[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KÖNIG v. GERMANY (ARTICLE 50) - 6232/73 [1980] ECHR 2 (10 March 1980) URL: http://www.bailii.org/eu/cases/ECHR/1980/2.html Cite as: (1980) 2 EHRR 469, [1980] ECHR 2

[New search] [Contents list] [Help]

In the König case,

The European Court of Human Rights, taking its decision in plenary

session in application of Rule 48 of the Rules of Court and composed

of the following judges:

Mr. G. BALLADORE PALLIERI, President,

Mr. G. WIARDA,

Mr. H. MOSLER,

Mr. M. ZEKIA,

Mr. J. CREMONA,

Mr. THÓR VILHJÁLMSSON,

Mr. W. GANSHOF VAN DER MEERSCH,

Mrs. D. BINDSCHEDLER-ROBERT,

Mr. D. EVRIGENIS,

Mr. P.-H. TEITGEN,

Mr. G. LAGERGREN,

Mr. L. LIESCH,

Mr. F. GÖLCÜKLÜ,

Mr. F. MATSCHER,

Mr. J. PINHEIRO FARINHA,

and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy

Registrar,

Having deliberated in private on 24 and 25 October 1979 and on

27 February 1980,

Delivers the following judgment, which was adopted on the

last-mentioned date, on the application in the present case of

Article 50 (art. 50) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention"):

PROCEDURE

1. The König case was referred to the Court by the Government of the

Federal Republic of Germany ("the Government") in February 1977

and, the following month, by the European Commission of Human Rights

("the Commission"). The case originated in an application against

the Federal Republic of Germany lodged with the Commission in 1973

by a German citizen, Dr. Eberhard König.

2. The applicant complained of the dilatory nature of proceedings

instituted by him before the Frankfurt Administrative Court. By

judgment of 28 June 1978, the Court held that the duration of the

said proceedings had exceeded the "reasonable time" stipulated by

Article 6 par. 1 (art. 6-1) of the Convention (points 3 and 4

of the operative provisions and paragraphs 105 and 111 of the reasons,

Series A no. 27, pp. 37, 40 and 41).

The Court also reserved the whole of the question of the application

of Article 50 (art. 50). It invited the Commission's Delegates to

transmit to it, within three months from the delivery of the judgment,

the applicant's claims together with any observations which the

Delegates might have thereon and decided that the Government should

have the right to reply to such claims and observations within two

months from the date on which the Registrar should have communicated

them to the Government; the further procedure was reserved (point 5 of

the operative provisions and paragraph 114 of the reasons, ibid.,

pp. 41 and 42).

3. On 28 September 1978, the President of the Court granted the

Delegates' request for an extension until 6 October of the timelimit

applicable to them. Their observations were received at the registry

on the last-mentioned date, accompanied by a letter sent to the

Commission on 18 September by Dr. König's lawyer, Mr. Hofferbert.

On 11 December, the time-limit applicable to the Government was

extended by the President until 13 January 1979.

The Government's memorial was filed at the registry on 16 January.

On 26 March, the Secretary to the Commission informed the Registrar

that the Delegates did not intend to reply thereto and that, whilst

the Court could call on them for any further assistance it might

require, they saw no necessity for oral hearings.

4. On 16 May, the Court deliberated on the procedure to be followed.

After consulting, through the Deputy Registrar, the Delegates of the

Commission and the Agent of the Government, the President directed

on 12 June that oral hearings would be held on 23 October. At the

same time he invited those appearing before the Court to complete

their written pleadings during the hearings should they so desire,

to reply to several questions listed in his Order and, as regards

the Commission, to produce to the Court various documents.

5. On 27 July, the Deputy Secretary to the Commission advised the

Registrar that the Delegates had in mind to reply to the

Government's memorial and the Court's questions during the hearings.

Documents, the majority of which were referred to in the aforesaid

Order of 12 June, were transmitted to the registry by the Commission

and the Government on 20 September and 22 October and on 8 and

11 October, respectively.

6. On 23 October, the Court held a short preparatory meeting

immediately prior to the opening of the hearings. It took note of

the Delegates' intention to have the assistance of Mr. Hofferbert

and authorised him to speak in German (Rules 29 par. 1 in fine and

27 par. 3).

7. The oral hearing took place in public on the morning of

23 October at the Human Rights Building, Strasbourg.

There appeared before the Court:

- for the Government:

Mrs. I. Maier, Ministerialdirigentin at the Federal Ministry of

Justice, Agent,

Mr. H. Bonk and Mr. H. Stöcker, Regierungsdirektoren at the same

Ministry, Advisers;

- for the Commission:

Mr. J. Frowein, Delegate,

Mr. H. Hofferbert, the applicant's lawyer, assisting the Delegate

under Rule 29 par. 1, second sentence, of the Rules of Court.

The Court heard addresses by Mr. Frowein and Mr. Hofferbert for the

Commission and by Mrs. Maier for the Government, as well as their

replies to the questions put by the Court (see paragraph 4 above).

Mrs. Maier spoke in German pursuant to the Court's decision of

29 September 1977 (Series A no. 27, p. 7, par. 10).

The Government filed several documents during the hearing and

subsequently on 3 January 1980.

AS TO THE FACTS

8. The only outstanding matter to be settled is the question of the

application of Article 50 (art. 50) in the present case. Accordingly,

as regards the facts, the Court will confine itself here to giving

some brief particulars; for the remaining details, reference should be

made to paragraphs 15 to 81 of the Court's judgment of 28 June 1978

(ibid., pp. 7-27).

9. That judgment concerned the length of actions brought by

Dr. König before the Frankfurt Administrative Court in 1967 and in 1971

to challenge, respectively, the withdrawal of the permit to run his

clinic and the withdrawal of the authorisation to practise medicine.

In the second matter, the Administrative Court had dismissed the

applicant's action by a judgment delivered on 9 June 1976 which had

been affirmed by the Hessen Administrative Court of Appeal

on 2 May 1978. Dr. König lodged an appeal (Nichtzulässigkeitsbeschwerde)

and an application to quash (Revision) but these were rejected by the

Federal Administrative Court (Bundesverwaltungsgericht), in two final

decisions, on 10 September and 18 October 1979.

In the case concerning the clinic, the Franfurt Administrative Court

had dismissed Dr. König's action on 22 June 1977. An appeal by him

against that decision is still pending before the Hessen

Administrative Court of Appeal which, with the agreement of the

parties, stayed the proceedings on 21 February 1979 pending the

outcome of the above-mentioned proceedings before the Federal

Administrative Court.

10. After delivery of the Court's judgment of 28 June 1978, the

Government and the applicant attempted, with the Commission's

assistance, to arrive at a friendly settlement of the latter's

claims, details whereof had been given by Mr. Hofferbert in his

letter of 18 September 1978 (see paragraph 3 above). The attempt met

with failure in November 1978: Dr. König found that the Government's

offer of DM 20,000 in full and final settlement was not sufficient.

11. The applicant seeks pecuniary compensation for the two heads of

damage allegedly caused to him by the violation of Article 6 par. 1

(art. 6-1): he maintains that his financial and professional situation

may have been permanently ruined and, secondly, that his personal and

professional reputation had been indirectly lowered. Without

quantifying his claims, he furnishes certain particulars - regarding

notably the average annual income he could have anticipated as a

medical practitioner and as the head of a clinic - on the basis of

which he considers it possible to gauge the extent of his aggregate

loss and to assess the fraction thereof attributable to the fact that

the "reasonable time" was exceeded. In addition, the applicant asks

for reimbursement of the expenses he incurred both in Germany, in

order to expedite the hearing of his actions, and before the

Convention institutions.

Dr. König leaves the assessment of the sum to be awarded to him to

the Court's discretion, thereby confirming the position he had

adopted in 1977 (Series A no. 27, p. 41, par. 113).

12. In their observations of 6 October 1978 (see paragraph 3 above),

the Commission's Delegates stated that they did not wish to comment

on the first of the applicant's claims which they saw as being

concerned with the consequences of the two withdrawals of

authorisation; at the hearing, they submitted that in their opinion

the attribution of specific material losses to the breach found by

the Court was impossible, at least on the strength of the evidence

before it. On the other hand, the Delegates suggest that account

should be taken of the fact that the applicant was left in a

prolonged state of uncertainty as to his professional future, and

this at a time of life - between the ages of forty-nine (in 1967)

and sixty (in 1978) - when a man is normally at the peak of his

career. They also consider that the breach of Article 6 par. 1

(art. 6-1), taken by itself, may be another factor having a

bearing on an award of just satisfaction.

As far as concerns the costs of the proceedings, the expenditure

incurred by Dr. König in order to expedite the domestic litigation

and to present his case in Strasbourg is regarded by the Delegates

as a relevant item. They express no firm view as to whether the

same applies to the expenditure arising from his applications to the

German courts for restoration of the suspensive effect of his appeal

against the withdrawel of the authorisation to practise; in their

opinion, those applications were aimed not at speeding up the

proceedings but at limiting the consequences of their excessive

length. Neither do the Delegates comment on the justification for

the figures given by the applicant.

13. The Government's position is as follows: there is no causal link

between the breach found by the Court and the alleged damage to

Dr. König's professional career; on the other hand, "reasonable",

"necessary" and proven costs resulting from the exercise of the

domestic legal remedies can give rise to compensation to the extent

that those remedies were aimed at accelerating the procedure;

furthermore, the "reasonable costs" incurred in connection with

the proceedings before the Convention institutions should be

reimbursed; finally, it is for the Court to determine whether the

applicant should be awarded monetary compensation for the

"non-material" injury he suffered by reason of the mere fact that the

"reasonable time" was exceeded.

FINAL SUBMISIONS MADE TO THE COURT

14. At the hearing, the Government requested the Court to "determine,

in accordance with Article 50 (art. 50), just satisfaction for the

applicant", "the amount and constituent elements" thereof being left

to the Court's discretion.

AS TO THE LAW

15. Article 50 (art. 50) of the Convention empowers the Court to

afford Dr. König just satisfaction on condition that, inter alia, "the

internal law" of the Federal Republic of Germany "allows only partial

reparation to be made for the consequences" of the breach found by the

judgment of 28 June. This is indeed the case here: for when

proceedings are continued beyond the "reasonable time" laid down in

Article 6 par. 1 (art. 6-1), the intrinsic nature of the wrong

prevents complete reparation (restitutio in integrum). This being so,

the only claim the applicant can make is for just satisfaction. Even

if he had been or were still able to bring such an action before a

court in his own country, the Court would not, for the reasons

explained in the De Wilde, Ooms and Versyp judgment of 10 March 1972

(Series A no. 14, pp. 8-9 and 10, par. 16 and 20), be bound to reject

the request put before it for just satisfaction. Moreover, those

appearing before the Court concur in thinking that German law does

not, in the circumstances, provide the applicant with any appropriate

remedy allowing full pecuniary indemnification.

16. Dr. König is seeking compensation for the various heads of

injury allegedly sustained as a result of the inordinate length of

the proceedings before the Frankfurt Administrative Court, as well

as reimbursement of the costs he has incurred in Germany, in order

to expedite the proceedings, and then before the Convention

institutions.

17. According to the Delegates of the Commission, in order to decide

Dr. König's claims it is first necessary to determine the extent to

which the two sets of proceedings have exceeded the "reasonable

time". In their submission, in neither action can a period greater

than four years be regarded as compatible with Article 6 par. 1

(art. 6-1). For the applicant, the proceedings could have been brought

to a close in 1973 or even earlier.

In its judgment of 28 June 1978, the Court did not endeavour to

quantify the "unreasonable time" by indicating, even

approximately, on what dates it began or what overall period it

covered. In point of fact, such an assessment seemed and still seems

hardly possible in view of the Court's conclusion that,

independently of the delays attributable to the applicant, the

failure to observe the requirements of Article 6 par. 1 (art. 6-1)

stemmed from a series of circumstances affecting the conduct of the

proceedings by the Second and Fourth Chambers of the Frankfurt

Administrative Court (Series A no. 27, pp. 34-37 and 38-40, par. 105

and 107-111).

Thus, the action relating to the withdrawal of the autorisation to

run the clinic opened with an exchange of written pleadings

extending over almost seventeen months; the first measure of

investigation was not taken until twenty-one months after

proceedings had begun and seventeen months elapsed before the Fourth

Chamber of the Administrative Court obtained the evidence given

before the professional tribunals; the transmission of the case-file

to the authorities and courts before whom Dr. König had brought his

various appeals and applications occasioned appreciable delays:

finally, more than seven years after the action had been started the

Fourth Chamber postponed judgment until the outcome of the

proceedings then pending before the Second Chamber, proceedings

which at that time were likewise stayed (Series A no. 27, pp. 36-37,

par. 104).

In the case concerning the withdrawal of the authorisation to

practise, only after three years and nine months did the Second

Chamber fix the first sitting for the hearing of evidence from

witnesses and of oral pleadings; the Chamber had waited more than

ten months before deciding to order the joinder of the Regional

Medical Society whose complaints had set in motion the procedure

before the professional tribunals and then led to withdrawal of the

two authorisations; there also, the forwarding of the case-file to

various authorities and courts entailed considerable delays; above

all, twenty-three months after the commencement of the action the

Chamber postponed judgment for twenty-one months, the reason being

that it wished to kwow the result of the criminal prosecution

launched more than a year previously against the applicant (Series A

no. 27, pp. 39-40, par. 110).

Being both overlapping and inter-connected, the delays found by the

Court hardly lend themselves to a simple process of addition, but

they are undeniable and doubtless caused the proceedings to be

protracted by some years.

It is on the basis of these facts that the Court found a breach of

Article 6 par. 1 (art. 6-1) and must now perform the function

conferred by Article 50 (art. 50).

18. Before examining in detail Dr. König's claims, the Court recalls

that its judgment of 28 June 1978 was not concerned with the

validity of the contested withdrawal of the autorisation but solely

with the conduct of the actions brought before the Frankfurt

Administrative Court. The various heads of injury possibly

occasioned by the withdrawals themselves cannot therefore be treated

as relevant items. The only heads of injury capable of giving rise

to an award of just satisfaction are those which the applicant would

not have sustained had the two actions come to a close within a

reasonable time.

19. Dr. König alleges such heads of injury but he does not prove

their existence or specify their extent; neither does he indicate the

sums to which he considers himself entitled by way of just

satisfaction. There is no denying that, as was stated by the

Commission's Delegates, it is in fact an extremely difficult matter to

identify with precision the prejudice suffered as a result of the

undue length of the domestic proceedings. Although applicants should

as a rule quantify their claims, the Court would be failing to pay

proper regard to the principle of equity imposed by Article 50

(art. 50) were it not to take into consideration the problems

confronting Dr. König in this respect. Accordingly, the Court did not

deem it appropriate to have Dr. König called on to plead the exact

amount of reparation he was claiming.

The Court points out that while the fact of exceeding the

"reasonable time" could not of itself have damaged the applicant's

reputation, as he contended it did, throughout the whole period it

lasted he was kept in a state of "prolonged uncertainty" (see

Series A no. 27, p. 37, par. 105) by reason of the dilatory nature

of the two sets of proceedings in question. At the time when the

judgment of 28 June 1978 was adopted, the proceedings had been

pending for more than ten years and ten months in the first action

(the running of the clinic) and more than seven years and one month

in the second action (the practice of medicine).

Such a state of affairs is likely to have led Dr. König to defer

unduly, in view of his age, the search for an alternative career.

This factor must be taken into account by the Court, even though it

has not been established that openings for adaptation to another

profession were available to Dr. König. In addition, the inordinate

protraction of the proceedings relating to the running of the clinic in

all probability prejudiced the applicant in prompting him to

postpone the sale or lease of the clinic and thereby to let pass

certain opportunities or possibilities. Finally, the prolonged

uncertainty in which he was kept for a few further years, whilst

awaiting the ever problematical outcome of the litigation, was a

source of permanent and deep anxiety for him; in itself, this caused

him non-pecuniary injury.

None of the above elements of damage lends itself to a process of

calculation. Taking them together on an equitable basis, as is

required by Article 50 (art. 50), the Court considers that under this

head the applicant should be afforded satisfaction assessed

at DM 30,000.

20. Dr. König can properly make an additional claim for recovery of

the costs he disbursed in his litigation before the German courts

and before the Convention institutions. This is in accordance with

the Neumeister judgment of 7 May 1974 where the Court distinguished

"between damage caused by a violation of the Convention and the

necessary costs which the applicant has had to incur in order to try

to prevent such violation, to have it established by the Commission

and later by the Court and to obtain, after judgment in his favour,

just satisfaction either from the competent national authorities or,

if appropriate, from the Court" (Series A no. 17, pp. 20-21,

par. 43).

21. Accordingly, the applicant is in the first place entitled to

reimbursement of sums expended in exercising such remedies as were

intended to expedite the proceedings.

In the applicant's submission, this was indeed the case with each of

the ten remedies he lists. The Court notes, however, that five of

the remedies, for example the constitutional applications of

11 March, 29 November and 9 December 1975, sought the restoration of

the suspensive effect of the objection he had logded against the

withdrawal of the authorisation to practise. Although referring to

the dilatory nature of the actions in question, these remedies were

not aimed at accelerating the progress of the actions but at

granting Dr. König relief from the immediate effects of the

withdrawal; consequently, the costs thereby incurred are not

material for the purposes of Article 50 (art. 50). On this point

the Court concurs with the Government's line of reasoning.

22. There remain five constitutional applications which the

Government do not contest were brought with the object of expediting

the actions pending before the Frankfurt Administrative Court,

namely the applications lodged by Mr. Demme on 18 October 1973 in

the second action and on the following day in the first action, by

Mr. Schilling on 12 November 1973 in both actions and by

Mr. von Stackelberg on 27 March 1975 in the second action.

In the Government's submission, only those applications which were

necessary or reasonable should be treated as relevant. In any event,

they add, if the Federal Scale of Lawyers' Fees (Bundes-

gebührenordnung für Rechtsanwälte) is taken as a basis, the

applicant could claim approximately DM 2,200 and not the DM 2,875.65

he is seeking.

23. The Court is of the view that Dr. König's claim is justified under

Article 50 (art. 50) if and to the extent that the remedies he

exercised and his legal costs are reasonable in the circumstances of

the case (see, mutatis mutandis, the above-cited passage from the

Neumeister judgment of 7 May 1974).

The two applications lodged on 12 November 1973 do not fulfil this

condition since less than a month before Mr. Demme had applied to

the Constitutional Court with the same object in view and the latter

Court had not yet given its ruling. Consequently, the DM 1,000 paid

by the applicant to Mr. Schilling are to be deducted from the

above-mentioned sum of DM 2,875.65.

On the other hand, Dr. König is entitled to reimbursement of

the DM 1,875.65 paid to Mr. Demme and Mr. von Stackelberg for the

applications lodged on 18 October 1973, 19 October 1973 and

27 March 1975. This amount, though a little higher than that judged

legitimate by the Government, is not however disproportionate or

unreasonable. Admittedly, in the Neumeister judgment of 7 May 1974 the

Court proceeded on the basis of the scales in force at the relevant

time under the free legal aid scheme operated for proceedings before

the Commission and for applicants' relations with the Commission's

Delegates (Series A no. 17, p. 21, par. 44), but this decision stemmed

from the fact that Mr. Neumeister, unlike Dr. König, had not produced

detailed fee notes (Series B no. 15, p. 134; Series A no. 17,

pp. 19-20, par. 42).

24. As far as the proceedings before the Convention institutions are

concerned, the applicant did not receive free legal aid. He paid

DM 1,075.10 to Mr. Heldmann and FF 3,000 (the equivalent, at the

relevant time, of DM 1,738.20) to Mr. Burger, his two counsel before

the Commission; DM 1,000 to Mr. Burger and DM 2,140.60 to

Mr. Hofferbert, his lawyers at the merits stage (Article 6 par. 1)

(art. 6-1) before the Court; finally, DM 2,832 to Mr. Hofferbert,

for having assisted the Delegates during the proceedings relating to

Article 50 (art. 50).

Those appearing before the Court agree that the costs borne by

Dr. König under these various heads are relevant for the purposes of

Article 50 (art. 50), but they espress divergent opinions as to the

correct basis of calculation. The Governement consider that the proper

course would be to adopt a uniform European rule, in the event the

scale established by the Commission for free legal aid; they cite the

Neumeister judgment of 7 May 1974. The Delegates, for their part, find

it rather anomalous that applicants who are nationals of countries

where justice is less expensive should obtain full indemnification

whereas other applicants would have to pay a sometimes considerable

balance themselves.

The Court recalls that the decision reached in the above-cited

judgment is to be explained solely by the facts of the case (see

paragraph 23 above). In the present instance, the Court sees no

reason for refusing full reimbursement of the costs incurred insofar

as they prove reasonable.

25. The Government do not, in point of fact, raise any objection to

the requests concerning the fees of Mr. Burger, but they do contest

the first of Mr. Hofferbert's two fee notes; they claim, in

particular, that Mr. Hofferbert's assistance was not indispensable.

The Court agrees with the Governement's line of thinking. Mr. Burger

alone appeared before the Court in 1977 to assist the Commission's

Delegates in pursuance of Rule 29 par. 1, second sentence, of the

Rules of Court (see Series A no. 27, pp. 7 and 41, par. 13 and 113).

Mr. Burger had for a long time been acquainted with the brief in

Dr. König's case, since he had been instructed to represent the

applicant before the Commission. Furthermore, the applicant has not

shown that at the merits stage before the Court co-operation between

Mr. Burger and Mr. Hofferbert was essential.

According to the Government, the fees paid by the applicant to

Mr. Heldmann and then to Mr. Hofferbert, his lawyer during the

proceedings relating to Article 50 (art. 50), do not correspond to

the scales in force in the Federal Republic of Germany; these fees, so

it is said, amount to practically the double. They cannot however, in

the Court's view, be regarded as out of proportion.

26. Dr. König finally requests recovery of the personal expenses of

DM 1,269 occasioned, for the most part, by his journeys to

Strasbourg between 1973 and 1978. The Governement state that they

have no objection to make on this count.

According to Rule 26 par. 3 of the Commission's Rules of Procedure,

the applicant or his representative shall appear before the

Commission to present the application in an oral hearing appointed by

the Commission or for any other purpose if so invited by the

Commission. While the applicant does not have the status of a party

before the Court, his presence in the court-room is nevertheless of

great value, for it can provide the Court with the means of

immediately ascertaining, either directly or through the Delegates or

those assisting them (Rules 38 and 29 of the Rules of Court), the

applicant's views on the issues affecting him.

27. On the basis of these considerations, the Court assesses at

DM 9,789.95 the sum to be paid to Dr. König in respect of his legal

costs and personal expenses, to which are to be added DM 30,000

for the injury sustained as a result of the "reasonable time"

stipulated by Article 6 par. 1 (art. 6-1) having been exceeded

(see paragraph 19 above).

FOR THESE REASONS, THE COURT

Holds unanimously that the Federal Repulic of Germany is to pay

Dr. König compensation of DM 39,789.95.

Done in English and in French, the French text being authentic, at

the Human Rights Building, Strasbourg, this tenth day of March, one

thousand nine hundred and eighty.

For the President

Signed: Léon LIESCH

Judge

Signed: Marc-André EISSEN

Registrar