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FIFTH
SECTION
CASE OF KRESSIN v. GERMANY
(Application
no. 21061/06)
JUDGMENT
STRASBOURG
22
December 2009
This
judgment is final but it may be subject to editorial revision.
In the case of Kressin v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Karel Jungwiert, President,
Mark
Villiger,
Isabelle Berro-Lefèvre, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21061/06) 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 Wolfgang
Kressin (“the applicant”), on 18 May 2006.
- The
applicant was represented by Mr U. Kressin, a lawyer practising in
Berlin. The German Government (“the Government”)
were represented by their Agent, Mrs Almut Wittling-Vogel,
Ministerialdirigentin,
Federal Ministry of Justice.
- On
9 February 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. The Federal Republic of Germany having
accepted the provisional application of the provisions of Protocol 14
governing the power of three judge committees to decide on cases in
which there is well-established case-law, it was decided to assign
the application to a Committee. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Bascharage.
A. Background to the case
- The
applicant had been working as a licensed doctor in Berlin from 1972
to 1994. Since 1994 he has been practising medicine in Luxembourg.
- He
is a member of the Berlin Medical Association (Ärztekammer),
a corporation under public law and since 1972 had been
paying compulsory contributions to its pension scheme until his
change of residence to Luxembourg in 1994.
- Prior
to his move to Luxembourg, he was informed by the Berlin Medical
Association's pension scheme (Ärzteversorgung) that he
could either terminate his membership or continue to stay as a member
on a voluntary basis while paying contributions at the full or a
reduced rate. The applicant opted for the continuation of his
membership and chose to pay voluntary contributions in an amount
equal to half of the maximum contribution rate.
- Since
1994 he has also paid the full compulsory contribution to the
relevant Luxembourg pension scheme.
- Ever
since his move to Luxembourg the Berlin pension scheme has informed
the applicant annually in writing about the amount of his future
pension entitlement. He objected to the corresponding notifications
on several occasions alleging that while the amount of contributions
had been increased, his expected pension had been unduly reduced
compared to previous years. He was repeatedly informed by the Berlin
pension scheme that the decrease of his pension entitlement was due
to the agreed adjustment of his contributions since 1994.
- By
letters of 9 and 15 August 2001 the Berlin pension scheme advised the
applicant of the option to have the meanwhile accrued contributions
transferred to the Luxembourg pension scheme subject to the latter's
approval. It further specified that a transfer of the contributions
could only be effected by means of a direct payment to the Luxembourg
pension scheme and that it was not possible to disburse the amount
accrued to the applicant himself. By a letter dated 20 August 2001
the applicant asked for his contributions to be transferred.
- On
12 October 2001 the Berlin pension scheme informed the applicant that
the conditions of a transfer were not fulfilled since the Luxembourg
pension scheme was not in a position to accept a direct transfer of
the contributions. The applicant notified the Berlin pension scheme
on 1 November 2001 that he nevertheless wanted to continue
the payment of his voluntary contributions.
- In
reply to a further objection by the applicant on 13 September 2003
regarding the calculation of the amount of his future pension
entitlement, the Berlin pension scheme, by letter dated 18 September
2003, specified that the definite amount of the applicant's pension
claim would be determined once he had become eligible to the actual
payment of pension benefits and could only be challenged together
with a corresponding payment order.
B. The proceedings before the Berlin Administrative Court
- On
9 October 2003 the applicant brought an action against the Berlin
Medical Association (Ärztekammer) with the Berlin
Administrative Court claiming the transfer of the total amount
of his compulsory and voluntary contributions accrued with the
Medical Association's pension scheme including interest and
compensation for inflation to the Luxembourg pension scheme.
Alternatively, he requested that the Berlin pension scheme be obliged
to freeze his pension entitlement at the current amount while
maintaining the amount of contributions to be paid by him.
- By
a letter dated 13 October 2003 the Administrative Court informed the
applicant that there existed doubts as to the admissibility of his
action. It asked in particular for information as to whether
there existed a decision of the Berlin Medical Association rejecting
the transfer of his contributions and whether he had instituted
preliminary administrative proceedings (Widerspruchsverfahren)
in this respect. As regards the applicant's alternative action, the
Administrative Court pointed out that a corresponding dispute could
only be instituted once the applicant was entitled to the payment of
the pension. The applicant replied by letter dated 18 October 2003.
- By
letters dated 29 October 2003 and 23 February 2004 the Medical
Association submitted its written observations to which the applicant
replied by written submissions dated 4 March 2004.
- At
his repeated request, the applicant was informed by the
Administrative Court, by letters dated 27 August 2004, 27 January
2005 and 13 December 2005, that it was not yet foreseeable when a
decision in the matter would be taken since older pending matters
were being treated as a priority.
- On
4 December 2006 the Berlin Administrative Court assigned the case to
a single judge for a decision.
- On
17 July 2007 a hearing took place. By a judgment of the same day the
Administrative Court dismissed the action as primarily inadmissible
and did not grant the applicant leave to appeal.
- As
regards the applicant's claim for a transfer of his pension
contributions the Administrative Court held that he was lacking the
need for judicial relief (Rechtsschutzbedürfnis) since
following the failed attempts to transfer the contributions in 2001
the applicant had voluntarily continued to pay the contributions and
had not repeated his request to have them transferred by the Berlin
pension scheme. It found that the applicant could only have had
recourse to the courts after having challenged an administrative
decision rejecting his request. The applicant's alternative claim was
rejected as manifestly ill-founded by the Administrative Court.
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 and adduced in particular that
measures had been taken by the Berlin Administrative Court in order
to reduce an alleged temporary and exceptional backlog of court
business.
- The
period to be taken into consideration began with the applicant's
action brought before the Berlin Administrative Court on 9 October
2003 and ended on 20 July 2007 the day on which the judgment in the
first instance proceedings was served on the applicant. It thus
lasted more than three years and nine months for one level of
jurisdiction.
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
- 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.
In particular, while noting the Government's submissions that
the Berlin Administrative Court was subject to an alleged temporary
overload of work only and measures had been taken to reduce the
backlog of pending cases during the period in question, the Court
cannot ignore that in the present case it took more than three years
and nine months from the lodging of the action on 9 October 2003
until 17 July 2007 before a hearing in the case took place.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed just satisfaction in respect of pecuniary and
non-pecuniary damage and left the amounts to be awarded at the
Court's discretion.
- The
Government pointed out that the applicant had not substantiated his
related claims.
- The
Court observes that the applicant did not specify the nature and
amount of pecuniary damage suffered and has not established that any
such damage was caused by the length of the proceedings before the
Administrative Court. As regards the applicant's submissions that in
the event of a transfer of his pension contributions accrued with the
Berlin Medical Association's pension scheme to the Luxembourg pension
scheme the total amount of his pension entitlement with the latter
would have increased, the Court does not discern a causal link
between the violation found and the pecuniary damage alleged. In
particular, it cannot speculate as to what the outcome of the
proceedings would have been had they satisfied the requirements of
Article 6 § 1 as to their length (see Sürmeli v. Germany
[GC], no. 75529/01, § 144, ECHR 2006 ...). Accordingly,
it considers that no award can be made to the applicant under this
head.
- The
Court considers that the applicant must have sustained non-pecuniary
damage as a result of the excessive length of the proceedings which
is not sufficiently compensated by the finding of a violation. Ruling
on an equitable basis and having regard to the nature of the
Convention violation it has found, the Court awards the applicant
EUR 3,000 (three thousand euros) under that head.
B. Costs and expenses
- The
applicant also claimed the reimbursement of costs and expenses
incurred before the domestic courts and the Court and again left the
amounts to be awarded at the Court's discretion.
- The
Government argued that the applicant had not provided any evidence
regarding costs and expenses incurred.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the above criteria and in particular to the fact that the applicant
failed to specify the costs and expenses incurred before the national
courts within the time-limit set by the Court, it rejects the claim
for costs and expenses.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 3,000 (three 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 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
