EHRM, 11-01-2007, nr. 20027/02

On 30 November 1982 the applicant lodged a compensation claim against the State of Lower Saxony with the Hanover Regional Court (Landgericht).

On 5 January 1983 the Regional Court, upon the applicant's request and with the defendant's consent, decided to suspend proceedings pending the proceedings before the administrative courts.

On 14 December 1987 the Regional Court decided not to schedule a hearing before the Federal Constitutional Court had given its decision on the applicant's complaint against the administrative courts' judgments.

On 20 September 1988 the applicant informed the Regional Court that he had lodged an application against the Federal Constitutional Court's decision with the European Commission for Human Rights and requested that the proceedings remain suspended.

On 21 December 1988 the Regional Court refused to further suspend the proceedings.

On 8 March 1989 the Celle Court of Appeal rejected the applicant's complaint against that decision.

On 17 March 1989 the applicant, once again, requested to suspend the proceedings.

By letter to the Regional Court of 7 February 1990 the applicant requested that the proceedings should be continued. Referring to expert opinions submitted by fifteen legal scholars, he claimed that the evaluations of his two examination papers were incorrect. Alleging that the poor grades had caused his psychological illness and had thus prevented him from completing his studies and from pursuing a university career, he claimed 463,300 Deutschmarks (DEM) as damages for lost income, a monthly pension and further compensation for immaterial damage suffered by him.

On 8 June 1990 the Regional Court refused to grant the applicant legal aid.

On 19 March 1991 the Celle Court of Appeal rejected the applicant's complaint.

On 16 July 1991 the Federal Constitutional Court (Bundesverfassungsgericht), on the applicant's complaint, quashed this decision and remitted the case to the Court of Appeal.

On 25 May 1992 the Celle Court of Appeal partially granted the applicant legal aid and rejected the applicant's further request.

On 10 September 1992 the applicant filed a constitutional complaint against the Celle Court of Appeal's decision.

On 2 May 1994 the applicant requested the Hanover Regional Court to continue the proceedings. He further informed the Regional Court that his counsel had relinquished her mandate.

On 17 January 1995 the Regional Court, by way of legal aid, appointed new counsel for the applicant.

On 27 January 1995 the Regional Court scheduled a hearing for 18 May 1995, which was postponed twice, once to allow the applicant further written submissions and once because the applicant had lodged a motion for bias against the presiding judge of the Regional Court.

On 8 February 1995 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.

By judgment of 11 April 1996, following an oral hearing held on 29 February 1996, the Hanover Regional Court rejected the applicant's claim.

On 10 July 1996 the applicant lodged an appeal against the judgment of the Hanover Regional Court.

On 22 July 1997 the Celle Court of Appeal (Oberlandesgericht) ordered an expert opinion to be prepared as to whether the evaluation of the two examination papers caused the applicant to fall ill and prevented him from taking part in the scheduled oral examinations.

On 15 June 1998 the expert submitted his written opinion.

On 6 October 1998 the applicant submitted extensive comments on the expert opinion and requested that the expert be heard by the court.

On 29 October 1998 the applicant requested that the expert should submit his comments in written form.

On 10 December 1999 the Court of Appeal scheduled a hearing for 28 June 2000. On 23 February 2000 that same court requested the expert to submit his comments on the parties' submissions in written form.

On 23 May 2000 the expert submitted his written comments.

On 20 June 2000 the applicant filed an objection for bias against the expert, which was rejected on 28 June 2000.

On 28 June 2000 the Court of Appeal heard the medical expert.

At the end of the hearing, the applicant's counsel repeated a former request that two doctors, who had examined respectively treated the applicant during his illness, should be heard as witnesses.

By partial judgment (Teilurteil) of 29 August 2000 the Court of Appeal rejected the applicant's claim in so far as it concerned damages for the time after 31 May 1980. It found that the applicant had failed to prove that any illness after the end of July 1981 had been caused by the alleged incorrect evaluation of his examination papers. In this respect, the court followed the expert's opinion that any illness which had been caused by the evaluation had subsided after a maximum period of 1.5 years and that any following illness was solely caused by the structure of the applicant's personality. According to the Court of Appeal, the expert's reasoning duly took into account the medical statements submitted by the applicant. Accordingly, that Court did not find it necessary to hear witnesses on the applicant's state of health.

On 29 September 2000 the applicant lodged a request to be granted leave to appeal on points of law.

On 20 September 2001 the Federal Court of Justice (Bundesgerichtshof) refused to grant the applicant leave to appeal.

On 19 November 2001 the Federal Constitutional Court refused to accept the applicant's constitutional complaint for adjudication.

On 29 August 2000 the Celle Court of Appeal decided to hear expert opinion on the allegedly incorrect evaluation of the examination papers.

In April 2001 the expert submitted his report.

On 29 August 2001 the Court of Appeal held a hearing and heard the expert.

On 18 September 2001 the Court of Appeal, by final judgment (Schlussurteil), found that the evaluation of the two examination papers had been indeed incorrectly low and that the examiners had acted in breach of their official duties. Had the examination papers been correctly evaluated, the applicant would have very probably passed the examination and would have found employment as a trainee lawyer. Accordingly, it granted the applicant DEM 1,500.00 as damages for lost income in the month of May 1980 and further DEM 10,000.00 for non-pecuniary damages.

The applicant complained that the length of the proceedings from the lodging of his claim with the Administrative Court on 25 April 1980 until the passing of the final judgment of the Celle Court of Appeal on 18 September 2001 had been incompatible with the ‘reasonable time’ requirement, laid down in Article 6 § 1 of the Convention.

The Government contested that argument.

As regards the proceedings before the administrative courts, the Court reiterates that Article 6 § 1 is not applicable to proceedings which concern in essence the evaluation of knowledge and experience in school or university examinations (see, mutatis mutandis, Van Marle and Others v. the Netherlands, judgment of 26 June 1986, Series A no. 101, § 36; San Juan v. France (dec.), no. 43956/98 , 28 February 2002; and Nowicky v. Austria, no. 34983/02, § 34, 24 February 2005). The same principle applies to judicial state examinations, which are, furthermore, closely related to the hard core of public-authority prerogatives (see, mutatis mutandis, Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001-VII). The Court notes that the proceedings before the administrative courts essentially concerned the evaluation of the applicant's examination papers. It follows that Article 6 § 1 is not applicable to the proceedings before the administrative courts and that the complaint about the length of these proceedings has to be declared inadmissible pursuant Article 35 §§ 3 and 4 as being incompatible ratione materiae with the provisions of the Convention.

With regard to the compensation proceedings before civil courts, the Court recalls that the right to compensation against the State has to be regarded as being of a civil character even if the prerequisites concern public law issues (see Georgiadis v. Greece, judgment of 29 May 1997, Reports of Judgments and Decisions 1997-III, p. 959, § 35; Werner v. Austria, judgment of 24 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2508, § 38). Accordingly, the applicability of Article 6 is not excluded by the fact that the compensation claims were based on the evaluation of examination papers.

The period to be taken into consideration thus began on 30 November 1982, when the applicant lodged his compensation claim with the Hanover Regional Court. The period in question ended on 18 September 2001 when the Celle Court of Appeal delivered its final judgment. It thus lasted over 18 years and 9 months for four levels of jurisdiction, including one remittal.

The applicant further complained under Article 6 § 1 about unfair civil proceedings. He claimed that the Celle Court of Appeal, in its partial judgment of 29 August 2000, exclusively followed the — allegedly incorrect — view of the medical expert, without duly taking into account the medical statements submitted by the applicant and without either hearing the doctors who had examined him during his illness or hearing further expert opinion. He further complained that the medical expert had not sufficiently examined him, as he had only examined him for about an hour in 1998.

The Court reiterates that the assessment of the facts and the taking of evidence and its evaluation is a matter which necessarily comes within the appreciation of the national courts and cannot be reviewed by the Court unless there is an indication that the judges have drawn grossly unfair or arbitrary conclusions from the facts before them (see, mutatis mutandis, Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004; García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Having regard to the content of the case-file, the Court does not find that the decisions taken by the domestic authorities can be regarded as arbitrary.

It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 §§ 1 and 4 of the Convention.

The applicant claimed 1,250,000 euros (EUR) for loss of earnings and pension claims for the period of time between 1990 and 2025.

He further claimed DEM 436,000 (EUR 222,923) for loss of earnings between 1980 and 1990. He alleged that, had the domestic authorities established the incorrect assessment of his examination papers within due time, he would have passed his state examinations. Referring to the good results he had obtained during his university studies and to the fact that two professors had offered him the possibility to write his thesis, the applicant submitted that he would have pursued a successful university career and reached at least the post of an assistant lecturer with a yearly income of some EUR 50,000. The applicant further alleged that the partial judgment of 29 August 2000 would have had a more favourable outcome if the domestic courts had established the incorrect evaluation in due time.

In respect of non-pecuniary damage, the applicant sought EUR 100,000 for the excessive length of the proceedings, which he claimed had destroyed both his private life and his professional career.

The Government contested these claims. They argued that the applicant's claims were contrary to the purpose of Article 41. In their submission, there was no causal link between the alleged violations of Article 6 § 1 and any of the pecuniary damage alleged by the applicant, who was in fact seeking to be treated as though the domestic courts had found in his favour and had allowed his claims for compensation in full.

As regards non-pecuniary damage, the Government submitted that the amount claimed by the applicant was excessive and that the finding of a violation of Article 6 § 1 would constitute in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

As regards the applicant's claim for pecuniary damages, the Court reiterates that 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, among many other authorities, Sürmeli, cited above, § 144). The Court further finds that it is not in a position to speculate as to how the applicant's professional life would have developed if the domestic courts had processed his compensation claims in due time. Accordingly, it considers that no award can be made to the applicant under this head.

With regard to non-pecuniary damage, the Court considers that the finding of a violation would not constitute sufficient just satisfaction for the damage sustained by the applicant. However, it considers that the sum claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 10,000 under this head.

The applicant did not submit a claim for cost and expenses. Accordingly, the Court considers that there is no call to award him any sum under this head.

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.