CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 5 May 1986 the following members being present:                     MM   C.A. NØRGAARD, President                       G. SPERDUTI                       J.A. FROWEIN                       M.A. TRIANTAFYLLIDES                       G. JÖRUNDSSON                       S. TRECHSEL                       B. KIERNAN                       A.S. GÖZÜBÜYÜK                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                       H. VANDENBERGHE                   Mrs G.H. THUNE                   Sir Basil HALL             Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 25);   Having regard to the application introduced on 23 November 1984 by R.D. against the Federal Republic of Germany and registered on 31 January 1985 under file No. 11369/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a German citizen, born in 1916 and living in Lindan-Bodolz.   He is represented by Messrs. Schroth, Kiesinger a.o., lawyers in Karlsruhe.   I.       The previous application No. 9320/81   The applicant has lodged a previous application (No. 9320/81) which was rejected on 15 March 1984 as being manifestly ill-founded as the applicant had concluded in domestic proceedings a friendly settlement with the Federal Republic of Germany and the Commission therefore considered he could no longer claim to be a victim of the alleged violations.   The applicant had complained of alleged unfairness and of the length of civil proceedings instituted by him against the Federal Republic of Germany and nine further defendants. He also complained of a violation of Article 8 of the Convention (Art. 8) alleging illegal interferences by public officials with his private company.   He further invoked Article 10 of the Convention (Art. 10) and Article 1 of the First Protocol (P1-1) alleging that he had been economically dependent on public authorities and therefore could not freely express his opinion about certain actions of public officials affecting his private company and eventually causing its bankruptcy.   Finally he invoked Article 14 of the Convention (Art. 14).   The previous application was based on the following facts:   The applicant was the owner of an important company specialised in the production of long lasting bread. The company's main customer was the Federal Army.   The orders were made by the Federal Supply Office (Bundesamt für Wehrtechnik und Beschaffung) of the Federal Defence Ministry.   In 1962 difficulties arose in the relations between the applicant and the Federal Defence Ministry. Bread deliveries were refused or accepted with delays on the grounds that they did not correspond to the samples or were defective and that the production plants were not in conformity with hygienic standards. The applicant considered the objections to be unjustified and arbitrary.   In 1972 his company went bankrupt.   In 1974 bankruptcy proceedings were discontinued in default of bankruptcy assets.   In March 1973 the applicant lodged an action against the Federal Republic and some public officials requesting damages in the amount of more than 19 million DM.   As legal aid was refused he reduced his claim to DM 160,000.   On 8 January 1976 the Koblenz Regional Court (Landgericht) dismissed the action.   On 7 March 1979 the Koblenz Court of Appeal (Oberlandesgericht), having granted legal aid concerning claims amounting to DM 25,000, rejected the applicant's appeal against the judgment of 8 January 1976.   On 12 January 1981 the Federal Court (Bundesgerichtshof) quashed the appellate court's decision as far as it concerned claims amounting to DM 129,000 and to that extent sent the case back to that court.   Previously on 2 January 1981 the Federal Constitutional Court (Bundesverfassungsgericht) had dismissed a constitutional complaint lodged by the applicant.   On 26 January 1981 the applicant introduced his previous application with the Commission.   On 7 May 1982 the Commission decided to communicate that application to the respondent Government for observations on its admissibility and merits.   In the meantime, on 23 May 1981, the applicant extended his claims to DM 10,966,644 in the domestic proceedings pending before the Koblenz Court of Appeal.   After a number of oral hearings, the taking of evidence and challenges of judges the parties concluded the following friendly settlement in court on 25 March 1983:   "Settlement   I.   In compensation for all of the applicant's claims arising out of the facts on which his action and the pleadings by which he extended his action are based, the defendant pays to the plaintiff a sum of DM 2,4 million (DM 2,400,000). This sum is composed of the following items in dispute:     ........   (List of the different amounts relating to that part of the applicant's action which had been remitted by the Federal Court to the Koblenz Court of Appeal.)   II.   For this amount interest of 9.5% is paid with effect from 1 January 1976.   In order to satisfy all the interest claims of the applicant for the period up to 31 December 1975 the defendant pays a lump sum of DM 320,000.   III.   (This item provided that payment was to be made on a special account of applicant's counsel who acted as trustee and had to pay off certain creditors.)   IV.   Possible claims of the plaintiff which may arise out of Application No. 9320/81 before the European Commission of Human Rights in Strasbourg are not affected by this settlement.   V.   The costs of the proceedings and the settlement are set off against each other (gegeneinander aufgehoben).   The total sum of DM 4,371,000 was paid by the Federal Republic of Germany to the applicant's lawyer on 28 March 1983.   In view of the above friendly settlement the respondent Government argued, inter alia, in the proceedings concerning the admissibility of the applicant's previous application that interest in the amount of DM 1,971,100 was paid in accordance with the friendly settlement as a compensation for the duration of the proceedings to the extent to which the applicant's claims had been recognised in the settlement.   Had the other part of his civil action also been successful he would have been entitled to the payment of interest in that respect as well. However, since that part of his action had been dismissed by a final judgment he had not suffered any damage in this respect as a result of the length of the proceedings.   The respondent Government concluded that the applicant could no longer claim to be a victim under Article 25 of the Convention (Art. 25) with regard to the part of his civil action which was dismissed in 1981 and which was the subject of Application No. 9320/81.   The applicant replied that the settlement reached on 25 March 1983 was also the subject of his application.   He recalled that any claims which may arise out of his application had been excluded from the settlement.   He pointed out that he agreed to the settlement solely because of his old age (67), his poor health (90% invalidity), because the proceedings had already lasted for ten years and would have lasted for several further years before they would have been terminated, and since the prospects of success of his claim decreased due to difficulties in obtaining evidence after so long a time.   He contested the Government's view that he could no longer claim to be a victim under Article 25 of the Convention (Art. 25). He had been a victim with regard to that part of his action where a settlement had been reached and he still was a victim with regard to the partial dismissal of his action by a final decision of the Federal Court. That his action had been dismissed in this respect was due to the following circumstances:   new evidence had been obtained from the declarations of two witnesses on 7 August 1979.   However, this evidence was taken too late since the Koblenz Court of Appeal had given its judgment on 7 July 1979.   The Federal Court when examining an appeal on points of law cannot consider newly obtained evidence. Had this court been in a position to examine his appeal in the light of the new evidence it would probably have remitted the case as a whole back to the Koblenz Court of Appeal.   However, the declarations of the witnesses had been decisive for reaching the settlement.   When accepting the settlement he had to renounce a part of his claim which has still to be substantiated.   In any event, in this respect he was also a victim of a violation of the Convention and included this claim in his previous application.   On 15 March 1984 the Commission rejected the previous application on the ground that the applicant was no longer a victim of the alleged violations.   It noted that in accordance with the settlement of 25 March 1983 the applicant was paid compensation of DM 2.4 million and interest in the amount of DM 1,971,100, namely DM 320,000 up to 31 December 1977 and 9.5% interest with effect from 1 January 1976. Taking into account that the legal interest rate generally was not higher than 4% it considered that the length of the proceedings was in fact one element of relevance for the agreement on the interest paid. It furthermore noted that following the agreement reached on 25 March 1983 the applicant was placed in a better position as at the time when he reduced his claim on 19 September 1975 from approximately 19 million DM to DM 160,000 or when the Federal Court remitted his action to the Koblenz Court of Appeal in the amount of DM 129,000 on 12 January 1981.   The Commission also noted that the settlement was proposed by the Court and accepted by the parties at a hearing which had been fixed after the decision of 7 May 1982 to communicate the application to the respondent Government.   It concluded that it was the practical effect of the settlement that the applicant's claims against the defendant before the German courts were satisfied to a great extent.   On the other hand the Commission recognised that there may be situations in which a party to proceedings that have been protracted beyond a reasonable time or that have been unfair might suffer consequences which are not redressed by an ultimate decision in his favour.   In this context it had regard to the applicant's argument that the settlement had to be seen in the light of the particular circumstances and that difficulties of proof and the expectation that the proceedings might still continue for a considerable time had influenced him to accept a lower sum than he would otherwise have obtained.   The Commission found however that the applicant did not act under constraint when he renounced the possibility of obtaining higher compensation and a judgment on the merits in accordance with the guarantees of Article 6 para. 1 of the Convention (Art. 6-1).   It added that nothing had been put forward to indicate that the applicant suffered disadvantages from the conduct of the proceedings by the German courts which had not been covered by the settlement in question.   In this context the Commission had had regard to the applicant's submission that he was a victim of a violation of the Convention in so far as his action for damages had been definitely dismissed by the Federal Court of Justice on 30 April 1980.   It noted that the parties had expressly agreed to exempt from the settlement any possible claims which might be derived from the present application.   On the other hand the payment provided for in the settlement covered all of the applicant's claims arising out of the facts on which his action for damages and the pleadings by which he extended his action were based.   Although the amount of compensation to be paid in the settlement was calculated solely on the basis of that part of the action which had been remitted to the Koblenz Court of Appeal the Commission considered that the settlement covered the applicant's action for damages as a whole, that means the dismissed part as well as the part which had been remitted for a new decision.   In the Commission's opinion the favourable terms of the settlement would appear to have been proposed also in view of any defects in the proceedings and had the purpose of terminating the long and complicated proceedings to the satisfaction of both parties.   The Commission concluded therefore that following the settlement of 25 March 1983, the applicant no longer had any complaint under the Convention that could be remedied by pursuing his application.   II.      The present application   The applicant submits that the Commission's decision rejecting his application, No. 9320/81, was influenced by errors and cannot be maintained taking into account the following considerations which in his opinion are also based on new relevant facts.   The Commission wrongly considered that the friendly settlement which he accepted constituted an advantageous solution for him.   The contrary was true.   In fact his alleged claims including interests amounted to DM 14,708,714 while he only received DM 4,371,100, i.e. only 29.5% of what he claimed.   In addition the Commission did not take into account that his debts amounted to 3.5 million DM plus interest.   The rate of legal interest for claims of merchants was 5% and not, as stated in the Commission's decision, 4%.   In any event he had himself to pay 9.7% interest to his creditors, therefore the interest rate of 9% fixed by the friendly settlement in no way repaired the damages sustained by him.   He had been led to accept the friendly settlement because the presiding judge of the appellate court gave him to understand that otherwise some more years would probably elapse before a final decision was given.   COMPLAINTS   The applicant complains that he was forced by the appellate court to accept an unsatisfactory friendly settlement and that the Commission nevertheless regarded this settlement as a reason no longer to consider him as a victim of the violations alleged with his previous application.   He points out that the settlement expressly left undecided possible claims which might arise out of his previous application.   He argues that in obliging him to accept a settlement the appellate court violated Article 6 of the Convention (Art. 6).   This violation had to be seen in the context of the previous violations of his right to a fair trial, for which he had not yet received any reparation.   He considers that in these circumstances he is a victim of a continued violation against which an effective domestic remedy was not available, as he could not be expected to continue costly and time wasting proceedings before German courts.   For these reasons, the Commission should reconsider his previous application in the light of the new information submitted by him.   THE LAW   The applicant repeats his complaints raised in his Application No. 9320/81 which the Commission has already examined and rejected. It follows that, by virtue of Article 27 para. 1 (b) of the Convention (Art. 27-1-b), the Commission may not deal with the present application unless it contains "relevant new information".   The applicant considers as "relevant new information" his allegation that the appellate court's presiding judge made him accept the settlement in that he pointed out that the proceedings would otherwise not be terminated in the near future.   However, this complaint has in substance already been submitted in the course of the previous application.   In his reply to the respondent Government's observations on admissibility and merits, the applicant had in fact pointed out that he agreed to the settlement solely:   - because of his old age;   - because of his poor health;   - because the proceedings had already lasted for ten years and would   have lasted for several further years before they would have been   terminated;   and   - because the prospects of success of his claim decreased due to   difficulties in obtaining evidence after so long a time.   The applicant's present arguments do not add anything new to his prior submissions.   The Commission considered these submissions in its decision of 15 March 1984 and expressed the view that the applicant did not act under constraint when he renounced the possibility of obtaining higher compensation and a judgment on the merits (see point 2. of the Law on page 26 of the decision of 15 March 1984).   The applicant further submits with his present application that the Commission wrongly considered the result of the settlement to be advantageous for him.   He points out in this context that the Commission wrongly considered that the legal interest rate would have been 4% while for a merchant it would have been 5%.   In any event the interest rate of 9% consented to him in the settlement was not at all advantageous as he had to pay 9.7% interest himself to his creditors. In addition he points out that by accepting the settlement he obtained only 29.5% of what he had initially claimed and that the sum he was eventually paid hardly covered his own debts.   However, these arguments do not reveal any relevant new facts either. It has been stated in the Commission's decision of 15 March 1984 that the applicant's company went bankrupt and that bankruptcy proceedings were discontinued in 1974 in default of bankruptcy assets. It follows therefrom that various debts remained unpaid since 1974 and before and that in regard to these debts interests likewise had to be paid.   The Commission also knew when rejecting the previous application that the applicant's initial claim amounted to DM 15,751,016.30, a sum considerably higher than the amount paid to him in accordance with the settlement.   The applicant even pointed out in his observations in reply concerning his first application that the settlement negotiations were based on the sum initially claimed by him (see page 20, penultimate paragraph, of the decision of 15 March 1984). The Commission was thus aware, on 15 March 1984, of the fact that debts still existed and that in accepting the settlement the applicant only obtained a part of what he originally claimed.   As the settlement which the applicant accepted provided for an interest rate of 9% it is further of no paramount importance whether the legal interest rate would have been 4% or 5%.   Consequently the applicant's further submissions likewise do not contain any relevant new information which would have altered the basis on which the previous decision was taken.   It follows that the application has to be rejected in accordance with Article 27 para. 1 (b) of the Convention (Art. 27-1-b) as being substantially the same as a matter which has already been examined by the Commission, no relevant new information having been submitted.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission   (H.C. KRÜGER)                          (C.A. NØRGAARD)