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FIFTH
SECTION
CASE OF DEIWICK v. GERMANY
(Application
no. 7369/04)
JUDGMENT
STRASBOURG
26
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 Deiwick v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 7369/04) 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 Hans-Jürgen
Deiwick
(“the applicant”), on 19 February 2004.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
27 May 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).
- Judge
Jaeger, the judge elected in respect of Germany, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 20 June
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead another elected judge,
namely Judge Mark Villiger.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
- The
applicant was born in 1923 and lives in Hamburg.
- From
1970 he practised as a physician affiliated to the statutory public
health insurance scheme.
- In
1992 the Health Care Reform Act (Gesundheitsstrukturgesetz)
amended the relevant provisions of the Social Security Act, Book V
(Sozialgesetzbuch V) and introduced a retirement age of
68 for those medical practitioners who were affiliated to the
statutory public health insurance scheme with effect from 1 January
1999 (see “Relevant domestic law” below).
2. Proceedings before the domestic authorities
- On
11 May 1998 the Hamburg Regional Registration Committee for
Physicians (Zulassungausschuss für Ärzte) decided
that according to section 95 § 7 of the Social Security Act,
Book V (see “Relevant domestic law” below) the
applicant's authorisation to practise as a physician under the
statutory public health insurance scheme would expire on 1 January
1999 as the applicant already had reached his 68th birthday prior to
that date.
- On
27 July 1998 the applicant lodged an administrative appeal against
that decision, which the Hamburg Appeals Board for Physicians
(Berufungsausschuss) dismissed on 30 September 1998.
- On
19 November 1998 the applicant brought an action before the Hamburg
Social Court to have the previous decisions annulled without
submitting his statement of claim.
- On
21 December 1998 the applicant, without awaiting the outcome of the
proceedings before the Social Court, lodged a constitutional
complaint which the Federal Constitutional Court refused to admit
on 15 February 1999.
- On
21 May 1999 the applicant submitted a statement of claim to the
Hamburg Social Court which it forwarded to the defendant on 16 July
1999.
- On
21 December 1999 the Social Court forwarded the defendant's statement
of 26 July 1999 to the applicant.
- On
18 February 2000 the Social Court forwarded the defendant's further
statements of 18 January 2000 to the applicant and requested him to
comment on them which the applicant did on 3 September 2001.
- Between
21 September 2001 and 22 May 2002 the case file was erroneously
stored in the Social Court's archives.
- On
17 October 2002 the Social Court informed the applicant that it
intended to render a decision (Gerichtsbescheid) without
holding an oral hearing and invited the applicant to submit written
comments within one month. On 15 November 2002 the applicant
submitted his comments.
- On
20 August 2003 the Hamburg Social Court dismissed his action,
referring to the established case-law of the Federal Constitutional
Court according to which the introduction of a compulsory retirement
age for doctors had been compatible with the Basic Law (Grundgesetz).
- On
23 September 2003 the Social Court served that decision on the
applicant.
3. Proceedings before the Court
- On
18 August 1999 the applicant lodged his first application with the
Court, alleging that the revocation of his authorisation to practise
as a physician under the statutory public health insurance scheme
violated his rights under Article 14 of the Convention and Article 1
of Protocol No. 1.
- On
20 May 2003 the Court declared his application (no. 55004/00)
inadmissible for being manifestly ill-founded.
II. RELEVANT DOMESTIC LAW
- On
21 December 1992 the Health Care Reform Act introduced a retirement
age of 68 for medical practitioners affiliated to the statutory
public health insurance scheme. The amendment entered into force on
1 January 1999. Accordingly, section 95 § 7 of the
Social Security Act, Book V as amended by the Health Care Reform Act
provides, inter alia, that authorisation to practise as a
physician under the statutory public health insurance scheme expires
on 1 January 1999 if the practitioner has already reached his or her
68th birthday before that key date.
- According
to the case-law of the Federal Constitutional Court
(see,
decision of 31 March 1998, nos. 1 BvR 2167/93 and 1 BvR 2198/93),
section 95 § 7 of the Social Security Act was compatible with
the medical practitioners' freedom of profession, their property
rights and the principle of equality as guaranteed by the Basic Law.
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 27 July 1998 when the
applicant lodged his administrative appeal (see, among other
authorities, Janssen v. Germany, no. 23959/94, § 40,
20 December 2001, and König v. Germany, judgment of 28
June 1978, Series A no. 27, § 98) and ended on 23
September 2003 when the Hamburg Social Court served its decision on
the applicant. It thus lasted five years and two months at one level
of compulsory administrative review and 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. He submitted that the case had
raised no particular difficulties and that a speedy decision of the
Social Court had been of considerable interest to him.
- The Government submitted that the proceedings had not
been of a particular complexity and that the legal issue at stake had
already been decided by a previous decision of the Federal
Constitutional Court
(see, paragraph 22 above).
-
According to the Government a delay of a total of two years was
attributable to the applicant's own conduct as he had submitted his
statement of claim and comments to the Social Court belatedly.
The
Government acknowledged that the Social Court had contributed to
substantial delays in the proceedings as it failed to forward swiftly
the statement of claim, the statement of defence and the defendant's
further written submissions to the other party. Furthermore, the
Social Court significantly delayed the proceedings in that it
erroneously placed the case files in the archives for a period of one
year and one month. Finally, the Social Court failed to speedily
decide on the applicant's action after the final statements of the
parties were submitted and to serve the decision swiftly on the
applicant.
- As
to what was at stake for the applicant, the Government maintained
that the applicant's interest in the proceedings had been relatively
low as Federal Constitutional Court had already clarified the legal
issue in dispute. Therefore the applicant had to expect from the very
beginning that his action would be dismissed.
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 did not raise any factual
or legal issues of particular complexity, given in particular, that
the only legal question at stake had already been clarified by the
Federal Constitutional Court before the applicant lodged his
action with the Social Court.
- As
to the applicant's conduct, the Court considers that substantial
delays of a total of two years resulted from the fact that the
applicant failed to submit his statement of claim and the comments
requested by the
Social Court on 18 February 2000.
- Turning
to the conduct of the authorities, the Court notes that the
preliminary administrative proceedings were pending for two months
before the Appeals Board, whereas the proceedings before the Social
Court lasted four years and ten months. The Court observes that there
were considerable periods of inactivity on the part of the Social
Court: Thus the court repeatedly failed to immediately forward the
parties' statements to the other party, which contributed to a delay
of eight months. Furthermore, the proceedings came to a standstill
when the Social Court erroneously deposited the case files in the
archives for a period of one year and one month. After the applicant
had submitted his final statement it took the Social Court nine
months to render its decision and another month to serve it on the
applicant. Under these circumstances the Court considers that the
Social Court failed to conduct the applicant's proceedings with the
required diligence.
- As to the importance of what was at stake, the Court
observes that the applicant, in bringing his action before court
although the issue at stake had been previously settled by the
Federal Constitutional Court, showed a certain personal interest in
having a judicial examination of his own case. However, having regard
to the overall circumstances, the Court considers that the domestic
courts and authorities were not under a specific duty to exercise
exceptional diligence in the applicant's case.
- 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 further complained under Articles 8 and 14 of the
Convention, Article 1 of Protocol No. 1 and Article 1 of Protocol No.
12 about the revocation of his authorisation to practise as a doctor
under the statutory public health insurance scheme.
- The
Court has examined the remainder of the applicant's complaints as
submitted by him. However, having regard to all the material in its
possession, and in so far as these complaints fall within its
competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that this part of the application must
be rejected as being manifestly
ill-founded, 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.”
A. Damage
- The
applicant claimed altogether 1,000,000 euros (EUR) in respect of
pecuniary and non-pecuniary damages.
- He
submitted that he had incurred costs of EUR 70,000 in respect of the
loss of income under the statutory public health insurance scheme
(vertragsärztliches Einkommen), EUR 15,000 per annum
for partial loss of income under the private health insurance scheme
(privatärztliches Einkommen), EUR 3,084.11 for the
recycling of his X-ray equipment and further unspecified damage
incurred during the domestic proceedings.
- As
to non-pecuniary damages, the applicant left the matter to the
Court's discretion.
- The
Government contested the alleged pecuniary claims, arguing that they
were unsubstantiated. In any event, they were not caused by the
length of the proceedings.
- As
regards the applicant's claim for pecuniary damages, the Court notes
that the applicant's costs and financial losses allegedly incurred
merely related to the outcome of the proceedings. It notes in
particular that the applicant did not even contend that those damages
had been related to the length of the proceedings as such. There are
therefore no grounds for an award under this head.
- The
Court considers that the applicant must have sustained
non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 1,500 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 1,500 (one
thousand
five hundred euros), plus any tax that may be chargeable
to him, 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 26 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
