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FIFTH
SECTION
CASE OF BREILER v. GERMANY
(Application
no. 16386/07)
JUDGMENT
STRASBOURG
16
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Breiler v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ganna
Yudkivska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 16386/07) 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 Klaus
Breiler (“the applicant”), on 16 April 2007.
- The
applicant was represented by Mr K.H. Christoph, a lawyer practising
in Berlin. The German Government (“the
Government”) were represented by their Agent, Mrs
A. Wittling-Vogel, Ministerialdirigentin,
Federal Ministry of Justice.
- On
1 September 2009 the
President of the Fifth Section decided to communicate the complaint
concerning the length of the proceedings to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3). The Chamber
decided, pursuant to Rule 54 § 3, that no hearing was required.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Berlin. He studied
educational science and aircraft engineering and piloting in the
former German Democratic Republic (GDR). From 1969 until 1990 he
worked for the GDR airline Interflug.
- On
4 December 2000 he applied for the transfer of alleged future pension
rights under one of the additional pension schemes for certain
professions or groups (Zusatzversorgungssysteme). On 20
February 2002 the applicant’s request was dismissed. His
subsequent administrative appeal, submitted on 13 March 2002, was
rejected on 26 July 2002.
- On
30 August 2002 he brought an action in the Social Court, which,
following a hearing on 20 January 2003, dismissed the action, finding
that the applicant did not qualify for any of the additional pension
schemes. The judgment was served on the applicant on 20 February
2003. On 18 March 2003 he appealed the judgment.
- On
18 June 2003 the Federal Social Court rendered a decision concerning
a similar subject-matter, which was consistent with the Social
Court’s decision in the instant case. On 28 August 2003 the
Social Court of Appeal advised the parties of the Federal Social
Court’s decision and classified the case as ready for decision.
- During
the course of the appeal proceedings the applicant’s
representative declared that he was seeking fundamental clarification
of the subject-matter before the Federal Constitutional Court. The
Social Court of Appeal therefore awaited a decision of that court.
- On
24 April 2006 the judge rapporteur enquired whether the appeal was to
continue after the Federal Constitutional Court on 1 March 2006
(file no. 1 BvR 320/06) had declined to admit for examination a
constitutional complaint in a similar case.
- On
8 May 2006 the applicant’s representative announced that he
would submit further observations until 30 June 2006. After a
reminder of the Social Court of Appeal on 15 August 2006 these
observations were submitted on 20 December 2006.
- On
16 February 2007 the Social Court of Appeal dismissed the applicant’s
appeal and refused to grant leave to appeal on points of law. On 15
March 2007 the judgment was served on the applicant’s
representative.
- Within
the statutory time limit the applicant’s representative
objected to the refusal to grant leave to appeal on points of law and
reasoned the objection on 15 June 2007. On 22 January 2008 the
Federal Social Court dismissed the objection as inadmissible. This
decision was served on the applicant’s representative on 1
February 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
88 of the Social Courts’ Act exempts applicants from the
requirement to await the outcome of the preliminary administrative
proceedings and allows them to lodge a court action directly with the
Social Court if the administrative authorities fail without
sufficient justification to decide the administrative appeal within a
reasonable time, in general three months.
- Further
relevant domestic law and practice is described in the Court’s
decision of Klose and Others v. Germany (see Klose and
Others v. Germany (dec.), no. 12923/03, 25
September 2007) and Ritter v. Germany (see Ritter
v. Germany (dec.), no. 31102/04, 20 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Government complained about the applicant’s failure to lodge an
action for failure to act under section 88 of the Social Courts’
Act (see paragraph 13 above), a remedy which the Court has considered
to be effective to challenge the length of administrative proceedings
(see Glüsen v. Germany, no. 1679/03, § 67,
10 January 2008). The Government further maintained that the
lack of exhaustion of domestic remedies also followed from the fact
that the applicant never complained about the length of the
proceedings before the domestic courts.
- The
applicant maintained that further remedies at national level had
lacked any reasonable prospects of success. Moreover, he would have
risked having to bear part of the costs if he had lodged further
appeals.
- The
Court notes that the applicant’s administrative appeal was
rejected on 26 July 2002, some four months after lodging it. Given
that relatively short period and bearing in mind that an action for
failure to act deprives the applicant of a (potentially favourable)
decision by the administrative authority, the Court considers that in
the instant case the applicant could not have been expected to lodge
such an action.
- The
Court further notes that German law does not provide for any
effective legal remedy to expedite civil proceedings or to provide
adequate redress for delays that have already occurred (see Sürmeli
v. Germany [GC], no. 75529/01, §§ 115, 116, ECHR
2006 VII and Herbst v. Germany, no. 20027/02, §
63, 11 January 2007). Therefore, the Court finds that the applicant
neither had to raise the length issue before the domestic courts nor
was he obliged to avail himself of a constitutional complaint in this
regard.
- It
follows that the Government’s objections must be rejected.
- The
Court notes that the complaint 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
1. Period under consideration
- The
Court observes that the relevant period started to run on 13 March
2002 when the applicant lodged his administrative appeal, and ended
on 1 February 2008, when the Federal Social Court’s decision
was served on the applicant’s representative. The proceedings
thus lasted approximately five years and eleven months at three
levels of jurisdiction, including a compulsory administrative appeal.
2. Reasonableness of the period
a. Submissions made before the Court
- The
applicant, without disputing the facts submitted by the Government,
contended that the proceedings had been unreasonably long, in
particular in view of the subject matter at issue, that is his
old-age pension.
- The
Government considered that the overall length of the proceedings had
not exceeded the “reasonable time” requirement of
Article 6 § 1 of the Convention. The Government further
submitted that the subject matter of the case, the transfer of
pension rights, was a relatively complex matter and required
time-consuming investigations by both the first and the second
instance court.
- The
Government pointed out that with regard to the period between 28
August 2003 and 24 April 2006 the Social Court of Appeal had awaited
a decision on the specific issue by the Federal Constitutional Court.
Since the applicant’s representative had declared that he was
seeking clarification before the Federal Constitutional Court the
Government maintained that this course of action had been
appropriate. Furthermore, the Government observed that the applicant
had at the time not complained about the inactivity to the Social
Court of Appeal.
- The
Government emphasized that the period between the applicant’s
letter of 8 May 2006 announcing further submissions and their actual
submission on 20 December 2006 must be attributed to the applicant.
b. The Court’s assessment
- 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).
- The
Court notes that the applicant did not contest the Government’s
argument that the subject-matter of the instant case was complex and
required extensive investigations and shares this view.
- As
to the importance of what was at stake for the applicant, the Court
accepts that the applicant had an interest in obtaining speedy
decisions of the courts with regard to the amount of his old-age
pension.
- As
to the conduct of the domestic courts the Court notes that the
proceedings were pending before the Social Court of Appeal alone for
almost four years and were never formally stayed during that period.
Furthermore, some five months after the appeal was lodged the case
had already been classified as ready for a decision. While the formal
conduct of the proceedings thus does not disclose any justification
for the delay, the Court cannot overlook the fact that the Social
Court of Appeal, prompted by the announcement of the applicant’s
representative that he was seeking a leading decision from the
Federal Constitutional Court, awaited a decision of that court before
rendering its judgment. In this context the Court observes that up
till then the question at issue had “only” been decided
by the Federal Social Court, making the case formally ready for a
decision. However, since that court’s decision was unfavourable
to the applicant, it can be argued that it was reasonable for the
Social Court of Appeal to wait until the issues of the case
pertaining to constitutional law were also clarified. Consequently,
the inactivity of the Social Court of Appeal can even be considered
to have been in the applicant’s interest who was aware of the
fact that without a positive decision of the Federal Constitutional
Court his appeal had no prospects of success and who, moreover, never
asked for the proceedings to be expedited during the period at issue.
- As
regards the conduct of the applicant after April 2006 the Court notes
that despite his announcement to submit further observations by the
end of June he only lodged them with the court on 20 December 2006
and thus with a delay of almost six months.
- In
the light of the particular circumstances of the case the Court finds
that the overall length of the proceedings can still be regarded as
reasonable. Accordingly, there has been no violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant also alleged a violation of Article 14 of the Convention,
alone and in conjunction with Article 1 of Protocol No. 1.
- In
the light of all the material in its possession, and in so far as the
matter complained of is within its competence, the Court, referring
to its decisions in Klose and Others v. Germany (see Klose
and Others v. Germany (dec.), no. 12923/03, 25 September
2007) and Fiedler v. Germany (see Fiedler v. Germany
(dec.), no. 24116/94, 15 May 1996), considers that, irrespective of
whether the applicant was excused from pursuing a constitutional
complaint for lack of sufficient prospects of success, this part of
the application in any event does not disclose any appearance of a
violation of the Convention.
- It
follows that it is inadmissible under Article 35 § 3 as
manifestly ill-founded and must be rejected pursuant to Article 35 §
4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
