FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44455/07 by J ü rgen BINDER against Germany

The European Court of Human Rights (Fifth Section), sitting on 20 September 2011 as a Committee composed of:

Isabelle Berro-Lefèvre , President, Mark Villiger , Ann Power , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 28 September 2007,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr J ü rgen Binder, is a German national who was born in 1948 and lives in Berlin . He was rep resented before the Court by Ms K. Kunst , a lawyer practising in Berlin .

A. The circumstances of the case

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

From 1982 to 2002 the applicant had been the owner of a patent on electronic recording equipment for the control of the driving time of, in particular, truck or bus drivers. On 29 October 2001 he filed an action for infringement of his patent against two companies with the Berlin Regional Court . On 14 November 2001 h e also filed an application for legal aid .

On 27 November 2001 the Regional Court rejected the legal aid request on the ground that the action for infringement lacked sufficient prospects of success. On 23 August 2002 the Berlin Court of Appeal quashed that decision, granted the applicant legal aid and appointed two legal counsel s.

On 16 December 2003 the Regional Court , having held a hearing, rejected the applicant ’ s infringement action . It considered the respondent ’ s product being different from the applicant ’ s one and thus not constituting an infringement of the latter ’ s patent. The decision was served on the applicant in February 2004 and he appealed in March 2004.

On 24 November 2006 the Berlin Court of Appeal informed the applicant ( Hinweisverfügung ) of its intention to reject the appeal pursuant to section 522 § 2 of the Code of Civil Procedure ( Zivilprozessordnung ) and the reasons thereof and gave him the opportunity to submit observations within three weeks.

On 25 January 2007 the applicant lodged a motion for bias against o ne of the Court of Appeal judges as he had been part of the Regional Court ’ s chamber of three judges, which had rejected his legal aid request on 27 November 2001.

On 30 January 2007 the Court of Appeal , referring to the reasons set out on 24 November 2006 , dismissed the applicant ’ s appeal pursuant to section 522 § 2 of the Code of Civil Procedure . On the same day the Court of Appeal also rejected the applicant ’ s legal aid request for the appeal proceedings holding that the appeal lacked sufficient prospects of success.

On 23 February 2007 the Court of Appeal, deciding without the challenged judge, rejected the applicant ’ s motion for bias against the said judge as he had not sat on the bench when the Regional Court decided on the merits of the case but only when rejecting the request for legal aid.

On the same day the Court of Appeal reject ed the applicant ’ s complaint for the rig ht to be heard ( Anhörungs rüge ) concerning the dismissal of his appeal.

On 2 March 2007 the applicant lodged a constitutional complaint in which he complained in particular about the Court of Appeal ’ s dismissal of his appeal pursuant to section 522 § 2 of the Code of Civil Procedure as well as about the denial of a fair trial by an impartial tribunal and about the outcome of the proceedings.

On 3 April 2007 the Federal Court of Justice dismissed his appeal on points of law ( Rechtsbeschwerde ) against the denial of legal aid holding that it was inadmissible .

On 27 March 2007 the Federal Constitutional Court re fuse d to admit his constitutional complaint for adjudication without giving further reasons .

B. Relevant domestic law

As regards the procedure of reject ing an appeal pursuant to section 522 § 2 of the Code of Civil Procedure , t he relevant domestic law is described in the Court ’ s decision in the case of Rippe v. Germany ( dec .), no. 5398/03 , 2 February 2006.

According to section 114 of the Code of Civil Procedure, a party who in view of his or her personal and economic situation cannot afford the costs for conducting the proceedings is granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear wanton ( mutwillig ).

COMPLAINTS

1. The applicant complained under Art icle 6 of the Convention that one of the Court of Appeal judges had been biased because he had decided in the applicant ’ s previous legal aid proceedings before the Regional Court .

2 . He further complained under Article 6 of the Convention that the Court of Appeal had decided pursuant to section 522 § 2 of the Code of Civil Procedure and thus not held a hearing and not taken evidence despite the allegedly complex patent case at issue, under Art icle 13 of the Convention about the lack of an effective remedy against the decision of the Court of Appeal, under Art icles 6 and 14 of the Convention about the rejection of his legal aid request s , under Art icle 1 of Prot ocol No. 1 about a violati on of his intellectual property as regards the outcome of his action for infringement and , finally, under Art icle 17 of the Convention about the domestic courts ’ allegedly arbitrary decisions.

THE LAW

1. The applicant complained about one of the Court of Appeal ’ s judges having participated as a Regional Court ’ s judge in the previous proceedings concerning his legal aid request at first instance. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court observes at the outset that fears as to the lack of impartiality of judges at a court of appeal may be objectively justified where appeal court judges had already previously heard the merits of the case and adopted the impugned judgment and were therefore called upon to decide whether or not they themselves had committed an error of legal interpretation or on their ability to apply the law (see Oberschlick v. Austria (no. 1) , 23 May 1991, § 50-52 , Series A no. 204 ; De Haan v. the Netherlands , 26 August 1997, § 51 , Reports of Judgments and Decisions 1997 ‑ IV ; and San Leonard Band Club v. Malta , no 7562/01, § 61-66 , ECHR 2004 ‑ IX ; see also, mutatis mutandis , Kayasu v. Turkey , nos. 64119/00 and 76292/01, § 121 , 13 November 2008 ).

The Court observes that the instant case, however, differs from the aforementioned cases in two respects.

First, when deciding as a regional court judge, the challenged judge examined the applicant ’ s legal action ’ s prospects of success only to determine whether the latter was entitled to receive legal aid according to section 114 of the Code of Civil Procedure (see Relevant domestic law, above). The Regional Court ’ s later judgment on the merits of 16 December 2003, which was challenged before the Court of Appeal, was taken without his participation. Thus, when sitting as an appeal court judge he had to assess and determine whether a decision taken without him had been in accordance with the law. He was not called upon to evaluate and determine his own alleged mistakes.

Second, it is true that the Court has held that the decisive aspect is whether the proceedings in which a challenged judge had taken part concerned the same set of facts even where it is not, technically speaking, the same proceedings (see Indra v. Slovakia , no. 46845/99, § 53 , 1 February 2005 ). However , in the instant case, the challenged judge by examining the facts for determining whether the claim contained reasonable prospects of success, could solely undertake a summary assessment. The difference between the summary assessment of the available information and a judgment on the merits was emphasized by the Court in its previous case-law with respect to pre-trial decisions in criminal proceedings and the finding of guilt. The Court has held that the mere fact that a judge has made a pre-trial decision cannot in itself justify fears as to his impartiality. The decisive aspect was that there is a difference between a solely summary examination of a case on the one hand, which only refers to the suspicion that a person has committed the crime, and on the other hand, the formal finding of guilt which could not be treated as being the same (see Hauschildt v. Denmark , 24 May 1989, § 50 , Series A no. 154 ; Sainte-Marie v. France , 16 December 1992, § 33-34 , Series A no. 253 ‑ A ; Nortier v. the Netherlands , 24 August 1993, § 35 , Series A no. 267 ; Saraiva de Carvalho v. Portugal , 22 April 1994, § 37 , Series A no. 286 ‑ B ; Bulut v. Austria , 22 February 1996, § 33-34 , Reports of Judgments and Decisions 1996 ‑ II ; see also Padovani v. Italy , 26 February 1993, § 28 , Series A no. 257 ‑ B ).

The Court finds that the same reasoning can be applied when a judge, before the start of civil proceedings, takes a decision in which he/she is only asked to summarily assess the available information and the legal action ’ s prospects of success. Similar as for the finding of guilt in criminal cases, the decision on the merits of a case in civil proceedings has to be distinguished from a summary assessment of its prospects of success. There is also no indication that the challenged judge went beyond a mere summary examination when deciding as one of three judges on the legal aid request or that the difference between the issue s the judge had to decide on in the instant case became tenuous in any other way (see in this respect, mutatis mutandis , Hauschildt , cited above, § 52) . Consequently, the previous participation in the proceedings concerning the applicant ’ s legal aid request at first instance did not undermine the impartiality of the challenged judge of the Court of Appeal. The applicant also did not put forward any other elements raising doubts as regards that judge ’ s impartiality.

Against this background, t he Court finds that the applicants ’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Relying on Articles 6 , 13, 14, 17 of the Convention and Art icle 1 of Prot ocol No. 1 the applicant further complained that the Court of Appeal had not held a hearing and not taken evidence despite the allegedly complex patent case at issue, about the lack of an effective remedy against the decision of the Court of Appeal, about the rejection of his legal aid request s , about a violati on of his intellectual property as regards the outcome of his action for infringement and about the domestic courts ’ allegedly arbitrary decisions.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Stephen Phillips Isabelle Berro-Lefèvre Deputy Registrar Pre sident