EULE v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Thomas Eule, is a German national who was born in 1943 and lives in München. The applicant is a retired military officer who underwent psychotherapeutic and psychoanalytical treatment from 1987 onwards. He was discharged in 1988 on grounds of his medical condition. The therapy was discontinued in March 1991 in view of the applicant having fallen in love with the therapist, who initially treated the applicant's feelings as “transference of affection” (Übertragungsliebe) and personally sought supervision. In October 1991 the applicant and the therapist commenced an intimate relationship that ended in May 1992. On 5 June 1997 the applicant sued the therapist for damages of German marks 156,238.50 (DEM) (euros 79,883.48 (EUR)). He argued that the therapist had discontinued the therapy in view of the commencing of an intimate relationship and had thereby violated her duties from the contract governing the therapeutic treatment as well as her professional duty to remain sexually uninvolved with a client; because of the therapeutic malpractice he had suffered from a mental breakdown that had required further therapeutic treatment for which he had incurred the damage complained of. On 2 April 1998 the Munich Regional Court ordered a first expert opinion. The expert witness submitted that the therapist had seriously breached her professional duties. The court held that the expert opinion was not satisfactory as it was incoherent, not fully reasoned and did not differentiate between professional, therapeutic and ethical standards. In response to the opinion of the first expert witness, the defendant therapist submitted a private expert opinion that found no violation of therapeutic and professional standards and denied that the therapist's actions were causally linked to the damage complained of. The court noted that the private expert opinion had come to different conclusions from the first expert opinion but was not in itself fully satisfactory; the court therefore ordered another expert opinion on 17 August 1999. The second expert witness criticised the previous expert opinions for their reliance on psychoanalytical tools and denied any wrongdoing on the part of the therapist as she had conscientiously transferred the therapeutic relationship into an intimate one between consenting adults. The court noted that the second expert witness' opinion was unsatisfactory because the parties had engaged in – among other therapeutic techniques – psychoanalysis and the expert witness had displayed an overly critical and biased assessment of psychoanalysis. On 16 February 2001 the court ordered a third expert opinion pursuant to Article 412(1) of the Code of Civil Procedure (see “Relevant domestic law” below). The expert witness delivered his opinion on 10 December 2002; at the applicant's instigation, the expert witness submitted a clarification of his opinion on 9 April 2003. He stated no discernable professional standards for the gentle cancellation of a therapeutic relationship could be verified; there were no professional standards concerning the period between the discontinuation of a therapeutic and the beginning of an intimate relationship between therapist and patient; the only possible link between the intimate relationship and the damage complained of was the applicant's realisation that he had not found what he had been looking for. On 30 April 2003 the applicant challenged the third expert witness on grounds of bias; on 10 June 2003 the court rejected the challenge as ill-founded. On 9 July 2003 the court dismissed the applicant's claim at the end of an oral hearing. It held that the therapist had not violated therapeutic and professional standards and based its decision mainly on the third expert witness's opinion, which it held to be convincing, methodically sound and precise. On 12 November 2003 the Munich Court of Appeal informed the parties of its intention to dismiss an appeal lodged by the applicant as ill-founded pursuant to Article 522(2) of the Code of Civil Procedure (see “relevant domestic law” below) on the grounds that the first expert witness' opinion had been rightly rejected by the Regional Court. The Court of Appeal noted that the therapist had acted responsibly, had not violated the therapist's duty to remain sexually uninvolved and that there were no strict professional rules concerning the minimum period between the ending of a therapeutic and the beginning of an intimate relationship between a former therapist and patient. On 11 March 2004 counsel for the applicant submitted further observations. On 15 March 2004 the Court of Appeal dismissed the applicant's appeal. On 16 April 2004 counsel for the applicant lodged a constitutional complaint with the Federal Constitutional Court arguing that the Court of Appeal had not taken into account the applicant's further submissions of 11 March 2004 and had treated the applicant as a perpetrator rather than a victim of sexual abuse. On 4 October 2005 the Federal Constitutional Court, relying on the relevant provisions of its Rules of Procedure, refused to accept the applicant's constitutional complaint for examination without giving further reasons (no. 1 BvR 878/04). Under Article 412(1) of the Code of Civil Procedure the court may order a new expert opinion by the same or another expert witness if it considers the expert opinion to be unsatisfactory. Under Article 522(2) of the Code of Civil Procedure, the Court of Appeal may reject an appeal by unanimous decision if it is convinced that the appeal has no prospect of success, the legal matter is not of fundamental importance and the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the Court of Appeal. The Court of Appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and have to give the appellant the opportunity to submit observations within a set time-limit. The decision under Article 522(2) of the Code of Civil Procedure is not subject to an appeal and the Court of Appeal cannot grant leave to appeal on points of law.