FIFTH SECTION

CASE OF PERSCHKE v. GERMANY

( Application no. 25756/09 )

JUDGMENT

STRASBOURG

24 June 2010

This judgment is final but it may be subject to editorial revision.

In the case of Perschke v. Germany ,

The European Court of Human Rights ( Fifth Section ), sitting as a C ommittee composed of:

Karel Jungwiert , President, Renate Jaeger , Mark Villiger , judges, and Stephen Phillips , Deputy Section Registrar,

Having deliberated in private on 31 May 2010 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 25756/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German na tional, Mr Klaus Perschke (“the applicant”), on 14 May 2009 .

2 . The applicant was represented by Ms Simona Reppenhagen , a lawyer practising in Berlin . The German Government (“the Government”) were represented by their Agent , Mr s A. Wittling -Vogel, Ministerialdirigentin , of the Federal Ministry of Justice.

3 . On 25 August 2009 the President of the Fifth Section decided to give notice of the application to the Government . The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol 14 governing the power of three judge committees to decide on cases in which there is well-established case-law, it was decided to assign the application to a Committee. I t was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3) .

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1955 and lives in Berlin .

5 . The applicant is 80 % physically disabled. On 23 July 2001 the applicant submitted a request to the Berlin Pensions and Allowances Office for an allowance on the basis of his reduced earning capacity. The Pensions and Allowances Office dismissed the request on 29 October 2001 on the grounds that the applicant was still able to work for more than six hours a day.

6 . On 26 November 2001 the applicant lodged an administrative objection, which was rejected on 26 February 2002.

7 . On 1 2 March 2002 the applicant brought an action before the Berlin Social Court . On 6 May 2002 the Social Court requested further documentation, which the applicant submitted on 3 June 2002. On 14 June 2002 the Social Court commissioned a socio-medical expert report. The expert report was completed on 22 July 2002.

8 . On 7 April 2003 the applicant suggested that a neurological-psychological expert report be commissioned. The Berlin Pensions and Allowances Office proposed an expert, to whom the applicant objected, for the neurological-psychological report. On 21 May 2003 the Social Court commissioned the report from a different expert. On 23 April 2003 and on 20 August 2003 the applicant submitted further medical documents. On 18 December 2003 the applicant received the neurological-psychological expert report dated 9 December 2003, and commented on it on 5 January 2004. On 19 January 2004 the applicant requested that the neurological-psychological expert amend his report.

9 . The applicant suggested commissioning an orthopaedic expert report, which the Social Court did on 14 January 2004. On 23 March 2004 the applicant received the orthopaedic expert report, dated 15 March 2004.

10 . On 3 November 2004 the Social Court asked the parties whether they agreed to a decision without a further oral hearing; on 16 November 2004 the applicant refused to agree. On 17 January 2005 a scheduled hearing could not take place as one of the lay judges had fallen ill in the morning; on the same day, the parties agreed to a decision through the written procedure.

11 . On 2 August 2005 and 1 September 2005 the applicant requested a progress report. The Social Court ’ s judgment of 20 June 2005 was served on the applicant on 17 October 2005. It partially granted the applicant ’ s action. It rejected the applicant ’ s request in relation to an allowance for fully or partially reduced earning capacity, but awarded an allowance for incapacity to work.

12 . On 10 November 2005 the Berlin Pensions and Allowances Office lodged an appeal with the Berlin-Brandenburg Social Court of Appeal. The Social Court of Appeal informed the applicant on 31 January 2006 that he had yet to submit his respondent ’ s brief in the appeal proceedings; he did so on 21 February 2006. On 18 April, 22 May, and 2 June 2006 the applicant made further submissions.

13 . On 14 July 2006 the judge rapporteur responsible for the appeals proceedings became unable to work due to illness. The p resident ’ s o ffice assigned a different judge, who was delegated for one year from the labour court, to the chamber dealing with the case.

14 . On 26 July 2006 the Social Court of Appeal requested information from the applicant ’ s former employer, which it received on 1 August 2006 . On 28 July 2006 the applicant submitted a medical certificate. On 1 August 2006 the Social Court of Appeal stayed the execution of the first-instance judgment. On 3 November 2006, 22 January 2007, and 29 April 2007 the Social Court of Appeal requested further documents from the applicant, which he provided. On 8 May 2007 the Social Court of Appeal asked the applicant ’ s former employee to provide additional information, which was submitted on 25 May 2007.

15 . In July 2007, after the one year period of the delegated judge had ended, the former judge rapporteur again took on the proceedings. However, the judge rapporteur suffered a severe relapse in September 2007, which led to her death in the following year. The p resident ’ s o ffice reacted in reducing the chamber ’ s workload . The judge responsible for the case changed several times .

16 . On 16 June 2008 the applicant extended his action to include an allowance claim for fully reduced earning capacity.

17 . On 8 October 2008 the Social Court of Appeal commissioned a general-medical expert report. The applicant received the expert report, dated 31 January 2009, on 25 February 2009 and made further submissions on 27 March 2009. On 30 March 2009 the Social Court of Appeal commissioned a psychiatric expert report , which it received on 15 July 2009 .

18 . On 18 November 2009 the Social Co urt of Appeal rendered its judg ment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

19 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement, laid down in Article 6 § 1 of the Convention, which reads , so far as relevant , as follows:

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

20 . The Government contested that argument.

21 . The relevant period to be ta ken into consideration begins with the date when the applicant filed his objection, a necessary first step before proceedings can be brought in the social courts (see Janssen v. Germany , no. 23959/94, § 40, 20 December 2001, and König v. Germany , 28 June 1978, § 98, Series A no. 27 ). Therefore, t he period to be taken into consideration began on 26 November 2001, when the applicant lodged an administrative objection, and ended on 18 November 2009 , when the Social Court of Appeal rendered its judgment , thus lasting over eight years.

A. Admissibility

22 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

23 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

24 . T he Government submitted that the case was complex and the issues at stake were of minor importance. As to the conduct of the authorities, the Government submitted that the courts generally furthered the proceedings . However, the Government admitted that t he proceedings before the Social Court of Appeal were delayed because of a severe illness of the judge rapporteur , which eventually le d to her death.

25 . As to the conduct of the applicant , the Government submitted that a delay of two months was attributable to the applicant since he initially refused to agree to a decision though written proceedings but then agreed to it on 17 January 2005. Before the Social Court of Appeal, the applicant had caused a delay of three weeks as he had to be reminded by the court to submit his respondent ’ s brief, which he only submitted on 21 February 2006.

26 . The applicant responded that the case was not complex but a standa rd case before the social court, and that the case was not of minor importance . He also submitted that the fact of the illness of the judge rapporteur could not be weighed to his detriment.

27 . Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. T he Court considers that the periods of delay imputable to the applicant were insignificant in light of the overall length of the proceedings. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

28 . Lastly, t he applicant complained of the fact that in Germany there was no court to which application could be made to complain of the excessive length of proceedings. He relied on Article 13 of the Convention. The Government did not contest the argument.

29 . The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

30 . The Court has already held that there is no effective remedy under German law capable of affording redress for unreasonable length of civil proceedings (see Sürmeli v . Germany [GC], no. 75529/01, §§ 103-108, ECHR 2006-VII , and Herbst v. Germany , no. 20027/02, §§ 65-66, 11 January 2007).

31 . Accordingly, the Court considers that the applicant did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings before the social courts or provided adequate redress for delays that had already occurred. There has therefore been a violation of Article 13 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

32 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

33 . The applicant claimed 2,000 euros (EUR) in respect of non ‑ pecuniary damage.

34 . The Government left the matter to the Court ’ s discretion.

35 . The Court considers that it should award the full sum claimed.

B. Costs and expenses

36 . The applicant did not claim any amount for the costs and expenses incurred before the domestic courts or the Court.

C. Default interest

37 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant , within three months EUR 2,000 ( two thousand euros ) , in respect of non-pecuniary damage , plus any tax that might be chargeable to him on this amount ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be paya ble on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 24 June 2010 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Karel Jungwiert Deputy Registrar President