THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66046/01 by Alexander KORONIOTIS against Germany

The European Court of Human Rights (Third Section), sitting on 16 September 2004 as a Chamber composed of:

Mr I. Cabral Barreto , President , Mr G. Ress , Mr R . Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 2 November 2000 ,

Having regard to the partial decision of 30 January 2003 ,

Having regard to the observati ons submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Alexander Koroniotis, born in 1986, has German and Greek nationalities . He lives in Munich in Germany . The applicant is represented before the Court by his parents, Panagiotis Koroniotis and Rita Eggendinger-Koroniotis.

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

1. The proceedings before the Munich Regional Court

During the applicant ' s birth in a public hospital, he suffered a lack of oxygen due to a delayed Caesarean section, which resulted in the permanent paralysis of his arms and legs.

On 30 June 1989 the applicant, represented by his parents, filed an action combin ed with a request for legal aid with the Munich Regional Court ( Landgericht ) against the doctors F., H. and P., who had assisted at his birth, requesting a declaratory judgment, compensation for his pecuniary damages during the three years following his birth , and further compensation for p ain and suffering. He claimed that the doctors concerned had negligently delayed the required Caesarean section and were thus responsible for his ensuing physical disabilities. In these proceedings, the parties were represented by counsel.

On 25 October 1989 the Regional Court partly granted legal aid to the applicant.

On 10 January 1990 the Regional Court held a first oral hearing.

In March 1990 the applicant withdrew the mandate from his counsel.

O n 26 March 1990 the applicant ' s new counsel ex tended the action.

On 28 March 1990 the Regional Court postponed the date of the second hearing with regard to the ex tended action.

On 23 May 1990 the Regional Court held a second hea ring.

On 20 June 1990 the Regional Court set a date to hear witnesses on 25 July 1990 .

On 10 July 1990 the Regional Court postponed the hearing on the applicant ' s request.

On 26 November 1990 the Regional Court questioned several witnesses during an oral hearing.

On 30 January 1991 the Regional Court ordered the preparation of a medical expert opinion as to whether the defendant s ' co nduct during birth had led to the applicant ' s paralysis. Detailed questions regarding the different stages of the birth and the defendants ' actions were attached.

On 9 May 1991 the Regional Court instructed the expert A. and set him a time-limit of eight months to deliver his submissions.

On 17 January 1992 A. presented his first expert opinion.

On 18 May 1992 the Regional Court ordered A. to prepare a supplementary opinion in reply to questions put by the p arties on the content of his first opinion.

On 16 July 1992 A. presented his second expert opinion.

On 29 October 1992 the Regional Court ordered that A. should reply to further questions submitted by the applicant.

On 9 February 1993 A. presented his third expert opinion.

On 6 September 1993 , during a further oral hearing, the Regional Court announced its intention to deliver a partial de cision , against which the applicant protested o n 10 September 1993 .

On 27 September 1993 the Regional Court , in a partial decision, rejected the applicant ' s actions with regard to F. As regards the proceedings against H. and P., the Regional Court ordered the questioning of the applicant ' s parents at an oral hearing.

2. The a ppeal proceedings against the partial decision of the Munich Regional Court of 27 September 1993

On 3 November 1993 the applicant filed an appeal against the partial decision.

On 18 January 1994 the Regional Court sent the case file to the Munich Court of Appeal ( Oberlandesgericht ) .

On 26 January 1995 the Munich Court of Appea l, hav ing heard a further expert opinion, dismissed the applicant ' s appeal.

On 16 March 1995 the applicant filed an appeal on points of law.

On 18 January 1996 , after having been granted several extensions of the time-limit , the applicant filed his written submissions.

On 26 March 1996 the Federal Court of Justice ( Bundesgerichtshof ) refused to entertain the applicant ' s appeal on points of law.

On 12 April 1996 the case file was returned to the Munich Regional Court .

3 . The c ontinuation of the p roceedings before the Munich Regional Court

On 23 October 1996 the applicant ' s mother was heard by the Regional Court .

On 4 December 1996 the Regional Court rejected the applicant ' s remaining claims. It found that the applicant ' s condition was not attributa ble to the conduct of H. and P.

4. The a ppeal proceedings against the final decision of the Munich Regional Court of 4 December 1996

On 9 January 1997 the applicant filed an appeal.

On 10 April 1997 , following two extensions of the time-limit , the applicant handed in his written submissions .

On 18 September 1997 the Munich Court of Appeal held a hearing.

On 18 September and 25 November 1997 the applicant challenged the judges sitting in chamber as being biased.

On 8 January 1998 , the applicant ' s challenges having been rejected, the Court of Appeal confirmed the Regional Court ' s decision in all points.

On 8 December 1998 the Federal Court of Justice refused to entertain the applicant ' s appeal on points of law.

5. The p roceedings before the Federal Constitutional Court

On 9 January 1999 the applicant lodged a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht) in which he complained about the erroneous decisions of the lower courts . He also gave a chronological account of the proceedings and alleged that their excessive length had had negative consequences on the outcome of his claim.

On 18 April 2000 the Federal Constitutional Court refused to entertain the applicant ' s complaint. It found that

... ”The complaints raised with the constitutional complaint are mainly inadmissible, partly so because they have not been raised before the lower court s and thus the prior remedies in a broader sense have not been exhausted . ... As far as the complaints are admissible, they are unfounded ... ”

This decision was served on the applicant on 5 May 2000 .

COMPLAINT

The applicant complained under Article 6 of the Convention about the undue length of the proceedings before the German courts.

THE LAW

The applicant complains about the undue length of the proceedings which he instituted on account of medical malpractice. He relies on Article 6 § 1 of the Convention, which , insofar as relevan t, 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...”

A . O bjections of the G overnment

1. No claim of a violation of a Convention right by the applicant

The Government submit that in the Court ' s application form the applicant has not ex pressly claimed a violation of his right under Article 6 of the Convention in respect of the length of proceedings.

The applicant points out that he had explicitly mentioned a violation of Article 6 of the C onvention. He argues that he is not a lawyer and could not be expected to prepare his complaint in the same way as a specialised lawyer would have done it .

The Court considers that in his first submission s to the Co urt of 2 November 2000 , which already contained the relevant facts of his application , the applicant duly raised complaints about the length of proceedings in general and in particular about the inactivity of the Munich Regional Court from March 1993 until September 1996. The applicant thereby invoked Article 6 of the Convention.

This part of the preliminary objection s of the Government must therefore be rejected.

2 . Non- e xhaustion of domestic remedies

The Government argue that the Federal Constitutional Court refused to admit the applicant ' s constitutional complaint as he had not previously raised the complaint about the excessive length of proceedings before the Munich Court of Appeal and the Federal Court of Justice. The Government further allege that the applicant failed sufficiently to substantiate his constitutional complaint. The a pplicant also failed to lodge an application with the Munich Regional Court in order to speed up proceedings. They quote i n this respect a decision delivered by the Federal Constitutional Court, sitting as a panel of th ree judges ( decision of 7 January 1992, Neue Juristische Wochenschrift 1992, pp. 1497- 14 98) , according to which a constitutional complaint about the excessive length of tax proceedings was declared inadmissible because the applicant had not previously raised the same complaint before the financial courts.

The applicant contests these submissions. He alleges that it could not be deduced from the Constitutional Court ' s decision which part of the complaint was considered inadmissible and for wh at reasons. He contends that he had on several occasions pointed out the length of the proc eedings to all the lower courts.

The Court reiterates that u nder Article 35 § 1 of the Conventio n, normal recourse should be made by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness ( see Horvat v. Croatia , no. 51585/99, § 38, ECHR 2001-VIII , and Vernillo v. France , judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27 ) .

Furthermore, in the area of the ex haustion of domestic remedies, it is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at t he relevant time (see Horvat v. Croatia , cited above, § 39) .

T urning to the circum s t ances of the present case, t he Court notes , first, that in its decision of 8 April 2000 , the Federal Constitutional Court did not explicitly examine the length of proceedings. It is not clear from the reasoning of the decision , if the Constitutional Court regarded this part of the co mplaint as inadmissible for non-exhaustion of legal remedies. But even assuming that this had been the case , the Cou rt finds that the Government have not sufficiently demonstrated that the applicant could have effectively raised the issue of the excessive length of proceedings i n his appeals to the Munich Court of Appeal and to the Federal Cou rt of Justice. T he German Federal Constitutional Court ' s decision, cited by the Gove rnment , concerns tax proceedings and can not, therefore , be applied to the present case of civil law proceedings.

Second, i n respect of the substantiation of the constitutional complaint, the Court reiterates that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, i t normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts , at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see, among other authorities, Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34 ).

The Court notes that, in his constitutional complaint , the applicant did not explicitly complain that the length of the proceedings as such had violated his rights. However, in the context of his principal complaint the applicant alleged that the proceedings before the German courts had violated his right to a fair trial ; he ga ve a chronological account of the proceedings and maintained that their excessive length had had negative consequences on the outcome of his claim.

Under these circumstances, the Court finds that the applicant in substance raised the complaint about the length of proceedings in his constitutional complaint.

The applic ant must therefore be regarded as having exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

Finally, t he Court recalls that in respect of the length of civil proceedings the issue how the applicant could have accelerated the proceedings does not r elate to the exhaustion of domestic remedies but to the merits of the application, that is to say to the question if the applicant ' s conduct contributed to the length of proceedings (see , among other authorities, Horvat v. Croatia , cited above , § 46 and Hartman v. Czech Republic , no. 53341/99, § 60 ECHR 2003 ‑ VIII).

B. Merits

T he Government contend that the proceedings, while not being complex at the outset, became complex because the circumstances of the case were extremely contentious and the applicant put forward his arguments in a very detailed manner. T he length of the appeal proceeding s against the partial decision was mainly caused by the applicant ' s own request for the extension of time-limits and the raising of further evidence. T he applicant also failed to file an application with the Munich Regional Court to set a new date to continue the oral hearing. In respect of the remaining proceedings , the Government maintain that the case had been d ealt with expeditiously by the national c ourts , considering the applicant ' s various requests for the extension of time-limit s .

The applicant denies that he contributed to the length of the law suit , emphasising that it was the duty of the national courts to expedite the proceedings. T he period of almost one year between the filing of his claim with the Munich Regional Court on 30 June 1989 and th at c ourt ' s decision to hear witnesses of 20 June 1990 was disproportionate. T he Munich Regional Court caused further delay s by granting the medical expert an excessive time-limit of eight month s to file his written submissions. Moreover, the Regional Court could have avoided the delay of three years which occurred after delivering the partial judg ment of 27 September 1993 by hearing the necessary witnesses before sending the case-file to the Court of Appeal or else by using copies of th e file . In the applicant ' s view the Court of Appeal and the Federal Court of Justice further delayed proceedings.

The Court notes that the applicant instituted the c ourt procee dings on 30 June 1989 . On 18 April 2000 the Federal Constitutional Court refused to entertain his constitutional complaint . The overall length of proceedings t herefore amounted to 10 years, 9 months and 18 days .

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ' s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Cou rt unanimously

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

Vincent Berger Ireneu Cabral Barreto Registrar President