FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 771/04 by Rudi GUTTSCHUSS against Germany

The European Court of Human Rights (Fifth Section), sitting on 8 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Margarita Tsatsa-Nikolovska , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges,

and Claudia . W esterdiek , Section Registrar ,

Having regard to the above application lodged on 28 December 2003,

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

Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,

Having regard to the Government ’ s request to strike the case partly out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the length of the proceedings and the lack of an effective remedy,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rudi Guttschuss , is a German national who was born in 1933 and lives in Bonn . He is represented before the Court by Mr F. Wieland, a lawyer practising in Bonn .

The respondent Government are 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. Background to the case

On 28 August 1962 the applicant had an accident at work, caused by a third person, which resulted in permanent damage to his health. On 19 January 1967 the Bonn Regional Court held that the tortfeasor ( Schädiger ) was to compensate the applicant for all future damage arising from the accident ( Grund- und Teilurteil ). By judgment ( Schlussurteil ) of 31 January 1974 the defendant was ordered to compensate the applicant for the loss of earnings ( Verdienstausfall ) until 1972. By judgment of 1 June 1978 the Cologne Court of Appeal confirmed that judgment but slightly reduced the amount of compensation.

Since 18 February 1984 the applicant has been unable to work and has received an invalidity pension.

2. The proceedings which form the subject matter of the application

(a) The proceedings before the Bonn Regional Court

In January 1991 the applicant, represented by counsel, sued the legal successors of the tortfeasor for compensation for loss of earnings for the period from 1975 to 1990. The Regional Court obtained an expert opinion on 23 December 1994 and questioned the expert in a hearing on 21 January 1997.

On 25 February 1997 the court rejected the applicant ’ s action holding that he had not sustained any loss of earnings, as his accident benefits ( Unfallrente ) and invalidity pension equalled or even surpassed the salary he would have obtained if he had continued to work.

(b) The appeal proceedings before the Cologne Court of Appeal

On 3 April 1997 the applicant lodged an appeal with the Cologne Court of Appeal. The court obtained an expert opinion on the applicant ’ s possible income between 1975 and 1990 which was given on 13 April 2000.

On 1 August 2000 the Cologne Court of Appeal rejected the applicant ’ s appeal confirming the lower court ’ s findings and reasoning.

(c) The proceedings before the Federal Court of Justice

On 17 September 2002 the Federal Court of Justice rejected the applicant ’ s appeal on points of law holding that it was not of fundamental importance and furthermore lacked sufficient prospects of success in any event. However, the court did not provide any further reasoning for its findings.

(d) The proceedings before the Federal Constitutional Court

On 25 June 2003 the Federal Constitutional Court , sitting as a panel of three judges, refused to admit the applicant ’ s constitutional complaint.

COMPLAINTS

The applicant submitted under Article 6 of the Convention that he was denied a fair trial. In this connection he contested the method of calculation applied by the domestic courts, because it differed from the method applied by the courts in earlier decisions in his case. From the applicant ’ s point of view the courts thus rendered surprise decisions and violated the principle of equality of arms. Moreover, he complained that the courts did not sufficiently take into account his arguments and criticised in particular the lack of reasoning on the part of the Federal Court of Justice. The applicant therefore believed that he had not been sufficiently heard by the courts.

Furthermore, he complained under Article 6 about the length of the proceedings, in particular about the length of the proceedings before the Bonn Regional Court .

Lastly, the applicant complained under Article 13 of the Convention that there was no effective remedy available under German law for contesting the length of civil proceedings.

THE LAW

1. Invoking Article 6 of the Convention the applicant complained about the alleged unfairness of the proceedings contesting in particular the method of calculation applied by the domestic courts.

The Court reiterates that it is not its task to deal with errors of fact or law allegedly committed by national courts unless and insofar as they may have infringed rights and freedoms protected by the Convention. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Streletz, Kessler and Krenz v. Germany [GC] , no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II) .

There is no indication that the method of calculation applied by the domestic courts was arbitrary.

Insofar as the applicant submitted that the domestic courts rendered surprise decisions because their method of calcu lation differed from the method applied in an earlier set of proceedings, the Court observes that the applicant had the opportunity to contest the method applied in his appeal and his appeal on points of law. As far as the applicant complained about the lack of reasoning by the Federal Cou rt of Justice, the Court recalls that for national superior courts, it suffices to refuse to entertain a complaint by simply referring to the legal provisions allowing for that procedure if the questions raised by the complaint, as in the present case, are no t of fundamental importance (see, among others , Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001).

The Court therefore considers that the applicant, represented by counsel, was sufficiently heard by the domestic courts and had ample opportunities to present his arguments. There is no indication that the applicant was denied a fair trial. It follows that his complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant submitted that the length of the proceedings had been excessive and thus in violation of the “reasonable time” requirement of Article 6 § 1 and that he did not have an effective remedy in that respect as required by Article 13. The relevant parts of these Articles read as follows:

Article 6 § 1

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

Article 13

“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.”

On 24 September 2007 the Court received the following declaration from the Government signed on 18 September 2007:

“In this case the Court proposed a friendly settlement which was rejected on behalf of the applicant by his counsel on 10 July 2007.

The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the length of the proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention and that the applicant did – in the present case – not have at his disposal an effective domestic remedy for his complaint under Article 6 § 1, as required by Article 13 of the Convention.

If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant ’ s claim for compensation in the amount of EUR 7,200.00. This sum of EUR 7,200.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany or the Land of North-Rhine Westphalia , including in particular compensation for the Applicant ’ s damage (including non-pecuniary damage) as well as costs and expenses. In light of the Court ’ s rulings in similar cases, the Federal Government considers the amount of EUR 7,200.00 to be reasonable.

The Federal Government therefore requests that this application be struck out of the Court ’ s list of cases pursuant to Article 37 § 1 (c) of the Convention. The Federal Government ’ s acknowledgment of a violation of Article 6 § 1 of the Convention as regards the length of the proceedings and its acceptance of the claim for compensation in the amount of EUR 7,200.00 constitutes “[an]other reason” within the meaning of this provision.”

The applicant did not comment on the Government ’ s unilateral declaration.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 18 September 2007 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In deciding whether or not it should strike the present case out its list of cases, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey , no. 25754/94, § 23, judgment of 26 March 2002 , Akman v. Turkey (striking out), no. 37453/97, §§ 30-31, ECHR 2001 ‑ VI , and Meriakri v. Moldova (striking out), no. 53487/99, §§ 30-32, 1 March 2005 ; MacDonald v. the United Kingdom (dec.), no. 301/04, 6 February 2007 , Oleksiw v. Germany (dec.), no. 31384/02, 11 September 2007 ) .

The Court notes that the present case raises as issue the undue length of the proceedings within the meaning of Article 6 of the Convention as well as the availability of an effective remedy for contesting the length of civil proceedings.

It recalls that it has already specified in various judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, also in respect of the Federal Republic of Germany (see, among many others, Sürmeli v. Germany [GC], no. 75529/01, ECHR 2006-...; Nold v. Germany , no. 27250/02, 29 June 2006; Stork v. Germany , no. 38033/02, 13 July 2006; Klasen v. Germany , no. 75204/01, 5 October 2006; Grässer v. Germany , no. 66491/01, 5 October 2006; Herbst v. Germany , no. 20027/02, 11 January 2007).

Furthermore, the Court has already held that the German judicial system does not offer an effective remedy for contesting the length of either pending civil proceedings (see Sürmeli , cited above, § 116) or terminated civil proceedings (see Herbst , cited above §§ 62-68).

The Government ’ s declaration contains an acknowledgment that the length of the proceedings in the instant case was not in accordance with the “reasonable time” requirement. In addition, the Government acknowledged that the applicant did not have an effective remedy at his disposal for contesting the length of the proceedings in the present case. The Court considers the sum of EUR 7,200 for the applicant ’ s damage, including non-pecuniary damage and costs and expenses, to be acceptable.

Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application insofar as the applicant complained about the length of the proceedings (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine ).

3. In view of the above, it is appropriate to discontinue the application of A rticle 29 § 3 of the Convention.

For these reasons, the Cou rt unanimously

Declares the applicant ’ s complaints about the unfairness of the impugned proceedings inadmissible;

Takes note of the terms of the respondent Government ’ s declaration;

Decides to strike the remainder of the appli cation out of its list of cases.

Claudia W esterdiek Peer L orenzen Registrar President