FIFTH SECTION

DECISION

Application no. 31193/18 Sonja PLISKE against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 September 2010 as a Committee composed of:

Ganna Yudkivska , President, Mārtiņš Mits , Anja Seibert- Fohr , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 25 June 2018,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Sonja Pliske , is a German national who was born in 1968 and lives in Frankfurt. She was represented before the Court by Mr I. ‑ J. Tegebauer , a lawyer practising in Trier.

2 . The German Government (“the Government”) were represented b y one of their Agents, Mr H. ‑ J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

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

4 . On 25 November 2002 the applicant had a work ‑ related accident and was severely injured.

5 . The applicant filed an application with her employer ’ s liability insurance association ( Berufsgenossenschaft ) for sickness benefits and an incapacity pension.

6 . On 15 November 2005 the insurance association refused to pay her a pension. There was no evidence of incapacity for practising her profession which would entitle her to a pension.

7 . On 20 December 2005 the applicant filed an administrative appeal with the insurance association against the refusal of the pension.

8 . On 27 March 2006 the insurance association refused to pay sickness benefits because it was not likely that there was a causal link between the accident and the applicant ’ s subsequent health problems.

9 . On 27 April 2006 the applicant filed an administrative appeal with the insurance association against the refusal of sickness benefits.

10 . On 22 June 2006 the insurance association rejected both administrative appeals.

11 . On 13 July 2006 the applicant brought an action before the Frankfurt am Main Social Court for sickness benefits and a pension.

12 . Between 2007 and 2014 the social court obtained several medical expert opinions. There was a continuous exchange of correspondence between the applicant and the social court concerning the conclusions of the medical experts. The proceedings were temporarily suspended for 25 months awaiting a court decision in separate proceedings.

13 . On 20 January 2015 the social court ordered the insurance association to pay a partial pension for the period from 25 December 2002 to 31 July 2009 and rejected the applicant ’ s further claims.

14 . On 21 February 2015 the applicant appealed. The appeal proceedings are still pending.

15 . On 20 February 2014 the applicant applied for legal aid for a compensation claim under the Act on Protracted Court Proceedings and Criminal Investigations.

16 . On 20 May 2016 the Hessian Social Court of Appeal granted legal aid.

17 . On 11 October 2016 the applicant filed a compensation claim with the Hessian Social Court of Appeal for unduly delayed social court proceedings.

18 . On 24 February 2017 the applicant limited the scope of her compensation claim to the period from July 2009 until February 2014 of the proceedings before the Frankfurt am Main Social Court.

19 . On 20 September 2017 the Hessian Social Court of Appeal found that the proceedings had been un duly delayed with regard to 25 months and awarded EUR 2,500 in compensation, but rejected the applicant ’ s further claims.

20 . On 11 January 2018 the Federal Social Court rejected the applicant ’ s request for legal aid for leave to appeal on points of law for lack of prospect of success.

21 . On 26 January 2018 the applicant filed a request for legal aid with the Federal Constitutional Court. She enclosed a draft version of her constitutional complaint.

22 . On 6 February 2018 the registry of the Federal Constitutional Court notified the applicant that there were doubts about the admissibility of the intended constitutional complaint. In particular, the applicant had failed to submit a copy of, or to reproduce, the content of the judgment of the Hessian Social Court of Appeal, dated 20 September 2017. She was further informed that her request for legal aid did not interrupt the one ‑ month time ‑ limit to submit a constitutional complaint. So far she had only submitted a draft version of a constitutional complaint which did not constitute a valid constitutional complaint.

23 . On 9 February 2018 the applicant replied that she expected, in a country governed by the rule of law, that a court would process her request correctly. If she had really not submitted all necessary documents, this had been the result of her deteriorated state of health due to the accident. Accordingly, this would amount to discrimination against disabled persons by the Federal Constitutional Court. She was thus looking forward to the processing of her request.

24 . On 24 April 2018 the Federal Constitutional Court rejected the applicant ’ s request for legal aid for a constitutional complaint. It found that there were no indications that the applicant was not able to represent herself. Moreover, a constitutional complaint lacked prospect of success, in particular, because a lawyer would not have been able to substantiate in an admissible manner a constitutional complaint in accordance with the requirements under sections 23 ( 1) 2 nd sentence and 92 of the Constitutional Court Act (1 BvR 464/18).

25 . The relevant provisions of the Constitutional Court Act ( Gesetz über das Bundesverfassungsgericht ) read as follows:

Section 23 –Filing an application

“(1) Applications instituting proceedings must be submitted in writing to the Federal Constitutional Court. They must state reasons; the necessary evidence must be listed.

(...)”

Section 90 – Constitutional complaint

“(1) Any person who claims that one of his basic rights or one of his rights under Article 20 § 4 and Articles 33, 38, 101, 103 and 104 of the Basic Law has been violated by a public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court.

(2) If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted ...”

Section 92 – Statement of reasons for a constitutional complaint

“The reasons of the complaint shall specify the right which has allegedly been violated, as well as the act or omission of the organ or authority by which the applicant claims his or her rights have been violated.”

Section 93 – Time-limit

“(1) The constitutional complaint shall be lodged and substantiated within one month. The period shall begin to run upon service or informal notification of the complete decision if, pursuant to the relevant procedural provisions, the decision is to be served or notified ex officio. In other instances, the time-limit shall commence when the decision is pronounced or, if it is not to be pronounced, when it is otherwise communicated to the applicant.

(...)”

26 . A comprehensive summary of the provisions governing compensation under the Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren , henceforth “the Remedy Act”) is contained in the Court ’ s decision in the case of Taron v. Germany ( dec. ), no. 53126/07 , §§ 18 ‑ 29, 29 May 2012.

(a) Formal requirements for a constitutional complaint

27 . The Federal Constitutional Court found in its decision of 16 December 1992 (1 BvR 167/87) that, pursuant to sections 23 (1), 2 nd sentence and 92 of the Constitutional Court Act, an applicant was required either to submit the contested decisions or to reproduce the essential content thereof. This requirement has been confirmed in subsequent decisions, including e.g. most recently in its recent decision of 8 April 2019 (1 BvR 1909/18).

(b) Costs and legal representation before the Federal Constitutional Court

28 . In its decisions of 2 October 1969 (1 BvR 132/67) the Federal Constitutional Court pointed out that there were no court fees and no obligation to be represented by a lawyer in order to lodge a constitutional complaint.

COMPLAINT

29 . The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been incompatible with the reasonable time requirement. She still had victim status because she had not obtained adequate compensation.

THE LAW

30 . The applicant ’ s complaint relates to the duration of the proceedings against her employer ’ s liability insurance association for sickness benefits and a pension. She relied on Article 6 § 1 of the Convention, which, in so far as relevant, 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 ...”

31 . The Government were of the view that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. The applicant had never lodged a constitutional complaint, but had solely filed a draft version of her constitutional complaint as an accompanying document to her legal aid request. The registry of the Federal Constitutional Court had also notified her that this had not dispensed her from filing a constitutional complaint within the time ‑ limit. Furthermore, she had failed to submit a copy of the judgment of the Hessian Social Court of Appeal. This was not only required for her request for legal aid, but also for her constitutional complaint.

32 . She could not argue either that a warning in 2013 by the Federal Constitutional Court that it would order a penalty payment for abuse of right to petition had made it unreasonable for her to lodge a constitutional complaint without the assistance of a lawyer. Despite this warning she had continued to address the Federal Constitutional Court without being represented by a lawyer. Overall, sh e had been able to initiate 102 separate sets of proceedings before the Frankfurt am Main Social Court between 13 July 2006 and 14 December 2014.

33 . The applicant contested the Government ’ s view. She argued that she could not have been expected to lodge a constitutional complaint without the assistance of a lawyer because such a complaint must be thoroughly reasoned and drafted. She was not a lawyer and was not familiar with those requirements. Moreover, she had been concerned that the Federal Constitutional Court would impose a penalty payment.

34 . The Court notes at the outset that it is questionable whether the applicant had exhausted domestic remedies with regard to the proceedings against the employer ’ s liability insurance association as a whole. The applicant had limited her compensation claim before the Hessian Social Court of Appeal to the period from July 2009 until February 2014. However, this question can be left open because she failed to exhaust domestic remedies in any event for the reasons set out below.

35 . The Court has frequently underlined the need to apply the rule of exhaustion of domestic remedies with some degree of flexibility and without excessive formalism (see, for example, Ringeisen v. Austria , 16 July 1971, § 89, Series A no. 13). Nevertheless, it was important that an applicant made use of the available remedies in accordance with domestic procedure and in compliance with the formalities laid down in domestic law (see, for example, Gäfgen v. Germany [GC], no. 22978/05, §§ 142/143, ECHR 2010 and Agbovi v. Germany ( dec. ), no. 71759/01, 25 Septembe r 2006, concerning a failure to enclose documents with a constitutional complaint ).

36 . Turning to the present circumstances, the Court observes that it is undisputed that the applicant did not lodge a constitutional complaint. She solely filed a request for legal aid.

37 . Pursuant to the well ‑ established case ‑ law of the Federal Constitutional Court, an applicant must enclose with his/her constitutional complaint all documents that are relevant for its examination. At least, the essential content of the contested decisions must be reproduced. Accordingly, the registry of the Federal Constitutional Court informed the applicant on 6 February 2018 that she had not submitted a copy of the judgment of the Hessian Social Court of Appeal or reproduced the content thereof. This was not only required for a decision on her request for legal aid, but also for a constitutional complaint. In this letter, she was additionally informed that she had not so far filed a constitutional complaint, but solely a draft version thereof. Nevertheless, the applicant insisted on having a decision of the Federal Constitutional Court without providing the missing document or filing a valid constitutional complaint.

38 . The Court is therefore not convinced by the applicant ’ s argument that she had not been familiar with the formal requirements for filing a constitutional complaint. She had been notified in clear terms and in time on those requirements. Furthermore, at this point of time there were no indications for her that her constitutional complaint lacked any prospects of success. She had thus ample opportunity to file a constitutional complaint together with a copy of the required judgment of the Hessian Social Court of Appeal before the expiry of the one ‑ month time ‑ limit. However, she refused to comply with the advice of the Federal Constitutional Court. Instead she made it clear that she expected the Federal Constitutional Court to take a decision on the basis of her initial application.

39 . There are no indications either that the applicant was not able to submit the missing document and to file a constitutional complaint. Although she referred in this context to her poor state of health, the documents in the Court ’ s possession reveal that this did not prevent her from taking legal action in other pending court proceedings.

40 . Furthermore, a constitutional complaint was neither unreasonable for the applicant nor did it constitute a disproportionate obstacle to the effective exercise of the right of indiv idual application under Article 34 of the Convention. There were no court fees for the proceedings before the Federal Constitutional Court and there was no obligation to be represented by a lawyer (contrast, L.L. v. France , no. 7508/02, § 23, ECHR 2006 ‑ XI). She was therefore able to file a valid constitutional complaint within the time ‑ limit. In this context, it is of particular importance that she was notified in time about the missing documents.

41 . The Federal Constitutional Court ’ s warning letter in 2013 that it might order a penalty payment concerned separate proceedings and did not dispense her in the present case from lodging a constitutional complaint without the assistance of a lawyer. The letter of the registry of the Federal Constitutional Court of 6 February 2018 demonstrates that her concerns in this respect were unfounded. The registry did not warn her of a possible abuse of her right to a constitutional complaint, but provided specific advice for filing, within the time ‑ limit, a constitutional complaint that would meet the formal requirements.

42 . Accordingly, the Court considers that the applicant failed to exhaust the domestic remedies available to her and that 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.

Done in English and notified in writing on 15 October 2020 .

Anne-Marie Dougin Ganna Yudkivska Acting Deputy Registrar President