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FIFTH
SECTION
CASE OF KUCHEJDA v. GERMANY
(Application
no. 17384/06)
JUDGMENT
STRASBOURG
24 June 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kuchejda v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee 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
- The
case originated in an application
(no. 17384/06) 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 national, Mr Robinson
Kuchejda (“the applicant”), on 24 April 2006.
- The
applicant was represented by Mr K. H. Friauf, a lawyer practising in
Bergisch Gladbach, and subsequently by Mr M. Rath, a lawyer
practising in Düsseldorf. The German Government
(“the Government”) were represented by their Agent, Mrs
A. Wittling-Vogel, Ministerialdirigentin, of the Federal
Ministry of Justice.
- On
6 April 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. It 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
- The
applicant was born in 1945 and lives in Düsseldorf.
A. Background to the case
- The
applicant and his brother are the only grandchildren and heirs of
their grandmother who died in 1988.
- In
a will recorded by a notary on 27 February 1982 the
grandmother appointed the applicant and his brother heirs of her
estate in equal parts and bestowed on the applicant’s brother,
by means of a preferential legacy (Vorausvermächtnis),
her participation in an enterprise. By a notarial deed of 2 December
1982 she supplemented the previous legacy and further assigned a plot
of land with a house built on it to the applicant’s brother.
- On
4 May 1983 the grandmother concluded a notarial contract of
inheritance (Erbvertrag) with the applicant. The contract
amends the previous wills in so far as the applicant was assigned the
grandmother’s deposit and securities accounts (Depot- und
Wertpapierkonten) as well as her entire real property including
the plot of land that had previously been bequeathed to the
applicant’s brother.
- On
4 January 1984 the Charlottenburg District Court appointed a guardian
for the then ninety-year-old grandmother. On 21 and 22 February 1984
the grandmother as well as the guardian challenged the contract of
inheritance for error and fraudulent misrepresentation (Irrtum und
arglistige Täuschung). They claimed that the grandmother had
only entered into the contract because the applicant had pretended
that this was necessary to achieve equal treatment for her grandsons,
whereas in reality such equal treatment had already been achieved by
her wills of 27 February 1982 and 2 December 1982.
B. The proceedings before the Düsseldorf Regional
Court
- On
23 February 1988 the grandmother, represented by her guardian,
instituted proceedings before the Düsseldorf Regional Court
(Landgericht) against the applicant, alleging that the
contract of inheritance of 4 May 1983 was null and void.
- A
hearing took place on 2 November 1988.
- On
22 February 1989 the applicant lodged a counterclaim.
- Following
the grandmother’s death the applicant’s brother, by
written submissions of 31 May 1989, declared that he wished to
continue the proceedings as a plaintiff.
- By
written submissions of 9 October 1989 the applicant requested that
the action be dismissed and requested that his brother be obliged to
consent to the division of the deceased’s estate pursuant to
the terms and conditions as stipulated in the contract of inheritance
dated 4 May 1983 since the latter was valid.
- A hearing that was scheduled for 31 October 1989 was
not attended by the applicant’s brother and therefore postponed
to 21 November 1989.
- On 28 February 1990 the Düsseldorf Regional Court
ordered the hearing of witnesses including in particular the notaries
who had recorded the wills and the contract of inheritance as well as
the taking of an expert opinion regarding the value of the deceased’s
participation in the enterprise. On 27 March 1990 the Chamber of
Industry and Commerce suggested two possible experts.
- In
the following, hearings had to be postponed on several occasions by
the Regional Court on the ground that the witnesses were unable to
attend at the scheduled dates or had to be exempted from their
professional obligation of confidentiality. On 7 November
1990 a hearing took place, on the occasion of which, inter alia,
the notary who had been involved in the recording of the deceased’s
legacies in 1982 was heard as witness.
- On
15 March 1991 the notary who had recorded the contract of inheritance
of 4 May 1983 informed the Regional Court that he had meanwhile been
exempted from his confidentiality obligation.
- On
25 June 1991 the applicant’s newly appointed lawyers requested
access to the case files. They returned the files in August 1991.
- On
30 March 1992 the Regional Court heard the notary who had recorded
the contract of inheritance of 4 May 1983.
- On
7 December 1992 following a renewed change of counsel,
the applicant again requested access to the case files and a
hearing scheduled for 23 December 1992 had to be postponed
for this reason. By written submissions dated 5 March 1993 the
newly mandated lawyers requested the Regional Court not to appoint an
expert before a further hearing had taken place.
- On
8 March 1993 the Regional Court scheduled a hearing for
4 August 1993. At the applicant’s request of 8 April
1993 the hearing was postponed to 15 September 1993.
- By
a decision of the Regional Court of 29 April 1993 the hearing
scheduled for 15 September 1993 was cancelled since there
was no basis for a friendly settlement between the parties.
- By
a decision of 28 September 1994 the Regional Court specified its
order for the taking of an expert opinion and by a decision of
19 January 1995 appointed the expert.
- In
the period from December 1995 until August 1997 the applicant’s
lawyers filed several requests to be granted access to the case files
that had already been transmitted to the expert. Following
examination of the files by the applicant’s lawyers, they were
returned to the expert on 6 August 1997. The applicant
further requested to be granted access to the files in the
guardianship and curatorship proceedings with respect to the deceased
and which had been conducted by the Berlin-Charlottenburg District
Court.
- On
27 December 1997 and 26 January 1998, the Regional Court asked the
expert for progress reports regarding the finalisation of his
opinion. The expert announced submission of his report for
31 March 1998.
- Following further inquiries by the Regional Court on
28 April 1998 and 15 May 1998, the expert
submitted two reports on 10 and 22 June 1998
respectively. On 16 and 26 June 1998 the Regional
Court forwarded the respective expert opinions to the applicant and
set a deadline of six weeks in each case for submission of any
comments by the applicant or for a request to hear the expert.
- By
written submissions dated 29 January 1999 and
31 August 1999 the applicant challenged the findings
of the expert as to the value of the participation in the enterprise
as well as the underlying method of calculation.
- On
8 September 1999 a final hearing took place.
- In
its judgment of 20 October 1999 the Regional Court found in favour of
the applicant’s brother and dismissed the counterclaim. It held
that the contract of inheritance of 4 May 1983 had been duly
challenged in accordance with the relevant provisions of the German
Civil Code (Bürgerliches Gesetzbuch) and was thus invalid
(unwirksam). In accordance with the testamentary legacies of
27 February and 2 December 1982, the Regional
Court obliged the applicant to give his consent to the transfer of
title to the participation in the enterprise as well as the plot of
land specified in the legacies to his brother, and to release half of
the deceased’s bank deposit and half of her real estate fund
participations for the latter’s benefit.
- The
judgment was served on the applicant on 2 November 1999.
C. The proceedings before the Düsseldorf Court of
Appeal
- By
written submissions dated 29 November 1999 the applicant
lodged an appeal with the Düsseldorf Court of Appeal
(Oberlandesgericht).
- A
hearing took place on 16 June 2000.
- On
14 July 2000 the Court of Appeal made a proposal for a friendly
settlement which was not accepted by the parties. The Court of Appeal
pointed out that the assessment of the case would depend on the
taking of further evidence regarding the question as to whether the
contract of inheritance had been duly challenged or not.
- Hearings
took place on 30 March 2001, 11 January 2002 and
1 March 2002.
- By a decision of 26 April 2002 the Court of Appeal
ordered the taking of evidence with a view to further investigating
the deceased’s motives when formulating her wills and with a
view to determining the supposed amount of inheritance tax at the
time when the contract of inheritance was concluded. On
9 October 2002 the expert was appointed and the finalised
expert opinion was transmitted to the parties on 11 February 2003
for comments.
- On
18 July 2003 a further hearing was held.
- By written submissions of 21 July 2003 the applicant
again argued that the expert opinions obtained at first instance were
misleading and stressed that in view of the deviation from the expert
opinions obtained by him on his own initiative the expert would have
to be heard and a further expert opinion should be ordered.
- In
its judgment dated 19 September 2003, the Court of Appeal
obliged the applicant to give his consent to the passing of title to
the deceased’s participation in the enterprise to his brother
and dismissed the remainder of the claim as well as the counterclaim.
- The
Court of Appeal stated that the interpretation of the contract of
inheritance in the light of the deceased’s underlying
intentions showed that she had not achieved her goal of treating her
grandsons equally in financial terms. On the basis of the value of
the participation as established by the expert opinion dated
10 June 1998 and by taking into account the supposed
inheritance tax incumbent on the applicant’s brother as of this
date, the court awarded the applicant an advance payment out of the
inheritance as a compensation for the legacies made to his brother.
- As
regards the applicant’s objection against the expert opinion
the Court of Appeal argued that the value of the deceased’s
participation in the enterprise could be deducted from the total
market value of the enterprise as established by the expert and that
there was no indication that the basis of calculation of the market
value itself had been erroneous. It therefore held that it had not
been necessary to hear the expert, in particular in view of the fact
that the applicant did not make a corresponding request within the
deadline set by the Regional Court at first instance.
- The
Court of Appeal’s judgment was served on the applicant on
8 October 2003. The applicant’s objection against the
judgment was rejected by the Court of Appeal on 2 December 2003.
D. The proceedings before the Federal Court of Justice
and the Federal Constitutional Court
- On
7 November 2003 the applicant lodged a complaint with the Federal
Court of Justice (Bundesgerichtshof) to grant him leave to
appeal. He argued, inter alia, that the Court of Appeal’s
judgment had been a surprise decision as the court’s
interpretation of the contract of inheritance deviated from the
court’s assessment of the case as set out in the friendly
settlement proposal of 14 July 2000. Furthermore, the interpretation
of the contract of inheritance by the Court of Appeal had been
contrary to the principles governing the interpretation of wills and
contracts of inheritance as established by German legal literature
and jurisprudence. He further reiterated that the evaluation of the
value of the deceased’s participation in the enterprise had
been erroneous and that the judgment had thus as a whole been
arbitrary. He finally asserted that it was necessary to obtain a
further expert opinion.
- On
29 September 2004 the Federal Court of Justice (Bundesgerichtshof)
rejected the applicant’s request to be granted leave to appeal
stating that there was no indication that the interpretation of the
contract of inheritance by the Court of Appeal had been arbitrary.
- On
3 November 2004 the applicant lodged a constitutional complaint. By a
letter of 10 January 2005 the applicant’s counsel requested the
Federal Constitutional Court to await his supplementary submissions
before deciding on his complaint. On 29 July 2005 following an
extension of the related time limit granted by the Federal
Constitutional Court, the applicant submitted additional written
observations. On 19 October 2005 the Federal Constitutional Court
declined to consider a constitutional complaint lodged by the
applicant. The decision was served on the applicant on 28 October
2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government acknowledged that the overall length of the proceedings
was excessive and that the proceedings before the Düsseldorf
Regional Court and the Düsseldorf Court of Appeal were unusually
long. They specified that while there was no indication that the
length of the proceedings before the Federal Court of Justice and the
Federal Constitutional Court failed to comply with the “reasonable
time” requirement, there had indeed been delays of at least
eleven and a half months in the proceedings attributable to the
Düsseldorf Regional Court, in particular due to the way in
which the order to take evidence dated 28 February 1990 was
carried out, and another period of at least three and a half months
attributable to the Düsseldorf Court of Appeal. However, the
length of the proceedings had been due, inter alia, to the
great complexity of the case that had required the hearing of
witnesses as regards the validity of the deceased’s
testamentary dispositions and their interpretation, the taking of
several expert opinions at first and second instance regarding the
value of her estate as well as the consultation of files in separate
proceedings conducted before the Berlin-Charlottenburg District
Court. The Government maintained that considerable delays had
further been caused by the conduct of the applicant, in particular
during the first instance proceedings. The applicant’s repeated
changes of counsel had been accompanied by requests for the extension
of deadlines and necessitated the rescheduling of hearings. His
numerous requests to be granted access to court and expert files and
his contradictory requests regarding the commissioning of further
expert opinions had also significantly contributed to render the
proceedings more complex. As regards the importance of what was at
stake in the proceedings, the Government, while accepting that the
dispute was of great personal significance to the applicant, adduced
that his case did not fall within the category of cases that required
particularly swift action because of their pre-eminent importance in
terms of Convention law.
- The
period to be taken into consideration began on 23 February 1988
when the grandmother’s guardian brought an action before the
Düsseldorf Regional Court and ended on 28 October 2005
when the decision of the Federal Constitutional Court declining to
consider the applicant’s constitutional complaint was served on
the latter. It thus lasted more than seventeen years and eight months
for four levels of jurisdiction. At first instance the proceedings
lasted until 2 November 1999,
the day on which the Regional Court’s decision was served on
the applicant, more than eleven years and eight months. The
proceedings before the Düsseldorf Court of Appeal at second
instance lasted from 29 November 1999 until 8 October 2003,
more than three years and ten months. Each of the subsequent
proceedings before the Federal Court of Justice and the Federal
Constitutional Court lasted for approximately one year.
A. Admissibility
- The
Court notes that this complaint 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
- 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).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- 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.
- As to the conduct of the proceedings, the Court
accepts that there is no indication that the length of the
proceedings before the Federal Court of Justice and the Federal
Constitutional Court failed to comply with the “reasonable
time” requirement under Article 6 § 1 of the Convention.
The Court further acknowledges that the proceedings were of some
complexity and necessitated the taking of several expert opinions at
different levels of jurisdiction and that the applicant’s
conduct has contributed to some extent to the length of the
proceedings. However, the Court can not ignore that it
took almost five years from the Regional Court’s order of
28 February 1990 to take an expert opinion on the value of
parts of the deceased’s estate until the appointment of the
expert on 19 January 1995 and more than another three years
until an expert opinion was submitted on 10 June 1998, more
than eight years in total. The Court further notes that it took the
Regional Court until 30 March 1992 to arrange for a hearing of the
notary who had recorded the contract of inheritance even though the
latter had informed the Regional Court already on 15 March 1991
that he had been exempted from his obligation of confidentiality. The
Court finally observes that at second instance following the failed
attempt in July 2000 to encourage the parties to conclude a friendly
settlement, it took the Court of Appeal until 9 October 2002
to appoint an expert with a view to establishing an opinion on the
amount of the supposed inheritance tax.
- Having
regard to the above considerations and 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. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
- The
applicant further complained under Article 6 § 1 that the
conduct and outcome of the proceedings before the civil courts had
been in breach of his right to a fair trial and right to a fair
hearing. He alleged in particular that the domestic courts in their
assessment of the case took into consideration neither his objections
to the expert opinions obtained by the Regional Court at first
instance nor the expert opinions obtained by him on his own
initiative. He further argued that the Court of Appeal had rejected
his requests to hear the expert who rendered the opinions at first
instance and to obtain evidence from further experts. The applicant
also maintained that the Court of Appeal’s judgment had been an
arbitrary surprise decision as the court’s interpretation of
the contract of inheritance had been unforeseeable, contrary to the
principles of German law, and because he had not been given the
opportunity to comment on the court’s assessment.
- The
applicant alleged in addition that the decisions of the domestic
courts infringed his right to protection of property under Article 1
of Protocol No. 1 of the Convention since his claim to the part of
the deceased’s estate as bestowed on him under the contract of
inheritance had been rejected. The applicant finally complained under
Article 1 of Protocol No. 1 of the Convention in his capacity as
grandson and beneficiary under the contract of inheritance that the
deceased’s right to freely dispose of her estate causa
mortis had been infringed by the court decisions.
- The
Court has examined the remainder of the applicant’s complaints.
However, 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 finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the complaints is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 6,400,000 euros (EUR) in respect
of pecuniary damage comprising an amount of EUR 3,400,000 equal to
the value of the remainder of his expected inheritance and an
additional amount of EUR 3,000,000 interest on this amount at a rate
of 5% for the period as from the beginning of 1993. He started from
the assumption that had the proceedings been conducted expeditiously
the distribution of the deceased’s estate should have been
finalised by then and based his claim on the average interest rate
that could have been obtained on the German capital market during the
period in question. He further claimed compensation for the loss of
use of the real property in Berlin for a period of twenty years as
well as for the deposit and securities accounts and left the amounts
to be awarded in this respect to the Court’s discretion.
- In respect of non-pecuniary damage for the excessive
length of the proceedings which had negatively affected his conduct
of life since he could not dispose of the inheritance and which had
caused him serious financial, physical and psychological problems the
applicant sought EUR 320,000 representing 5% of the pecuniary damage
claimed.
- The
Government argued that the applicant’s claims for pecuniary
damages had no connection with the delays to the proceedings. As
regards the non-pecuniary damage claimed, the Government maintained
that the applicant’s claims were excessive and left the matter
to the Court’s discretion.
- The
Court finds that the applicant did not demonstrate that the alleged
pecuniary damage had actually been caused by the length of the
proceedings before the Regional Court and does not discern a causal
link between the violation found and the pecuniary damage alleged.
In particular, it cannot speculate as to what the outcome of the
proceedings would have been had they satisfied the requirements of
Article 6 § 1 as to their length (see Sürmeli v. Germany
[GC], no. 75529/01, § 144, ECHR 2006 ...).
Accordingly, it considers that no award can be made to the applicant
under this head. On the other hand, the Court considers that the
applicant must have sustained non-pecuniary damage but finds that the
amount claimed by the applicant in this regard is excessive. Ruling
on an equitable basis, it awards him EUR 11,000 under that head.
B. Costs and expenses
- The
applicant also claimed EUR 1,069,000 in respect of costs and
expenses incurred before the domestic courts and EUR 140,000 for
those incurred before the Court. Documentary evidence was provided
with respect to costs related to the proceedings before the Regional
Court, the Court of Appeal and the Federal Court of Justice.
- The
Government contested these claims and argued that the applicant had
not sufficiently substantiated them. They further maintained that
there was no causal connection between these costs and the duration
of the proceedings.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses incurred in the proceedings
before the Court. It further considers that the applicant has not
established that the costs and expenses claimed for the proceedings
before the domestic courts were incurred by him in order to seek
prevention or rectification of the specific violation caused by the
excessive length of the proceedings. However, seeing that in length
of proceedings cases the protracted examination of a case beyond a
“reasonable time” involves an increase in the applicants’
costs (see, among other authorities, Sürmeli v. Germany [GC],
no. 75529/01, § 148, ECHR 2006 ...), it
finds it reasonable to award the applicant EUR 500 under this
head.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
(i) EUR
11,000 (eleven thousand euros) in respect of non pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant in respect of the above
amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
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
