BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF VOLKMER v. GERMANY
(Application
no. 54188/07)
JUDGMENT
STRASBOURG
30 March 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Volkmer v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Karel Jungwiert, President,
Renate
Jaeger,
Mark Villiger, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 54188/07) 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 Sigrid
Volkmer (“the applicant”), on 19 November 2007.
- The
applicant was represented by Mr H.-J. Dohmeier, a lawyer practising
in Ludwigshafen. The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, Federal Ministry of
Justice.
- On
25 August 2008 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 1942 and lives in Mandel.
1. Background to the case
- On
15 June 1986 the applicant had a traffic accident with a
head-on collision. Subsequently, the other party's insurance company
recognised its liability to compensate her for pecuniary and
non-pecuniary damage and paid her 11,539.63 German marks (DEM)
(5,900.11 Euros (EUR)).
The applicant claimed further payments on
the ground of permanent eye complaints and whiplash injury. The
insurance company contested the existence and causality of that
damage, and in particular contested that the applicant had suffered
any permanent damage to her health.
2. Proceedings before the Munich Regional Court
- On
9 February 1992 the applicant brought a claim against the
insurance company for compensation for pecuniary and non-pecuniary
damage as a result of the traffic accident.
- On
27 March 1992 the Munich Regional Court held a first
hearing in which it assigned the case to a single judge as it did not
display any legal or factual difficulties. On the same day, the
single judge ordered an expert opinion in the field of orthopaedics
and appointed an orthopaedist from Munich.
- On
30 April 1992 the applicant, referring to a medical certificate,
informed the court that she was unable to travel due to illness, and
asked the Regional Court to appoint an orthopaedist closer to her
place of residence. After discussion on how to proceed it was decided
that the originally appointed expert should examine the applicant at
her place of residence.
The expert opinion was delivered in July
1993.
- In
August the expert opinion was forwarded to the parties for comments
within two week. Upon request of the applicant's lawyer this time
limit was extended until 29 September 1993.
- On
30 November 1993 the court, upon request of the applicant,
ordered another expert opinion regarding her eye complaints. After
the applicant had in December informed the court that she continued
to be unable to travel new experts were appointed on 22 February
and 9 June 1994; the opinion was delivered on 21 July 1994.
The court put supplementary questions to the ophthalmologist as to
whether the accident had caused the applicant's eye complaints and on
his diagnostic methods on 12 September 1994, 31 January,
2 May and 22 June 1995. The competent judge sitting in
the case changed twice during this period.
- On
11 January 1996 the court decided to consult the files of
the applicant's social court proceedings concerning her disability
pension and requested further information from the applicant, setting
a time limit of three weeks. After an extension of this time limit
the applicant submitted the requested information on 14 February
1996.
- On
16 July 1996 the court ordered an expert opinion in the
field of bio-mechanics on whether the accident had caused the
applicant's eye complaint. After a reminder by the court of 12
February 1997 the experts delivered the opinion on 10 April 1997,
a first supplementary opinion was submitted on 23 June 1997. On
25 July 1997 a hearing was set, to which the experts were
summoned. The hearing on 27 October 1997 was postponed due
to the experts' failure to appear. On 11 December 1997 a
hearing took place and the experts made submissions. On 14 April 1998
another supplementary opinion was delivered.
3. Partial judgment and judgment on the cause of action
- On
17 August 1998 the Munich Regional Court awarded the
applicant a further DEM 10,000 (EUR 5,112.92) for
non-pecuniary damage and declared that the applicant was entitled to
compensation for any further damage resulting from the accident,
without assessing the exact amount payable. Referring to the expert
opinions, it found that the applicant's whiplash injury had healed by
the end of 1986 and that her eye complaints had been caused by the
accident.
- The
judgment was served on the applicant's lawyer on 1 December 1998;
the appeal was filed on 30 December 1998. Because of settlement
negotiations between the parties the applicant requested a two months
extension of the time limit to reason her appeal until 6 April 1998.
- On
3 December 1999 the Munich Court of Appeal upheld the
judgment and referred the remainder of the claim back to the
Regional Court for further consideration.
4. Further proceedings before the Munich Regional Court
- On
20 March 2000 the Regional Court held a hearing after a new
change of judge. The applicant asked for an adjournment to establish
the exact amount of damages payable to her to that date. On
14 April 2000 she claimed damages in the amount of
DEM 167,683.53 (EUR 85,735.23) for 380 heads of damage
(Schadenspositionen).
- On
8 May 2000 a hearing was held; a decision was postponed to
allow for a friendly settlement to be reached. On 7 December 2000
the applicant informed the court that negotiations to that end had
broken down.
- At
a hearing on 12 February 2001 an expert opinion concerning
the applicant's inability to work was ordered. The expert opinion in
occupational medicine was submitted on 21 May 2001. On
10 July 2001 the court put supplementary questions to the
expert, without hearing submissions from the applicant, on the degree
of her occupational disability when not taking into consideration her
eye complaints.
5. Proceedings on the motions alleging bias
- On
10 July 2001 the applicant lodged an application on grounds
of bias against the expert in occupational medicine. On 19 July 2001
the expert submitted his observations. On 13 August 2001
the court was notified of a change in the applicant's counsel. On
16 August 2001 the applicant asked for the costs of the
occupational medicine expert opinion to be written off. On
24 September 2001 the court declined that request. It set a
hearing for 29 October 2001, without having decided on the
application on grounds of bias against the expert.
- On
9 October 2001 the applicant lodged an application on
grounds of bias against the acting judge. On 13 November 2001
the judge submitted her official statement. On 28 December 2001
the Munich Regional Court rejected the application on grounds of bias
against the judge.
On 17 January 2002 the applicant
filed an objection. On 25 February 2002 the Munich Court of
Appeal quashed the Regional Court's decision of 28 December 2001
and granted the application.
6. Further proceedings before the Munich Regional Court
- On
11 June 2002 a newly assigned judge held a hearing and set
a deadline of 27 August 2002 for the applicant to
substantiate the amount of damages claimed and of 1 October 2002
for the respondent to reply.
On 3 September 2002 the
applicant submitted her claim in the amount of EUR 111,889.33
covering loss of wages, additional housekeeping costs and other
expenses.
- On
21 February 2003 a hearing was held following a new change
of acting judge. On 28 March 2003 the court granted the
application on grounds of bias against the expert in occupational
medicine and ordered a new expert opinion as to the applicant's
inability to work.
- On
1 July 2003 the expert requested several x-ray images. The court
ordered the applicant to forward the images. On 4 November 2003 the
applicant informed the court that she did not possess any x-ray
images and that the expert should try to obtain them. The expert
refused and on 16 December 2003 the court ordered the applicant
to make the x-ray images available to the expert. On 13 January 2004
the applicant informed the court that the x-ray images no longer
existed. The expert submitted his opinion on 11 March 2004.
- On
2 July 2004 a hearing was held, after the applicant had
objected to written procedure. On 16 July 2004, upon both
parties' request, the court ordered a neuro-ophthalmologist's expert
opinion concerning the applicant's inability to work. The expert
opinion was submitted on 3 December 2004.
- On
25 February 2005 supplementary questions were put to the
expert, which he answered on 4 April 2005. After a two week extension
of the time limit for filing observations, on 2 June 2005 the
applicant asked for supplementary questions to be put to the expert.
After a dispute regarding the admissibility of one of these
questions, on 8 August 2005 a date for an oral hearing was set for 16
September 2005. In this hearing the neuro ophthalmologist was
heard; the applicant asked for a new expert opinion with respect to
her inability to work as an administrative officer.
- On
30 September 2005 the court ordered a new
neuro ophthalmologist's expert opinion. The files were forwarded
to the expert on 25 October 2005. In January 2006 the Regional Court
contacted the expert who informed the court that he planned to
examine the applicant in February. On 21 July 2006 the court sent a
reminder to the expert. On 4 August and 12 October 2006
the applicant inquired whether the expert had submitted his opinion
and asked the court to set a deadline for the expert. On
3 November 2006 the respondent suggested that a deadline be
set for the expert. On 7 and 15 November 2006 the applicant
asked whether a deadline had been set and reminded the court of its
obligation to expedite proceedings. On 21 November 2006 the
expert informed the court that he would submit his opinion by the end
of November. It was submitted by fax on 4 December 2006.
- On
1 February 2007 supplementary questions were put to the
expert. On 14 March 2007 the files were sent to the expert,
after both parties had made the required advance payment for the
expert fees.
On 12 April, 2 and 17 July 2007
the applicant asked whether the expert had submitted his
supplementary opinion. On 12 July 2007 the expert informed the
court that the supplement would be submitted within two weeks.
On
24 August 2007 the respondent asked whether the
supplementary expert opinion had been submitted. On 4 September 2009
the court set a deadline on pain of a fine for the expert to submit
the supplement by 20 September 2007 which he did. On
12 November 2007 the court extended the deadline for the
respondent to submit its observations on the supplementary expert
opinion until 20 November 2007. On 21 December 2007
a hearing was held.
- In
its judgment of 30 January 2008, served on applicant's
counsel on 11 February 2008, the Munich Regional Court awarded the
applicant further compensation for pecuniary damage in the amount of
EUR 19,883.69 plus interest and dismissed the remainder of her
claim.
7. Appeal proceedings before the Munich Court of Appeal
- On
4 March 2008 the applicant filed an appeal, which she reasoned on 7
May 2008 after an extension of the statutory time limit.
On
17 September 2008 the Court of Appeal advised the parties that
it intended to dismiss the appeal by unanimous decision without
holding a hearing.
- On
25 February 2009 the Munich Court of Appeal dismissed the applicant's
appeal but decided that no costs shall arise for two of the expert
opinions. This decision was served on the applicant's lawyer on
27 February 2009. On 11 March 2009 the applicant filed an appeal
alleging a violation of the right to be heard.
- On
20 March 2009, served on the applicant's lawyer on 25 March 2009,
the Court of Appeal dismissed the applicant's appeal for the right to
be heard and imposed a fee of 50.00 Euros (EUR).
- On
21 April 2009 the applicant submitted a constitutional complaint
(file no. 2 BvR 906/09). On 18 January 2010, served on the
applicant's lawyer on 17 February 2010, the Federal Constitutional
Court quashed the Munich Court of Appeal's decision of 25 February
2009 as far as it concerned the dismissal of the applicant's appeal
and remitted the case to the Nuremburg Court of Appeal.
8. Proceedings on the applications on grounds of bias
- On
8 October 2008 the applicant lodged an application on grounds of
bias against the presiding judge which was dismissed on
11 November 2008. On 21 November 2008 the applicant filed
an appeal alleging a violation of the right to be heard, which was
dismissed on 18 February 2009.
- On
18 November 2008 the applicant filed a new application on grounds of
bias against the presiding judge and another judge.
On 4 December
2008 and 27 December 2008 she filed further applications on grounds
of bias. On 17 February 2009 the Court of Appeal dismissed these
applications. On 27 February 2009 the applicant filed an appeal
alleging a violation of the right to be heard which was dismissed on
14 May 2009.
- In
the brief of 27 February 2009 and on 8 April 2009 the applicant also
filed further applications on grounds of bias, which were dismissed
on 11 May 2009. The applicant's appeal for the right to be heard
against this decision was dismissed on 24 June 2009.
- On
29 July 2009 the applicant submitted a constitutional complaint.
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 did not contest this argument but claimed that a period of
at least some two years must be attributed to the applicant in view
of her conduct.
- The
period to be taken into consideration began on 9 February 1992 when
the applicant brought the action. Since the proceedings are still
pending after the Federal Constitutional Court in a decision dated
18 January 2010 quashed the Munich Court of Appeal's decision to
dismiss the applicant's appeal and remitted the case to the Nuremburg
Court of Appeal they have thus so far lasted some 18 years for 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.
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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Further,
the applicant complained that she had not had an effective remedy at
her disposal to complain about the length of the proceedings in the
Munich Regional Court. She alleged a violation of Article 13 of
the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government did not contest that argument. They submitted that the
legislative procedure to introduce an effective remedy within the
meaning of Article 13 of the Convention and in compliance with
the Court's judgment in the case of Sürmeli could not be
concluded yet.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). In the present case, having regard to its conclusion with
regard to the excessive length of the proceedings, the Court
considers that the applicant had an arguable claim of a violation of
Article 6 § 1.
- The Court reiterates that according to its recent
case-law there is no effective remedy under German law capable of
affording redress for the unreasonable length of civil proceedings
(see Sürmeli v. Germany [GC], no. 75529/01,
§§ 103-108, ECHR 2006-VII).
- Accordingly,
the applicant did not have an effective remedy within the meaning of
Article 13 of the Convention which could have expedited the
proceedings in the Munich Regional Court or provided adequate redress
for delays that had already occurred.
- There
has therefore been a violation of Article 13 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 just satisfaction in respect of non-pecuniary
damage and left the amount to be awarded to the Court's discretion.
- The
Government also left the matter to the Court's discretion.
- 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 violations it has found, it awards her EUR 20,000.00
(twenty thousand euros) under that head.
B. Costs and expenses
- The
applicant also claimed EUR 4,000.00 for costs and expenses
incurred before the domestic courts, and, relying partly on
documents, EUR 3,188.59 in legal fees and expenses incurred
before the Court as well as not specified translation costs.
- The
Government found the claim of EUR 188.59 for expenses incurred before
the Court reasonable but contested the remaining claims.
- 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 documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 3.188.59 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts:
(i)
EUR 20,000.00 (twenty thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 3,188.59 (three thousand one hundred eighty-eight
euros and fifty-nine cents), plus any tax that may be chargeable, in
respect of costs and expenses;
(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 30 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
