THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75529/01 
lodged by Selim SÜRMELI 
against Germany

The European Court of Human Rights (Third Section), sitting on 29 April 2004 as a Chamber composed of:

Mr I. Cabral Barreto, President
 Mr G. Ress
 Mr L. Caflisch
 Mr R. Türmen,

Mr B. Zupančič, 
 Mr K. Traja
 Mrs A. Gyulumyan, judges,  
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 24 November 1999,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Selim Sürmeli, is a Turkish national who was born in 1962 and lives in Stade. He was represented by Mr Olaf Wegner, a lawyer practising in Hanover. The respondent Government were represented by Mr Klaus Stoltenberg, Ministerialdirigent, 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.

On 3 May 1982 the applicant was involved in an accident with a cyclist on the way to school, breaking an arm and his nose. On 22 May 1982 he left hospital. Since 1 July 1994, after falling on his left hand in 1993, he has been in receipt of an occupational-disability pension.

1.  Proceedings in the civil courts

(a)  The first phase of the civil proceedings

After the accident in 1982 the applicant entered into negotiations with the cyclist’s liability insurers (Haftpflichtversicherung).

On 18 September 1989, after the negotiations had failed, the applicant applied to the Hanover Regional Court (Landgericht), in particular seeking an order against the insurers for damages and for payment of a monthly pension.

On 10 June 1991, after holding several hearings and hearing evidence about the accident from four witnesses between July 1990 and March 1991, the Regional Court delivered a partial decision. It acknowledged the applicant’s entitlement to claim damages at a rate of 80% for the consequences of the accident.

On 24 June 1991 the applicant appealed against the partial decision. On 26 November 1992, after holding a hearing, the Celle Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal.

On 29 January 1993 the applicant appealed on points of law and applied for a three-month extension in order to file his grounds of appeal. On 26 May 1993 he applied for a further one-month extension. On 2 June 1993 the Federal Court of Justice (Bundesgerichtshof) granted an extension until 1 July 1993. On the same day, the applicant’s new representative applied for an extension until 14 July 1993. On 13 July 1993 the applicant filed his grounds of appeal.

On 14 December 1993 the Federal Court of Justice dismissed the appeal.

(b)  The second phase of the civil proceedings

(i)  First phase, concerning in particular the appointment of an expert

In March 1994 the proceedings for the assessment of damages and the pension resumed in the Hanover Regional Court. The applicant was represented by counsel.

On 18 April 1994 a hearing took place. On 9 May 1994 the court ordered an expert medical assessment.

On 25 May 1994 the applicant challenged the three judges dealing with his case, but the challenge was dismissed.

On 19 July 1994 Hanover Medical School proposed a Professor Berger to draw up the expert report that had been ordered.

On 21 July 1994 the applicant appealed against the Regional Court’s decision of 9 May 1994. On 2 August 1994 the Celle Court of Appeal dismissed the appeal.

On 15 September 1994 the court appointed Professor Berger as the expert. Professor Berger informed the court that it would be preferable for the report to be drawn up by a specialist in accident surgery and that he expected it to take at least one year to produce. On 2 December 1994, following a reminder from the court, the applicant agreed to the appointment of a surgeon. On 15 December 1994 a Professor Tscherne was proposed.

In observations of 23 January and 3 February 1995 the applicant opposed Professor Tscherne’s appointment on the ground that he was not a specialist hand surgeon (Handchirurg). On 6 February 1995 the court accordingly asked Professor Berger to draw up the expert report. On 7 February 1995 the applicant informed the court that he agreed with the projected time-frame for the report and expressed the view that there should not only be an expert assessment by a general surgeon but also one by a specialist hand surgeon. On 14 February 1995 Professor Berger informed the court that he was unable to produce the report because the fractures observed in the applicant’s forearm did not come within his area of expertise but were a matter for a specialist in accident or orthopaedic surgery. On 20 February 1995 the insurers proposed appointing Professor Tscherne. On 24 April 1995, following a reminder from the court, the applicant suggested appointing Professor Berger or, failing that, a Professor Buck-Gramkow.

On 12 May 1995 the Regional Court appointed Professor Tscherne. On 15 June 1995 Professor Tscherne informed the court that an additional assessment by a specialist hand surgeon was necessary and that it was likely to take at least one year to produce the report.

On 28 July 1995 the court informed the applicant that Professor Berger had refused to draw up the report and asked him whether Professor Buck-Gramkow, whom he had suggested, had already drawn up a report on him. On 27 November 1995 the court informed the parties that Professor Buck-Gramkow had retired but that his successor, Professor Partecke, would be appointed as expert; it appointed him on 3 January 1996. On 23 January 1996 Professor Partecke informed the court that it would take him nine to twelve months to draw up the report.

On 3 September 1996 the applicant informed the court that the accident had caused him severe depression, and asked it to order an expert psychiatric assessment.

On 10 June 1997 the court asked the expert how his report was progressing. The expert replied that the report would be ready in four to six weeks. On 22 August 1997 the court again contacted the expert. The expert replied, initially, that the report would be completed by the end of September, and subsequently, owing to an excessive workload, by the end of October. On 6 November 1997 the expert’s report, dated 30 October 1997, was received by the Regional Court.

On 11 November 1997 the applicant requested an expert assessment of the pain (Schmerzgutachten) he had felt since the accident. On 25 November 1997 he criticised Professor Partecke’s report and requested that he submit an additional one.

On 3 December 1997 the court allowed the insurers additional time to submit observations on the rapport; their observations were submitted on 6 January 1998. On 27 April 1998 the applicant’s representatives informed the court that he had been ill and that they would therefore be unable to reply to the insurers’ observations until mid-May.

(ii)  Second phase: failure to negotiate an out-of-court settlement

On 31 August 1998 the applicant’s representatives informed the court that the parties had not been able to reach a partial friendly settlement. Two weeks later they asked for additional time to submit their observations as the applicant was absent until 10 October 1998. On 11 December 1998 they again requested an extension. On 1 February 1999, following a reminder from the court, they asked for a further extension as out-of-court negotiations on a friendly settlement were in progress. On 5 May 1999 they informed the court that the negotiations had failed and asked for the proceedings to be resumed. On 25 May 1999 the insurers stated that it had not been possible to reach a settlement because of the applicant’s unreasonable demands.

On 27 May 1999 the president of the division dealing with the case asked the parties whether they still wished to submit observations. According to a note by the reporting judge dated 8 September 1999, it was not possible to expedite the proceedings owing to an excessive workload and to other priority cases. In a note of 23 December 1999 the reporting judge made a similar observation, referring to priority cases, an excessive workload, holidays and sickness. On 18 February 2000 the president of the division asked the parties to inform him whether they intended to submit any further observations. The applicant replied that negotiations on an out-of-court settlement could take until mid-May and that he reserved the right to submit further observations if they were unsuccessful. On 26 June 2000 he informed the court that the negotiations had failed and asked for an expert assessment of his total loss of earnings as a result of the accident. In support of that request, he submitted an expert psychiatric report that had been drawn up in the course of proceedings he had instituted before the Social Court of Appeal (Landessozialgericht) of the Land of Lower Saxony.

On 17 August 2000 the respondent party informed the court that the attempt to negotiate an out-of-court settlement had failed because the applicant had refused to agree that payment of the sum negotiated should be conditional on the findings of an expert report.

On 4 September 2000 the applicant submitted observations in reply.

(iii)  Third phase: preparation of the case file and additional report

On 17 October 2000 the applicant requested the Regional Court to deliver a decision promptly, seeing that the proceedings as a whole had lasted eighteen years, and submitted an expert psychiatric assessment of his state of health. In a note of 19 January 2001 to the applicant the court pointed out that the case had been pending since 18 September 1989.

On 21 February 2001 the applicant revised his claim, henceforth seeking a lump sum of 702,122 German marks (DEM) and a monthly pension of DEM 1,000. On 2 March 2001 the Regional Court assessed the value of the subject matter of the case at DEM 985,122.

On 17 April 2001 the applicant asked the court when it would be holding a hearing. On 15 May 2001 the court set the case down for hearing on 9 July 2001 and asked the applicant to provide details of his alleged loss of earnings. It added that it was important to establish the likely course of the applicant’s career had the accident not taken place and the extent to which the physical injury from which he was now suffering was the direct consequence of the accident. The court also asked the applicant to provide evidence of his enrolment at university for the 1982-83 academic year. He did so on 14 June 2001.

On 9 July 2001, having obtained the parties’ agreement at the hearing, the court decided to add to the evidence before it the case file for the proceedings in the Social Court of Appeal. The file could not be forwarded immediately because it was at the Federal Social Court.

On 14 August 2001, at the applicant’s request, the court ordered Professor Partecke to submit a further expert report in addition to his report of 30 October 1997. On 10 September 2001 Professor Partecke replied that it would take him at least ten months to do so.

On 20 September 2001 the court asked the applicant to consent to its consulting the file in the possession of the Federal Social Court. The applicant informed the court that he was undergoing treatment abroad until mid-November and asked for additional time in which to reply. On 26 October 2001 the court notified the applicant that he had not provided sufficient evidence of the injury to his forearm and asked him to inform it whether he intended to pursue his request for an assessment by a specialist hand surgeon. The applicant asked for a further extension. On 18 December 2001 he stated that he did not agree to the proceedings before the different social courts being joined and requested a further extension with regard to the report by a surgical expert.

On 8 February 2002 the court ordered the applicant to submit a number of documents and asked Professor Partecke to draw up the additional report. In reply to two letters from the applicant, it reminded him that he had requested the additional report himself. On 4 March and 4 April 2002 the applicant asked for further time for submitting his observations; he submitted them on 7 May 2002.

On 24 May 2002 the applicant personally informed the court by telephone that he no longer required an additional expert report and only wanted an assessment of his pain, on the ground that he was suffering from neurosis brought on by the proceedings (Prozessneurose).

In a letter of 23 May 2002 the applicant challenged the judges of the Regional Court. The court declared the challenge inadmissible on 28 May 2002.

On 29 May 2002 the court asked the applicant’s representatives for clarifications as to the additional expert report. On 12 July 2002 the representatives informed the court that the applicant no longer wished the report to be drawn up.

On 1 August 2002 the President of the Regional Court requested the file in the applicant’s case.

On 16 September 2002 the court decided to appoint a Professor Piepenbrock to draw up an expert assessment of the applicant’s pain, concerning in particular the date on which it had started and what had caused it. It also requested the applicant to provide certain items of information.

On 7 October 2002 the applicant again challenged the members of the court. On 8 October 2002 he asked for additional time to submit the information requested. On 22 October 2002 he objected to the expert who had been appointed and asked for a further extension of six weeks. On 29 October 2002 the court ordered the applicant to submit reasons for his objecting to the expert, proposed other experts and granted him an extension until 20 December 2002 to produce the information requested.

On 12 November 2002 the applicant personally informed the court by telephone that he was unable to inspect the file because he had broken his arm.

On 18 November 2002 the respondent party put forward an expert. On 21 November 2002 the applicant asked the court to deliver a partial decision. On 3 December 2002 he argued that the expert proposed was not a specialist in the field and was therefore not competent to carry out an expert assessment of his pain.

On 5 December 2002 the Regional Court appointed Professor Piepenbrock as the expert and dismissed the applicant’s reservations as to his professional qualifications. It further pointed out that it was unable to deliver a partial decision. On 10 January 2003 the applicant objected that Professor Piepenbrock had already acted as expert. He requested an “interdisciplinary” report in addition to the assessment of his pain.

On 15 January 2003 the applicant challenged the reporting judge in his case.

2.  Proceedings in the Federal Constitutional Court

On 14 March 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court, stating:

“The proceedings at first instance before the Hanover Regional Court in case no. 20 O 186/89 have lasted since 1989 and have irreparably destroyed my existence.

I am lodging a constitutional complaint on account of an infringement of Article 2 § 1 and Article 20 § 2 of the Basic Law, because the excessive length of the proceedings is no longer compatible with the rule of law and should be held to be unlawful and in breach of Article 839 of the Civil Code in that Article 139 of the Code of Civil Procedure has not been complied with.

Evidence: Hanover Regional Court, no. 20 O 186/89. Information: no. 1 BvR 352/2000.

Please inform me if you need any other documents.”

On 23 March 2001 the Federal Constitutional Court requested information on the state of the proceedings from the Regional Court, which informed it on 22 May 2001 that it had scheduled a hearing for 9 July 2001. On 22 June 2001 the Federal Constitutional Court sent the applicant a copy of the Regional Court’s letter of 22 May 2001.

On 16 July 2001 the applicant asked the Federal Constitutional Court to transfer his complaint from the general register (Allgemeines Register) to the register of proceedings (Verfahrensregister). He subsequently submitted additional observations.

On 16 August 2001 the Federal Constitutional Court, sitting as a panel of three judges, decided not to examine the applicant’s complaint (no. 1 BvR 1212/01), without giving reasons for its decision. It stated:

“The complaint is not accepted for adjudication. No appeal lies against this decision.”

On 23 May 2002 the applicant brought an action for damages against the Land of Lower Saxony in the Hanover Regional Court, arguing that the State should be held civilly liable for the length of the proceedings in the Regional Court, and sought legal aid. The action was dismissed on the ground that any delays occurring had not been attributable to the courts and had been justified by their excessive workload. Furthermore, the applicant had not provided sufficient details of the damage sustained. The Celle Court of Appeal upheld that decision on appeal.

On 26 May 2002, referring to his previous complaint (no. 1 BvR 1212/01), the applicant again complained to the Federal Constitutional Court about the length of the proceedings. His complaint was worded as follows:

“I, the undersigned, Mr M. Sürmeli, residing at ..., hereby lodge a constitutional complaint on account of a breach of the rule of law [Rechtsstaatsprinzip] by the Hanover Regional Court (no. 20 O 186/89), because the proceedings in that court continue to be delayed.”

On 6 June 2002 the complaint was entered in the register of proceedings with a new reference, no. 1 BvR 1068/02.

On 27 June 2002 the Federal Constitutional Court, sitting as a panel of three judges, decided not to examine this new complaint. In its decision it stated:

“The constitutional complaint should not be examined as the requirements of section 93a(2) of the Federal Constitutional Court Act [Gesetz über das Bundesverfassungsgericht] have not been satisfied. The complaint does not raise any issue of fundamental significance [grundsätzliche Bedeutung]. The alleged violation of constitutional rights does not justify examining the complaint, since the complaint does not have sufficient prospects of success. The complaint lacks substance in that it cannot be determined from the complainant’s observations whether the length [of the proceedings in the Hanover Regional Court] was proportionate.

There is no need to give any further reasons, in accordance with the third sentence of section 93d(1) of the Federal Constitutional Court Act. No appeal lies against this decision.”

3.  Proceedings before the European Commission of Human Rights

On 15 May 1994 the applicant lodged with the European Commission of Human Rights an application which was assigned the provisional number PH 4213 and concerned, among other things, the length of the proceedings in issue. The file was destroyed on 3 August 1999 without having been formally registered, as the applicant did not indicate his intention to pursue his application.

B.  Relevant domestic law and practice

1.  The Federal Constitutional Court Act

The relevant provisions of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) of 12 December 1985, in its version of 11 August 1993, read as follows:

Section 23(1)

“Applications for the institution of proceedings must be lodged with the Federal Constitutional Court in writing. They must contain reasons and indicate the necessary evidence.”

Section 92

“The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.”

Section 93a

“(1)  A complaint of unconstitutionality shall require acceptance prior to a decision.

(2)  It is to be accepted

(a)  if it raises a constitutional issue of general interest; or

(b)  if this is advisable for securing the rights mentioned in section 90(1); or also in the event that the denial of a decision on the matter would entail a particularly serious disadvantage [besonders schwerer Nachteil] for the complainant.”

The third sentence of section 93d(1) provides that no reasons need to be given for a decision by a panel of three judges not to examine a constitutional complaint.

2.  Rules of Procedure of the Federal Constitutional Court

The relevant provisions of the Rules of Procedure (Geschäftsordnung) of the Federal Constitutional Court read as follows:

Rule 60

“(1)  Petitions lodged with the Federal Constitutional Court which do not concern an administrative matter of the Court or are not admissible under the provisions of the Federal Constitutional Court Act shall be entered in the general register [Allgemeines Register] and treated as matters of judicial administration ...

(2)  An entry in the general register may also be made in respect of constitutional complaints

(a)  which cannot be accepted (section 93a of the Federal Constitutional Court Act) because they are clearly inadmissible or, regard being had to the Federal Constitutional Court’s case-law, have manifestly no prospect of success;

...”

Rule 61

“(1)  The President or Vice-President [of the Federal Constitutional Court] shall decide whether a case is to be entered in the general register. This power may generally be delegated to the registrars [Präsidialräte] ...

(2)  A case which has been entered in the general register in accordance with Rule 60(2) of the Rules of Procedure shall be transferred to the register of proceedings [Verfahrensregister] where its instigator, after being informed of the legal position, requests a judicial decision.

...”

3.  Provisions on the State’s liability

Article 34 of the Basic Law (Grundgesetz) provides:

“Where a person, in the exercise of a public office entrusted to him, breaches an official duty [Amtspflicht] towards a third party, liability shall in principle rest with the State or the public authority in whose service the person is engaged. An action by the State for indemnity shall remain possible in the event of intentional wrongdoing or gross negligence. The possibility of bringing an action for damages or indemnity in the ordinary civil courts shall remain open.”

Article 839 of the Civil Code (Bürgerliches Gesetzbuch) provides:

“1.  A public servant who wilfully or negligently commits a breach of his official duty towards a third party shall afford redress for any damage arising in consequence. If the public servant merely acted negligently, he may be held liable only if the injured party is unable to obtain redress by other means.

2.  A public servant who commits a breach of his official duty when adjudicating on an action may not be held liable for any damage sustained unless the breach of duty constitutes a criminal offence. This provision shall not apply where the breach of official duties consists in a refusal to discharge a function or a delay in performing it.

3.  The obligation to afford redress shall not arise where the injured party has wilfully or negligently omitted to avoid the damage by means of a legal remedy.”

4.  Case-law of the Federal Constitutional Court concerning the length of civil proceedings

(a)  General principles

According to the settled case-law of the Federal Constitutional Court, Article 2 § 1 of the Basic Law, in conjunction with the principle of the rule of law (Rechtsstaatsprinzip) as enshrined in Article 20 § 3 of the Basic Law, guarantees effective protection by the law. It follows from the rule of law that, in the interests of legal certainty, legal disputes must be settled within a reasonable time (angemessene Zeit). In view of the variety of types of proceedings, there are no absolute criteria for determining the point at which the length of proceedings becomes excessive. Regard must be had to all the circumstances of the case, what is at stake for the parties, the complexity of the case and the conduct attributable to the parties and to third parties, such as an expert, acting independently of the court. The longer the proceedings as a whole or at one particular level of jurisdiction, the greater the obligation on the court to take steps to expedite or conclude them (see, among other authorities, the decisions of 20 April 1982, no. 2 BvL 26/81, published in the Reports of Judgments and Decisions (Entscheidungssammlung) of the Federal Constitutional Court, volume 60, p. 253 (at p. 269), and of 23 March 1993, no. 1 BvR 249/92, volume 88, p. 118 (at p. 124)).

(b)  Consequences of a finding that the length of proceedings is unreasonable

Where the Federal Constitutional Court considers that the length of pending proceedings is excessive, it generally confines itself to holding that there has been an infringement of the Basic Law and requesting the court dealing with the case to expedite or conclude the proceedings. For example, in a decision of 17 November 1999 (no. 1 BvR 1708/99) cited by both parties, which concerned civil proceedings that had lasted fifteen years, the Federal Constitutional Court held:

“Seeing that the Court of Appeal has not yet given judgment, the Federal Constitutional Court must confine itself to a finding of unconstitutionality in accordance with section 95(1) of the Federal Constitutional Court Act. The Court of Appeal is now required, in the light of the above findings, to take effective steps to ensure that the proceedings can be expedited and concluded as rapidly as possible.”

Similar reasoning was adopted in a decision of 20 July 2000 (no. 1 BvR 352/00), which formed the subject matter of the case of Grässer v. Germany (no. 66491/01, partial decision of 6 May 2003).

The Government also cited a case in which the Labour Court of Appeal had taken 18 months to draft its judgment and the Federal Labour Court had considered that although judgments should be drafted within five months of the date on which they were delivered in public, that was not a sufficient reason for it to allow the appeal on points of law in the case before it. The Federal Constitutional Court, holding that there had been an infringement of the Basic Law, considered that such cases could be referred to it as soon as the five-month period had elapsed and remitted the case to a different division of the Labour Court of Appeal (no. 1 BvR 383/00, decision of 26 March 2001).

In another decision cited by the Government, the tax court before which the proceedings in issue had been pending for eight years held a hearing after the applicant in the case had complained to the Federal Constitutional Court on account of their excessive length. He consequently withdrew his complaint and was reimbursed his costs in so far as the complaint had related to the length of the proceedings (no. 2 BvR 2189/99, 26 May 2000).

In a decision of 26 February 1999 (no. 1 BvR 2142/97, unreported – see Mianowicz v. Germany, no. 42505/98, § 40, 18 October 2001) the Federal Constitutional Court refused to examine the applicant’s constitutional complaint on the following grounds, inter alia:

“... The constitutional complaint is inadmissible in so far as the complainant is asking the Federal Constitutional Court to award him damages for the excessive length of the proceedings in issue. If a complainant seeks compensation for pecuniary or non-pecuniary damage sustained as a result of an infringement of his fundamental rights, he must first exhaust the remedies available in the civil courts. It is for the civil courts to assess, where appropriate, the extent to which the provisions on the State’s liability (Article 34 of the Basic Law) and those of the European Convention on Human Rights that have been incorporated into domestic law form a basis for an award of compensation for the excessive length of proceedings...”

5.  Code of Civil Procedure

Article 252 of the Code of Civil Procedure (Zivilprozessordnung) provides for the possibility of an appeal against a decision ordering or refusing a stay of proceedings.

COMPLAINTS

1.  The applicant complained of the length of the proceedings in the Hanover Regional Court. He relied on Article 6 § 1 of the Convention.

2.  Relying on Article 13 of the Convention, the applicant submitted that the German legislature had not provided an effective remedy in respect of inactivity on the part of the courts. He also complained that the Federal Constitutional Court had not made any attempt to afford redress for the length of the proceedings in issue.

THE LAW

1. The applicant complained of the length of the proceedings in the Hanover Regional Court. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A.  The Government’s preliminary objections

1.  Failure to exhaust domestic remedies

The Government objected that domestic remedies had not been exhausted. They submitted, firstly, that the applicant had not lodged a constitutional complaint with the Federal Constitutional Court in respect of the length of the proceedings in his case at the time of his application to the Court on 24 November 1999. Secondly, they maintained that even though the applicant had applied to the Federal Constitutional Court, he had not provided sufficient grounds for his constitutional complaints of 14 March 2001 and 26 May 2002. The first complaint had amounted to only eight lines and had accordingly not enabled the court either to ascertain the subject matter of the proceedings in the Hanover Regional Court or to assess the reasons for their length. The applicant’s subsequent observations in support of his complaint had not clarified matters any further. While it was true that the Federal Constitutional Court had not given reasons for its decision not to examine the complaint and had therefore not expressly dismissed it for lack of grounds, it nevertheless used the same general expression where a complaint was inadmissible (unzulässig). The Government added that constitutional complaints that were manifestly inadmissible or clearly ill-founded were first entered in the general register, as the applicant’s initial complaint had been. At the same time the registry of the Federal Constitutional Court sent the complainant a letter informing him or her of the obstacles to the complaint’s admissibility. The applicant had not received such a letter in the instant case because he had already lodged fourteen previous constitutional complaints and had received letters from the registry in nine cases.

As regards the applicant’s second constitutional complaint, the Government pointed out that it had not been signed and had, furthermore, not satisfied the requirement that reasons had to be given, in accordance with section 23(1) taken together with section 92 of the Federal Constitutional Court Act (see “Relevant domestic law and practice” above). Having regard to the applicant’s previous complaints, the Federal Constitutional Court had immediately entered the second complaint in its procedural register and had declared it inadmissible for lack of grounds.

The applicant submitted in reply that the requirements relating to the statement of grounds for a constitutional complaint were excessive, especially as he had not been represented by counsel in the Federal Constitutional Court, owing to his insufficient means. Furthermore, only 4% of complaints lodged with the Federal Constitutional Court were accepted for adjudication. The applicant argued that the subject matter of his complaint – the length of the proceedings in the Regional Court – constituted sufficient grounds in itself. The Federal Constitutional Court could have contacted the Regional Court to ask for the file on the proceedings in question.

In any event, the applicant submitted, a constitutional complaint could not have been regarded as an effective remedy in respect of the excessive length of proceedings in the Regional Court because, in accordance with the principle of judicial independence, it had not afforded the Federal Constitutional Court the opportunity to intervene in his case before the proceedings in that court had ended. At most, the Federal Constitutional Court could have declared the length of the proceedings unconstitutional; it did not, however, have the means to expedite them.

The Court considers that the question whether the requirement to exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that this preliminary objection raised by the Government under Article 6 should be joined to the merits of the case for examination at a later stage.

2.  Application substantially the same

The Government further submitted that the applicant’s complaints had already been raised in a previous application (no. PH 4213) and that the present application should accordingly be rejected in accordance with Article 35 § 2 (b) of the Convention, which provides:

“2.  The Court shall not deal with any application submitted under Article 34 that

...

(b) is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information.”

The applicant submitted in reply that he had not pursued the previous application and that it had not reached the admissibility stage. Moreover, the subject-matter of the present application was different from that of the previous one in view of the years that had since elapsed.

The Court notes that the applicant’s previous application has never formed the subject of a formal decision either by it or by the Commission and cannot therefore preclude the examination of the present application under Article 35 § 2 (b) of the Convention. The objection must accordingly be dismissed.

3.  Abuse of the right of application

The Government lastly objected that the application was an abuse of the right of application within the meaning of Article 35 § 3 of the Convention in that the applicant had submitted a copy of observations addressed to the Federal Constitutional Court and dated 22 October 2001, although there were no such observations in that court’s case file. Moreover, the applicant had referred in those observations to the Federal Constitutional Court’s decision of 27 June 2002, in other words to events after the date appearing on the document in question. They wondered whether the applicant had not drawn up those observations at a later stage in order to prove that he had submitted sufficient grounds for his constitutional complaint of 14 March 2001, which had ultimately been dismissed on 16 August 2001.

The applicant submitted in reply that there had been a typing error and that the observations in question dated in fact from 22 October 2002.

The Court cannot see any reason to reject the application as being an abuse of the right of application in accordance with Article 35 § 3 of the Convention. This objection must therefore be dismissed.

B.  Merits of the complaint

The Government asserted that the length of the proceedings was not yet excessive. With regard to the first phase of the proceedings, they attributed a number of delays (fifteen months in total) to the applicant’s conduct, including one period of five and a half months for filing grounds for his appeal on points of law. The length of this phase was therefore not open to criticism.

As regards the second phase, the Government considered that the applicant’s conduct had caused considerable delays, amounting to almost five years in total. They pointed out, in particular, that the applicant had twice revised his claim for damages, had asked on fifteen occasions for additional time to submit his observations and had twice requested a stay of the proceedings with a view to negotiating an out-of-court settlement. He had also requested six expert medical reports and on four occasions had challenged the judges dealing with his case and the experts who had been appointed. The Regional Court, on the other hand, had only been responsible for a period of inactivity lasting approximately one year. The Government also stressed that the case had concerned complex medical issues and that the applicant’s second fall in 1993 had complicated the assessment of the precise damage resulting from the accident in 1982 that had given rise to the proceedings in issue.

The applicant submitted in reply that he had been represented by counsel in the Regional Court, as required by Article 78 of the Code of Civil Procedure, and that the court had therefore not been obliged to take into consideration all the requests he had submitted himself. He pointed out, above all, that it had been for the Regional Court to conduct the proceedings and that it had had the power to refuse any of his requests which it did not consider appropriate in the interests of the proper administration of justice. He further submitted that the respondent in the proceedings in issue had also caused certain delays and had, moreover, been responsible for the failure to negotiate an out-of-court settlement.

The Court considers, in the light of the criteria established in its case-law concerning the notion of “reasonable time”, and having regard to all the evidence before it, that an examination of the merits of this complaint is required.

2. The applicant further complained that he had not had an effective remedy in respect of the excessive length of the proceedings in the Hanover Regional Court. He relied on Article 13 of the Convention, which provides:

“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.”

The Government argued that effective remedies had been available in respect of the length of proceedings, namely an extraordinary appeal to the civil courts and a constitutional complaint to the Federal Constitutional Court.

With regard to the first of these remedies, they admitted that there was nothing in the Code of Civil Procedure to indicate its existence. However, the courts had accepted that an extraordinary appeal had to be available where the decision complained of had been manifestly unlawful (greifbar gesetzeswidrig). The possibility of such an appeal had also been acknowledged where there had been arbitrary inactivity (willkürliches Untätigbleiben) on the part of a court. The Government cited four judgments by courts of appeal in support of that argument. The Federal Court of Justice, for its part, had left the question open, as had other courts of appeal. The Government also referred to a judgment delivered by the Stuttgart Court of Appeal on 19 June 1998 (no. 11 WF 115/98), in which the right of appeal set forth in Article 252 of the Code of Civil Procedure (see “Relevant domestic law and practice” above) had been inferred by analogy where a court was slow in dealing with a case. In addition, a refusal by the judge dealing with a case to expedite the proceedings notwithstanding an order by a higher court could constitute a ground for challenging him or her.

With regard to the constitutional complaint, the Government asserted that, according to the settled case-law of the Federal Constitutional Court, the Basic Law (Article 2 § 1 taken together with Article 20 § 3) guaranteed the right to have legal disputes settled within a reasonable time. In view of the variety of types of proceedings, there were no absolute criteria for determining the point at which the length of proceedings became excessive. Consideration had to be given to all the circumstances of the case, what was at stake for the parties, the complexity of the case and the conduct of the parties and of any third parties, such as an expert, acting independently of the court. The longer the proceedings as a whole or at one particular level of jurisdiction, the greater the obligation on the court to take steps to expedite or conclude them.

As to the manner in which the Federal Constitutional Court was able to influence the length of pending proceedings, the Government accepted that that court generally confined itself to holding that there had been an infringement of the Basic Law, in accordance with section 95(1) of the Federal Constitutional Court Act, and requesting the court dealing with the case to expedite or conclude the proceedings. However, 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 expediting the proceedings. That had been so in the instant case since the Regional Court, after receiving a request from the Federal Constitutional Court for information on the applicant’s constitutional complaint of 14 March 2001, had scheduled a hearing for 9 July 2001. The Government added that the same effect occurred where a ruling that the length of proceedings was excessive was sent to the judicial authorities concerned, particularly as the Federal Constitutional Court’s decisions on the matter not only contained full reasons but were also published and, moreover, became the subject of academic discussion in legal journals.

The Government submitted that where delays amounted to a breach of an official duty on the part of a judge, there could be an entitlement to compensation for the damage sustained, under Article 839 of the Civil Code taken together with Article 34 of the Basic Law (see “Relevant domestic law and practice” above). The same applied where a judge wrongly (pflichtwidrig) refused to conduct proceedings or delayed them, as provided in Article 839 § 2 of the Civil Code. The conduct of the judge in question was deemed wrongful in the event of total inactivity in particular. If the excessive length of proceedings resulted from such a breach of the judge’s duties, the State was liable for any pecuniary and, more rarely, non-pecuniary damage sustained. The Government pointed out that such liability generally existed only in the case of flagrant abuses (krasse Missbrauchsfälle), on account of the principle of judicial independence. The Government observed that to date there had been no decisions by the Federal Constitutional Court in which the State had been ordered to pay damages for the excessive length of proceedings. They pointed out that the civil courts, which had jurisdiction to deal with compensation claims, were themselves able to assess whether the length of the proceedings had been excessive, without the need for a prior finding by the Federal Constitutional Court to that effect.

The applicant submitted in reply that the existence of an extraordinary appeal with no basis in law had not been acknowledged by the Federal Court of Justice but only by certain courts of appeal, not including the Celle Court of Appeal, the court that would have had jurisdiction to deal with his case. In any event, such an appeal did not have any prospect of success unless there had been inactivity on the part of the court in question. In his case, however, the Regional Court had taken a multitude of procedural decisions which had precisely been the cause of the delays. As to the effectiveness of a constitutional complaint, the applicant argued that the possibility of public pressure was a matter of speculation and did not satisfy the requirements of Article 13 of the Convention.

With regard to the possibility of obtaining compensation, the applicant observed that his application for legal aid in order to bring an action for damages had been refused by the Regional Court on the grounds that any delays occurring had not been attributable to the courts and had been justified by their excessive workload, and that he had not provided sufficient details of the damage sustained.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the preliminary objection concerning non-exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Ireneu Cabral Barreto 
 Registrar President

SÜRMELI v. GERMANY DECISION


SÜRMELI v. GERMANY DECISION