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SCHELLMANN AND JSP PROGRAMMENTWICKLUNG GMBH & CO.KG v. GERMANY AND OTHER APPLICATIONS

Doc ref: 27366/07, 12008/10, 20862/08, 21396/10, 21482/10, 22528/10, 24416/08, 30184/10, 30666/10, 38635/09, ... • ECHR ID: 001-112381

Document date: July 10, 2012

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Outbound citations: 4

SCHELLMANN AND JSP PROGRAMMENTWICKLUNG GMBH & CO.KG v. GERMANY AND OTHER APPLICATIONS

Doc ref: 27366/07, 12008/10, 20862/08, 21396/10, 21482/10, 22528/10, 24416/08, 30184/10, 30666/10, 38635/09, ... • ECHR ID: 001-112381

Document date: July 10, 2012

Cited paragraphs only

FIFTH SECTION

DECISION

Application no . 27366/07 Johannes SCHELLMANN and JSP PROGRAMMENTWICKLUNG GMBH & CO. KG against Germany and 22 other applications (see list appended)

The European Court of Human Rights (Fifth Section), sitting on 10 July 2012 as a Committee composed of:

Boštjan M. Zupančič , President, Mark Villiger , Angelika Nußberger , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above applications lodged on the dates tabulated below,

Having regard to the comments submitted by the parties,

Having regard to the decisions in the cases of Taron v. Germany ( dec .) no. 53126/07, 29 May 2012 and Garcia Cancio v. Germany ( dec .) no. 19488/09, 29 May 2012,

Having noted that the Government of Greece whose national is one of the applicants do not wish to intervene in the respective case as a third party ,

Having deliberated, decides as follows:

THE FACTS

The applicants are thirteen natural persons and one legal person whose particulars are specified in the Appendix.

The German Government (“the Government”) are represented by their Agents, Ms A. Wittling -Vogel, Ministerialdirigentin , Mr H.-J. Behrens, Ministerialrat and Ms K. Behr, Regierungsdirektorin , of the Federal Ministry of Justice.

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

A. The circumstances of the cases

All applications concern the length of civil or criminal proceedings in which the applicants were involved, ranging from over 3 years for one level of jurisdiction to almost 14 years for two levels of jurisdiction.

On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06 , 2 September 2010) an Act against Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren ) was published in the Federal Law Gazette and had entered into force on 3 D ecember 2011.

In December 2011 the Court informed the applicants in the present case of the enactment of the new domestic remedy and made the applicants aware of the interim provision of that Act. Referring to the case Brusco v. Italy (( dec .), no. 69789/01, ECHR 2001 ‑ IX) the Court invited the applicants to inform the Court whether they intended to make use of the new remedy within the time limit set by the transitional provision of that Act.

The applicants informed the Court in response that they intended to make use of the new remedy, but nevertheless requested that their applications before this Court be maintained.

B. Relevant domestic law

A description of the relevant domestic law can be found in the decisions Taron v. Germany ( dec .), no. 53126/07, §§ 18-29, 29 May 2012 and Garcia Cancio v. Germany ( dec .), no. 19488/09, §§ 26 -38, 29 May 2012.

COMPLAINTS

The applicants complained under Article 6 §1 of the Convention about the length of the proceedings before the domestic courts. Some applicants also complained under Article 13 of the Convention about a lack of an effective remedy in that regard.

Additionally, some applicants raised various other complaints in respect of the same set of proceedings.

THE LAW

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.

A. Complaints under Article 6 § 1 concerning the length of proceedings

The applicants complained about the length of the civil or the criminal proceedings under Article 6 §1 of the Convention. This provision provides as follows:

“In the determination of /his civil rights and obligations or of/ ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court held in Garcia Cancio v. Germany (( dec .), no. 19488/09, §§ 46 et seq., 29 May 2012) – a case that involved an applicant who like the present applicants intended to make use of the new domestic remedy – that

“46. The Court does not see any reason to doubt the applicant ’ s entitlement to lodge a compensation claim with the competent domestic court pursuant to Article 23 of the Remedy Act. ( ... )

47. In view of this element, the Court accepts that the Remedy Act was enacted to address the issue of excessive length of domestic proceedings in an effective and meaningful manner, taking account of the Convention requirements. At this stage, the Court does not see any reason to believe that the new remedy would not afford the applicant the opportunity to obtain adequate and sufficient compensation for his grievances or that it would offer no reasonable prospect of success.

48. The Court ’ s position may be subject to review in the future depending, on the domestic courts ’ capacity to establish consistent case-law under the Remedy Act in line with the Convention requirements (see Korenjak , cited above, § 73).

49. Therefore, the Court finds that the applicant ’ s complaint is premature.”

In the present cases the Court sees no reasons to come to a different conclusion. Likewise, the Court finds that the applicants ’ complaints are premature.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Complaint under Article 13 concerning the lack of an effective domestic remedy

Given that the applicants ’ complaint under Article 6 has been rejected for non-exhaustion of domestic remedies, the related complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Other complaints

Referring to other articles of the Convention and its Protocols, the applicants complained of further aspects related to the above proceedings.

Having regard to all the materials in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the applications must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Stephen Phillips Boštjan M. Zupančič Deputy Registrar President

Appendix

Application No

Lodged on

Applicant

Date of birth

Place of residence

Nationality

Represented by

27366/07

27/06/2007

Johannes SCHELLMANN

16/01/1938

Hamburg

German

JSP PROGRAMM -

ENTWICKLUNG GMBH & CO. KG

legal person registered in

Hamburg

Doris SCHELLMANN

51353/07

03/11/2007

Angelika FREIWALD

05/11/1949

Neuenrade

German

–

54147/07

– 54148/07

– 24416/08

– 49844/08

– 9844/09

– 38635/09

– 38651/09

– 45749/09

– 21396/10

– 53044/10

28/11/2007

19/05/2008

14/10/2008

12/02/2009

11/08/2008

15/07/2009

21/08/2009

13/04/2010

14/09/2010

Jens- Uwe UMBREIT

08/06/1964

Ilmenau

German

–

20862/08

26/04/2008

Efthalia DAFEKI

Hamburg

Greek

Johann S. POLITIS

41497/09

03/08/2009

Jan Paul SAMMER

29/12/1987

Brandenburg

German

–

620/10

– 22528/10

– 45447/10

– 63902/10

29/12/2009

12/04/2010

22/07/2010

23/10/2010

Herbert MASSLAU

23/05/1953

Göttingen

German

Bartolomeo ASCHKA

05/05/1992

Göttingen

German

Lionel ASCHKA

28/08/2000

Göttingen

German

Ernesto ASCHKA

17/01/1994

Göttingen

German

Johanna FEUERHAKE

12008/10

25/02/2010

Franz Friedrich BIENSTEIN

not declared

Arnsberg

German

Daniela KERSTEN

21482/10

12/04/2010

Rene MÃœNCH

05/03/1962

Dresden

German

Uwe MOSIG

30184/10

01/06/2010

Anette PLASCHNA

15/05/1968

Berlin

German

Holger SIEVERS

30666/10

54616/10

31/05/2010

20/09/2010

Frank KALETSCH

25/07/1966

Fernwald

German

Gisli PABST

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