FIFTH SECTION

FINAL DECISION

Application no. 74664/01 by Werner POKORNY against Germany

The European Court of Human Rights (Fifth Section), sitting on 1 April 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Volodymyr Butkevych , Rait Maruste , Renate Jaeger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 22 June 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a friendly settlement o f the case,

Having regard to the partial decision of 11 December 2007 ,

Having deliberated, decides as follows:

THE FACTS

The applicant , Mr Werner Pokorny , was a German national who was born in 1933 and live d in Berlin . Following the applicant ’ s death on 15 July 2005, his widow, Mrs Anny Pokorny , declared that she wished to pursue his application. T hey were represented before the Court 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 , of the Federal Ministry of Justice.

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

1. First set of proceedings

On 16 October 1995 the Federal Insurance Fund for Salaried Employees ( Bundesversicherungs anstalt für Angestellte ) fixed the applicant ’ s invalidity pension.

On 8 November 1995 he lodged an administrative appeal which was rejected by the Insurance Fund on 11 March 1996.

On 24 June 1996 the Berlin Social Court rejected the applicant ’ s action.

On 2 November 2001 the Social Court of Appeal rejected the applicant ’ s appeal.

On 11 June 2002 the Federal Social Court rejected the applicant ’ s complaint against the refusal to grant leave to appeal.

2. Second set of proceedings

On 20 November 1995 the Insurance Fund established the periods of contributions to the additional pension system for Chief Executive Officers. On 15 January 1996 it rejected the applicant ’ s administrative appeal.

On 26 January 1996 the applicant brought an action in the Berlin Social Court .

On 7 July 1996 the applicant brought a further action for review of his contributions to an additional pension scheme.

Both sets of proceedings were stayed by the Berlin Social Court pending pilot proceedings before the Federal Constitutional Court . The proceedings were resumed in 2002 and stayed again between May 2003 and 2005.

On 8 November 2005 the defendants acknowledged the applicant ’ s claim and the joint proceedings were thus terminated.

3. Third set of proceedings

On 10 November 1998 and 3 February 1999 the Insurance Fund fixed the applicant ’ s old-age pension.

On 10 March 2000 the Insurance Fund rejected the applicant ’ s administrative appeal.

On 22 March 2000 the applicant brought an action in the Berlin Social Court .

On 15 September 2000 the Social Court ordered that the proceedings be stayed in view of a pilot procedure pending before the Federal Constitutional Court .

On 23 June 2004 the Federal Constitutional Court gave its decision in the pilot proceedings. In August 2006 the proceedings were still pending before the Berlin Social Court .

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings before the domestic courts .

THE LAW

On 11 February 2008 the Court received the following declaration from the Government signed on 6 February 2008 :

“ I, Mrs Almut Wittling -Vogel , Agent of the Government , declare that the Government of Germany offer to pay ex gratia 8,000 euros to Mrs Anny Pokorny , widow of Mr Werner Pokorny , with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable . It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case . As far as it regards the length of the proceedings pending before the Berlin Social Court (file no. S 7 RA 1295/00) it concerns only the period until the date on which the parties conclude the present friendly settlement ”

On 21 February 2008 the Court received the following declaration signed by the applicant ’ s counsel on 18 February 2008 :

“ I, Mr Karl-Heinz Christoph , legal counsel, note that the Government of Germany are prepared to pay ex gratia the sum of 8,000 euros to Mrs Anny Pokorny , widow of Mr Werner Pokorny , with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.

I accept the proposal and waive any further claims against Germany in respect of the facts giving rise to these applications. The payment will constitute the final resolution of the case. As far as it regards the length of the proceedings pending before the Berlin Social Court (file no. S 7 RA 1295/00) it concerns only the period until the date on which the parties conclude the present friendly settlement. ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen Registrar President