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FIFTH
SECTION
CASE OF GRUMANN v. GERMANY
(Application
no. 43155/08)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Grumann v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43155/08) 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
Maike Grumann (“the applicant”), on 3 September
2008.
- The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the Government”) were
represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin,
Federal Ministry of Justice.
- On
5 October 2009
the President of the Fifth Section decided to communicate the
complaint concerning the length of the proceedings to the Government.
In accordance with Protocol 14, the application was assigned to a
Committee of three Judges.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, an arts teacher, was born in 1946 and lives in Munich.
- On
19 November 1996 she underwent elective surgery on her right eye.
Subsequently, her vision deteriorated, causing her, in 2003, to
become incapable of working.
A. Civil proceedings
- On
24 June 1998 the applicant lodged a claim of medical malpractice
against the hospital and three of its physicians with the Munich I
Regional Court. Prior to the first hearing on 26 October 1998
the court ordered the applicant to file medical records and a
declaration releasing her physicians from their medical
confidentiality. In November 1998 the applicant withdrew her action
against two of the defendants, and the Regional Court requested
medical records from the physicians. On 30 December 1998 the court
ordered the applicant to file additional medical records, which were
partly filed in March 1999. On 20 April 1999 the applicant’s
counsel informed the court that no more records existed.
- On
3 December 1999, following another hearing on 20 October 1999 the
Regional Court ordered an expert report from S. which he submitted on
19 April 2000. On 8 May 2000 the date of the next oral hearing was
fixed for 13 September 2000. In view of the parties’ comments
on the expert opinion, this hearing was cancelled on 13 July 2000,
and S. was asked to supplement his report; he produced the supplement
on 13 October 2000.
- On
9 April and 30 August 2001, following oral hearings on 31 January
and 13 August 2001, the Regional Court ordered further supplements
from S. which were submitted on 18 June and on 17 October 2001. On 17
December 2001 the applicant increased her claim for pecuniary damage
and was ordered to make a further advance payment of court fees.
- On
29 January 2002 the Regional Court cancelled the hearing set for 6
February 2002 because payment of the further court fees could not be
confirmed. On 12 June 2002 the applicant informed the court that her
insurance had already paid the additional court fees in January;
actual confirmation of the payment was only made on 23 August 2002.
On 9 December 2002, after the expert had not replied to the
court’s letters from August 2002, the Regional Court informed
the parties that he could not be located.
- On
23 January 2003 the applicant increased her pecuniary damage claim.
On 8 April 2003 an oral hearing set for 16 April 2003 was cancelled.
On 3 July 2003 the Regional Court ordered a new expert report
from O. since S., who had meanwhile been traced, was not
available for a hearing. On 31 July 2003 the applicant again
increased her pecuniary damage claim. After comments on the claim
extension by the defendants the court on 8 September commissioned O.
On 7 November 2003 he informed the court that he was unable to accept
the assignment but recommended his colleague, K. On 5 December 2003
the applicant objected to the appointment of K.
- On
1 April 2004 O. returned the files to the court. On 20 April 2004 G.
was appointed as expert. He submitted his report on 6 December 2004
after a reminder of the court dated 15 November 2004.
- On
4 February 2005, after having received comments from the parties, the
Regional Court ordered a supplement to the report, which G. submitted
on 28 February 2005. An oral hearing scheduled for 25 May 2005 was
cancelled on 15 April 2005 upon both parties’ request; a new
date was set for 16 November 2005. On 21 September 2005 G., who could
not come to a hearing due to health problems, submitted written
answers to further questions of the applicant. On 16 November 2005
the oral hearing was held. On 31 December 2005 the applicant
increased her pecuniary damage claim.
- On
6 April 2006 the Regional Court informed the parties that it intended
to have the applicant examined. On 14 April 2006 G. died. On 7 June
2006 the court designated L. to assess the applicant’s current
medical status. In September 2006 the court was advised that one and
the same expert should examine the applicant and also submit a
follow-up to G’s opinion. On 12 October 2006 Sp. was appointed
after the applicant had objected to the appointment of L. On 25
October 2006, at the defendants’ request, the oral hearing,
which had been set for 5 February 2007, was rescheduled for 29
January 2007. On 13 November 2006 the files were forwarded to Sp.
- On
23 January 2007 the court, which had not yet received the expert
report, cancelled the hearing set for 29 January 2007. On 29 January
2007 Sp. submitted her report and on 19 March 2007 she
was heard in an oral hearing. In April and July 2007 the Regional
Court proposed a settlement which the parties did not accept. On 25
July 2007 it then handed down a partial and a full judgment on the
basis of the cause of action (Teil und Grundurteil).
- On
11 September 2007 the defendants appealed the judgment. On 12 October
2007 they submitted the reasoning of the appeal. On 7 December
2007 the Court of Appeal scheduled an oral hearing for 21 February
2008. On 24 January 2008 the applicant lodged a cross-appeal
(Anschlussberufung). On 29 May 2008 the appeals were
dismissed.
- On
3 July 2008 the defendant lodged a complaint against the Court of
Appeal’s refusal to grant leave to appeal. On 6 October 2008
the grounds for the complaint were lodged. On 5 January 2009 the
applicant submitted a response. On 21 January 2009 the Federal Court
of Justice quashed the judgment and remitted the case to the Court of
Appeal.
- On
23 February 2009 the files were returned to the Court of Appeal which
on 25 March 2009 proposed a settlement and advised the parties that
otherwise a new expert needed to be appointed. On 7 May 2009 the
defendants refused the settlement. On 28 May 2009 the Court of Appeal
appointed K. as the new expert. On 17 June 2009 the applicant
reiterated her objection from 2003 to the appointment of K. On 25
June 2009 the Court of Appeal appointed A., who on 14 July 2009
informed the court that he was not be able to render the expert
opinion. On 5 August 2009 the Court of Appeal appointed G., who on 7
September 2009 also informed the court that he was not available. On
3 November 2009 R. was appointed.
B. Criminal proceedings
- On
19 September 2006 the applicant pressed criminal charges against the
defendants alleging procedural fraud (Prozessbetrug). On
9 October 2006 the Public Prosecutor’s Office acknowledged
receipt of the complaint. On 8 May 2009 the applicant renewed her
complaint against the defendants.
II. RELEVANT DOMESTIC LAW
- Section
358 a Code of Civil Procedure
“The court can issue an evidence order already
before the oral hearing. The order can be implemented before the oral
hearing as far as it orders:
...
4. an expert opinion.
...”
- Section
409 Code of Civil Procedure
“(1) Where an expert fails to appear in court or
refuses to render an expert opinion although he is obliged to do so,
or if he retains the files or other documents, he shall be obliged to
pay the costs arising therefrom. At the same time, an administrative
fine shall be imposed. In the event of repeated disobedience, the
administrative fine may be imposed a second time.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that
the length of the still pending proceedings was 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 this
argument and maintained that the length of the proceedings was not
excessive. They emphasised the complexity of the medical malpractice
proceedings at issue, in particular the necessity of obtaining expert
evidence. They pointed out the difficulties involved, namely the
search for competent experts willing to prepare not only the report
but also to appear at a hearing. In this context they also submitted
that it was reasonable for the court not to take coercive measures
against experts who ask not to be summoned to a hearing, because such
measures would make it even more difficult to find experts in the
future. Moreover, numerous questions of the parties made addendums to
the reports necessary; the resulting delay could not be attributed to
the court. The Government pointed out that it must be seen as
proper conduct of the proceedings that the court only ordered the
first expert opinion after the applicant had withdrawn her action
against two of the defendants and all medical records were on file.
They also maintained that the cancellation of a hearing because
payment of additional court fees could not be confirmed could not be
objected to. As to the applicant’s conduct, the Government
submitted that she contributed to the length of the proceedings with
her late submission of medical records at the beginning of the
proceedings, her delayed payment of additional court fees, her
objections to experts, her claim extensions and several requests for
an extension of time limits.
While the Government conceded that
the proceedings were of some importance to the applicant, they also
pointed out that the surgery had not been medically indicated and
that the applicant was still in a financially secure situation.
- The
period to be taken into consideration began on 24 June 1998 with the
lodging of the action and has not yet ended. It has thus lasted so
far more than twelve years at three levels 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.
While the Court accepts that medical malpractice proceedings may well
be complex, it finds that in the instant case the proceedings were
not conducted with the efficiency that can be expected with a view to
the “reasonable time” requirement of Article 6 of the
Convention. The Court sees no reason why the Regional Court did not
at the very beginning order the parties to submit all medical records
and issue an evidence order already before the first oral hearing as
is possible under domestic law (see Relevant domestic law above), but
instead waited more than one year. The Court also observes that the
whole process of obtaining expert reports and supplements to these
reports could have been cut short if the expert had been summoned to
the first hearing to give an oral expert report or, at least, if he
had been summoned to explain his written report at the earliest
possible hearing. In this context the domestic courts should
verify that only experts who are available for an oral hearing are
appointed and should also make use, if necessary, of coercive
measures as provided for by domestic law.
- As
to the applicant’s conduct the Court takes note of her frequent
claim extensions. However, it also observes that they dealt with the
applicant’s pecuniary damage claim which the domestic courts
have so far not even addressed; the Court hence does not discern any
causal link between the claim extensions and the length of the
proceedings. The same is true for the alleged late payment of
additional court fees following a claim extension. The Court does not
see any reason why an oral hearing dealing with the basis of the
cause of action and not the pecuniary damage claim should be
cancelled for this reason. As far as the applicant’s requests
for extensions of time limits and her objections experts are
concerned the Court finds that any delay arising therefrom is
negligible. Finally, the Court accepts that the proceedings were
rather important for the applicant who had become incapable of
working due to the surgery at issue.
- Having
regard to the above considerations and 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 the “reasonable time”
requirement of Article 6 § 1.
II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
- The
applicant, once more relying on Article 6 of the Convention, further
complained about the way in which evidence was
taken by the domestic courts, about the length of the proceedings
regarding the criminal charges she brought against the defendants and
that her right to have a criminal offence prosecuted was violated.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court considers
that this part of the application does not disclose any appearance of
a violation of the Convention. If follows that it is inadmissible
under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article 35 § 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 25,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government left the issue of non-pecuniary damage to the discretion
of the Court.
- The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the excessive length of the proceedings. Ruling
on an equitable basis and having regard to the nature of the
Convention violations it has found as well as, in particular, to what
was at stake for the applicant, it awards her EUR 10,000 under
that head.
B. Costs and expenses
- The
applicant, submitting documentary evidence, claimed EUR 3,550
for costs and expenses incurred before the
domestic courts.
- Regarding
costs and expenses incurred before this Court the applicant claimed
EUR 2,296.99, comprising lawyer’s fees of EUR 2,213.44
and own expenses of EUR 83.59.
- The
Government contested the claim for costs and expenses incurred before
the domestic courts, maintaining that since the German fee schedule
for lawyers did not provide for any special fee with regard to advice
on the length of the proceedings the costs claimed in this regard
could only be based on a fees agreement which had not been submitted.
- 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
considers that the applicant has not established that the costs and
expenses claimed for the proceedings before the domestic courts were
incurred in order to seek prevention or rectification of the specific
violation caused by the excessive length of the proceedings. In
particular, the Court finds that the evidence submitted for extra
lawyers’ fees allegedly incurred specifically because of the
length of proceedings is not sufficiently substantiated. The German
fee schedule for lawyers does not provide for an extra fee because of
the length of the proceedings; an agreement providing for a extra
remuneration in this regard was not submitted. However, seeing that
in length of proceedings cases the protracted examination of a case
beyond a “reasonable time” involves an increase in the
applicants’ costs (see, among other authorities, Sürmeli
v. Germany [GC], no. 75529/01,
§ 148, ECHR 2006 VII), it
finds it reasonable to award EUR 500 under this head. This
amount also covers the EUR 360 claimed by the applicant for
additional legal advice because of the length of the proceedings. The
Court further considers it reasonable to award the sum of EUR
2,296.99 covering lawyer’s fees and the applicant’s own
expenses 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 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,
(i) EUR
10,000 (ten thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,796.99 (two thousand seven hundred ninety-six euros and ninety-nine
cents) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant in respect of the above
amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
