Komentarz (w j. angielskim) autorstwa Jensa Polla do wyroku ETPCz, w którym Trybunał wypowiedział się na temat standardu wynikającego z art. 6 Europejskiej Konwencji Praw Człowieka (prawo do rzetelnego procesu sądowego)

I. Introduction
    Judicial review is only efficient, when it does not come to late. By virtue of this very fundamental principle, as enshrined in Art 6 of the ECHR1), the German Legislator was challenged to enforce the judgment of Rumpf v. Germany and to provide an effective remedy to prevent excessive lengths of proceedings.
    Aside the fact that the German legislator was forced to change the legal framework quite intrinsically, this judgment distinguishes itself for being the first pilot judgment against Germany. Yet, this very interesting feature and the therewith-associated implications are not of interest for this examination and can, therefore, be neglected.
    Assessing the violations of the Convention and the steps taken in order to suffice the Court´s requirements, this examination concludes that the German legislator has successfully introduced a remedy to avoid excessive lengths of proceedings. More importantly, the lawmaker has not only enforced this judgment thoroughly, but it has also surpassed the Court´s requirements by securing the efficiency of this remedy with the possibility of claiming compensations in the event of undue delays. 

II. Facts and Circumstances of Rumpf v. Germany (Application no. 46344/06; 2 Sept. 2010) 2)
    Before reviewing the legal findings of the Court´s judgment, it is imperative to take a (short) look at the facts and circumstances of this case.
    On 1 June 1992 the applicant lodged an application for gun licences with the county of Querfurt, which was initially granted. Yet, subsequent requests for a renewal of these licences were only provisionally granted and were finally dismissed in November 1993. Immediately after the dismissal of his requests, the applicant both lodged an administrative appeal against the decision of the dismissal and applied to the administrative court for interim measures. In the following, both the administrative appeal and the request for interim measures were dismissed.

    Based on these dismissals the applicant initiated first-instance proceedings in April 1994 by bringing an action with the Halle Administrative Court, which, again, turned down and dismissed the request of the applicant in its judgment from May 1996. In July 1996 the applicant appealed the judgment. The appeal proceedings ended in June 2004 with the dismissal of the appeal3).  In March 2005 the applicant lodged a constitutional complaint against all appeal decisions and alleged, inter alia, a violation of his right under Art 6 of the Convention because of the excessive length of proceedings. Yet, this constitutional complaint was not successful and was turned down by the German Federal Constitutional Court in May 2007. The period of time between the initial administrative appeal and the final dismissal of the constitutional complaint lasted exactly thirteen years, five months and one week at all possible four levels of jurisdiction.

III. Findings of the Court
    Considering the topic of this examination, the findings of the Court can be presented in an abridged manner. Insofar, only the review of Art 6 (1) and Art 13 of the Convention is of interest.

1. Violation of Art 6 (1) of the Convention 4)    
First and foremost, the applicant complained that the length of the proceedings had been incompatible with the precondition of “reasonable time” within the meaning of Art 6 (1) of the Convention. For assessing the reasonableness of the length of proceedings, the Court highlighted that “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”.5)  Taking these criteria and the factual length of the proceedings ( 13 years) into account, the Court came to the conclusion that the length of the proceedings was excessive and, consequently, that there has been a violation of Art 6 (1) of the Convention.
2. Violation of Art 13 of the Convention 6)
    Additionally, Rumpf complained the lack of effective domestic remedies in respect of his complaint about the excessive length of judicial proceedings 7).
    Given the concession of the German Government that the applicant had no effective domestic remedy available addressing the delay in the proceedings before the appellate court, the Court concludes that the German law lacks an effective remedy capable of affording redress for an unreasonable length of (civil) proceedings8).  Consequently, the Court ascertains the violation of Art 13 of the Convention due to the lack of a remedy whereby Rumpf could have obtained a judicial decision securing his right of having his case heard within a reasonable time.

IV. Art. 46 of the Convention and the Obligation of Executing Judgments
    Bearing these findings in mind, a short and abstract description of the legal framework converning the execution of judgments of the Court becomes crucial. By virtue of Art 46 (1) of the Convention, the High Contracting Parties are obliged to abide by the final judgment of the Court in any case, in which they are parties.
    According to Art 46 (2) of the Convention the execution of the judgments of the Court is supervised by the Committee of Ministers of the Council of Europe (CoE). Once a judgment of the Court ascertaining a violation of the Convention has become final, it shall be transmitted to the Committee of Ministers, which regularly reviews whether or not the respective Member State adheres to the judgment. In the course of this process, a special department, the “Department for the Execution of Judgments of the European Court of Human Rights” 9), of the Office of the CoE aids the Committee of Ministers.

    In accordance with the obligation to abide by the final judgments within the meaning of Art 46 (1) of the Convention, the German Federal Government informs the Committee of Ministers about the payment of just satisfaction, provided that the Court awarded the payment of compensation in its judgment. Furthermore, the German Federal Government provides the Committee of Ministers with detailed information about both individual and general measures taken in order to render compliance with the Convention, to end the violation thereof and to avoid future violations of the Convention in similar cases10).
    Hence the Convention itself does not provide any further details regarding the dimension or scope of general measures, it is the Committee´s task to determine whether or not a judgment has been executed sufficiently on a general level.

V. Implementation of the Judgment
    As mentioned by the Court 11), the German Federal Government introduced a new draft bill on 15 March 2010; namely the “Act on legal protection in the event of excessive length of judicial proceedings and preliminary proceedings under criminal statutes” 12).  Yet, the judgment has not been final and, more importantly, the law has not come into legal force at that point of time. Insofar, the Court solely mentioned the specific procedural stage the draft bill has been in (compare de lege ferenda, §§ 33-34) but, due to the uncertainty of whether or not this legislation will entry into force, did not substantively refer to it 13).
    On 24 November 2011 the “Act on legal protection in the event of excessive length of judicial proceedings and preliminary proceedings under criminal statutes” came finally into legal force and has to be seen as the direct reference to the determined violations of Art 6 and Art 13 of the Convention in Rumpf v. Germany. The German legislator used this judgment as an opportunity to provide a coherent and congruent solution being applicable for all fields of law. In this act the reformation of §§ 198 – 201 GVG14)  is undoubtedly the cornerstone of the enforcement of this particular judgment.

    Persons concerned are legally awarded a two-level protection scheme against the occurrence of excessive length of proceedings. If the length of proceedings appears to be disproportionate and, therefore, excessive, the applicant may lodge a rebuke in order to point out the delay; compare § 198 (3) GVG. The introduction of this rebuke aims to prevent excessive lawsuits a priori and enables the respective judge to provide immediate redress. If the lawsuit suffers further delay despite the rebuke, the person concerned is able to institute a claim for compensation on the second level. As laid down in § 198 (1) GVG, one can claim an adequate compensation if he suffered harm due to the excessive length of the given proceedings. Yet, the rebuke must have been exhausted prior. The compensation sum covers both mental and physical distress and amounts to 1200 € for each year of delay according to § 198 (2) GVG. It has to be noted that this provision does not require any form of culpability and, therefore, does not depend on the judge´s guilt for the delay. Hence, this kind of claim stands separate and independently beside the guilt-based claims for public liability according to § 839 BGB in conjunction with Art 34 of the German Basic Law.
    Aside from § 198 GVG, the following provisions (§§ 199 – 201 GVG) concern mere procedural issues, such as judicial competence, time limits, regulation of charges and expenses or definitions of terms, and may be neglected for the purpose of this examination.
    Though, the most intrinsic and beneficial element of these remedies is the general validity for all other German Procedural Codes and judicial branches 15).  Due to the establishment of these remedies in the general German Code on Court Constitution, they must be applied and observed by judges of all different judicial branches. Considering the “origin” of th Each and every judicial branch is directly affected by this reformation. The German legislator did not enforce this judgment piecemeal or in a minimalistic way, but instead introduced an overall approach encompassing the whole German legal framework.

VI. Conclusion
    Considering this “excessive” solution, the German Legislator fully complied with its obligation arising out of Art 46 (1) of the Convention. In other words, it did not merely pay lip service to its obligations stemming from the Convention. So, the lawmaker not only established a remedy within the meaning of the Court´s findings, but created also an effective leverage in the shape of the compensation claim in order to ensure the remedy’s efficiency. The subsidiarity of the compensation claim serves the judgment´s requirements in two ways: firstly, by virtue of this deterrence, a given judge might be felt compelled to avoid any unnecessary delay. Secondly and maybe more importantly, an additional time-consuming lawsuit concerning the compensation for the excessive length of the initial proceeding might be avoided. The enforcement of Rumpf v. Germany in the shape of this reformation has to be evaluated as successful and practical.