CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 avril 2008

.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 } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .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 } .sDB6B63EE { width:176.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION DECISION Application no. 35000/05 by Uwe ORLOWSKI against Germany The European Court of Human Rights (Fifth Section), sitting on 1 April 2008 as a Chamber composed of:   Peer Lorenzen, President,   Snejana Botoucharova,   Volodymyr Butkevych,   Rait Maruste,   Renate Jaeger,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska, judges, and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 22 September 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 regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, 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 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 Uwe Orlowski, is a German national who was born in 1958 and lives in Berge. He was represented before the Court by Mr T. Stork, a lawyer practising in Berge. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 4 November 1991 the applicant filed a request for an orphan’s pension. On 15 April 1992 the Dortmund Pension Office rejected the request. On 26 April 1992 the applicant filed an administrative appeal which was rejected on 6 September 1999. On 27 September 1999 the applicant lodged his claim with the Dortmund Social Court ( Sozialgericht ). By judgment of 12 December 2003 the Dortmund Social Court granted the applicant’s claim and obliged the Pension Office to pay the applicant a monthly allowance. On 16 January 2004 the Land of North-Rhine Westphalia, represented by the Pension Office, lodged an appeal with the North-Rhine Westphalia Social Court of Appeal ( Landessozialgericht ). On 15 February and 12 March 2004 the applicant requested the Court of Appeal to reject the appeal as inadmissible. He pointed out that the proceedings had already lasted eleven years and eight months. According to the applicant, the length of the proceedings violated both his rights under the German Basic Law and under Article 6 § 1 of the Convention. By lodging the appeal, the Pension Office had actively perpetuated this violation. On 31 January 2005 the applicant lodged a constitutional complaint against the act of lodging an appeal as well as against the length of the proceedings before the social courts. On 15 March 2005 the Federal Constitutional Court, sitting as a panel of three judges, referring to the pertinent provisions of its Rules of Procedure, refused to accept the applicant’s complaint for adjudication without giving further reasons. On 12 May 2005 the Social Court of Appeal quashed the judgment of 12 December 2003 and remitted the case to the Social Court, refusing the applicant leave to appeal. On 6 July 2005 the applicant lodged a complaint against the refusal of leave to appeal with the Federal Social Court ( Bundessozialgericht ). On 24 November 2005 the Federal Social Court quashed the Social Court of Appeal’s judgment and remitted the case to that same court. According to the Federal Social Court, the Court of Appeal, when remitting the case to the first instance court, had failed to take into account the fact that the proceedings had already lasted thirteen years. In order to accelerate the proceedings, the case had to be remitted to the Court of Appeal instead of the first instance court, so that the former could establish the relevant facts. On 5 January 2006 the applicant lodged a fresh constitutional complaint, complaining about the excessive length and alleged unfairness of the proceedings before the social courts. On 28 February 2006 the Federal Constitutional Court, sitting as a panel of three judges, referring to the pertinent provisions of its Rules of procedure, refused to accept the applicant’s complaint for adjudication without giving further reasons. In January 2008 the proceedings were still pending before the North-Rhine Westphalia Social Court of Appeal. COMPLAINTS 1. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings before the social courts. He complained, in particular, that the Pension Office’s decision to lodge an appeal against the Dortmund Social Court’s judgment of 12 December 2003 perpetuated and intensified the violation of his right to be heard within a reasonable time. 2. The applicant further complained under Article 13 of the Convention about the lack of an effective remedy in the German legal system enabling him to complain about the length of the proceedings before the social courts. 3. The applicant finally alleged that the proceedings before the Federal Constitutional Court and the Social Court of Appeal, taken as a whole, could not be regarded as being “fair” within the meaning of Article 6 § 1. THE LAW A.     Length of proceedings and the lack of an effective remedy in this respect The applicant complained about the length of the proceedings and about the lack of an effective remedy in this respect. He relied on Articles 6 §   1 and 13 of the Convention which, in so far as relevant, provide as follows: Article 6 §1 “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “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.” On 1 October 2007 the Court received a declaration from the Government dated 26 September 2007, which, as far as relevant, reads as follows: “In this case the Court proposed a friendly settlement which was rejected by the applicant by letter dated 31 July 2007. The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the length of the proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article 6 para. 1 of the Convention and that the Applicant did – in the present case – not have at his disposal an effective remedy for his complaint under Article 6 § 1, as required by Article 13 of the Convention. ...” On 7 January 2008 the Court received the following declaration from the Government: “In the proceedings referred to above the Federal Republic of Germany, in its written pleading dated 26 September 2007, acknowledged – through a unilateral declaration – that the duration of the litigation was not compatible with the “reasonable time” requirement, within the meaning of Article 6 para. 1 of the Convention and that, in this specific case, there had been no legal remedy available to the Applicant, satisfying the requirements of Art. 13 of the Convention. In response to the inquiry made by the Court, the Federal Government would like to inform the Court that the proceedings on the appeal on fact and law L 10 (7) V 7/06 are still pending before the North-Rhine/Westphalia Higher Social Court. The court takes the view that more evidence needs to be taken and has pursued this course. The Federal Government is willing, in the event of the Court striking this Application out of its list of cases, to accept the Applicant’s claim to satisfaction (compensation) in the sum of € 10,000. With this sum of € 10,000, payable within three months following the Court decision to strike the litigation out of its list of cases, all of the Applicant’s claims in connection with the said Application filed against the Federal Republic of Germany or the Land of North-Rhine/Westphalia, in particular compensation for the Applicant (also in respect of non-pecuniary damage), costs and outlays, would be deemed to have been settled. The Federal Government considers a sum of € 10,000 to be fair in the light of the Court’s case-law in comparable cases. The Federal Government is aware of the fact that through this declaration a disposal of the case is possible only up to the point where the Application is struck out of the list by the Court. This declaration covers only such violations of Art. 6 and 13 of the Convention as have already occurred by the time when the Application is struck out pursuant to Art. 37 of the Convention. The Federal Government therefore applies for this Application to be struck out of the list of cases, pursuant to Art. 37 para. 1c of the Convention. The Federal Government’s acknowledgement of violations of Art. 6 para. 1 and Art. 13 of the Convention, with reference to the length of the proceedings, and its acknowledgement of the claim to satisfaction (compensation) in the sum of € 10,000 constitute “any other reason” within the meaning of this provision.” In letters of 15 October 2007 and 23 January 2008 the applicant expressed the view that the Government’s declaration failed to specify that the violations included the continuation of the court proceedings actively induced by State agencies following the judgment of the Dortmund Social Court. He pointed out that the relevant proceedings were still pending before the domestic social courts and that the violation of his Convention Rights had not been terminated. He further considered that the sum mentioned in the Government’s declaration was unacceptably low . 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”. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. 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, among other authorities, Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Oleksiw v. Germany (dec.), no. 31384/02, 11 September 2007 and Hassdenteufel v. Germany (dec.), no. 21214/03, 6 November 2007). The Court notes that the present case raises as issues the length of the proceedings within the meaning of Article 6 of the Convention and the lack of an effective remedy in this respect, as required by Article 13. It recalls that it has already established in various judgments and decisions, also in respect of the Federal Republic of Germany, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time and about the lack of an effective remedy capable of providing redress for a breach of this right (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 and that the lack of an effective remedy was contrary to Article 13. Furthermore, the Court considers the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - to be acceptable. The Court does not consider that the specific circumstances of the present case warrant a continuation of the examination of the merits of the complaint. It observes, in particular, that the Court’s strike-out decision is without prejudice to use by the applicant of other remedies to obtain redress for any delay which may occur in the proceedings still pending before the domestic courts after the date of this decision. In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ). Accordingly, it should be struck out of the list. B.     Further complaint under Article 6 § 1 The applicant further complained that the proceedings before the Federal Constitutional Court and the Federal Social Court, taken as a whole, could not be regarded as fair. 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. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention. For these reasons, the Court unanimously Takes note of the terms of the respondent Government’s declaration in respect of the complaints under Article 6 § 1 and 13 of the Convention regarding the excessive length of the proceedings; Decides to strike the application out of its list of cases in so far as it relates to the above complaints; Declares the remainder of the application inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President