D. v. the Federal Republic of Germany



The European Commission of Human Rights sitting in private on

5 May 1986 the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 23 November 1984 by

R.D. against the Federal Republic of Germany and registered on

31 January 1985 under file No. 11369/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1916 and living in

Lindan-Bodolz. He is represented by Messrs. Schroth, Kiesinger a.o.,

lawyers in Karlsruhe.

I. The previous application No. 9320/81

The applicant has lodged a previous application (No. 9320/81) which

was rejected on 15 March 1984 as being manifestly ill-founded as the

applicant had concluded in domestic proceedings a friendly settlement

with the Federal Republic of Germany and the Commission therefore

considered he could no longer claim to be a victim of the alleged

violations. The applicant had complained of alleged unfairness and of

the length of civil proceedings instituted by him against the Federal

Republic of Germany and nine further defendants. He also complained of

a violation of Article 8 of the Convention (Art. 8) alleging illegal

interferences by public officials with his private company. He

further invoked Article 10 of the Convention (Art. 10) and Article 1

of the First Protocol (P1-1) alleging that he had been economically

dependent on public authorities and therefore could not freely express

his opinion about certain actions of public officials affecting his

private company and eventually causing its bankruptcy. Finally he

invoked Article 14 of the Convention (Art. 14). The previous

application was based on the following facts: The applicant was the

owner of an important company specialised in the production of long

lasting bread. The company's main customer was the Federal Army. The

orders were made by the Federal Supply Office (Bundesamt für

Wehrtechnik und Beschaffung) of the Federal Defence Ministry. In 1962

difficulties arose in the relations between the applicant and the

Federal Defence Ministry. Bread deliveries were refused or accepted

with delays on the grounds that they did not correspond to the samples

or were defective and that the production plants were not in

conformity with hygienic standards. The applicant considered the

objections to be unjustified and arbitrary. In 1972 his company went

bankrupt. In 1974 bankruptcy proceedings were discontinued in default

of bankruptcy assets.

In March 1973 the applicant lodged an action against the Federal

Republic and some public officials requesting damages in the amount of

more than 19 million DM. As legal aid was refused he reduced his

claim to DM 160,000. On 8 January 1976 the Koblenz Regional Court

(Landgericht) dismissed the action. On 7 March 1979 the Koblenz Court

of Appeal (Oberlandesgericht), having granted legal aid concerning

claims amounting to DM 25,000, rejected the applicant's appeal against

the judgment of 8 January 1976. On 12 January 1981 the Federal Court

(Bundesgerichtshof) quashed the appellate court's decision as far as

it concerned claims amounting to DM 129,000 and to that extent sent

the case back to that court.

Previously on 2 January 1981 the Federal Constitutional Court

(Bundesverfassungsgericht) had dismissed a constitutional complaint

lodged by the applicant.

On 26 January 1981 the applicant introduced his previous application

with the Commission. On 7 May 1982 the Commission decided to

communicate that application to the respondent Government for

observations on its admissibility and merits.

In the meantime, on 23 May 1981, the applicant extended his claims to

DM 10,966,644 in the domestic proceedings pending before the Koblenz

Court of Appeal. After a number of oral hearings, the taking of

evidence and challenges of judges the parties concluded the following

friendly settlement in court on 25 March 1983:

"Settlement

I. In compensation for all of the applicant's claims arising out of

the facts on which his action and the pleadings by which he extended

his action are based, the defendant pays to the plaintiff a sum of

DM 2,4 million (DM 2,400,000). This sum is composed of the following

items in dispute:

........

(List of the different amounts relating to that part of the

applicant's action which had been remitted by the Federal Court to the

Koblenz Court of Appeal.)

II. For this amount interest of 9.5% is paid with effect from

1 January 1976. In order to satisfy all the interest claims of the

applicant for the period up to 31 December 1975 the defendant pays a

lump sum of DM 320,000.

III. (This item provided that payment was to be made on a special

account of applicant's counsel who acted as trustee and had to pay off

certain creditors.)

IV. Possible claims of the plaintiff which may arise out of

Application No. 9320/81 before the European Commission of Human Rights

in Strasbourg are not affected by this settlement.

V. The costs of the proceedings and the settlement are set off

against each other (gegeneinander aufgehoben).

The total sum of DM 4,371,000 was paid by the Federal Republic of

Germany to the applicant's lawyer on 28 March 1983.

In view of the above friendly settlement the respondent Government

argued, inter alia, in the proceedings concerning the admissibility of

the applicant's previous application that interest in the amount of

DM 1,971,100 was paid in accordance with the friendly settlement as a

compensation for the duration of the proceedings to the extent to

which the applicant's claims had been recognised in the settlement.

Had the other part of his civil action also been successful he would

have been entitled to the payment of interest in that respect as well.

However, since that part of his action had been dismissed by a final

judgment he had not suffered any damage in this respect as a result of

the length of the proceedings.

The respondent Government concluded that the applicant could no longer

claim to be a victim under Article 25 of the Convention (Art. 25) with

regard to the part of his civil action which was dismissed in 1981 and

which was the subject of Application No. 9320/81.

The applicant replied that the settlement reached on 25 March 1983 was

also the subject of his application. He recalled that any claims

which may arise out of his application had been excluded from the

settlement. He pointed out that he agreed to the settlement solely

because of his old age (67), his poor health (90% invalidity), because

the proceedings had already lasted for ten years and would have lasted

for several further years before they would have been terminated, and

since the prospects of success of his claim decreased due to

difficulties in obtaining evidence after so long a time. He contested

the Government's view that he could no longer claim to be a victim

under Article 25 of the Convention (Art. 25). He had been a victim

with regard to that part of his action where a settlement had been

reached and he still was a victim with regard to the partial dismissal

of his action by a final decision of the Federal Court. That his

action had been dismissed in this respect was due to the following

circumstances: new evidence had been obtained from the declarations

of two witnesses on 7 August 1979. However, this evidence was taken

too late since the Koblenz Court of Appeal had given its judgment on

7 July 1979. The Federal Court when examining an appeal on points of

law cannot consider newly obtained evidence. Had this court been in a

position to examine his appeal in the light of the new evidence it

would probably have remitted the case as a whole back to the Koblenz

Court of Appeal.

However, the declarations of the witnesses had been decisive for

reaching the settlement. When accepting the settlement he had to

renounce a part of his claim which has still to be substantiated. In

any event, in this respect he was also a victim of a violation of the

Convention and included this claim in his previous application.

On 15 March 1984 the Commission rejected the previous application on

the ground that the applicant was no longer a victim of the alleged

violations. It noted that in accordance with the settlement of

25 March 1983 the applicant was paid compensation of DM 2.4 million and

interest in the amount of DM 1,971,100, namely DM 320,000 up to

31 December 1977 and 9.5% interest with effect from 1 January 1976.

Taking into account that the legal interest rate generally was not

higher than 4% it considered that the length of the proceedings was in

fact one element of relevance for the agreement on the interest paid.

It furthermore noted that following the agreement reached on

25 March 1983 the applicant was placed in a better position as at the

time when he reduced his claim on 19 September 1975 from approximately

19 million DM to DM 160,000 or when the Federal Court remitted his

action to the Koblenz Court of Appeal in the amount of DM 129,000 on

12 January 1981.

The Commission also noted that the settlement was proposed by the

Court and accepted by the parties at a hearing which had been fixed

after the decision of 7 May 1982 to communicate the application to the

respondent Government.

It concluded that it was the practical effect of the settlement that

the applicant's claims against the defendant before the German courts

were satisfied to a great extent.

On the other hand the Commission recognised that there may be

situations in which a party to proceedings that have been protracted

beyond a reasonable time or that have been unfair might suffer

consequences which are not redressed by an ultimate decision in his

favour. In this context it had regard to the applicant's argument

that the settlement had to be seen in the light of the particular

circumstances and that difficulties of proof and the expectation that

the proceedings might still continue for a considerable time had

influenced him to accept a lower sum than he would otherwise have

obtained.

The Commission found however that the applicant did not act under

constraint when he renounced the possibility of obtaining higher

compensation and a judgment on the merits in accordance with the

guarantees of Article 6 para. 1 of the Convention (Art. 6-1).

It added that nothing had been put forward to indicate that the

applicant suffered disadvantages from the conduct of the proceedings

by the German courts which had not been covered by the settlement in

question.

In this context the Commission had had regard to the applicant's

submission that he was a victim of a violation of the Convention in so

far as his action for damages had been definitely dismissed by the

Federal Court of Justice on 30 April 1980.

It noted that the parties had expressly agreed to exempt from the

settlement any possible claims which might be derived from the present

application. On the other hand the payment provided for in the

settlement covered all of the applicant's claims arising out of the

facts on which his action for damages and the pleadings by which he

extended his action were based.

Although the amount of compensation to be paid in the settlement was

calculated solely on the basis of that part of the action which had

been remitted to the Koblenz Court of Appeal the Commission considered

that the settlement covered the applicant's action for damages as a

whole, that means the dismissed part as well as the part which had

been remitted for a new decision. In the Commission's opinion the

favourable terms of the settlement would appear to have been proposed

also in view of any defects in the proceedings and had the purpose of

terminating the long and complicated proceedings to the satisfaction

of both parties.

The Commission concluded therefore that following the settlement of

25 March 1983, the applicant no longer had any complaint under the

Convention that could be remedied by pursuing his application.

II. The present application

The applicant submits that the Commission's decision rejecting his

application, No. 9320/81, was influenced by errors and cannot be

maintained taking into account the following considerations which in

his opinion are also based on new relevant facts.

The Commission wrongly considered that the friendly settlement which

he accepted constituted an advantageous solution for him.

The contrary was true. In fact his alleged claims including interests

amounted to DM 14,708,714 while he only received DM 4,371,100, i.e.

only 29.5% of what he claimed. In addition the Commission did not

take into account that his debts amounted to 3.5 million DM plus

interest.

The rate of legal interest for claims of merchants was 5% and not, as

stated in the Commission's decision, 4%. In any event he had himself

to pay 9.7% interest to his creditors, therefore the interest rate of

9% fixed by the friendly settlement in no way repaired the damages

sustained by him.

He had been led to accept the friendly settlement because the

presiding judge of the appellate court gave him to understand that

otherwise some more years would probably elapse before a final

decision was given.

COMPLAINTS

The applicant complains that he was forced by the appellate court to

accept an unsatisfactory friendly settlement and that the Commission

nevertheless regarded this settlement as a reason no longer to

consider him as a victim of the violations alleged with his previous

application. He points out that the settlement expressly left

undecided possible claims which might arise out of his previous

application.

He argues that in obliging him to accept a settlement the appellate

court violated Article 6 of the Convention (Art. 6). This violation

had to be seen in the context of the previous violations of his right

to a fair trial, for which he had not yet received any reparation. He

considers that in these circumstances he is a victim of a continued

violation against which an effective domestic remedy was not

available, as he could not be expected to continue costly and time

wasting proceedings before German courts.

For these reasons, the Commission should reconsider his previous

application in the light of the new information submitted by him.

THE LAW

The applicant repeats his complaints raised in his Application

No. 9320/81 which the Commission has already examined and rejected. It

follows that, by virtue of Article 27 para. 1 (b) of the Convention

(Art. 27-1-b), the Commission may not deal with the present

application unless it contains "relevant new information".

The applicant considers as "relevant new information" his allegation

that the appellate court's presiding judge made him accept the

settlement in that he pointed out that the proceedings would otherwise

not be terminated in the near future. However, this complaint has in

substance already been submitted in the course of the previous

application. In his reply to the respondent Government's observations

on admissibility and merits, the applicant had in fact pointed out

that he agreed to the settlement solely:

- because of his old age;

- because of his poor health;

- because the proceedings had already lasted for ten years and would

have lasted for several further years before they would have been

terminated; and

- because the prospects of success of his claim decreased due to

difficulties in obtaining evidence after so long a time.

The applicant's present arguments do not add anything new to his prior

submissions. The Commission considered these submissions in its

decision of 15 March 1984 and expressed the view that the applicant

did not act under constraint when he renounced the possibility of

obtaining higher compensation and a judgment on the merits

(see point 2. of the Law on page 26 of the decision of 15 March 1984).

The applicant further submits with his present application that the

Commission wrongly considered the result of the settlement to be

advantageous for him. He points out in this context that the

Commission wrongly considered that the legal interest rate would have

been 4% while for a merchant it would have been 5%. In any event the

interest rate of 9% consented to him in the settlement was not at all

advantageous as he had to pay 9.7% interest himself to his creditors.

In addition he points out that by accepting the settlement he obtained

only 29.5% of what he had initially claimed and that the sum he was

eventually paid hardly covered his own debts.

However, these arguments do not reveal any relevant new facts either.

It has been stated in the Commission's decision of 15 March 1984 that

the applicant's company went bankrupt and that bankruptcy proceedings

were discontinued in 1974 in default of bankruptcy assets. It follows

therefrom that various debts remained unpaid since 1974 and before and

that in regard to these debts interests likewise had to be paid. The

Commission also knew when rejecting the previous application

that the applicant's initial claim amounted to DM 15,751,016.30, a sum

considerably higher than the amount paid to him in accordance with the

settlement. The applicant even pointed out in his observations in

reply concerning his first application that the settlement

negotiations were based on the sum initially claimed by him (see

page 20, penultimate paragraph, of the decision of 15 March 1984).

The Commission was thus aware, on 15 March 1984, of the fact that debts

still existed and that in accepting the settlement the applicant only

obtained a part of what he originally claimed. As the settlement

which the applicant accepted provided for an interest rate of 9% it is

further of no paramount importance whether the legal interest rate

would have been 4% or 5%. Consequently the applicant's further

submissions likewise do not contain any relevant new information which

would have altered the basis on which the previous decision was taken.

It follows that the application has to be rejected in accordance with

Article 27 para. 1 (b) of the Convention (Art. 27-1-b) as being

substantially the same as a matter which has already been examined by

the Commission, no relevant new information having been submitted.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)