CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 25 mars 2010

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GERMANY   (Application no. 485/09)           JUDGMENT   This version was rectified on 31 May 2010 under Rule 81 of the Rules of the Court.       STRASBOURG   25 March 2010         This judgment may be subject to editorial revision. In the case of Reinhard 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 Stephen Phillips, Deputy Section Registrar , Having deliberated in private on 2 March 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 485/09) 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, Ms Regina Reinhard (“the applicant”), on 22 December 2008. 2.     The applicant was represented by Mr H.-P. Lange, a lawyer practising in Celle. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice. 3.     On 12 May 2009 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 1. Background to the case 4.     The applicant was born in 1960 and lives in Hanover. 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     In 1990 the applicant passed her tax consultant's examination. She then concluded a contract for a professional partnership with another tax consultant. However, when that consultant later breached his contractual obligations, the applicant terminated the contract in 1993. Subsequently, she requested the public prosecutor to institute criminal proceedings against her former partner and requested a court order ( Mahnbescheid ). 2. The proceedings before the Hanover Regional Court 7.     On 12 September 1994, following her former partner's opposition to the court order, she introduced a claim with the Hanover Regional Court against her former partner for payment of a settlement ( Abfindung ) in the amount of 310,179.51 euros (EUR). On 9 January 1995 the applicant paid the court fees. 8.     On 2 June 1995 a first hearing took place. The parties agreed to await the outcome of a further set of proceedings on the disclosure of information. These proceedings were finally decided upon on 17 July 1996 by the Celle Court of Appeal. 9.     On 26 August 1996 the Hanover Regional Court scheduled a hearing for 14 February 1997. In particular on the defendant's request, it later had to be postponed three times. On 12 September 1997 the second hearing took place before the Hanover Regional Court. 10.     On 21 November 1997 the court decided that an expert opinion on the value of the professional partnership as of 31 December 1993 and further values relevant for the final dissolution of the partnership should be obtained. It also requested an advance which the applicant paid in January 1998. On 10 February 1998 the court informed the parties that it intended to commission an expert opinion from a Dr. K. as soon as documents seized by the public prosecutor had been submitted. 11.     On 11 August 1998 the files (in September 1998 also the public prosecutor's files) had been transferred to the expert. In November 1998 the expert re-transferred the files to the public prosecutor and informed the parties that (in order to save costs) he would await the final report of the public prosecutor which would contain information as to the business value of the applicant's former partner. Subsequently, he repeatedly enquired the state of the report. On 26 June 2000 the public prosecutor's files again were transferred to the expert. The final report of the public prosecutor was submitted on 14 August 2000. On 20 November 2000 Dr. K. submitted his expert report. 12.     On 12 February 2001, on the applicant's request, the court summoned the expert to the hearing scheduled for 4 May 2001. On the expert's request (the court had not transmitted the parties' submissions to the expert), and once also on account of the absence of the defendant's legal counsel, it later had to be postponed three times. 13.     On 23 May 2001 the applicant's former partner introduced a counterclaim ( Widerklage ) in particular on the disclosure of further information as regards clients. At the hearing in August 2001 he extended this claim and sought compensation; partly the issue was settled. In September 2001 the case had been assigned to a new rapporteur. 14.     In October 2001 the court scheduled a new hearing for 19   April   2002. That day the parties failed to reach a friendly settlement. By a decision of 29 April 2002 the Hanover Regional Court requested the expert to supplement his report as regards explanations given in August 2001. On 8 June 2002 Dr. K. submitted this report. 15.     In October 2002 the court scheduled a new hearing for March 2003. On 21 March 2003 the applicant's former partner again amended his counterclaim. 16.     On 28 March 2003 the further hearing took place. On 16 May 2003 the Hanover Regional Court issued an informative decision ( Hinweisbeschluss ). 17.     On 5 September 2003, following another hearing in July, it rendered a partial judgment and decided that the applicant's former partner was to pay the applicant about EUR 400,000. 3. The proceedings before the Hanover Regional Court following the first remittal 18.     On 26 March 2004 the Celle Court of Appeal quashed that decision and remitted the case to the Hanover Regional Court. It found in particular that the claim and the counterclaim had to be decided upon together. 19.     On 1 July 2004, after having received the files, the Hanover Regional Court commissioned a further supplementary expert opinion from Dr. K. On 23 September 2004 the court amended this decision. On 15   June   2005, following a number of additional questions addressed to the parties, the expert submitted this supplementary report. 20.     On 16 November 2005, following further submissions by the parties, the Hanover Regional Court requested another supplementary report. On 1   November 2006, following a number of requests for additional documents, Dr. K. submitted this (third supplementary) report. 21.     On 12 February 2007 the Hanover Regional Court issued another informative decision and gave the parties the opportunity for further comments. On 15 June 2007 another hearing took place; the expert had also been summoned. 22.     On 13 July 2007 the Hanover Regional Court issued a further partial judgment. This time it decided exclusively on the counterclaim. 4. The proceedings before the Hanover Regional Court following the second remittal; the applicant's constitutional complaint 23.     On 16 August 2007 the applicant appealed. On 20 February 2008 the Celle Court of Appeal again quashed the partial judgment. 24.     On 4 July 2008 another hearing took place before the Hanover Regional Court. On 18 July 2008 the Regional Court decided to obtain a further supplementary opinion by Dr. K. 25.     On 11 November 2008 the applicant lodged a constitutional complaint on account of the length of the proceedings. On 17   November   2008 she also lodged a claim for public liability against the State of Niedersachsen aimed at establishing that the Land of Niedersachsen was to pay her any damage 26.     In January 2009 the expert submitted his (fourth supplementary) report. On 7 April 2009 the Hanover Regional Court requested the expert to give a supplementary statement. Another hearing was scheduled for 29   September 2009. 27.     On 2 September 2009 the Federal Constitutional Court found that the proceedings in the applicant's case had exceeded the reasonable time requirement and decided that the State of Niedersachsen had to bear the necessary costs of the complaint. 28.     The proceedings before the Hanover Regional Court are still pending. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 29.     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 [1] ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” 30.     The Government submitted that the case was of an exceptional complexity – caused also by the counterclaim and the criminal investigations – which necessarily entailed a protracted length of the proceedings. They conceded that as of 2001 the authorities caused delays of altogether about four years. 31.     The period to be taken into consideration began on 12   September   1994 when the applicant introduced the claim with the Hanover Regional Court. Following two remittals, the proceedings are still pending before that court. The proceedings thus already lasted for more than 15 years. A.     Admissibility 32.     The Court notes that the application 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 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 applicants and the relevant authorities and what was at stake for the applicants 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. In particular, it finds that, in spite of the complexity of the case, in view of the particular importance of the case to the applicant, at least as of 2001 the authorities failed to further the proceedings diligently – which in parts has also been conceded by the Government. 36.     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.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 37.     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 38.     The applicant claimed 637,185 euros (EUR) in respect of pecuniary damage for losses of profits in the years 1998 to 2009. She submitted (providing also further details as regards her calculation) that had she received the sum claimed as settlement in 1998, she could have used that amount in order to buy her own practice, which in turn – according to statistical surveys – would have resulted in the profits claimed. The applicant admitted that this amount – necessarily – was a mere estimation. She also claimed non-pecuniary damage in the amount of EUR 150,000. 39.     The Government contested these claims. In their view, the applicant failed to exhaust domestic remedies as regards the pecuniary damage claimed since proceedings on public liability aimed at establishing that the State of Niedersachsen was to pay her pecuniary damage caused by the length of the proceedings were still pending at the national level. They also pointed out that not only the sum she was entitled to, but also the amount of yearly profits were speculative. The Government also submitted that the amount of non-pecuniary damage claimed was excessive and, due to the fact that the Federal Constitutional Court already established that the proceedings exceeded the “reasonable time”-requirement, in any event had to be reduced. 40.     The Court, having regard to the material before it, finds that, even assuming exhaustion of domestic remedies as regards the pecuniary damage claimed, and even though it does not exclude that the length of the civil proceedings had an impact on the applicant's profits, the amount of damage in the present case remains speculative. Accordingly, no award can be made to the applicant under this head. As regards non-pecuniary damage claimed the Court, ruling on an equitable basis, awards the applicant the amount of EUR 10,000. B.     Costs and expenses 41.     The applicant, relying on documentary evidence, claimed EUR   8,046 in respect of costs and expenses caused by the enforcement of the first partial judgment and EUR 9,254.20 incurred in the proceedings before this Court, including the costs for the translation of her observations in the amount of EUR 1,644.20. 42.     The Government submitted that costs for the execution of the first partial judgment could not be claimed since they were neither caused by the length of the proceedings nor aimed at preventing or remedying the violation of the Convention. 43.     The Court agrees with the Government that the costs claimed for the execution of the first partial judgment have not been caused by the length of the proceedings. No award can therefore be made in this respect. As regards the costs incurred in the proceedings before this Court, the Court, having regard to its case-law, awards the applicant EUR 2,644.20 plus any tax that may be chargeable. C.     Default interest 44.     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 1.     Declares the application admissible;   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, the following amounts:   (i) EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage;   (ii) EUR 2,644.20 (two thousand six hundred and forty-four euros and 20 cents), in respect of costs and expenses;   (iii) any tax that may be chargeable to the applicant on the above amounts; (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 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Stephen Phillips   Karel Jungwiert   Deputy Registrar   President   [1] Rectified on 31 May 2010 : The phrase read “In the determination of ... any criminal charge against him…” in the former version.