PROCEDURE

The case originated in an application (no. 34236/06) 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 Montenegrin national, Mr Milovan Popović (“the applicant”), on 11 August 2006.

The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

On 21 April 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol no. 14 governing the power of three judge Committees to rule on cases in which there is a well-established case-law, it was decided to assign the application to a Committee after consultation of both parties, who did not object. On 2 March 2010 the Committee, having deliberated, decided to refer the application to a Chamber.

The Government of Montenegro, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), have not indicated that they wished to exercise that right.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1954 and lives in Hamburg.

A. The proceedings before the Hamburg Regional Court

On 13 November 1996 K., a dentist, brought an action in the Hamburg Regional Court against the applicant. He claimed the payment of medical fees amounting to DEM 20,708 (some EUR 10,587) for the applicant's dental treatment.

On 6 March 1997 the Regional Court held a hearing with the parties, represented by counsel. On 3 July 1997 it heard the submissions of the parties and a witness, the applicant's fiancée.

On 31 July 1997 the Regional Court decided to consult a medical expert, M., on the question of whether K. had carried out the applicant's dental treatment correctly.

On 14 May 1998 M., having examined the applicant on 19 December 1997, submitted his report to the Regional Court, which had asked him on three occasions to finalize the report and had finally fixed a deadline for its submission. He found that there had not been any malpractice in the applicant's dental treatment.

On 24 September 1998 the Regional Court dismissed the objection the applicant had made to expert M. on 15 June 1998. The applicant's appeal against this decision to the Hamburg Court of Appeal was to no avail.

On 12 February 1999 the Hamburg Regional Court asked expert M. to supplement his report and granted the applicant legal aid.

On 24 September 1999 the applicant requested the court to fix a deadline for submission of the additional expert report on pain of a fine in the event of non-compliance.

On 29 February 2000 expert M., having been asked by the Regional Court on 24 June 1999, 30 August 1999, 17 September 1999 and 14 January 2000 to submit his additional report without undue delay, informed the court that he had examined the applicant on 22 October 1999 but that, in the light of the present state of the art, it was impossible to answer the court's questions.

On 20 July 2000, having consulted the parties, the Hamburg Regional Court decided to obtain another expert opinion on the question of whether K. had carried out the applicant's dental treatment correctly. By a decision of 14 December 2000, it appointed S. as expert.

On 11 June 2001 expert S. submitted his report to the court. Having examined the applicant on 27 February 2001, he found that there had been malpractice in some aspects of the applicant's dental treatment by K.

On 15 January 2002 the Regional Court informed the applicant, on his request, that despite its heavy workload, it intended to continue the proceedings soon.

On 6 June 2002 the Regional Court held a hearing in which it discussed the results of the expert reports submitted by M. and S. with the parties. The applicant rejected the court's proposal to conclude a friendly settlement.

On 27 June 2002 the Regional Court, having regard to the diverging conclusions of the two experts it had consulted, decided to obtain a decisive expert opinion (Obergutachten) on the question of whether the applicant's dental treatment had been carried out correctly.

On 25 October 2002 the Hamburg Regional Court decided to appoint W. as expert. The latter fixed the date for the applicant's examination for 9 December 2003.

On 1 December 2003, in compliance with an expulsion order made by the Hamburg Aliens Office, the applicant left Germany. His attempt to obtain a postponement of his expulsion for ten days in order to allow him to be examined by expert W. had been to no avail.

On 9 September 2004 the Regional Court fixed the deadline for the applicant to present himself for an examination by the expert at 30 November 2004.

On 1 December 2004 the Regional Court decided that expert W. should give her opinion on the basis of the case file. It noted that it was unclear when the applicant, who still resided abroad, would obtain a residence permit and could thus be examined in person by the expert.

On 27 July 2005 expert W., having been asked by the Regional Court to finalize her report without delay, submitted her report to the Regional Court. She found that on the basis of the case file, the applicant's medical treatment by K. had been carried out correctly. She considered the information in the file to be exhaustive and stated that an examination of the applicant in person would not have yielded additional information.

On 1 August 2005 the applicant obtained permission to re-enter Germany. He took up residence in Hamburg on 3 August 2005.

On 27 October 2005 the Hamburg Regional Court, having held a hearing on 29 September 2005, allowed K.'s action and ordered the applicant to pay him medical fees amounting to EUR 10,587.93 plus interest at a rate of four per cent starting from 22 November 1996. The applicant was further ordered to bear the costs of the proceedings. The Regional Court found (in a judgment running to seven pages) that in view of the expert report submitted, in particular, by W., it had not been shown that the applicant's medical treatment had not been carried out correctly.

B. The proceedings before the Hamburg Court of Appeal

On 10 May 2006, in a reasoned decision, the Hamburg Court of Appeal dismissed the applicant's request for legal aid as his appeal had no prospects of success.

By decision of 19 June 2006 the Hamburg Court of Appeal dismissed the applicant's appeal as it had no prospects of success.

The applicant subsequently paid the court costs due in their entirety. He did not, however, pay the plaintiff the medical fees plus interest as ordered by the Regional Court's judgment and did not reimburse the plaintiff any of the latter's costs of the proceedings (EUR 2,846.95) for lack of any income or revenues.