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FIFTH
SECTION
CASE OF BOZLAR v. GERMANY
(Application
no. 7634/05)
JUDGMENT
STRASBOURG
5
March 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 Bozlar v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 10 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7634/05) 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 an Italian national, Ms Maria
Giulietta Bozlar
(“the applicant”), on 25 February
2005.
- The
applicant was represented by Mr H. Sievers, a lawyer practising in
Berlin. The German Government (“the Government”)
were represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the
Federal Ministry of Justice.
- On
20 February 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).
- In
accordance with Article 36 § 1 of the Convention and Rule 44 of
the Rules of Court the Italian Government were invited to exercise
their right to intervene in the proceedings, but they did not
indicate that they wished to exercise this right.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in Cellino San Marco in Italy and lives in Berlin.
- On
11 November 1998 the applicant underwent a kidney transplant
operation at the Charité Medical University in Berlin.
Following complications after the operation, the transplanted
kidney had to be removed and the applicant underwent a further
operation.
- On
9 May 2001 the applicant brought an action against the
Charité
Medical University claiming that they were medically liable for the
unsuccessful kidney transplant. In particular, she requested the
court to award her an adequate amount of damages for pain and
suffering (Schmerzensgeld) and to declare that the defendant
was liable for all future damage to her health (including latent
damage) and any stress, worry or inconvenience caused by the
defendant's alleged malpractice.
- On
16 October 2001 the Berlin Regional Court ordered an urological
expert report on the question whether the defendant, due to alleged
insufficient post-operative treatment, had discovered the applicant's
urinary leak too late. On 15 November 2001 the Regional Court
appointed the first expert who informed the court on 5 December 2001
that he would be unable to prepare the report.
- On
22 January 2002 the Regional Court requested the Lower Saxony Medical
Association to designate an expert. On 28 March 2002 the Regional
Court commissioned a second expert and set him a time-limit of three
months for the preparation of his report. Between October 2002 and
March 2003 the court inquired of the expert three times as to whether
he had prepared his report. On 29 April 2003 it ordered him to
deliver the latter within six weeks and announced its intention to
impose a fine on him in case of non-compliance with that time-limit.
- On 26
August 2003 the Regional Court imposed a fine on the second expert,
discharged him, and appointed a third expert. On 13 October 2003 the
court set him a time-limit of six months for the preparation of his
report. On 24 November 2003 the Regional Court requested the
applicant to pay a further advance on the expert's costs which the
applicant paid on 19 December 2003. On 23 and 30 September 2004
the Regional Court extended the time-limit for the preparation of the
expert's report until 17 November 2004 after the expert had
informed the court that his assistant whom he had entrusted with the
preparation of the report had unexpectedly become unavailable. On 6
December 2004 the Regional Court received the expert report dated 12
November 2004. The expert invoiced for 28 hours' work in the
preparation of his report.
-
On 4 February 2005 the applicant requested the Regional Court to
extend the time-limit for the submission of her comments on the
report.
On 22 February 2005 she submitted her comments.
- On
10 May 2005, after having held a hearing, the Regional Court
dismissed the applicant's action as being unfounded.
- On
27 May 2005 the judgment was served on the applicant's
representative.
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
period to be taken into consideration began on 9 May 2001 when the
applicant lodged her action with the Regional Court and ended on 27
May 2005 when the judgment of the Regional Court was served on the
applicant. It thus lasted four years and three weeks for one level of
jurisdiction.
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. Submissions made before the Court
- The
applicant maintained that the duration of the proceedings was in
breach of the “reasonable time” requirement laid down in
Article 6 § 1 of the Convention given in particular that the
proceedings had substantial consequences for her livelihood. In her
view the Regional Court contributed to the length of the proceedings
inter alia in that it had granted the third expert an extended
period of six months for the preparation of his report and in that it
took the court four months after that time-limit elapsed until it
inquired of the expert as to his progress with the report.
- The
Government contended that there had been only one question of fact in
dispute between the parties which could be resolved after having
obtained the expert report. They further pointed out that the minor
delays of some two and a half months were attributable to the
applicant due to extensions of time-limits at her request.
- The
Government acknowledged that the Regional Court had contributed to
substantial delays in the proceedings as it had failed to promptly
take the necessary steps for the appointment of the second expert.
Furthermore, the Regional Court failed to effectively prevail upon
the second expert to prepare his report upon the expiration of the
three-month time-limit. Finally, the Regional Court could have
reduced the length of the proceedings if it had set shorter
time-limits for the parties to comment on the appointment of the
third expert. However, the Government contended that a shorter
time-limit for the third expert and an earlier inquiry into the
progress of his report would not have led to the swifter preparation
of the report as a period of three months had already proved
insufficient for the second expert. Moreover, the third expert had
needed further time for the preparation of his report as his
assistant had unexpectedly become unavailable. As to what was at
stake for the applicant, the Government accepted that the proceedings
were of considerable personal interest to her.
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 applicant's action claiming medical liability
did not raise any questions of law or fact of particular complexity.
Only one question of fact was disputed between the parties which had
been clarified by one expert report.
- As
to the applicant's conduct, the Court considers, as do the parties,
that only a minor delay of no more than two and a half months
resulted from the fact that the applicant had requested the extension
of the time-limits to make further submissions and from the fact that
she had paid the requested further advance on the expert's costs
after four weeks.
- Turning
to the conduct of the authorities, the Court notes that several
delays in the proceedings resulted from the inactivity of the experts
who either failed to prepare their reports at all or failed to submit
them within the set time-limits. Nevertheless, in cases where the
cooperation with an expert proves necessary, it is the responsibility
of the domestic courts to ensure that the proceedings are not
excessively prolonged (see, among other authorities, Volkwein v.
Germany, no. 45181/99, § 39, 4 April 2002; and Martins
Moreira v. Portugal, judgment of 26 October 1988, § 60,
Series A no. 143). In the instant case the Court observes that it
took the Regional Court one month and three weeks to request the
Medical Association to designate a new expert after the first
expert had informed the court about his unavailability. Furthermore,
the Regional Court waited some four months after the time-limit had
elapsed for the submission of the (second) expert's report until it
inquired of that expert as to the progress in his report. Instead of
setting a short time-limit for the delivery of his report, it
addressed further fruitless reminders to the expert until it set him
a final time-limit of six weeks. Even after that time-limit elapsed
on 10 June 2003 the Regional Court waited until 26 August 2003 until
it finally discharged the second expert. As to the conduct of the
proceedings regarding the third expert, the Court considers that a
period of six months for the preparation of a report which
necessitated no more than 28 working hours appears excessive in view
of the particular circumstances of the instant case, notably the
considerable time that had already elapsed before the third expert
was commissioned. Under these circumstances the Court considers that
the Regional Court failed to conduct the applicant's proceedings with
the required diligence.
- As
to what was at stake for the applicant the Court observes that the
applicant's proceedings concerned an action claiming medical
liability for damage following an unsuccessful kidney transplant
operation.
Those proceedings were meant to provide redress for
the pain suffered as a result of the unsuccessful operation. The
Court, like the parties, therefore considers that those proceedings
were of particular importance to the applicant.
- Having
examined all the material submitted to it, 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. OTHER ALLEGED VIOLATIONS
- The
applicant complained under Article 6 of the Convention about the
outcome of her medical liability proceedings.
- The
Court observes that the applicant failed to seek any legal remedy
against the impugned decision. In particular, she did not lodge a
constitutional complaint with the Federal Constitutional Court.
- It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
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 claimed compensation for non-pecuniary damage.
A. Damage
- The
applicant sought compensation for non-pecuniary damage.
In
particular, she claimed 3,000 euros (EUR) for the distress and
frustration she had experienced as a result of the length of
the proceedings. Furthermore she claimed “damages for pain and
suffering” amounting to EUR 10,000 on account of the
unsuccessful kidney transplant operation.
- The
Government left the matter to the Court's discretion.
-
The Court does not discern any causal link between the violation
found and the non-pecuniary damage alleged in respect of the
unsuccessful kidney transplant operation; it therefore rejects this
claim. However,
the Court considers that the applicant must have
sustained non-pecuniary damage in respect of the length of the
proceedings. Ruling on an equitable basis, it therefore awards her
EUR 3,000 under that head.
B. Costs and expenses
- The
applicant did not submit any claim under this head; the Court
therefore makes no award in this respect.
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 3,000
(three thousand euros), plus any tax that may be chargeable to her,
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 5 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
