CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 novembre 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s75C985C { width:18.53pt; display:inline-block } .s9E16BFD3 { width:201.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 16308/05 by Stanislaus TALEWSKI against Germany The European Court of Human Rights (Fifth Section), sitting on 6 November 2007 as a Chamber composed of: Mr   P. Lorenzen , President , Mr   K. Jungwiert , Mr   V. Butkevych , Mrs   M. Tsatsa-Nikolovska , Mr   J. Borrego Borrego , Mrs   R. Jaeger , Mr   M. Villiger, judges and Mr J.S. Phillips , Deputy Section Registrar ,   Having regard to the above application lodged on 25 April 2005, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together. Having informed the Polish Government of their right to intervene in the proceedings (Article 36 § 1 and Rule 44), Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention, Having regard to the Government’s request to strike the case partly out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the length of the proceedings, Having regard to the applicant’s comments on the Government’s proposal for a unilateral declaration, Having deliberated, decides as follows: THE FACTS The applicant, Mr Stanislaus Talewski, is a Polish national who was born in 1926 and lives in Hamburg. He is represented before the Court by his legal guardian, Ms L. Jankowski, who lives in Hamburg. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant served as soldier in the German army between 1944 and 1945. In November 1944 the applicant’s right hand was injured by a shell splinter. In 1979 he was diagnosed with a carcinoma on his lower lip. On 24 August 1990 the applicant requested a pension pursuant to section   1 of the Federal Act on the Social Benefits for Victims of War ( Bundesversorgungsgesetz ) alleging that the reduced mobility of his right hand fingers was the consequence of an injury caused by the shell splinter in November 1944. On 28 December 1990 the Hamburg local authorities rejected his request, finding that it could not be proved that the damage was caused during the performance of his military service. On 23 January 1991 the applicant filed an administrative appeal against this decision alleging in addition that following exercises with poison gas in which he took part in June 1944, he suffered from diseases at his lower lip which turned to cancer in 1979. On 17 March 1992 the Hamburg local authorities recognised the injury of the applicant’s fourth right hand finger as damage caused by the performance of his military service and rejected the applicant’s remaining requests. On 16 April 1992 the applicant brought an action against the Hamburg local authorities before the Hamburg Social Court seeking payment of a war indemnification pension and recognition that the disease of his lower lip was caused by the exercises with poison gas carried out in June 1944. He submitted that the reduction of his ability to work amounted to 30%. During the proceedings before the Hamburg Social Court five written expert opinions were delivered and several witnesses were heard. On 18   June 1999 the court asked the applicant to indicate the addresses of witnesses and to submit several documents concerning his medical treatment, but the applicant failed to do so. Furthermore the court unsuccessfully attempted to obtain documents from the Polish authorities. On 19 March 2002 the Hamburg local authorities offered the applicant to recognise that the reduced mobility of the four long fingers of his right hand had been a damage caused by the performance of his military service and that the reduction of his ability to work amounted to 20%. In the hearing held on 27   June 2002 the applicant accepted the offer. On 27 June 2002 the Hamburg Social Court dismissed the applicant’s remaining claims, arguing that it could not be established that the carcinoma of his lower lip had been caused by the exercises with poison gas carried out in June 1944. On 13 December 2002 the applicant appealed against the judgment, which the Hamburg Social Court of Appeal rejected on 27 September 2005. It relied on information obtained from the German Federal Armed Forces and a written expert opinion delivered by an occupational health specialist. On 10 November 2005 the applicant lodged a request for leave to appeal on points of law before the Federal Court of Justice. On 24 November 2005 he filed a motion for legal aid and the appointment of a lawyer with that court. On 28 December 200 5 the Federal Court of Justice rejected the applicant’s request for legal aid and for the appointment of a lawyer and declared his request for leave to appeal on points of law inadmissible because he had not been represented by a lawyer as prescribed by the Code of Administrative Court Procedure. The Federal Court of Justice argued that the applicant’s proposed request for leave to appeal on points of law lacked reasonable prospects of success as the Social Court of Appeal had not committed any procedural mistake nor had its judgment been contrary to the case-law of the Federal Social Court. B.     Relevant domestic law Section 1 of the Federal Benefits Act provides relief for the victims of war whose health or financial standing have been adversely affected by the performance of military or a quasi-military service or by an accident that occurred during the performance of such service. COMPLAINTS 1. The applicant complained about the refusal to grant him the requested war indemnification pension. 2. The applicant further complained about the length of the proceedings before the German social courts. THE LAW 1.     The applicant complained about the outcome of the proceedings and, in particular, about the refusal to grant him the requested war indemnification pension. The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. In the present case, the applicant failed to lodge a constitutional complaint before the Federal Constitutional Court. Consequently, this part of the application is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.   2. The applicant complained about the length of his proceedings before the German social courts invoking in substance Article 6 § 1 of the Convention, the relevant parts of which read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” On 18 June 2007 the Court received the following declaration from the Government signed on 14 June 2007: “In this case, the Court proposed a friendly settlement which was rejected on behalf of the Applicant by his guardian’s letter dated 8 May 2007. The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the length of the two proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article   6   para. 1 of the Convention. If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant’s claim for compensation in the amount of EUR 6,500.00. This sum of EUR 6,500.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany or the Free and Hanseatic City of Hamburg, including in particular compensation for the Applicant’s damage (including non-pecuniary damage) as well as costs and expenses. In the light of the Court’s rulings in similar cases, the Federal Government considers the amount of EUR 6,500.00 to be reasonable. The Federal Government therefore requests that this application be struck out of the Court’s list of cases pursuant to Article 37 para. 1 (c) of the Convention. The Federal Government’s acknowledgment of a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings and its acceptance of the claim for compensation in the amount of EUR 6,500.00 constitutes “[an]other reason” within the meaning of this provision.” The applicant in his written reply dated 1 July 2007 requested the Court to reject the Government’s proposal as from his point of view the sum offered was insufficient to compensate him for the violations sustained in the present case. The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 14 June 2007 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article   37 §   1   (c) enables the Court in particular to strike a case out of its list if: “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. Article 37 § 1 in fine includes the proviso that: “However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.” In deciding whether or not it should strike the present case out its list of cases, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v.   Turkey , no. 25754/94, § 23, judgment of 26   March 2002, Akman v. Turkey (striking out), no. 37453/97, §§ 30-31, ECHR 2001 ‑ VI, and Meriakri v. Moldova (striking out), no. 53487/99, §§ 30-32, 1 March 2005; MacDonald v. the United Kingdom (dec.), no. 31/04, 6 February 2007; Oleksiw v. Germany (dec.), no. 31384/04, 11 September 2007). The Court notes that the present case raises as issue the undue length of the proceedings within the meaning of Article 6 of the Convention. It recalls that it has already specified in various judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, also in respect of the Federal Republic of Germany (see, among many others, Sürmeli v. Germany [GC], no. 75529/01, ECHR 2006-...; Nold v. Germany , no. 27250/02, 29 June 2006; Stork v. Germany , no. 38033/02, 13 July 2006; Klasen v. Germany , no. 75204/01, 5 October 2006; Grässer v. Germany , no. 66491/01, 5 October 2006; Herbst v. Germany , no. 20027/02, 1 January 2007). The Government’s declaration contains an acknowledgment that the length of the proceedings in the instant case was not in accordance with the “reasonable time”- requirement. Furthermore, the Court considers the sum of EUR 6,500 for the applicant’s damage, including non-pecuniary damage and costs and expenses, to be acceptable. Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application insofar as the applicant complained about the length of the proceedings (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine ).   3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention. For these reasons, the Court unanimously   Declares the applicant’s complaints about the unfairness and outcome of the impugned proceedings inadmissible; Takes note of the terms of the respondent Government’s declaration; Decides to strike the remainder of the application out of its list of cases.     Stephen Phillips   Peer Lorenzen Deputy Registrar   President