FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36853/05 by Gerhard METZELE against Germany

The European Court of Human Rights (Fifth Section), sitting on 2 June 2009 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Karel Jungwiert , Renate Jaeger , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges,

and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 29 Decem ber 2005,

Having deliberated, decides as follows:

THE FACTS

The applic ant, Mr Gerhard Metzele, is a German national who was born in 1946 and lives in Bielefeld .

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Proceedings before the Regional Court

On 27 February 1996 the applicant brought proceedings before the Munich I Regional Court for compensation against the Deutsche Bahn (German Railways) company and applied for legal aid. He submitted that on 18 November 1994 his right leg was pinned by the closing doors of a train carriage of that company. The applicant, who already suffered from reduced mobility, claimed to have sustained serious physical injuries and damage to his mental health thereby.

On 17 September 1996 the Regional Court held a hearing.

On 4 October 1996 the Regional Court dismissed the applicant ’ s request to be sent train tickets in order to be able to attend another hearing. That decision was quashed on appeal.

On 21 January 1997 the Regional Court heard three witnesses.

On the Regional Court ’ s request of 21 February 1997, a Hungarian court heard another witness on commission on 27 January 1998.

On 12 May 1998 the Munich I Regional Court, having held another hearing, ordered the defendant to pay the applicant by way of compensation for non-pecuniary damage 500 Deutschmarks (DEM), representing 10% of the damages claimed. The remainder of the claim was not allowed as the applicant had been contributorily negligent. The defendant was also ordered to reimburse costs the applicant had incurred for a medical certificate (DEM 15). The court further declared that the defendant was to compensate the applicant for ten per cent of the future loss he would incur as a result of the accident on 18 November 1994 and dismissed the remainder of the applicant ’ s action.

2. Proceedings before the Court of Appeal

On 24 July 1998 the applicant lodged an appeal against the judgment of the Munich I Regional Court, for which he submitted detailed reasons on 23 October 1998.

He was subsequently granted legal aid for counsel different from his representation at first instance. Legal aid was later extended to cover a change of legal aid lawyer.

On 14 February 2002 and on 7 March 2002 the applicant extended his initial action. He claimed the payment of further compensation for non-pecuniary damage as he was now obliged to use a wheelchair and suffered from allergies and asthma as a result of the accident.

On 15 March 2002 the Court of Appeal, having held a hearing, requested forensic expert E. to submit a report by consulting also an expert for accident analysis (S.) and a psychiatric expert, on the question whether the applicant had suffered the damage he now claimed through the accident on 18 November 1994. It refused to grant the applicant legal aid in respect of his additional claims.

On 15 August 2002 experts E., S. and P. submitted their report giving advice on accident analysis and informed the court that they were not in a position to give a psychiatric expert opinion.

On 22 January 2003 the Munich Court of Appeal ruled the applicant ’ s motion for bias against expert E. inadmissible as it had been lodged out of time.

On 24 January 2003, when the Court of Appeal also held a hearing, and on 17 February 2003 a different bench of the Court of Appeal dismissed motions for bias lodged by the applicant on 23 and 29 January 2003 and 8 February 2003 as ill-founded.

On 21 February 2003 the Court of Appeal appointed a psychiatric expert.

On 23 June 2003 and on 1 December 2003 the Court of Appeal dismissed repeated requests by the applicant for legal aid to mandate a new lawyer.

On 9 February 2004 the Court of Appeal dismissed another motion for bias lodged by the applicant on 18 December 2003.

As the applicant had repeatedly failed to attend examinations the dates of which had been fixed with the court-appointed psychiatric expert until 31 March 2004, the Court of Appeal decided not to consult that expert.

On 9 July 2004 the Munich Court of Appeal, having held another hearing, partly quashing the judgment of the Munich Regional Court , held that the defendant was to pay the applicant DEM 500 in compensation for non-pecuniary damage and dismissed the remainder of the applicant ’ s action. Contrary to the Regional Court ’ s view, the Court of Appeal, having regard to the report submitted by experts E., S. and P., found that the applicant had not been physically injured by the accident. The applicant ’ s numerous confused submissions had led the court to consider whether the applicant was mentally capable of involvement in proceedings. However, as he had refused to present himself for a psychiatric examination, the court was not able to come to any conclusions on the point. The court found that the applicant had failed to prove that the accident had any long-term consequences for his mental health. The Court of Appeal itself dismissed further motions for bias dated 24 February 2004 and 14 March 2004 as inadmissible, as they merely referred to the applicant ’ s previous motions which had already been rejected.

The judgment was served on the applicant ’ s recently appointed counsel on 14 October 2004.

3. Proceedings before the Federal Court of Justice

On 11 January 2005 the Federal Court of Justice rejected the request of the applicant, represented by counsel, to be granted legal aid in order to lodge a complaint against the refusal to grant him leave to appeal on points of law. It found that the applicant ’ s complaint did not have sufficient prospects of success. On 28 February 2005 the Federal Court of Justice dismissed the applicant ’ s objection of 8 February 2005 to its decision of 11 January 2005.

On 10 May 2005 the Federal Court of Justice dismissed a complaint by the applicant about the refusal to grant him leave to appeal against the judgment of the Munich Court of Appeal. It found that the complaint was inadmissible as the applicant had failed to submit reasons for it within the statutory time-limit.

4. Proceedings before the Federal Constitutional Court

On 2 May 2005 and on 8 June 2005 the applicant lodged a complaint about the judgments of the Regional Court and the Court of Appeal and the three decisions of the Federal Court of Justice with the Federal Constitutional Court . He submitted, inter alia , that the civil proceedings had been unreasonably long and had been unfair for several reasons. In particular, the Court of Appeal and the Federal Court of Justice had refused to grant him legal aid. The Court of Appeal had further based its decision on a report which a partial expert had not drawn up in due form. Moreover, only his lawyer had received the summons for hearings and copies of the judgments.

On 1 July 2005 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 1 BvR 1301/05). It found, without giving further explanations, that the complaint was inadmissible.

The applicant received the decision on 10 July 2005.

COMPLAINTS

Relying on Article 6 of the Convention, t he applicant complained that the length of the compensation proceedings, which had not been complex and the outcome of which had been important for him in view of his poor state of health, had been excessive.

He further complained under Article 6 and Article 13 of the Convention that his right to fair proceedings, including his right of access to a court and to equality of arms, had been breached in the proceedings he had brought against the German Railways company. He had not been granted legal aid and had not been sent all documents submitted to the courts by the defendant party. Moreover, the applicant argued that the trial had not been fair in that the Court of Appeal had taken into consideration the report of an expert he had challenged for bias .

THE LAW

1. Complaint about the length of the proceedings

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 applicant ’ s case was brought before this Court prior to the delivery of the judgment in the case of Sürmeli v. Germany ([GC], no. 75529/01, ECHR 2006 ‑ ...) on 8 June 2006. Assuming, in view of this, the exhaustion of domestic remedies and compliance with the six-month time-limit, the Court finds that the period to be taken into consideration began on 27 February 1996 and ended on 10 July 2005. It thus lasted more than nine years and four months at four level s of jurisdiction.

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 finds that the applicant ’ s case, which involved the assessment by several medical experts of damage done to and to be expected for the applicant ’ s health as a result of an accident, and in which the payment of compensation for this damage was at stake, was quite complex.

As to the applicant ’ s conduct in the proceedings, the Court notes that, although the applicant was represented by counsel before the Court of Appeal, he nevertheless made extensive confused submissions which the court had to consider as to their admissibility. The Court further observes that it was only in the proceedings before the Court of Appeal in February 2002 that he extended his initial action and claimed the payment of damages for alleged additional consequences of his accident. This made it necessary for the Court of Appeal to appoint and consult several experts at that advanced stage of the proceedings. Moreover, between 21 February 2003 and 31 March 2004, the applicant repeatedly failed to present himself for an examination by a psychiatric expert appointed by the Court of Appeal in order to allow him to prove his allegations regarding the long-term consequences of the accident for his mental health. He further lodged numerous motions for bias against an expert and against the judges of the Court of Appeal, which partly had to be decided by a different bench of the Court of Appeal. The Court of Appeal further had to decide on the applicant ’ s repeated requests to be granted additional legal aid in respect of his extended claims and, following several changes of counsel, to reject those claims. Even though the applicant had the right to extend his action and to lodge the said motions and requests, his conduct inevitably prolonged the proceedings before the Court of Appeal, and their duration since February 2002 is therefore to a decisive extent imputable to the applicant.

As to the conduct of the proceedings by the domestic courts, the Court notes that the Regional Court , which had to have a witness heard by a foreign court on commission, conducted the proceedings with due diligence. Moreover, both the Federal Court of Justice and the Federal Constitutional Court decided on the applicant ’ s complaints particularly speedily. The Court notes that the initial proceedings before the Court of Appeal, that is, from October 1998 to February 2002, appear to have been slowed down substantially by the applicant ’ s extensive personal submissions, and his various requests for legal aid and changes of counsel. However, a delay at some stage may be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, inter alia , Nuutinen v. Finland , no. 32842/96, § 110 , ECHR 2000 ‑ VIII ). In the light of the delays imputable to the applicant in the proceedings before the Court of Appeal and the very speedy decisions by the higher courts, the Court considers that the length of the proceedings in the present case was still reasonable.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Remainder of the applicant ’ s complaints

The Court has examined the remainder of the applicant ’ s complaints as submitted by him . However, having regard , in particular, to the decision of the Federal Court of Justice of 10 May 2005, the Court finds that the applicant failed to exhaust domestic remedies in this respect. It follows that the remainder of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President