only lawyers admitted to the bar of a certain court
could plead before that court. As of 1 August 2002 there are no such
restrictions any more and lawyers may now plead before any German
court of appeal, regardless of which bar they are admitted to.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The period
to be taken into consideration began on 9 January 1997, when the
applicant introduced her claim with the Dortmund Regional Court, and
ended on 13 June 2006 when the Federal Court of Justice refused leave
to appeal on points of law. The proceedings thus lasted for about
nine years and five months for three levels of jurisdiction including
one remittal.
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 maintained that the overall duration of the proceedings was
in breach of the “reasonable time” requirement laid down
in
Article 6 § 1 of the Convention. She did not file any
further submissions on the Government's observations.
- The
Government argued that the case was of some difficulty and that a
certain part of the delay was clearly attributable to the applicant.
They thereby relied in particular on the fact that she had lodged her
claim with a court which was not competent to examine it, that her
lawyer had only addressed the court almost 11 months after the
introduction of the claim and that hearings had had to be postponed
on account of the absence of witnesses named by the applicant and her
husband.
- The Government moreover submitted that delays caused
by the authorities had contributed only to a minor extent to the
overall length of the proceedings. They pointed out that the courts
had primarily encouraged the parties to reach a friendly settlement.
Finally, they submitted that the body at the Court of Appeal
entrusted with the organisation of the hearings had minimised any
delays in connection with the scheduling of the hearings which were
caused by the fact that at the relevant time only a few lawyers had
been admitted to plead before the Court of Appeal.
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).
- The
Court observes that the proceedings concerned the question whether
the transfer of ownership of the flat had been a partial gift which
the applicant had effectively revoked on account of gross ingratitude
on the part of her niece. The Court finds that, although two expert
opinions were obtained, the present case was not of an exceptional
factual or legal complexity.
- The
Court moreover observes that, even though the applicant caused some
delays – in particular in the first year after the introduction
of the claim (see paragraphs 8 – 10 above) and also due to the
fact that, on two occasions, hearings scheduled had to be postponed
because witnesses named by the applicant could not attend – the
applicant's conduct cannot explain the overall length of the
proceedings.
- It
finds, however, that – also irrespective of attempts to reach a
friendly settlement – rather substantial delays are
attributable to the national courts. In this respect it notes in
particular that the two expert opinions commissioned by the courts
turned out to be unnecessary on legal grounds and that, moreover, the
Hamm Court of Appeal regularly failed to schedule hearings promptly
(see paragraphs 16, 20, 22 and 25 above). In this latter regard the
Court would like to point out, that delays in connection with the
scheduling of the hearings, caused by the former requirement to be
represented by a lawyer admitted to plead before the Court of Appeal,
as part of the organisation statute are clearly attributable to the
State – irrespective of the court's attempts to minimise them.
- Assessing
the circumstances of the case as a whole and especially in view of
the delays caused by the Hamm Court of Appeal, the Court therefore
finds that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1.
II. OTHER ALLEGED VIOLATION
- The
applicant also complained under Article 6 § 1 of the Convention
that the proceedings had been unfair.
- The
Court, having regard to all the material in its possession, finds
that it does not disclose any appearance of a violation of Article 6
§ 1 of the Convention. It follows that this part of the
application is manifestly
ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
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.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
