FIFTH SECTION

CASE OF KUCHEJDA v. GERMANY

(Application no. 17384/06)

JUDGMENT

STRASBOURG

24 June 2010

This judgment is final but it may be subject to editorial revision.

In the case of Kuchejda 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 StephenPhillipsDeputy Section Registrar,
Having deliberated in private on 31 May 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
3.  On  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
4.  The applicant was born in 1945 and lives in Düsseldorf.
A.  Background to the case
5.  The applicant and his brother are the only grandchildren and heirs of their grandmother who died in 1988.
6.  In a will recorded by a notary on 27 February 1982 the grandmother appointed the applicant and his brother heirs of her estate in equal parts and bestowed on the applicant’s brother, by means of a preferential legacy (Vorausvermächtnis), her participation in an enterprise. By a notarial deed of 2 December 1982 she supplemented the previous legacy and further assigned a plot of land with a house built on it to the applicant’s brother.
7.  On 4 May 1983 the grandmother concluded a notarial contract of inheritance (Erbvertrag) with the applicant. The contract amends the previous wills in so far as the applicant was assigned the grandmother’s deposit and securities accounts (Depot- und Wertpapierkonten) as well as her entire real property including the plot of land that had previously been bequeathed to the applicant’s brother.
8.  On 4 January 1984 the Charlottenburg District Court appointed a guardian for the then ninety-year-old grandmother. On 21 and 22 February 1984 the grandmother as well as the guardian challenged the contract of inheritance for error and fraudulent misrepresentation (Irrtum und arglistige Täuschung). They claimed that the grandmother had only entered into the contract because the applicant had pretended that this was necessary to achieve equal treatment for her grandsons, whereas in reality such equal treatment had already been achieved by her wills of 27 February 1982 and 2 December 1982.
B.  The proceedings before the Düsseldorf Regional Court
9.  On 23 February 1988 the grandmother, represented by her guardian, instituted proceedings before the Düsseldorf Regional Court (Landgericht) against the applicant, alleging that the contract of inheritance of 4 May 1983 was null and void.
10.  A hearing took place on 2 November 1988.
11.  On 22 February 1989 the applicant lodged a counterclaim.
12.  Following the grandmother’s death the applicant’s brother, by written submissions of 31 May 1989, declared that he wished to continue the proceedings as a plaintiff.
13.  By written submissions of 9 October 1989 the applicant requested that the action be dismissed and requested that his brother be obliged to consent to the division of the deceased’s estate pursuant to the terms and conditions as stipulated in the contract of inheritance dated 4 May 1983 since the latter was valid.
14.  A hearing that was scheduled for 31 October 1989 was not attended by the applicant’s brother and therefore postponed to 21 November 1989.
15.  On 28 February 1990 the Düsseldorf Regional Court ordered the hearing of witnesses including in particular the notaries who had recorded the wills and the contract of inheritance as well as the taking of an expert opinion regarding the value of the deceased’s participation in the enterprise. On 27 March 1990 the Chamber of Industry and Commerce suggested two possible experts.
16.  In the following, hearings had to be postponed on several occasions by the Regional Court on the ground that the witnesses were unable to attend at the scheduled dates or had to be exempted from their professional obligation of confidentiality.  On 7 November 1990 a hearing took place, on the occasion of which, inter alia, the notary who had been involved in the recording of the deceased’s legacies in 1982 was heard as witness.
17.  On 15 March 1991 the notary who had recorded the contract of inheritance of 4 May 1983 informed the Regional Court that he had meanwhile been exempted from his confidentiality obligation.
18.  On 25 June 1991 the applicant’s newly appointed lawyers requested access to the case files. They returned the files in August 1991.
19.  On 30 March 1992 the Regional Court heard the notary who had recorded the contract of inheritance of 4 May 1983.
20.  On 7 December 1992 following a renewed change of counsel, the applicant again requested access to the case files and a hearing scheduled for 23 December 1992 had to be postponed for this reason. By written submissions dated 5 March 1993 the newly mandated lawyers requested the Regional Court not to appoint an expert before a further hearing had taken place.
21.  On 8 March 1993 the Regional Court scheduled a hearing for 4 August 1993. At the applicant’s request of 8 April 1993 the hearing was postponed to 15 September 1993.
22.  By a decision of the Regional Court of 29 April 1993 the hearing scheduled for 15 September 1993 was cancelled since there was no basis for a friendly settlement between the parties.
23.  By a decision of 28 September 1994 the Regional Court specified its order for the taking of an expert opinion and by a decision of 19 January 1995 appointed the expert.
24.  In the period from December 1995 until August 1997 the applicant’s lawyers filed several requests to be granted access to the case files that had already been transmitted to the expert. Following examination of the files by the applicant’s lawyers, they were returned to the expert on 6 August 1997. The applicant further requested to be granted access to the files in the guardianship and curatorship proceedings with respect to the deceased and which had been conducted by the Berlin-Charlottenburg District Court.
25.  On 27 December 1997 and 26 January 1998, the Regional Court asked the expert for progress reports regarding the finalisation of his opinion. The expert announced submission of his report for 31 March 1998.
26.  Following further inquiries by the Regional Court on 28 April 1998 and 15 May 1998, the expert submitted two reports on 10 and 22 June 1998 respectively. On 16 and 26 June 1998 the Regional Court forwarded the respective expert opinions to the applicant and set a deadline of six weeks in each case for submission of any comments by the applicant or for a request to hear the expert.
27.  By written submissions dated 29 January 1999 and 31 August 1999 the applicant challenged the findings of the expert as to the value of the participation in the enterprise as well as the underlying method of calculation.
28.  On 8 September 1999 a final hearing took place.
29.  In its judgment of 20 October 1999 the Regional Court found in favour of the applicant’s brother and dismissed the counterclaim. It held that the contract of inheritance of 4 May 1983 had been duly challenged in accordance with the relevant provisions of the German Civil Code (Bürgerliches Gesetzbuch) and was thus invalid (unwirksam). In accordance with the testamentary legacies of 27 February and 2 December 1982, the Regional Court obliged the applicant to give his consent to the transfer of title to the participation in the enterprise as well as the plot of land specified in the legacies to his brother, and to release half of the deceased’s bank deposit and half of her real estate fund participations for the latter’s benefit.
30.  The judgment was served on the applicant on 2 November 1999.
C.  The proceedings before the Düsseldorf Court of Appeal
31.  By written submissions dated 29 November 1999 the applicant lodged an appeal with the Düsseldorf Court of Appeal (Oberlandesgericht).
32.  A hearing took place on 16 June 2000.
33.  On 14 July 2000 the Court of Appeal made a proposal for a friendly settlement which was not accepted by the parties. The Court of Appeal pointed out that the assessment of the case would depend on the taking of further evidence regarding the question as to whether the contract of inheritance had been duly challenged or not.
34.  Hearings took place on 30 March 2001, 11 January 2002 and 1 March 2002.
35.  By a decision of 26 April 2002 the Court of Appeal ordered the taking of evidence with a view to further investigating the deceased’s motives when formulating her wills and with a view to determining the supposed amount of inheritance tax at the time when the contract of inheritance was concluded. On 9 October 2002 the expert was appointed and the finalised expert opinion was transmitted to the parties on 11 February 2003 for comments.
36.  On 18 July 2003 a further hearing was held.
37.  By written submissions of 21 July 2003 the applicant again argued that the expert opinions obtained at first instance were misleading and stressed that in view of the deviation from the expert opinions obtained by him on his own initiative the expert would have to be heard and a further expert opinion should be ordered.
38.  In its judgment dated 19 September 2003, the Court of Appeal obliged the applicant to give his consent to the passing of title to the deceased’s participation in the enterprise to his brother and dismissed the remainder of the claim as well as the counterclaim.
39.  The Court of Appeal stated that the interpretation of the contract of inheritance in the light of the deceased’s underlying intentions showed that she had not achieved her goal of treating her grandsons equally in financial terms. On the basis of the value of the participation as established by the expert opinion dated 10 June 1998 and by taking into account the supposed inheritance tax incumbent on the applicant’s brother as of this date, the court awarded the applicant an advance payment out of the inheritance as a compensation for the legacies made to his brother.
40.  As regards the applicant’s objection against the expert opinion the Court of Appeal argued that the value of the deceased’s participation in the enterprise could be deducted from the total market value of the enterprise as established by the expert and that there was no indication that the basis of calculation of the market value itself had been erroneous. It therefore held that it had not been necessary to hear the expert, in particular in view of the fact that the applicant did not make a corresponding request within the deadline set by the Regional Court at first instance.
41.  The Court of Appeal’s judgment was served on the applicant on 8 October 2003. The applicant’s objection against the judgment was rejected by the Court of Appeal on 2 December 2003.
D.  The proceedings before the Federal Court of Justice and the Federal Constitutional Court
42.  On 7 November 2003 the applicant lodged a complaint with the Federal Court of Justice (Bundesgerichtshof) to grant him leave to appeal. He argued, inter alia, that the Court of Appeal’s judgment had been a surprise decision as the court’s interpretation of the contract of inheritance deviated from the court’s assessment of the case as set out in the friendly settlement proposal of 14 July 2000. Furthermore, the interpretation of the contract of inheritance by the Court of Appeal had been contrary to the principles governing the interpretation of wills and contracts of inheritance as established by German legal literature and jurisprudence. He further reiterated that the evaluation of the value of the deceased’s participation in the enterprise had been erroneous and that the judgment had thus as a whole been arbitrary. He finally asserted that it was necessary to obtain a further expert opinion.
43.  On 29 September 2004 the Federal Court of Justice (Bundesgerichtshof) rejected the applicant’s request to be granted leave to appeal stating that there was no indication that the interpretation of the contract of inheritance by the Court of Appeal had been arbitrary.
44.  On 3 November 2004 the applicant lodged a constitutional complaint. By a letter of 10 January 2005 the applicant’s counsel requested the Federal Constitutional Court to await his supplementary submissions before deciding on his complaint. On 29 July 2005 following an extension of the related time limit granted by the Federal Constitutional Court, the applicant submitted additional written observations. On 19 October 2005 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant. The decision was served on the applicant on 28 October 2005.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
45.  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...”
46.  The Government acknowledged that the overall length of the proceedings was excessive and that the proceedings before the Düsseldorf Regional Court and the Düsseldorf Court of Appeal were unusually long. They specified that while there was no indication that the length of the proceedings before the Federal Court of Justice and the Federal Constitutional Court failed to comply with the “reasonable time” requirement, there had indeed been delays of at least eleven and a half months in the proceedings attributable to the Düsseldorf Regional Court, in particular due to the way in which the order to take evidence dated 28 February 1990 was carried out, and another period of at least three and a half months attributable to the Düsseldorf Court of Appeal. However, the length of the proceedings had been due, inter alia, to the great complexity of the case that had required the hearing of witnesses as regards the validity of the deceased’s testamentary dispositions and their interpretation, the taking of several expert opinions at first and second instance regarding the value of her estate as well as the consultation of files in separate proceedings conducted before the Berlin-Charlottenburg District Court. The Government maintained that considerable delays had further been caused by the conduct of the applicant, in particular during the first instance proceedings. The applicant’s repeated changes of counsel had been accompanied by requests for the extension of deadlines and necessitated the rescheduling of hearings. His numerous requests to be granted access to court and expert files and his contradictory requests regarding the commissioning of further expert opinions had also significantly contributed to render the proceedings more complex. As regards the importance of what was at stake in the proceedings, the Government, while accepting that the dispute was of great personal significance to the applicant, adduced that his case did not fall within the category of cases that required particularly swift action because of their pre-eminent importance in terms of Convention law.
47.  The period to be taken into consideration began on 23 February 1988 when the grandmother’s guardian brought an action before the Düsseldorf Regional Court and ended on 28 October 2005 when the decision of the Federal Constitutional Court declining to consider the applicant’s constitutional complaint was served on the latter. It thus lasted more than seventeen years and eight months for four levels of jurisdiction. At first instance the proceedings lasted until 2 November 1999, the day on which the Regional Court’s decision was served on the applicant, more than eleven years and eight months. The proceedings before the Düsseldorf Court of Appeal at second instance lasted from 29 November 1999 until 8 October 2003, more than three years and ten months. Each of the subsequent proceedings before the Federal Court of Justice and the Federal Constitutional Court lasted for approximately one year.
A.  Admissibility
48.  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
49.  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).
50.  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).
51.  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.
52.  As to the conduct of the proceedings, the Court accepts that there is no indication that the length of the proceedings before the Federal Court of Justice and the Federal Constitutional Court failed to comply with the “reasonable time” requirement under Article 6 § 1 of the Convention. The Court further acknowledges that the proceedings were of some complexity and necessitated the taking of several expert opinions at different levels of jurisdiction and that the applicant’s conduct has contributed to some extent to the length of the proceedings. However, the Court can not ignore that it took almost five years from the Regional Court’s order of 28 February 1990 to take an expert opinion on the value of parts of the deceased’s estate until the appointment of the expert on 19 January 1995 and more than another three years until an expert opinion was submitted on 10 June 1998, more than eight years in total. The Court further notes that it took the Regional Court until 30 March 1992 to arrange for a hearing of the notary who had recorded the contract of inheritance even though the latter had informed the Regional Court already on 15 March 1991 that he had been exempted from his obligation of confidentiality. The Court finally observes that at second instance following the failed attempt in July 2000 to encourage the parties to conclude a friendly settlement, it took the Court of Appeal until 9 October 2002 to appoint an expert with a view to establishing an opinion on the amount of the supposed inheritance tax.
53.  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 Article 6 § 1.
II.  THE REMAINDER OF THE APPLICANT’S COMPLAINTS
54.  The applicant further complained under Article 6 § 1 that the conduct and outcome of the proceedings before the civil courts had been in breach of his right to a fair trial and right to a fair hearing. He alleged in particular that the domestic courts in their assessment of the case took into consideration neither his objections to the expert opinions obtained by the Regional Court at first instance nor the expert opinions obtained by him on his own initiative. He further argued that the Court of Appeal had rejected his requests to hear the expert who rendered the opinions at first instance and to obtain evidence from further experts. The applicant also maintained that the Court of Appeal’s judgment had been an arbitrary surprise decision as the court’s interpretation of the contract of inheritance had been unforeseeable, contrary to the principles of German law, and because he had not been given the opportunity to comment on the court’s assessment.
55.  The applicant alleged in addition that the decisions of the domestic courts infringed his right to protection of property under Article 1 of Protocol No. 1 of the Convention since his claim to the part of the deceased’s estate as bestowed on him under the contract of inheritance had been rejected. The applicant finally complained under Article 1 of Protocol No. 1 of the Convention in his capacity as grandson and beneficiary under the contract of inheritance that the deceased’s right to freely dispose of her estate causa mortis had been infringed by the court decisions.
56.  The Court has examined the remainder of the applicant’s complaints. However, 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.
57.  It follows that this part of the complaints is 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
58.  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
59.  The applicant claimed 6,400,000 euros (EUR) in respect of pecuniary damage comprising an amount of EUR 3,400,000 equal to the value of the remainder of his expected inheritance and an additional amount of EUR 3,000,000 interest on this amount at a rate of 5% for the period as from the beginning of 1993. He started from the assumption that had the proceedings been conducted expeditiously the distribution of the deceased’s estate should have been finalised by then and based his claim on the average interest rate that could have been obtained on the German capital market during the period in question. He further claimed compensation for the loss of use of the real property in Berlin for a period of twenty years as well as for the deposit and securities accounts and left the amounts to be awarded in this respect to the Court’s discretion.
60.  In respect of non-pecuniary damage for the excessive length of the proceedings which had negatively affected his conduct of life since he could not dispose of the inheritance and which had caused him serious financial, physical and psychological problems the applicant sought EUR 320,000 representing 5% of the pecuniary damage claimed.
61.  The Government argued that the applicant’s claims for pecuniary damages had no connection with the delays to the proceedings. As regards the non-pecuniary damage claimed, the Government maintained that the applicant’s claims were excessive and left the matter to the Court’s discretion.
62.  The Court finds that the applicant did not demonstrate that the alleged pecuniary damage had actually been caused by the length of the proceedings before the Regional Court and does not discern a causal link between the violation found and the pecuniary damage alleged. In particular, it cannot speculate as to what the outcome of the proceedings would have been had they satisfied the requirements of Article 6 § 1 as to their length (see Sürmeli v. Germany [GC], no. 75529/01, § 144,  2006‑...). Accordingly, it considers that no award can be made to the applicant under this head. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage but finds that the amount claimed by the applicant in this regard is excessive. Ruling on an equitable basis, it awards him EUR 11,000 under that head.
B.  Costs and expenses
63.  The applicant also claimed EUR 1,069,000 in respect of costs and expenses incurred before the domestic courts and EUR 140,000 for those incurred before the Court. Documentary evidence was provided with respect to costs related to the proceedings before the Regional Court, the Court of Appeal and the Federal Court of Justice.
64.  The Government contested these claims and argued that the applicant had not sufficiently substantiated them. They further maintained that there was no causal connection between these costs and the duration of the proceedings.
65.  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 information in its possession and the above criteria, the Court rejects the claim for costs and expenses incurred in the proceedings before the Court. It further considers that the applicant has not established that the costs and expenses claimed for the proceedings before the domestic courts were incurred by him in order to seek prevention or rectification of the specific violation caused by the excessive length of the proceedings. 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 (seeSürmeli v. Germany [GC], no. 75529/01, § 148,  2006‑...), it finds it reasonable to award the applicant EUR 500 under this head.
C.  Default interest
66.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months
(i)  EUR 11,000 (eleven thousand 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 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 June 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Karel Jungwiert
	Deputy Registrar	President