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FIFTH
SECTION
CASE OF ABDUVALIEVA v. GERMANY
(Application
no. 54215/08)
JUDGMENT
STRASBOURG
26
November 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 Abduvalieva v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 3 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 54215/08) 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 Rahima
Musaevna Abduvalieva (“the applicant”), on 6 November
2008.
- The
applicant was represented by Mr I.-J. Tegebauer, a lawyer practising
in Trier. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
- On
16 February 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to give priority
to the application and to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
A. Background to the case
- The
applicant was born in 1957 and lives in Frankfurt.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The applicant is the mother of a child born on 23
January 1996.
In 2004, after having obtained an expert opinion, a
court transferred custody to her and at the same time determined the
father’s access rights.
- On 17 August 2007, following a three-week stay with her
father, the child refused to go back to her mother, and, on account
of this, was taken into care.
B. Proceedings before the Frankfurt/Main District Court
- On 20 August 2007 the applicant requested the court to
return the child to her custody.
- On 21 August 2007 the Frankfurt/Main District Court
(the “District Court”), by means of an interlocutory
decision, made at the request of the Frankfurt/Main Youth Office,
transferred the right to determine the child’s residence and
other essential aspects of custody to the Frankfurt/Main Youth
Office.
- In a letter of 24 August 2007 the applicant requested
the District Court to quash this decision. The court then set the
parties a time-limit of four weeks to submit further submissions.
- On 11 September 2007 the District Court formally
appointed a guardian ad litem (Verfahrenspfleger) for
the child. On 20 September 2007 the Youth Office submitted a report.
On 27 September 2007 the District Court heard the child.
- On 26 October 2007, on account of the competent judge
being ill, the District Court cancelled the hearing scheduled for 30
November 2007.
- On 1 January 2008 the case was assigned to another
judge.
On 5 February 2008 that judge scheduled the
hearing for 18 March 2008.
- On 11 February 2008 the applicant’s
newly-appointed lawyer requested access to the files. This was
refused on the ground that he had not yet submitted a power of
attorney. By letters dated 12 and 15 February 2008 the new lawyer
requested that the hearing be scheduled for another day.
- On 20 February 2008 the new lawyer submitted a power
of attorney (possibly for the second time). On 27 February 2008 the
District Court refused to reschedule the hearing, inter alia,
on the ground that the applicant still appeared to be represented by
her former lawyer, who had not yet informed the court that his
mandate had been terminated.
- On 3 March 2008 the applicant’s new lawyer
provided the District Court with satisfactory proof of the
termination of the previous lawyer’s mandate and again
requested access to the files. This request was granted on
4 March 2008.
- On 7 March 2008 the applicant challenged the judge on
the ground of bias. On 13 March 2008 the hearing was cancelled. The
applicant’s lawyer was not informed about it. On 17 March 2008
the judge ruled against the allegation of bias.
- On 20 March 2008 the applicant also challenged the
appointment of the child’s guardian ad litem. On 14
April 2008 the District Court transmitted the files to the
Frankfurt/Main Court of Appeal.
On 17 April 2008 that court
rejected her appeal.
- On 25 April 2008 and again on 26 June 2008 the
District Court also rejected the applicant’s motion for bias.
The latter decision was served upon the applicant on 18 July 2008. On
30 July 2008 the Frankfurt/Main Court of Appeal quashed the decision
and found that the judge was biased as she had known that the
applicant would not be represented at the scheduled hearing and,
moreover, as she had not informed the applicant’s lawyer that
she had cancelled the hearing.
- In letters of 15 and 29 August 2008 the applicant
requested the District Court to schedule a hearing.
- On 1 September 2008 the case was assigned to another
judge.
On 9 September 2008 that judge informed the applicant
that she intended to appoint an expert.
- By a letter dated 11 September 2008, the applicant
lodged a constitutional complaint on the basis of the District
Court’s inactivity.
On 16 October 2008, without giving
further reasons, the Federal Constitutional Court refused to admit
this complaint.
- On 27 October 2008 the District Court decided that an
expert opinion should be obtained on a number of questions and an
expert was subsequently appointed. On 13 December 2008, on the
court’s request, the expert informed the District Court that he
would submit a report by 1 March 2009. On 24 February 2009
the expert submitted his report.
- At a hearing on 15 April 2009 the court heard the
parties and the child.
- On 20 May 2009 the Frankfurt/Main District Court
rejected the applicant’s claim. On that day it also decided,
firstly, on a claim by the child’s father, introduced on 19
November 2007, aimed at seeking custody of the child and, secondly,
on proceedings on the right to determine the child’s residence
initiated by the court of its own motion.
- On 18 June 2009 the applicant lodged an appeal with
the Frankfurt/Main Court of Appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings before the
Frankfurt/Main District Court 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
Court notes that the proceedings before the Frankfurt/Main District
Court started with the applicant’s request to return the child
to her custody on 20 August 2007; the proceedings ended with the
District Court’s decision of 20 May 2009. They thus lasted for
one year and nine months.
A. Admissibility
- The
Court notes that the application 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, even though the case was of a certain
complexity, the overall duration of the proceedings was in breach of
the “reasonable time” requirement laid down in Article 6
§ 1 of the Convention. In her opinion, delays caused by the
first judge’s illness and also by the second judge’s bias
were clearly attributable to the State. The applicant also submitted
that the District Court delayed the notification of the decision on
the judge’s bias, the transmission of files to the Court of
Appeal, the transmission of the expert opinion and the assignment of
the third judge. Moreover, she stressed that the decision to obtain
an expert opinion was only taken after one year and two months.
Finally, she pointed out that the proceedings were of particular
importance to her.
- The
Government submitted that, at the relevant time, two further sets of
proceedings which were closely connected with the proceedings at
issue, and which therefore were decided upon on the same day, had
been pending before the District Court – one, initiated proprio
motu, on the right to determine the child’s residence and
another, initiated by the child’s father, who sought to be
granted parental authority. The Government also stressed that the
proceedings had been of a highly sensitive nature, had involved
complex issues and had not only required hearing evidence from the
parents, the child and the Youth Office, but had also involved the
appointment of a guardian ad litem for the child and the
commissioning of an expert opinion.
- As
regards the judge’s illness, the District Court, in the
Government’s view, adequately responded to this unforeseeable
situation by assigning the case to a new judge who, within a
reasonable time, scheduled a new hearing. They also submitted that,
even though the applicant’s motion for bias had ultimately been
successful, delays caused on account of this were not attributable to
the State, since the grounds for bias had not been obvious or grave
and since, moreover, the period of four months for three different
decisions could not be regarded as being unreasonably long.
In
their opinion only three weeks, resulting from the delayed
notification of one decision, had been attributable to the State.
They finally emphasised that, although the proceedings had no doubt
been of importance to the applicant, as of January 2008, she could
have had regular access to the child.
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 at the outset that the proceedings concerned the
question whether the child should return to her mother’s
household and were linked to two further sets of proceedings on the
right to custody and the right to determine the child’s
residence. It notes that the case was sensitive in nature and
therefore required careful evaluation involving not only hearing
evidence from all the parties but also the commissioning of an expert
opinion. The Court therefore agrees with the parties that the case
was of a certain complexity.
- As
regards the applicant’s own conduct, the Court notes that,
having appointed a new lawyer in February 2008, it took a further
month before she provided the court with satisfactory proof of the
termination of her previous lawyer’s mandate. Moreover, her
newly appointed lawyer insisted that the court schedule the hearing
for another day and, although it was within the applicant’s
rights and although the motion was ultimately successful, she
challenged the judge on the ground of bias. Further delays of about
one month were caused by the fact that in March 2008 she also
challenged the appointment of the child’s guardian ad litem.
- Turning
to the conduct of the domestic authorities, the Court observes that
the first hearing, scheduled for November 2008, had to be cancelled
on account of the judge’s illness. It was a further two months
before the case was assigned to a new judge. Also, after the Court of
Appeal’s decision on the second judge’s bias, more than
one month elapsed before that judge was replaced. The Court further
notes that it took one year and two months from the introduction of
the claim before an expert was commissioned. Further delays were
mainly caused in connection with the decisions taken with regard to
the motion for bias – in particular, the District Court delayed
the notification of its respective decision for about one month.
- The
Court also observes that the situation in the present case was
exceptional in that, during the whole of the proceedings, the child
remained in care, while both parents had been willing to take care of
her. The Court further accepts that the case was of particular
importance to the applicant and also, on this ground, should have
been dealt with expeditiously.
- Having
examined all the material submitted to it, the Court considers that,
even though the case was of a certain complexity and was linked to
two further sets of proceedings, in view of the exceptional situation
and the fact that a number of delays are attributable to the
authorities, 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 of the
Convention.
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 4,625 euros (EUR) in respect of non-pecuniary
damage – comprising an additional EUR 2,000 on account of the
particular importance of the case to her.
- The
Government contested this claim. They submitted in particular that
there was no general rule by which compensation could be increased by
EUR 2,000 if the proceedings were of particular importance.
- The
Court, ruling on an equitable basis, finds that in the present case
the finding of a violation of Article 6 § 1 of the Convention is
sufficient just satisfaction for any non-pecuniary damage suffered by
the applicant.
It therefore dismisses this claim.
B. Costs and expenses
- The
applicant also claimed EUR 2,380, corresponding to her lawyer’s
fees in the proceedings before the Federal Constitutional Court, and
another EUR 2,380 for costs incurred before the Court. She submitted
the respective bills. She also sought EUR 500 for additional costs
caused by the length of the proceedings before the Frankfurt/Main
District Court.
No evidence has been submitted in respect of this
claim.
- The
Government contested these claims. They submitted that the applicant
had failed to indicate the number of actual hours spent on the case
or the hourly rate charged, which made it impossible to judge whether
the amount claimed was reasonable. They also submitted that costs for
the proceedings before the Federal Constitutional Court could not be
claimed, as the Court, in its judgment of Sürmeli v. Germany,
had found that a constitutional complaint was not an effective remedy
against proceedings that lasted too long.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court.
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;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of a violation of Article
6 § 1 of the Convention is sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant;
- 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 2,000 (two
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 just satisfaction.
Done in English, and notified in writing on 26 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
