FIFTH SECTION

CASE OF KURCZVEIL v. GERMANY

(Application no. 53550/09)

JUDGMENT

STRASBOURG

20 October 2011

This judgment is final but it may be subject to editorial revision.
In the case of Kurczveil v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Boštjan M. Zupančič, President,
	Ganna Yudkivska,
	Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 27 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 53550/09) 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 Istvan Kurczveil (“the applicant”), on 5 October 2009.
2.  The applicant was represented by Mr M. Jantkowiak, a lawyer practising in Strasbourg. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice, and by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.
3.  On 27 May 2010 the President of the Fifth Section decided to give notice of the application to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1946 and lives in Lübbenau.
5.  On 27 August 2003 the Wood Professional Association (HBG Holz‑Berufsgenossenschaft) refused to recognise the applicant’s respiratory diseases as an occupational disease (Berufskrankheit).
6.  On 26 September 2003 the applicant, represented by lawyer, filed an objection against the aforementioned decision. The objection was rejected on 23 December 2003.
7.  On 14 January 2004 the applicant brought an action in the Cottbus Social Court.
8.  On 11 March 2004 the respondent party submitted the statement of defence and the applicant’s files.
9.  On 14 June 2004 the Social Court requested inter alia reports of 19 doctors the applicant had consulted prior to the proceedings as well as medical documentation regarding the applicant’s five prior stays in hospital. Three months later these documents had been obtained in their entirety and the Social Court submitted the documents to the parties.
10.  On 8 November 2004 and on 13 January 2005 the Social Court asked the applicant to concretise the claim. On 7 February 2005 the applicant submitted that the aim of the action was to determine that he was suffering from an occupational disease.
11.  On 2 May 2005 the Social Court decided to obtain a first expert opinion concerning 12 specific questions and named an expert (Mr W.M.). The applicant cancelled the first examination fixed for 29 June 2005 due to illness. On 10 August 2005 the expert examined the applicant. On 13 October 2005 the expert submitted his report of 19 pages, in which he found inter alia that a further expert opinion was necessary.
12.  On 23 March 2006 the Social Court decided to obtain another expert opinion on different aspects of the 12 questions and named an expert (Ms P.H.). The expert indicated her willingness to render the expert opinion.
13.  In April 2006 the applicant changed lawyer.
14.  On 24 May 2006 the expert Ms P.H. informed the Social Court that the applicant should first be examined by another expert (Ms U.R.). On 4 July 2006 the applicant challenged the latter expert on grounds of bias. By letter of 7 July 2006 the Social Court rejected this challenge and informed the applicant that it considered the examination necessary. On 19 October 2006 the applicant informed the Social Court that he was willing to cooperate.
15.  On 7 February 2007 the expert Ms U.R. submitted her report of 11 pages. On 29 March 2007 the Social Court submitted the files to the expert Ms P.H. in order for her to render the requested expert opinion. On 17 April 2007 Ms P.H. informed the Social Court that she was unable to give the expert opinion.
16.  On 17 August 2007 the Social Court amended its decision of 23 March 2006 and named another expert (Mr D.A.). On 31 August 2007 Mr D.A. informed the Social Court that he was unable to give the expert opinion in a timely manner.
17.  On 26 September 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr Sch.). On 10 October 2007 the Social Court was informed that Mr Sch. had retired.
18.  On 10 October 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr V.Z.). On 5 December 2007 Mr V.Z. informed the Social Court that he was unable to give the expert opinion in a timely manner.
19.  On 11 December 2007 the Social Court again amended its decision of 23 March 2006 and named another expert (Mr E.M.). On 29 January 2008 the latter informed the Social Court that he was unable to give the expert opinion.
20.  On 12 November 2008 the Social Court made a new decision to obtain an expert opinion and named an expert (Mr H.L.). On 2 December 2008 the Social Court was informed that Mr H.L. had retired.
21.  On 11 February 2009 the Social Court amended its decision of 12 November 2008 and named another expert (Mr C.S.). On 20 February 2009 Mr C.S. informed the Social Court that he was unable to give the expert opinion.
22.  In February 2009 the applicant changed lawyer. In April 2009 the new lawyer withdrew from the case. In June 2009 one of the applicant’s previous lawyers reappointed herself.
23.  On 28 May 2009 the Social Court again amended its decision of 12 November 2008 and named another expert (Mr H.S.). On 11 June 2008 the Social Court was informed that the expert had retired.
24.  On 18 June 2009 the Social Court anew amended its decision of 12 November 2008 and named another expert (Mr H.E.). On 11 November 2009 the expert submitted his report of 13 pages. On 18 January 2010 the expert supplemented his report.
25.  On 21 January 2010 the report was submitted to the parties in order to obtain their comments.
26.  On 25 March 2010 the Social Court scheduled a hearing for 14 April 2010.
27.  On 14 April 2010 the Social Court held an oral hearing and rejected the applicant’s claim. The written judgment was served on the applicant’s lawyer on 7 June 2010.
28.  On 7 July 2010 the applicant appealed against the judgment.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
29.  The applicant complained in substance that the length of the proceedings before the Social Court 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 ...”
30.  The Government contested that argument. They argued that the proceedings had been factually complex. In this respect they referred to the large amount of medical reports from prior to the proceedings, to the complexity of the medical issues the experts had to deal with in their expert opinions, each concerning different aspects of a dozen of specific questions, and to the fact that the three expert opinions could not be commissioned in parallel as the need for a supplementary expert opinion each time only arose from the prior expert opinion. They also stressed that the expert opinions were not opinions concerning just the applicant’s state of health, but were in fact opinions on the possible causal connection between his former occupation and his respiratory diseases and thus much more demanding. The Government also argued that it took the applicant until February 2005 to concretise his claims and that the applicant changed his lawyer several times. Nevertheless, the Government admitted that the delay occurring during the period from May 2007 until June 2009 may be attributable to the Social Court. Finally, they pointed out that even if the proceedings undoubtedly put a strain on the applicant, they were not of a kind requiring particularly expeditious handling.
31.  The period to be taken into consideration began on 26 September 2003, when the applicant filed his objection (see, for example, Janssen v. Germany, no. 23959/94, § 40, 20 December 2001) and ended at first instance on 7 June 2010, when the Social Court’s judgment was served on the applicant’s lawyer. It thus lasted six years, eight months and 12 days for one level of jurisdiction. In July 2010 the applicant appealed against the judgment. The appellate proceedings are still pending.
A.  Admissibility
32.  The Court notes that Article 6 of the Convention is applicable to the social court proceedings at stake as the case concerned the recognition of an occupational disease and thus the possible entitlement to pension benefits (see, mutatis mutandis, Janssen, cited above, § 32). The complaint about the length of these proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
33.  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).
34.  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).
35.  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 agrees with the Government that the case was factually complex and involved complicated medical issues. Nevertheless, the Court finds that the complexity of the instant case alone cannot justify the complete duration of almost seven years for one level of jurisdiction. Moreover, the delays in the proceedings were much less linked to the complexity of the subject-matter than, for example, to the way in which the Social Court attempted to find an expert for the third expert opinion. Furthermore, the Court reiterates that the principal responsibility for delay due to expert opinions rests ultimately with the State (see, for example, Dojs v. Poland, no. 47402/99, § 38, 2 November 2004). Finally, the Court finds that even if some delays are attributable to the applicant, the latter’s conduct cannot be considered to have decisively contributed to the total length of the proceedings. 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.  THE REMAINDER OF THE APPLICANT’S COMPLAINTS
36.  The applicant also complained that one of the experts had been biased.
37.  In this respect the Court observes that the applicant appealed against the judgment of the Cottbus Social Court and that the proceedings are still pending.
38.  It follows that this part of the application is premature and must in any event be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  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
40.  The applicant claimed 190,000 euros (EUR) in respect of pecuniary damage due to his state of health and the absence of compensation by the national authorities following from the non-recognition of his occupational disease. He further claimed EUR 210,000 in respect of non-pecuniary damage.
41.  The Government contested the applicant’s claims in respect of pecuniary damage and argued that the alleged damage had not been caused directly by the length of the proceedings.
As regards non-pecuniary damage, the Government submitted that in view of the circumstances of the case the finding of a violation was in itself sufficient redress for non-pecuniary damage. In any event, should the Court award just satisfaction, the applicant’s contribution to the length of the proceedings would have to be taken into account.
42.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 6,000 under that head.
B.  Costs and expenses
43.  The applicant did not submit a specified claim for costs but merely asked the Court to order the respondent state to bear all costs and expenses.
44.  The Government did not express an opinion on the matter.
45.  In view of the lack of a specified claim, the Court, who can not speculate on the costs and expenses of the applicant, rejects the claim for costs and expenses in the domestic proceedings as well as for the proceedings before the Court.
C.  Default interest
46.  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, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of 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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Boštjan M. Zupančič	Deputy Registrar	President