THIRD SECTION

DECISION

Application no. 49528/16 Erwin ZACHARIAS against Germany

The European Court of Human Rights (Third Section), sitting on 30 November 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 49528/16) against Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 August 2016 by a German national, Mr Erwin Zacharias, who was born in 1947 and lives in Langwedel (“the applicant”) and who was represented by Ms Martin-Zacharias, a lawyer practising in Frankfurt am Main;

the decision to give notice of the complaints concerning Articles 6 and 13 of the Convention to the German Government (“the Government”), represented by one of their Agents, Ms K. Behr, of the Federal Ministry of Justice and Consumer Protection, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The present case concerns the length of ten sets of civil proceedings for damages, in which the applicant was the defendant. In the 1990s the applicant, together with others, founded an investment management company. Until 2001 he worked in various positions of responsibility for enterprises within the company. In 2007 insolvency proceedings were instituted against the company and investors filed claims for damages against several persons, alleging inter alia that they had been provided with inaccurate information and that the investment strategy had been intentionally unrealistic. Beginning in 2007, more than four thousand civil actions for damages were brought against the applicant and another defendant. In view of the number of the actions and their degree of complexity, the Göttingen Regional Court, which was seized with all actions, decided to conduct a number of model proceedings which covered the factual and legal submissions and the legal questions at issue in the remaining actions. The claims and submissions in one of the model cases were largely identical with those in the proceedings at issue.

2. In one of the model cases, the Braunschweig Court of Appeal in August 2009 gave an indicative order that the plaintiffs’ pending appeal stood no chances of success. In the proceedings at issue, the Regional Court, in November 2009, indicated to the parties that it endorsed the view of the Court of Appeal’s indicative order of August 2009. There was no activity in the proceedings at issue until September 2011, when the applicant submitted requests for legal aid in each of the proceedings.

3. In December 2011 the applicant lodged an objection to delay before the Regional Court. Subsequently, he lodged an action with the Braunschweig Court of Appeal, requesting pecuniary compensation for the period from September 2008 to August 2012 in one and for the period from January 2009 to December 2012 in the other nine proceedings at issue. The applicant also requested the court to hold, separately, that the length of the proceedings was excessive.

4. By judgment of 11 April 2014 the Court of Appeal rejected the action. Insofar as the applicant requested the court to hold, separately, that the length of the proceedings was excessive, his action was inadmissible: the court was obliged to assess, of its own motion, whether making a finding under section 198 § 4 of the Courts Constitution Act that the length of the proceedings was unreasonable, either in addition or instead of awarding compensation, was called for; therefore, there was no legitimate interest for the applicant to lodge a separate claim requesting that the court make such finding. Turning to the compensation claim, the Court of Appeal found that the proceedings had not been unduly delayed between September 2008 and February 2010 and then between September 2011 and December 2012. However, there was an unreasonable delay when the Regional Court had remained inactive for a period of eighteen months, from March 2010 until the end of August 2011. The Court of Appeal found that compensation for that delay, however, had to be denied because the applicant had not suffered any damage. The statutory presumption that the excessive length of proceedings caused non-pecuniary damage (Section 198 § 2, first sentence, of the Courts Constitution Act) was rebutted in the circumstances of the present case. The proceedings at issue were devoid of any particular significance to the applicant, because 386 actions with claims amounting to almost eleven million euros had already been brought against him. They did not cause him non-pecuniary damage over and above the mere uncertainty as to their outcome. Any increase in the total amount of damages potentially resulting from the ten additional actions, the processing of which was unreasonably delayed, would not have a noticeable impact on him in view of his financial situation: he owed more than ten million euros in tax claims which he had been unable to pay, he had no assets and, given the tort claims against him, he could not invoke that he would have been able to conduct the proceedings for discharge of residual debt earlier if the proceedings were expedited (Section 302 no. 1 of the Insolvency Statute).

5. The applicant lodged an appeal on points of law in which he sought to have the denial of pecuniary compensation quashed and to have an award made. The Federal Court of Justice rejected the appeal. It considered that it was not necessary to determine whether the proceedings had been unreasonably delayed between March 2010 and August 2011, given that the applicant had, in any event, not suffered any non-pecuniary damage warranting compensation as a result of any potential delay. Referring to Scordino v. Italy (no. 1) ([GC], no. 36813/97, § 204, ECHR 2006 ‑ V), the Federal Court of Justice noted that in some cases the excessive length of proceedings could result in only minimal non-pecuniary damage or no non ‑ pecuniary damage at all; the domestic courts would then have to justify their decision by giving sufficient reasons. It found that the Court of Appeal’s assessment in this respect did not contain any errors in law. The Court of Appeal had rightly considered that the proceedings at issue had been devoid of any particular significance to the applicant, because 386 actions with claims amounting to almost eleven million euros had already been brought against him. Moreover, his financial situation at that time had been dire, as a result of unpaid tax claims amounting to millions of euros. Therefore it had been clear from the outset that winning or losing the ten sets of civil proceedings at issue would not have a noticeable impact on his financial situation. The applicant had furthermore not invoked any physical or psychological impact which were attributable to the ten proceedings at issue but had limited himself to general references about the alleged impact of the entirety of proceedings against him. However, as a party claiming compensation in respect of specific sets of proceedings which formed part of extensive aggregate of proceedings, he was required to substantiate the specific damage caused by the length of those specific proceedings; this was necessary to put the opposing party in the position to rebut such submission.

6. The applicant lodged a constitutional complaint, the scope of which he explicitly limited to the period from March 2010 to August 2011. He submitted that the Court of Appeal had found the proceedings to have been unreasonably delayed during that period, a determination which had been left open by the Federal Court of Justice, and argued that denying him compensation in respect of that period based on the finding that he had not suffered any non-pecuniary damage had breached his fundamental rights. The Federal Constitutional Court declined to accept the constitutional complaint for adjudication (no. 1 BvR 1011/15), without providing reasons. The decision was served on the applicant’s counsel on 21 April 2016.

7. The applicant complained under Article 6 § 1 of the Convention about the excessive length of ten sets of civil proceedings for damages, in which he was the defendant. He claimed that there had been no sufficient acknowledgment by the domestic courts that the proceedings had been unreasonably delayed; the Court of Appeal’s finding in its reasoning was insufficient to that effect, a finding in the operative provisions was required. Moreover, denying compensation on the grounds that he had allegedly not suffered any non-pecuniary damage, and having regard to the entirety of civil proceedings against him to that effect as well as to his temporary impecuniousness, was not in accordance with Article 6 § 1. The reasoning of the domestic courts, in essence, meant that as a defendant who faced a large numbers of actions for damages and/or claims exceeding his presumed assets he could not obtain compensation for non-pecuniary damage and, consequently, that he did not have an effective domestic remedy in respect of excessively long civil proceedings, in breach of Article 13 of the Convention. Compensation had to be granted for each individual set of proceedings which did not comply with the “reasonable time” requirement and the excessive duration itself caused non-pecuniary damage.

THE COURT’S ASSESSMENT

8. The Court notes that the Government raised the objection that the applicant had not exhausted domestic remedies in respect of certain parts of the complaints he raised before the Court. Indeed, the applicant explicitly limited his constitutional complaint to the period between March 2010 and August 2011. Consequently, the applicant’s complaint about the allegedly excessive length of the proceedings, insofar as it relates to periods other than that that between March 2010 and August 2011, must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

9. Regarding the applicant’s submission that the failure to comply with the “reasonable time” requirement of Article 6 § 1 of the Convention in the period between March 2010 and August 2011 had not been sufficiently acknowledged by the domestic courts, the Court notes that (i) the Court of Appeal explicitly recognised that the Regional Court’s inactivity in that period constituted an unreasonably delay; (ii) the applicant, with his appeal on points of law, sought to have the denial of pecuniary compensation quashed and to have an award made; (iii) the applicant himself, in his constitutional complaint, submitted that the Court of Appeal had found the proceedings to have been unreasonably delayed during the impugned period; and (iv) the applicant, before this Court, submitted that the Court of Appeal’s finding of unreasonably delay was insufficient because it had not been made in the operative provisions.

10. Since the applicant did not allege before the Federal Constitutional Court that the Court of Appeal’s finding did not constitute a sufficient acknowledgement of the delay and that such finding would necessarily have had to be made in the operative provisions, his submission to that effect must be rejected as inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

11. With respect to the question whether there had been an acknowledgement of unreasonable delay, the applicant himself submitted, both before the domestic courts and before this Court, that the Court of Appeal had found – albeit not in the operative provisions – that the proceedings had been unreasonably delayed between March 2010 and August 2011. The Court of Appeal’s finding constitutes an acknowledgement, in substance, of a breach of the “reasonable time” requirement under Article 6 § 1 of the Convention and hence satisfies the first of the two cumulative criteria for depriving the applicant of his status as a “victim” for the purposes of Article 34 of the Convention in respect of the alleged violation of Article 6 § 1 (see Scordino (no. 1) , cited above, § 193).

12. Turning to the question of whether the said acknowledgement itself constituted appropriate and sufficient redress for the breach of the Convention, it is well-established in the Court’s case-law that in some cases the excessive length of proceedings may result in only minimal non-pecuniary damage or no non-pecuniary damage at all (see Scordino (no. 1) , cited above, § 204). The Court of Appeal and the Federal Court of Justice thoroughly reasoned why the statutory presumption that the excessive length of proceedings caused non-pecuniary damage had been rebutted and why the applicant had not experienced any non-pecuniary damage for which compensation was due (see paragraphs 4 and 5 above). The Court considers that the domestic courts gave sufficient reasons to justify their decision for not awarding compensation, by taking into consideration the great number of similar actions for damages against the applicant which had already been pending at the time when the ten actions at issue were served on him (see ibid.; and contrast Marshall and Others v. Malta , no. 79177/16, §§ 46-47, 11 February 2020). As the acknowledgement by the Court of Appeal of the delay in itself constituted appropriate and sufficient redress, the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention in respect of the alleged violation of Article 6 § 1 (see Scordino (no. 1) , cited above, § 181). His complaint under Article 6 § 1 must therefore be rejected as inadmissible in accordance with Article 35 § 4 of the Convention.

13. It follows that the applicant’s complaint under Article 13 in conjunction with Article 6 of the Convention is manifestly ill-founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 January 2022.

Olga Chernishova Georgios A. Serghides Deputy Registrar President