PROCEDURE

The case originated in an application (no. 68919/10) 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 J. Peter (“the applicant”), on 24 November 2010.

The applicant was represented by Mr C. Lenz, a lawyer practising in Stuttgart. The German Government (“the Government”) were represented by their Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

On 3 June 2013 the applicant’s complaint concerning the length of proceedings before the Federal Constitutional Court and the lack of an effective remedy was communicated to the Government.

On the same day the President of the Section sitting in a single-judge formation declared the remainder of the application inadmissible.

THE FACTS

The applicant is a German national who was born in 1948 and lives in Ulrichstein.

A. The circumstances of the case

1. Background to the case

On 1 August 2001 the Civil Partnership Act (Gesetz über die eingetragene Lebenspartnerschaft) entered into force and introduced civil unions for same-sex couples.

On 5 October 2001 the applicant entered into a civil partnership with Mr Peter, né V.

On 22 June 2002 Mr Peter, né V., died.

2. Proceedings at issue

In September 2002 the applicant applied for a survivor’s pension to the German Pension Fund (Bundesversicherungsanstalt für Angestellte), a public-law corporation.

On 19 November 2002 the German Pension Fund rejected the applicant’s claim and on 28 February 2003 it dismissed the administrative appeal lodged by the applicant against that decision.

On 19 March 2003 the applicant applied to the Fulda Social Court for judicial review. He argued that the term “widow or widower” in Article 46 §§ 1 and 2 of the Social Security Code, Book VI (Sozialgesetzbuch Nr. VI) should be construed as encompassing the surviving partner in a civil partnership.

On 26 November 2004 the Fulda Social Court dismissed the applicant’s claim. According to the court the surviving partner in a civil partnership could not be called a “widower” in the generally accepted sense of the term. Furthermore, the applicant’s civil partnership had not lasted longer than a year, which would have led to statutory exclusion from the benefit even for married couples.

During the appeal proceedings the respondent acknowledged the applicant’s claim to a survivor’s pension as of 1 January 2005, when the relevant amendments to the Civil Partnership Act became effective.

The remaining leapfrog appeal on points of law (Sprungrevision) was dismissed on 13 December 2005 by the Federal Social Court. The court pointed out that the respondent had partly acknowledged the applicant’s claim, so that the appeal concerned only the period from July 2002 until December 2004.

On 20 January 2006 the applicant lodged a constitutional complaint (no. 1 BvR 170/06) with the Federal Constitutional Court.

On 7 July 2009 the Federal Constitutional Court delivered its judgment in a case (no. 1 BvR 1164/07, hereinafter “the 2007 case”) which had been brought in 2007 concerning the pension rights of a surviving partner in a civil partnership. It found that denying a partner in a civil union the right to a survivor’s pension from the civil servants’ pension scheme, when the legislature had already amended Article 46 §§ 1 and 2 of the Social Security Code, Book VI, in respect of the general pension scheme, violated the principle of non-discrimination as set down in Article 3 of the Basic Law.

On 1 December 2009 the applicant pointed to the above-mentioned judgment and requested a decision to the same effect.

On 11 June 2010 a three-judge panel of the Federal Constitutional Court decided not to review the applicant’s constitutional complaint. In its reasoning the panel explained that the complaint did not raise a pressing constitutional question as the relevant provision of the social security legislation had meanwhile been amended. Even assuming that the legislative provision concerned had violated the Constitution, the Federal Constitutional Court could not have afforded redress as the legislature could not be required to amend a provision that had already become void.

On 13 July 2010 the applicant was served with a copy of the decision.

3. Subsequent developments

On 7 December 2011 the Government informed the Court that in response to the pilot judgment in Rumpf v. Germany (no. 46344/06, 2 September 2010) an Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) had been published in the Federal Law Gazette and had entered into force on 3 December 2011.

In December 2011 the Court informed the applicant of the enactment of the new domestic remedy and drew his attention to the transitional provision of that Act. Referring to the Brusco v. Italy case ((dec.), no. 69789/01, ECHR 2001‑IX), the Court invited the applicant to inform it whether he intended to make use of the new remedy within the time-limit set by the transitional provision in question.

The applicant informed the Court that he intended to file a complaint under the new domestic provisions.

On 6 February 2012 the applicant filed a complaint under the new Act, claiming compensation in respect of pecuniary and non-pecuniary damage. He complained that constitutional court proceedings that lasted four years, six months and one day were excessively long, even taking the position and function of the Federal Constitutional Court into account. He pointed out that his case could not be considered a particularly difficult one.

In the course of the proceedings the judge rapporteur for the constitutional complaint submitted a statement explaining that when he took office and became judge rapporteur for this complaint on 1 October 2007 it had already been agreed between his predecessor and judge B., who was judge rapporteur for the 2007 case (compare paragraph 16, above), that the handling of the applicant’s complaint should be postponed until the 2007 case had been determined. Subsequently, it became clear that the 2007 case did not pose a problem of retroactivity and therefore did not affect the outcome of the applicant’s constitutional complaint. The judge rapporteur conceded that the applicant’s submissions were sufficiently substantiated for his constitutional complaint to indeed have been dealt with earlier on the basis of the actual reasoning given. However, the judge maintained that it had been in the applicant’s best interest to wait for the court’s ruling in the 2007 case.

The applicant replied that the judge rapporteur’s statement demonstrated that his constitutional complaint had not been given any attention whatsoever in the first year after it was lodged. It would have been obvious even from a cursory examination of the constitutional complaints that his complaint concerned the retroactive application of a legislative amendment. Therefore, any proper comparison of his case with the 2007 case would have easily shown that the two cases were not interdependent.

On 1 October 2012 the complaints panel of the Federal Constitutional Court dismissed the applicant’s complaint under section 97a of the Federal Constitutional Court Act. Citing Gast and Popp v. Germany (no. 29357/95, ECHR 2000‑II), as well as Klein v. Germany (no. 33379/96, 27 July 2000), the Federal Constitutional Court noted that a chronic backlog of cases in the constitutional courts could not justify the excessive length of proceedings. However, when assessing whether the duration of proceedings was excessive, the Federal Constitutional Court had to consider its special function and position. Unlike the ordinary courts, the capacity and structure of a Constitutional Court were laid down in the Constitution and it served further purposes beyond the administration of individual justice. The scope for adaptation and for the acceleration of proceedings was therefore limited. Furthermore, decisions and judgments of the Federal Constitutional Court had binding inter omnes legal effect and for this reason had to be drafted with the utmost diligence. The court further explained that it was in the nature of constitutional court proceedings that chronological case management was of subordinate importance. Concerning the applicant’s case, the court noted that the actual duration of the proceedings – four and a half years – was unusually long, but not excessive. For the purposes of its examination the Federal Constitutional Court noted that three phases could be distinguished: (a) the phase of over one year between the lodging of the constitutional complaint and the decision to await the outcome of the 2007 case; (b) the phase of two years until a decision had been given in the 2007 case; and (c) the phase of eleven months until the constitutional complaint at issue had been determined. A new judge rapporteur had stepped in at the end of his predecessor’s term of office and his predecessor had had to finish cases of higher priority than that of the applicant. The court maintained that the twelve-month wait in accordance with section 97b §1 of the Federal Constitutional Court Act had not been excessive considering that the Federal Constitutional Court had opted to rule on a similar case concerning the pension rights of surviving partners in a civil union (the 2007 case) before the applicant’s case. The court pointed out that, although in hindsight the present case could have been decided without reference to the “pilot case”, the two cases shared sufficient similarities to justify the decision of the former judge rapporteur. Nothing indicated that the decision to postpone the applicant’s case pending a decision on the 2007 case had been based on arbitrary considerations. The court noted that the applicant had never claimed that the sum of money at issue was of extraordinary financial importance to him. In conclusion, the Federal Constitutional Court argued that after the decision in the 2007 case the applicant’s constitutional complaint had been determined in due time, without any delay.

B. Relevant domestic law and practice

The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, “the Remedy Act”) was published in the Federal Law Gazette – Part I, 2011, pp. 2302 et seq. – on 2 December 2011 and entered into force the next day.

1. Relevant features of the remedy

The Remedy Act introduced general provisions instituting a remedy against any kind of protracted court proceedings. Section 1 applied to criminal and civil proceedings – for details see Taron v. Germany (dec.), no. 53126/07, §§ 19 et seq., 29 May 2012, and Garcia Cancio v. Germany (dec.), no. 19488/09, §§ 27 et seq., 29 May 2012.

For proceedings before the Federal Constitutional Court, section 2 of the Remedy Act amended the Federal Constitutional Court Act as follows: “Section 97a (1) Any person who, as the result of the unreasonable length of proceedings before the Federal Constitutional Court, experiences a disadvantage as a participant in those proceedings or as a participant in proceedings suspended for the purpose of obtaining a decision from the Federal Constitutional Court shall be afforded reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case, having due regard to the functions and the position of the Federal Constitutional Court. (2) A non-pecuniary disadvantage shall be presumed in cases where proceedings before the Federal Constitutional Court have been of unreasonable length. Compensation may be claimed therefor save in particular cases where reparation by other means, such as the mere finding that the length of proceedings was unreasonable, is sufficient. Such compensation shall amount to €1,200 for every year of delay. If the sum thus calculated is not equitable, the Federal Constitutional Court shall assess a higher or lower sum. Section 97b (1) A decision on compensation and reparation shall be rendered if a complaint of undue delay has been lodged with the Federal Constitutional Court. A complaint of undue delay shall be admissible only if the complainant has previously objected to the length of the proceedings before the Federal Constitutional Court (Verzögerungsrüge). A complaint of undue delay shall be lodged in writing and it shall set out the circumstances purported to establish the unreasonableness of the length of the proceedings. It shall be admissible twelve months at the earliest after the case has been lodged with the Federal Constitutional Court. A complaint of undue delay shall not require a reasoned notification. ... Section 97d (1) The rapporteur in the proceedings concerned shall submit an opinion within one month of receipt of the reasons for the complaint of undue delay. (2) The complaints panel shall decide by a majority. In the event of a tie the complaint of undue delay shall be dismissed. The complaints panel shall render its decision without an oral hearing. Reasons need not be given. (3) The decision is not subject to appeal.”

2. Transitional provisions

In a departure from the general transitional provision under section 23 of the Remedy Act (see for details Taron, § 27, and Garcia Cancio, § 36, both cited above), section 97e of the amended Federal Constitutional Court Act stipulated that, in the case of terminated proceedings whose length might still become or had already become the subject of a complaint before that court, it was not necessary to raise a complaint of undue delay (Verzögerungsrüge) prior to filing a complaint claiming compensation. That complaint had to be lodged with the Federal Constitutional Court by 3 June 2012 at the latest.