(Application no. 20027/02)
11 January 2007
In the case of Herbst v. Germany,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
Mrs B. Mayen, ad hoc judge,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 7 December 2006,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 20027/02) 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 Heinrich Herbst (“the applicant”), on 14 May 2002.
2. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
3. On 26 January 2005 the Court decided to give notice of the application to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
4. The applicant was born in 1944 and lives in Neckargemünd in Germany.
5. From 1972 to 1979 the applicant studied law at the University of Heidelberg.
6. From April to May 1979 he wrote a paper (sechs-Wochen-Hausarbeit) on public building law, which formed part of the first state examination.
7. In November 1979 the applicant wrote three further examination papers.
8. On 6 December 1979 the Lower Saxony Examination Office (Justizprüfungsamt) informed the applicant that his paper on public building law had been given the mark “unsatisfactory” (mangelhaft, 1 point).
9. On 31 January 1980 that same office informed the applicant that his other public law paper had been marked “insufficient” (ungenügend, 0 points).
10. As a reaction to these poor grades - which could cause failure in the examinations - the applicant developed a severe depression which prevented him from further pursuing the examination proceedings.
1. The proceedings before the administrative courts
11. On 25
April 1980 the applicant lodged a motion with the Hanover Administrative
Court (Verwaltungsgericht) with the aim of obtaining a
re-evaluation of the two examination papers.
12. On 27 February 1986 the Hanover Administrative Court rejected the motion as being inadmissible.
13. The applicant's appeal to the Lüneburg Administrative Court of Appeal (Oberverwaltungsgericht) remained unsuccessful.
14. On 9 February 1987 the Federal Administrative Court refused to grant the applicant leave to appeal on points of law.
15. On 2 March 1988 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.
2. The compensation proceedings before the civil courts
(a) The first instance and the legal aid proceedings
16. On 30 November 1982 the applicant lodged a compensation claim against the State of Lower Saxony with the Hanover Regional Court (Landgericht).
17. On 5 January 1983 the Regional Court, upon the applicant's request and with the defendant's consent, decided to suspend proceedings pending the proceedings before the administrative courts.
18. On 14 December 1987 the Regional Court decided not to schedule a hearing before the Federal Constitutional Court had given its decision on the applicant's complaint against the administrative courts' judgments.
19. On 20 September 1988 the applicant informed the Regional Court that he had lodged an application against the Federal Constitutional Court's decision with the European Commission for Human Rights and requested that the proceedings remain suspended.
20. On 21 December 1988 the Regional Court refused to further suspend the proceedings.
21. On 8 March 1989 the Celle Court of Appeal rejected the applicant's complaint against that decision.
22. On 17 March 1989 the applicant, once again, requested to suspend the proceedings.
23. By letter to the Regional Court of 7 February 1990 the applicant requested that the proceedings should be continued. Referring to expert opinions submitted by fifteen legal scholars, he claimed that the evaluations of his two examination papers were incorrect. Alleging that the poor grades had caused his psychological illness and had thus prevented him from completing his studies and from pursuing a university career, he claimed 463,300 Deutschmarks (DEM) as damages for lost income, a monthly pension and further compensation for immaterial damage suffered by him.
24. On 8 June 1990 the Regional Court refused to grant the applicant legal aid.
25. On 19 March 1991 the Celle Court of Appeal rejected the applicant's complaint.
26. On 16 July 1991 the Federal Constitutional Court (Bundesverfassungsgericht), on the applicant's complaint, quashed this decision and remitted the case to the Court of Appeal.
27. On 25 May 1992 the Celle Court of Appeal partially granted the applicant legal aid and rejected the applicant's further request.
28. On 10 September 1992 the applicant filed a constitutional complaint against the Celle Court of Appeal's decision.
29. On 2 May 1994 the applicant requested the Hanover Regional Court to continue the proceedings. He further informed the Regional Court that his counsel had relinquished her mandate.
30. On 17 January 1995 the Regional Court, by way of legal aid, appointed new counsel for the applicant.
31. On 27 January 1995 the Regional Court scheduled a hearing for 18 May 1995, which was postponed twice, once to allow the applicant further written submissions and once because the applicant had lodged a motion for bias against the presiding judge of the Regional Court.
32. On 8 February 1995 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.
33. By judgment of 11 April 1996, following an oral hearing held on 29 February 1996, the Hanover Regional Court rejected the applicant's claim.
(b) The proceedings relating to the partial judgment of the Celle Court of Appeal of 29 August 2000
34. On 10 July 1996 the applicant lodged an appeal against the judgment of the Hanover Regional Court.
35. On 22 July 1997 the Celle Court of Appeal (Oberlandesgericht) ordered an expert opinion to be prepared as to whether the evaluation of the two examination papers caused the applicant to fall ill and prevented him from taking part in the scheduled oral examinations.
36. On 15 June 1998 the expert submitted his written opinion.
37. On 6 October 1998 the applicant submitted extensive comments on the expert opinion and requested that the expert be heard by the court.
38. On 29 October 1998 the applicant requested that the expert should submit his comments in written form.
39. On 10 December 1999 the Court of Appeal scheduled a hearing for 28 June 2000. On 23 February 2000 that same court requested the expert to submit his comments on the parties' submissions in written form.
40. On 23 May 2000 the expert submitted his written comments.
41. On 20 June 2000 the applicant filed an objection for bias against the expert, which was rejected on 28 June 2000.
42. On 28 June 2000 the Court of Appeal
heard the medical expert.
At the end of the hearing, the applicant's counsel repeated a former request that two doctors, who had examined respectively treated the applicant during his illness, should be heard as witnesses.
43. By partial judgment (Teilurteil) of 29 August 2000 the Court of Appeal rejected the applicant's claim in so far as it concerned damages for the time after 31 May 1980. It found that the applicant had failed to prove that any illness after the end of July 1981 had been caused by the alleged incorrect evaluation of his examination papers. In this respect, the court followed the expert's opinion that any illness which had been caused by the evaluation had subsided after a maximum period of 1.5 years and that any following illness was solely caused by the structure of the applicant's personality. According to the Court of Appeal, the expert's reasoning duly took into account the medical statements submitted by the applicant. Accordingly, that Court did not find it necessary to hear witnesses on the applicant's state of health.
44. On 29 September 2000 the applicant lodged a request to be granted leave to appeal on points of law.
45. On 20 September 2001 the Federal Court of Justice (Bundesgerichtshof) refused to grant the applicant leave to appeal.
46. On 19 November 2001 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.
(c) The proceedings relating to the final judgment of 18 September 2001
47. On 29 August 2000 the Celle Court of Appeal decided to hear expert opinion on the allegedly incorrect evaluation of the examination papers.
48. In April 2001 the expert submitted his report.
49. On 29 August 2001 the Court of Appeal held a hearing and heard the expert.
50. On 18 September 2001 the Court of Appeal, by final judgment (Schlussurteil), found that the evaluation of the two examination papers had been indeed incorrectly low and that the examiners had acted in breach of their official duties. Had the examination papers been correctly evaluated, the applicant would have very probably passed the examination and would have found employment as a trainee lawyer. Accordingly, it granted the applicant DEM 1,500.00 as damages for lost income in the month of May 1980 and further DEM 10,000.00 for non-pecuniary damages.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
51. Article 6 § 1 of the Convention, as far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
A. Complaint about the length of proceedings
52. The applicant complained that the length of the proceedings from the lodging of his claim with the Administrative Court on 25 April 1980 until the passing of the final judgment of the Celle Court of Appeal on 18 September 2001 had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
53. The Government contested that argument.
54. As regards the proceedings before the administrative courts, the Court reiterates that Article 6 § 1 is not applicable to proceedings which concern in essence the evaluation of knowledge and experience in school or university examinations (see, mutatis mutandis, Van Marle and Others v. the Netherlands, judgment of 26 June 1986, Series A no. 101, § 36; San Juan v. France (dec.), no. 43956/98 , 28 February 2002; and Nowicky v. Austria, no. 34983/02, § 34, 24 February 2005). The same principle applies to judicial state examinations, which are, furthermore, closely related to the hard core of public-authority prerogatives (see, mutatis mutandis, Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001-VII). The Court notes that the proceedings before the administrative courts essentially concerned the evaluation of the applicant's examination papers. It follows that Article 6 § 1 is not applicable to the proceedings before the administrative courts and that the complaint about the length of these proceedings has to be declared inadmissible pursuant Article 35 §§ 3 and 4 as being incompatible ratione materiae with the provisions of the Convention.
55. With regard to the compensation proceedings before civil courts, the Court recalls that the right to compensation against the State has to be regarded as being of a civil character even if the prerequisites concern public law issues (see Georgiadis v. Greece, judgment of 29 May 1997, Reports of Judgments and Decisions 1997-III, p. 959, § 35; Werner v. Austria, judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2508, § 38). Accordingly, the applicability of Article 6 is not excluded by the fact that the compensation claims were based on the evaluation of examination papers.
56. The period to be taken into consideration thus began on 30 November 1982, when the applicant lodged his compensation claim with the Hanover Regional Court. The period in question ended on 18 September 2001 when the Celle Court of Appeal delivered its final judgment. It thus lasted over 18 years and 9 months for four levels of jurisdiction, including one remittal.
(a) The parties' submissions
(i) The Government
57. The Government contended that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention, as he had failed to raise his complaint about the excessive length of the proceedings before the Federal Constitutional Court. According to the Government, the constitutional complaint had to be regarded as an effective remedy within the meaning of Article 13 of the Convention. As to the means by which the Federal Constitutional Court was able to influence the length of pending proceedings, the Government maintained that the mere fact that notice of a constitutional complaint satisfying the admissibility criteria was given to the Federal Government or the government of the Land in which the court in question was situated had the effect of speeding up the proceedings. The same applied for a decision establishing a violation of the Basic Law. Furthermore, the fact that the Federal Constitutional Court's decisions were often published and discussed in the legal press exerted a preventive effect.
58. The Government further alleged that the constitutional complaint afforded adequate redress for breaches which had already occurred. In this respect, the Government pointed out that, according to the case-law of the Federal Constitutional Court, the excessive length of criminal proceedings had to be taken into account when assessing the sentence.
59. The Government further observed that the Court, in its previous case-law (Klein v. Germany, no. 33379/96, 27 July 2000; Niederböster v. Germany, no. 39547/98, ECHR 2003-IV (extracts); Uhl v. Germany, no. 64387/01, 10 February 2005; and Wimmer v. Germany, no. 60534/00, 24 February 2005), had sometimes held that the finding of a violation of Article 6 § 1 of the Convention constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. According to the Government, the same principle should apply to the domestic proceedings. Accordingly, a decision of the Federal Constitutional Court establishing a violation could be regarded as adequate redress.
60. Lastly, the Government argued that it was possible to obtain damages for the excessive length of proceedings by means of an action to establish the State's liability (Amtshaftungsklage). In this respect, they cited a judgment delivered by the Munich Regional Court on 12 January 2005 (no. 9 O 17286/03), in which the claimant had been refunded the legal costs necessarily incurred in lodging a complaint about the excessive length of proceedings before an administrative court of appeal.
(ii) The applicant
61. The applicant contested these submissions. He maintained that he had raised the issue of the excessive length of the proceedings both expressly and in substance before the Federal Constitutional Court. In any event, the applicant considered that the Constitutional Court should have examined the length of the proceedings on its own motion. Furthermore, the constitutional complaint could not be regarded as an effective remedy, as the Federal Constitutional Court was not in a position to grant just satisfaction as provided by Article 41 of the Convention. The applicant maintained that the mere finding of a violation would not have constituted sufficient just satisfaction for the damages he sustained.
(b) The Court's assessment
62. The Court recalls that under Article 35
of the Convention, normal recourse should be had by an applicant to
remedies that are available and sufficient to afford redress in respect
of the breaches alleged. The existence of the remedies in question must
be sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness (see Dalia
v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38;
Horvat v. Croatia, no. 51585/99, § 38, ECHR 2001-VIII; and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006-...). Furthermore, in the area of exhaustion of domestic remedies, it is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success
(see Horvat, cited above, § 39).
63. With regard to the effectiveness of the constitutional complaint, the Court recalls its recent finding in the Sürmeli case (Sürmeli v. Germany [GC], no. 75529/01, §§ 105-108, ECHR 2006-...), in which the Government had not established that the constitutional complaint could be regarded as an effective remedy to expedite proceedings which were still pending before the civil courts. The Court notes that the Government have not adduced any relevant reasons which could induce the Court to depart from this finding.
64. It remains to be determined whether, under domestic law, there exists an effective remedy for an alleged violation of the right to have a case heard within a “reasonable time” in cases were the proceedings in question have already ended at domestic level. According to the Court's consistent case-law, a remedy can be regarded as “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI; and Lukenda v. Slovenia, no. 23032/02, § 67, 6 October 2005). Following the termination of the domestic proceedings, only the second option remains. In their submission in the present case, the Government alleged that the constitutional complaint and the action to establish the State's liability were sufficient to provide such adequate redress.
65. Turning to the first remedy, the Court notes that the Federal Constitutional Court is not in a position to award any damages for a breach of the “reasonable time” requirement. This means that the Constitutional Court cannot provide any redress for pecuniary damages incurred by the excessive length of civil proceedings.
66. As regards non-pecuniary damage,
the Court, in its consistent case-law, assumes that there is a strong
but rebuttable presumption that excessively long proceedings will occasion
such damage. It also accepts that, in some cases, the length of the
proceedings may result in only minimal non-pecuniary damage or in no
non-pecuniary damage at all
(see Scordino (no.1), cited above, § 204; and the cases cited by the Government in paragraph 56 above). However, in these cases the domestic courts will then have to justify their decision not to award non-pecuniary damages by giving sufficient reasons (see Scordino (no.1), cited above,
§ 204). As the Federal Constitutional Court is not competent to award any damages, it follows that that court is not in a position to give such a reasoned decision. It follows that the constitutional complaint cannot be regarded as an effective remedy for breaches of the “reasonable time” requirement which have already occurred. Accordingly, the Court does not have to examine whether the applicant did sufficiently raise the issue of the excessive length of the proceedings in his constitutional complaint, as he was not required to raise before that court the length of the proceedings in his case.
67. As regards the remedy of action to
establish the State's liability, the Court recalls its finding in the Sürmeli
judgment according to which such action could not be regarded as a remedy
capable of affording adequate redress for the length of the proceedings
(see Sürmeli, cited above,
§§ 113-114). In this judgment, the Court considered that the judgment of the Munich Regional Court cited by the Government did not demonstrate that the action for damages was a remedy capable of affording adequate redress for the length of the proceedings (see Sürmeli, cited above, § 113).
The Court further notes that the Government have not adduced any fresh reasons which could justify departing from this finding.
68. Accordingly, the Court is not satisfied that the aforementioned remedies can amount to an effective legal remedy in the circumstances of the instant case. The applicant has therefore to be regarded as having exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.
69. The Court further notes that the applicant's complaint about the length of the civil proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(a) The parties' submissions
(i) The Government
70. The Government maintained that the
length of the proceedings was mainly imputable to the applicant's own
conduct. They alleged that the applicant's request to suspend the proceedings
before the Hanover Regional Court caused a delay from 5 January 1983
until 9 February 1990.
They further pointed out that the applicant had originally requested that the proceedings should even remain suspended until the European Commission for Human Rights had given its decision, but that the Regional Court had rejected this request.
71. The Government further claimed that the proceedings raised a considerable number of complex issues which necessitated the taking of expert opinion. As to what was at stake for the applicant, the Government observed that the final judgment given by the Celle Court of Appeal on 18 September 2001 in substance merely concerned the applicant's claims for damages for lost income for the period of not more than 1.5 years and his claims for non-pecuniary damages, which that court assessed to DEM 10,000. The Government finally alleged that the breach of duty did not cause a considerable break in the applicant's professional career, as he did not further pursue his judicial studies even after the effects caused by the breach of duty had ceased to exist by mid-1981, as established by the partial judgment of 29 August 2000.
(ii) The applicant
72. The applicant contested these submissions. According to the applicant, the delay caused by the suspension of the proceedings before the Regional Court was imputable to the domestic authorities, as the administrative courts had delayed their proceedings by ten years. This could not have been foreseen by the applicant. Following the termination of the administrative courts' proceedings, the Hanover Regional Court had further delayed the proceedings by seven years without taking the necessary evidence. The applicant further alleged that the Celle Court of Appeal had failed to raise the evidence in an adequate and efficient way.
73. According to the applicant, the case had not been of a particularly complex nature, as it had been obvious that the examination papers had been marked arbitrarily low. In this respect, he pointed out that, in the beginning of 1990, he had submitted fifteen expert opinions by renowned legal scholars who all came to the same conclusion.
74. As to what was at stake for the applicant, he alleged that the main issue of the proceedings was to establish that his examination papers had been marked too low. He maintained that the incorrect assessment of his grades severely and continuously damaged his health, endangered his life and hindered his professional career. Had the domestic courts given their decisions in due time, he could have pursued his promising career as a university teacher. By the time the Celle Regional Court had given its final judgment in 2001, he had almost reached retirement age. It followed that his case had been of an extremely urgent nature.
(b) The Court's assessment
75. 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).
76. The Court considers that the case involved points of fact and law of some complexity, which necessitated the taking of expert opinions.
77. With regard to the applicant's conduct, the Court notes that the applicant, in January 1983, requested that the proceedings before the Hanover Regional Court be suspended until the termination of the proceedings pending before the Administrative Court, which he considered prejudicial. He later requested the proceedings to remain suspended and did not request proceedings to be pursued until February 1990. The Court finds that the suspension contributed to a considerable degree to the overall length of the proceedings. It considers, however, that this delay cannot be exclusively held imputable to the applicant's conduct, as both the defendant party and the Regional Court consented to the suspension of the proceedings.
78. As to the conduct of the domestic courts, the Court considers that it might be reasonable for national courts to await under certain circumstances the outcome of parallel proceedings as a measure of procedural efficiency. However, this decision must be proportionate having regard to the special circumstances of the case (see König v. Germany, judgment of 28 June 1978, Series A no. 27, § 110; Boddaert v. Belgium, judgment of 12 October 1992, Series A no. 235-D, § 39; Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998-I, § 97; and Stork v. Germany, no. 38033/02, § 44, 13 July 2006). In the present case, the Hanover Regional Court abstained from deciding on the applicant's case in view of the proceedings pending before the administrative courts and the Federal Constitutional Court. The Court notes, firstly, that the proceedings before the Hanover Administrative Court lasted more than three years following the suspension of the civil proceedings. The final decision of the Federal Constitutional Court was given more than two years later. The Court accepts that the applicant requested that the proceedings remain suspended and did not lodge a request to pursue the proceedings until 7 February 1990. However, according to the Court's settled case-law, even in legal systems applying the principle that the procedural initiative lies with the parties (Parteimaxime), as the German Code of Civil Procedure does, the parties' attitude does not dispense the courts from ensuring the expeditious trial required by Article 6 § 1 (see, among many other authorities, Sürmeli, cited above, § 129). Even assuming that the length of the suspension of the proceedings for more than five years could still be regarded as justified in the circumstances of the case, the Court notes that the Regional Court, having refused to further suspend the proceedings on 21 December 1988, did not continue the proceedings until June 1990, although the Celle Court of Appeal had already rejected the applicant's complaint against the decision of 21 December 1988 on 8 March 1989.
79. The Court further notes that the domestic courts did not order the hearing of expert opinion until July 1997, that is, some seven years after the Regional Court had continued the proceedings following their suspension. Even taking into account that the applicant, during this time, had recourse twice to the Federal Constitutional Court with regard to legal aid issues, the Court does not find this delay to be sufficiently justified, having particular regard to the overall length of the proceedings, which would have necessitated particular expeditiousness on behalf of the domestic courts.
80. As to what was at stake for the applicant, the Court notes that the civil proceedings concerned the applicant's compensation claims for pecuniary and non-pecuniary damages suffered through the incorrect evaluation of his examination papers. With respect to pecuniary damages, the applicant originally claimed compensation for lost income during his whole professional life. Only by partial judgment of 29 August 2000, which was confirmed by the Federal Constitutional Court on 19 November 2001, the scope of the subject matter was limited to damages suffered before 31 May 1980. It follows that the applicant's material interest in the outcome of the proceedings was considerable. Furthermore, the Court notes that the applicant, who has indisputably suffered psychologically from the marking of his examination papers, estimated that those evaluations hindered his professional career. Although the marking of the examination papers itself is not subject of the proceedings before the Court, it nevertheless illustrates the importance of the outcome of the lawsuit for the applicant (see paragraphs 54 and 55 above). Even though the applicant's case did not belong to a category that by its nature calls for special expedition (such as custody of children (see Niederböster v. Germany, no. 39547/98, § 33, ECHR 2003-IV), civil status and capacity (see Mikulić v. Croatia, no. 53176/99, § 44, ECHR 2002-I) or labour disputes (see Frydlender, cited above, § 45), the Court accepts that the applicant had a considerable interest in the swift termination of the civil proceedings.
81. The Court accordingly concludes that, notwithstanding the circumstances relied on by the Government, the length of the proceedings exceeded a reasonable time for the purposes of Article 6 § 1. There has accordingly been a breach of that provision.
B. Complaint about unfair proceedings
82. The applicant further complained under Article 6 § 1 about unfair civil proceedings. He claimed that the Celle Court of Appeal, in its partial judgment of 29 August 2000, exclusively followed the – allegedly incorrect – view of the medical expert, without duly taking into account the medical statements submitted by the applicant and without either hearing the doctors who had examined him during his illness or hearing further expert opinion. He further complained that the medical expert had not sufficiently examined him, as he had only examined him for about an hour in 1998.
83. The Court reiterates that the assessment of the facts and the taking of evidence and its evaluation is a matter which necessarily comes within the appreciation of the national courts and cannot be reviewed by the Court unless there is an indication that the judges have drawn grossly unfair or arbitrary conclusions from the facts before them (see, mutatis mutandis, Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004; García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Having regard to the content of the case-file, the Court does not find that the decisions taken by the domestic authorities can be regarded as arbitrary.
It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 1 and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
84. 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.”
85. The applicant claimed 1,250,000 euros
(EUR) for loss of earnings and pension claims for the period of time
between 1990 and 2025.
He further claimed DEM 436,000 (EUR 222,923) for loss of earnings between 1980 and 1990. He alleged that, had the domestic authorities established the incorrect assessment of his examination papers within due time, he would have passed his state examinations. Referring to the good results he had obtained during his university studies and to the fact that two professors had offered him the possibility to write his thesis, the applicant submitted that he would have pursued a successful university career and reached at least the post of an assistant lecturer with a yearly income of some EUR 50,000. The applicant further alleged that the partial judgment of 29 August 2000 would have had a more favourable outcome if the domestic courts had established the incorrect evaluation in due time.
86. In respect of non-pecuniary damage, the applicant sought EUR 100,000 for the excessive length of the proceedings, which he claimed had destroyed both his private life and his professional career.
87. The Government contested these claims. They argued that the applicant's claims were contrary to the purpose of Article 41. In their submission, there was no causal link between the alleged violations of Article 6 § 1 and any of the pecuniary damage alleged by the applicant, who was in fact seeking to be treated as though the domestic courts had found in his favour and had allowed his claims for compensation in full.
88. As regards non-pecuniary damage, the Government submitted that the amount claimed by the applicant was excessive and that the finding of a violation of Article 6 § 1 would constitute in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
89. As regards the applicant's claim
for pecuniary damages, the Court reiterates that it cannot speculate
as to what the outcome of the proceedings would have been had they satisfied
the requirements of Article 6 § 1 as to their length (see, among many
other authorities, Sürmeli, cited above, § 144). The Court further finds that
it is not in a position to speculate as to how the applicant's professional
life would have developed if the domestic courts had processed his compensation
claims in due time. Accordingly,
it considers that no award can be made to the applicant under this head.
90. With regard to non-pecuniary damage, the Court considers that the finding of a violation would not constitute sufficient just satisfaction for the damage sustained by the applicant. However, it considers that the sum claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 10,000 under this head.
B. Costs and expenses
91. The applicant did not submit a claim for cost and expenses. Accordingly, the Court considers that there is no call to award him any sum under this head.
C. Default interest
92. 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 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;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;
(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 11 January 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan
HERBST v. GERMANY JUDGMENT
HERBST v. GERMANY JUDGMENT