FIFTH SECTION

Application no. 68919/10 Johannes PETER against Germany lodged on 24 November 2010

STATEMENT OF FACTS

1. The applicant, Mr Johannes Peter, is a German national who was born in 1948 and lives in Ulrichstein . He is represented befor e the Court by Mr C. Lenz, a lawyer practising in Stuttgart.

A. The circumstances of the case

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

1. Background to the case

3. On 1 August 2001 the Civil Partnership Act ( Gesetz über die eingetragene Lebenspartnerschaft ) entered into force and introduced a civil union for same-sex couples.

4. On 5 October 2001 the applicant entered into a civil partnership with Mr Peter, né V.

5. On 22 June 2002 Mr Peter, né V., died.

2. Proceedings at issue

6. In September 2002 the applicant applied for a survivor ’ s pension to the German Pension Fund ( Bundesversicherungsanstalt für Angestellte ), a public-law corporation.

7. On 19 November 2002 the German Pension Fund rejected the applicant ’ s claim and on 28 February 2008 it dismissed the applicant ’ s administrative appeal against that decision.

8. On 19 March 2003 the applicant applied to the Fulda Social Court for judicial review. He argued that the term “ widow or widower” in Article 46 §§ 1 and 2 of Social Code no. VI ( Sozialgesetzbuch Nr. VI) must be construed to encompass the surviving partner of a civil partnership.

9. On 26 November 2004 the Fulda Social Court dismissed the applicant ’ s claim. According to the court the surviving partner of a civil partnership could not be called a “widower” in the generally accepted sense of the term. Furthermore, the applicant ’ s civil partnership had not lasted longer than a year, which would have led to statutory exclusion from the benefit even for married couples.

10. During the appeal proceedings the respondent acknowledged the applicant ’ s claim to a survivor ’ s pension as of 1 January 2005, when the relevant amendments to the Civil Partnership Act became effective.

11. The remaining leapfrog appeal on points of law ( Sprungrevision ) was dismissed on 13 December 2005 by the Federal Social Court. The court pointed out that the respondent had partly acknowledged the applicant ’ s claim, so that the appeal concerned only the period from July 2002 until December 2004.

12. On 20 January 2006 the applicant lo dged a constitutional complaint – 1 BvR 170/06 – with the Federal Constitutional Court.

13. On 11 June 2010 a three-judge panel of the Federal Constitutional Court decided not to review the applicant ’ s constitutional complaint. In its reasoning the panel explained that the complaint did not raise a pressing constitutional question as the pertinent legal provision of the social security law had meanwhile been amended. Even assuming that the legislative provision concerned had violated the constitution, the Federal Constitutional Court could not have afforded redress as the legislator could not be obliged to amend a provision which had already become void.

3. Subsequent developments

14. 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 ) had been published in the Federal Law Gazette and had entered into force on 3 December 2011.

15. In December 2011 the Court informed the applicant of the enactment of the new domestic remedy and drew his attention to the transitional provision of that Act. Referring to the Brusco v. Italy case (( dec. ), no. 69789/01, ECHR 2001 ‑ IX), the Court invited the applicant to inform it whether he intended to make use of the new remedy within the time-limit set by the transitional provision in question.

16. The applicant informed the Court that he intended to file a complaint under the new domestic provisions.

17. On 6 January 2012 the applicant filed a complaint under the new Act, claiming pecuniary and non-pecuniary damages. He complained that constitutional proceedings that lasted 4 years 6 months and one day were excessively long, even taking the position and the task of the Federal Constitutional Court into account. He pointed out that his case could not be considered a particularly difficult one.

18. In the course of the proceedings the judge rapporteur for the constitutional complaint submitted a statement explaining that when he took office and became judge rapporteur for this complaint on 1 October 2007 it had already been agreed between his predecessor and judge B, who was judge rapporteur for a similar constitutional complaint (no. 1 BvR 1164/07, hereinafter “the 2007 case”), that the handling of the applicant ’ s complaint should be postponed until the 2007 case had been decided. The 2007 case concerned the survivor ’ s pension rights of partners in a civil union where one partner had been a civil servant. The 2007 case was decided on 7 July 2009, when the Federal Constitutional held that there had been a violation of the Basic Law. Subsequently it became clear that the 2007 case did not affect the applicant ’ s constitutional complaint as it posed no problem of retroactivity. The judge rapporteur conceded that the applicant ’ s submissions were sufficiently substantiated that on the basis of the actual reasoning given his constitutional complaint could indeed have been dealt with earlier. However, the judge maintained that it had been in the applicant ’ s best interest to wait for the court ’ s ruling in the 2007 case.

19. The applicant replied that the judge rapporteur ’ s statement demonstrated that his constitutional complaint had not been given any attention whatsoever in the first year after it was lodged. It would have been obvious even from a cursory examination of the constitutional complaints that his complaint concerned the retroactive application of a legislative amendment. Therefore, any proper comparison of his case with the 2007 case would have easily shown that the two cases were not interdependent.

20. On 1 October 2012 the complaints panel of the Federal Constitutional Court dismissed the applicant ’ s complaint under section 97a of the Federal Constitutional Court Act. Citing Gast and Popp v. Germany , no. 29357/95, ECHR 2000 ‑ II, as well as Klein v. Germany , no. 33379/96, 27 July 2000, the Federal Constitutional Court noted that a chronic backlog of cases in the constitutional courts could also lead to a violation of Article 6 of the Convention in terms of fairness. However, when assessing whether the duration of proceedings was excessive, the Federal Constitutional Court had to consider the special tasks and the position of the constitutional court. Contrary to ordinary courts, the capacity and structure of a constitutional court was laid down in the Constitution and these courts served further purposes beyond the individual administration of justice. The room for adaptation and the acceleration of proceedings was therefore limited. Furthermore, decisions and judgments of the Federal Constitutional Court had binding inter omnes legal effect and for this reason had to be drafted with the utmost diligence. The court further explained that it was in the nature of constitutional proceedings that chronological case management was of subordinate importance. Concerning the applicant ’ s case, the court noted that the actual duration of the proceedings – 4.5 years – was unusually long, but not excessive. A new judge rapporteur had stepped in at the end of his predecessor ’ s term of office and his predecessor had had to finish cases of higher priority than that of the applicant. The court maintained that the lapse of the twelve-month wait provided for in section 97b §1 of the Federal Constitutional Court Act was not excessive considering that the Federal Constitutional Court had opted to decide a similar case concerning pension rights of surviving partners in a civil union (the 2007 case) before the applicant ’ s case. The court pointed out that although in hindsight the present case could have been decided without reference to the “pilot case”, the two cases shared sufficient similarities to justify the decision of the former judge rapporteur. Nothing indicated that the decision to postpone the applicant ’ s case pending a decision on the 2007 case was based on arbitrary considerations. The court noted that the applicant had never claimed that the sum of money at issue was of extraordinary financial importance to him. In conclusion, the Federal Constitutional Court argued that after the decision in the 2007 case the applicant ’ s constitutional complaint had been decided in due course, without any delay.

B. Relevant domestic law and practice

21. The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren , “the Remedy Act”) was published in the Federal Law Gazette - Part I, 2011, pp. 2302 et seq. - on 2 December 2011 and entered into force the next day.

1. Relevant features of the remedy

22. The Remedy Act introduced general provisions for a remedy against any kind of protracted court proceedings. Its Article 1 applied to criminal and civil proceedings – for details see Taron v. Germany , no. 53126/07, §§ 19 et seq., and Garcia Cancio v. Germany , no. 19488/09, §§ 27 et seq. , both decided on 29 May 2012.

23. For proceedings before the Federal Constitutional Court Article 2 of the Remedy Act amended the Federal Constitutional Court Act as follows:

“Section 97a

(1) Whoever, as the result of the unreasonable length of proceedings before the Federal Constitutional Court, experiences a disadvantage as a participant in those proceedings or as a participant in proceedings suspended for the purpose of obtaining a decision from the Federal Constitutional Court shall be given a reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case, having due regard to the functions and the rank of the Federal Constitutional Court.

(2) A non-pecuniary disadvantage shall be presumed in cases where proceedings before the Federal Constitutional Court have been of unreasonable length. Compensation can be claimed therefor save in particular cases where reparation by other means, such as the mere finding that the length of proceedings was unreasonable, is sufficient. Such compensation shall amount to €1,200 for every year of delay. If the sum thus calculated is not equitable, the Federal Constitutional Court shall assess a higher or lower sum.

Section 97b

(1) A decision on compensation and reparation shall be rendered if a complaint of undue delay has been lodged with the Federal Constitutional Court. A complaint of undue delay shall be admissible only if the complainant has previously objected to the length of the proceedings before the Federal Constitutional Court ( Verzögerungsrüge ). A complaint of undue delay shall be lodged in writing and it shall set out the circumstances purported to establish the unreasonableness of the length of the proceedings. It shall be admissible twelve months at the earliest after lodging the case at the Federal Constitutional Court. A complaint of undue delay shall not require a reasoned notification.

...

Section 97d

(1) The rapporteur in the proceedings concerned should submit an opinion within one month of receipt of the reasons for the complaint of undue delay.

(2) The complaints panel shall decide by a majority. In the event of a tie the complaint of undue delay shall be dismissed. The complaints panel shall render its decision without an oral hearing. Reasons need not be given.

(3) The decision is not subject to appeal.”

2. Transitional provisions

24. In departure from the general transitional provision under Article 23 of the Remedy Act (see for details Taron v. Germany , § 27, and Garcia Cancio v. Germany , § 36, both cited above), section 97e of the amended Federal Constitutional Court Act stipulated that for terminated proceedings whose length might still become or had already become the subject of a complaint with that court it was not necessary to raise a complaint of undue delay ( Verzögerungsrüge ) prior to filing a compensation complaint. The complaint had to be lodged with the Federal Constitutional Court on 3 June 2012 at the latest.

COMPLAINTS

25. The applicant complains under Article 6 §1 of the Convention about the length of proceedings before the Federal Constitutional Court. After having made use of the new domestic remedy in this regard, he sustains his complaints under Article 13 of the Convention in particular that the new domestic remedy was not effective and the proceedings before the complaints panel were not fair within the meaning of Article 6 § 1 of the Convention. He points out that the complaints panel admitted that the length of the proceedings was unduly long and that no real attention was given to his constitutional complaint for at least the first 3.5 years after he had lodged it. However, the panel did not come to the necessary conclusions.

QUESTIONS TO THE PARTIES

1. Was the length of the proceedings before the Federal Constitutional Court in the pe riod between 2006 and 2010 in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2. Did the applicant have at his disposal an effective domestic remedy for his Convention complaint under Article 6 § 1 as required by Article 13 of the Convention?