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FIFTH
SECTION
CASE OF SCHLIEDERER v. GERMANY
(Application
no. 2651/07)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Schliederer v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mark Villiger, President,
Renate
Jaeger,
Isabelle Berro-Lefèvre, 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. 2651/07) 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 Claudia
Franziska Schliederer (“the applicant”), on 5 January
2007.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of
the Federal Ministry of Justice.
- On
25 August 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. In application
of Protocol 14 the application was assigned 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 1959 and lives in Simbach am Inn.
- In
November 1994, the applicant pressed criminal charges against her
father, alleging several acts of sexual assault and rape in the
1970s. The Office of the Prosecutor initiated a criminal
investigation against the father. It also commissioned a
psychological expert report on the credibility of the applicant. On 6
September 1995 the Office of the Prosecutor discontinued the
investigation, relying, inter alia, on the expert report,
which had found several inconsistencies in the applicant’s
account of events and which had come to the conclusion that doubt as
to her credibility could not be excluded.
- In
July 1995, the applicant requested compensation under the Damages for
Victims of Acts of Violence Act (Gesetz über die
Entschädigung für Opfer von Gewalttaten) (“the
Act”). She claimed that she was suffering from the consequences
of the acts committed by her father.
- On
16 January 1996 the Family Office dismissed the applicant’s
request. It found that the allegations of the violent acts could not
be confirmed with certainty and relied on the expert report which had
been commissioned by the Office of the Prosecutor.
- On
7 February 1996 the applicant lodged an administrative objection
against the Family Office’s refusal, which was dismissed on
20 August 1996. On 5 September 1996 the applicant brought
an action with the Bayreuth Social Court.
- On
5 July 1997 the Social Court commissioned an expert report on the
applicant’s credibility. The Social Court sent reminders to the
expert on 22 October 1997, 10 February 1998, 10 March 1998, 12
May 1998; on 25 June 1998 the Social Court sent a last reminder
setting a deadline until 15 August 1998. On 2 March 1999 the
Social Court received the expert report dated 4 November 1998, in
which the expert concluded that the applicant’s statements were
credible as far as the essence of her allegations was concerned. On
the basis of this expert opinion, the Office of the Prosecutor
decided to renew the investigations against the father.
- Because
of the institution of investigations, the Social Court adjourned the
proceedings on 21 May 1999 until the criminal investigations had been
concluded. The Office of the Prosecutor commissioned a further expert
report to explain the two previous expert reports, which had each
come to a different conclusion. This expert report concluded that the
plausibility of the applicant’s statements could no longer be
ascertained with sufficient reliability. Consequently, the Office of
the Prosecutor discontinued the investigation on 4 October 2000. The
Chief Public Prosecutor dismissed the applicant’s objection on
25 October 2000. During the criminal investigation, the Social Court
on 9 December 1999, 16 March 2000, 11 September 2000 and 14 November
2000 requested a progress report from the Public Prosecutor’s
office. Having been informed of the applicant’s waiver to file
an appeal on 14 December 2000, the Social Court resumed the
proceedings on 20 December 2000. On 27 March 2001 the Social Court
continued its investigation into the facts.
- On
6 June 2001 the applicant’s counsel requested access to the
case-file; the Social Court sent the file to counsel on 4 October
2001. On 28 February 2002 the applicant requested that two
further witnesses be heard; on 8 May 2002 the Social Court informed
the applicant that the reports of those two witnesses were already on
the record.
- On
25 September 2002 the Social Court dismissed the applicant’s
claim without conducting an oral hearing. Relying on the two expert
reports which had found that the applicant’s credibility could
no longer be determined with sufficient reliability, it held that the
applicant had failed to prove that there had been a violent act
against her.
- On
18 October 2002 the applicant appealed against the decision of the
Social Court. On 30 January 2003 the Social Court of Appeal informed
the parties that it appeared that the alleged violent acts had
occurred prior to the coming into force of the Act. In such cases,
according to the Act, the claim depended on whether applicants could
demonstrate a 50% reduction in earning capacity as a result of the
violent acts, and that they were indigent. In July 2003, the parties
agreed that an expert report on the extent of the reduction in
earning capacity be commissioned.
- On
26 November 2003 the expert submitted his report, in which he found
that the applicant was suffering from, inter alia, a serious
personality disorder of the borderline type, depression, and an
eating disorder. However, the expert found that it was also likely
that these disorders would have emerged without the alleged violent
acts by her father. On 26 January 2004 the applicant objected to the
expert report. On 16 August 2004 she requested that a new expert
report be commissioned. On 15 September 2004 the Social Court of
Appeal ordered the expert suggested by the applicant to file a
report, yet the expert recused himself. On 19 November 2004 it
ordered the applicant to name a new expert by 31 December 2004, which
she did on 21 February 2005. On 24 May 2005 it announced a hearing
for the 30 June 2005.
- On
30 June 2005 the Social Court of Appeal dismissed the appeal, noting
the obviously particularly complex circumstances. Taking into account
the various expert reports it held that the applicant had not
demonstrated that her father had sexually abused her between 1971 and
1976. Moreover, the relevant expert report on the issue of reduction
in earning capacity had found that it was not likely that her current
disorders had been caused by the alleged violent acts. The judgment
was served on the applicant on 26 October 2005.
- On
11 November 2005 the applicant, represented by a lawyer, lodged
a request for leave to appeal with the Federal Social Court,
alleging, inter alia,
that two relevant witnesses had not testified, that she had not been
sufficiently heard, and that the decision of the Social Court of
Appeal had been a surprise decision. On 20 March 2006 the
Federal Social Court declared the request inadmissible as it had not
been sufficiently substantiated. It observed that the applicant had
failed to demonstrate in what particular way the testimony of the two
witnesses would have been relevant and necessary for the issues in
question.
- On
or about 22 April 2006 the applicant lodged a constitutional
complaint, complaining about the social court proceedings and the
criminal investigation. The Federal Constitutional Court severed the
complaints, separating the social court proceedings from the criminal
investigation.
- On
13 June 2006 the Federal Constitutional Court declared the
constitutional complaint concerning the social court proceedings
inadmissible; the decision was served on the applicant on 15 July
2006. It observed that the applicant had failed to comply with the
principle of subsidiarity as she had not exhausted all effective
remedies. In particular, she had failed to sufficiently substantiate
her request with the Federal Social Court. It found that there was
nothing to suggest that the Federal Social Court had set arbitrary or
unreasonable requisites regarding the admissibility of the
complaints. The Federal Constitutional Court noted that the
applicant, represented by a lawyer, had specifically complained that
the Federal Social Court should have taken evidence and reassessed it
anew; she had thus failed to understand that the Federal Social Court
was merely competent in respect of appeals on points of law.
- On
14 September 2006 the Federal Constitutional Court refused to admit
the constitutional complaint concerning the criminal investigation,
without providing any reasons.
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, so far as
relevant, 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 submitted that, in view of the overall length of the
proceedings and the periods of delay attributable to the domestic
courts, it refrained from making a specific request to the Court.
- The
relevant period to be taken into consideration begins with the date
when the applicant filed his objection, a necessary first step before
proceedings can be brought in the social courts (see Janssen v.
Germany, no. 23959/94, § 40, 20 December 2001, and König
v. Germany, judgment of 28 June 1978 Series A no.27, §
98). Therefore, the period to be taken into consideration began on 7
February 1996, when the applicant lodged an administrative objection
against the Family Office’s decision, and ended on 15 July 2006
when the Federal Constitutional Court’s decision was served on
the applicant. It thus lasted over ten years and five months for four
levels of jurisdiction, including one administrative complaint.
A. Admissibility
- The
Government raised concerns about the fact that the Court had decided
on 8 June 2006, at a time when the applicant’s
constitutional complaint was still pending, that a constitutional
complaint was not an effective remedy for complaining about allegedly
excessive length of civil proceedings (referring to Sürmeli
v. Germany [GC], no. 75529/01, § 108, ECHR 2006 VII).
- In
the instant case the intervening event referred to by the Government
was a judgment of the Court, of which the applicant cannot be
expected to react upon immediately, as the proceedings before the
Constitutional Court ended less than a week later than the Court’s
judgment in Sürmeli v. Germany, on 13 June 2006, and the
decision was served on the applicant on 15 July 2006. In these
circumstances, the Court finds it appropriate to calculate the
six-month period from the date on which the Federal Constitutional
Court’s decision was served on the applicant.
- Accordingly,
the Court finds that the applicant has complied with the six-month
time-limit of Article 35 of the Convention. The Court also notes that
the proceedings at issue for compensation under the Victims
Compensation Act concern the determination of the applicant’s
“civil rights” within the meaning of Article 6 § 1,
which is therefore applicable (see, in particular, Glüsen v.
Germany, no. 1679/03, §§60-62, 10 January 2008).
Moreover, the complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and 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
Government submitted that the proceedings before the Social Court and
the Social Court of Appeal had lasted nine years, eight months and
three weeks. Though both social courts, in general, continuously
worked on and processed the case, the Government accepted that there
had been several delays which were attributable to the courts. The
Government acknowledged that during several periods (from 15 August
1998 to 2 March 1999, from 20 December 2000 to 27 March 2001, from 8
June 2001 to 4 October 2001, and from 1 March 2002 to 8 May
2002) the Social Court remained inactive (see paragraphs 9-11 above).
Also, several periods of delay (from 21 February 2005 to 24 May 2005,
and from 30 June 2005 to 26 October 2005) could be attributed to
the Social Court of Appeal (see paragraphs 14 and 15 above). The
Government also submitted that it was cognisant of the importance of
the case for the applicant.
- The
applicant submitted, inter alia, that the case had not been
complex and that the social courts had considerably prolonged the
proceedings.
- 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. The Court accepts that the
case, which was based on disputed facts some 30 years ago and which
necessitated the opinion of experts to decide the case,
was considerably complex. Nevertheless the Court finds that –
as partly recognised by the Government – the social courts
failed to diligently further the proceedings, in particular in view
of the importance of the case to the applicant.
- Having
regard to its case-law on the subject, the Court therefore 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. ALLEGED VIOLATIONS OF ARTICLES 6 §§ 1 and 3,
13 AND 14 OF THE CONVENTION
- The
applicant also complained under Article 6 that the proceedings before
the social courts and the criminal investigation were generally
unfair, in particular, that she had never been heard and that the
social courts ignored several documents. She also complained that the
Social Court adjourned the proceedings to wait for the outcome of the
criminal proceedings. Under Article 6 § 3 (b), she complained
that none of the witnesses she had proposed were given the
opportunity to testify. Relying on Article 13, the applicant
complained, inter alia, that the Federal Constitutional Court
had refused to admit her constitutional complaint on the ground that
she had not exhausted effective remedies. Finally, relying on Article
14, the applicant complained, inter alia, that she had been
discriminated against as the Social Court of Appeal took into account
her mother’s schizophrenia when assessing the applicant’s
credibility.
- 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 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 these complaints are manifestly ill-founded and must be
rejected in accordance with 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 a total amount of 143,680 euros (EUR) and a monthly
pension of EUR 576 in respect of pecuniary damage. In respect of
non-pecuniary damage she claimed EUR 75,000 and a monthly pension of
EUR 300.
- The
Government submitted that there was no causal link between the length
of the proceedings and the alleged pecuniary damage. As to the
non pecuniary damage they considered that the award sought by
the applicant was grossly excessive and left the amount to be awarded
to the applicant for non-pecuniary damage to the Court’s
discretion.
- The
Court does not discern any causal link between the violation found
(the breach of Article 6 § 1) and
the pecuniary damage alleged; it therefore rejects this claim. On the
other hand, ruling on an equitable basis it awards the applicant EUR
2,100 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 500 for the costs and expenses incurred
before the Court.
- The
Government did not express an opinion on the matter.
- The
Court considers it reasonable to award the applicant the sum
of EUR 500 under this head.
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
(i) EUR
2,100 (two thousand one hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on 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
