CASE OF KÖNIG v. GERMANY (ARTICLE 50)
Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
8. The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving some brief particulars; for the remaining details, reference should be made to paragraphs 15 to 81 of the Court’s judgment of 28 June 1978 (ibid., pp. 7-27). 9. That judgment concerned the length of actions brought by Dr. König before the Frankfurt Administrative Court in 1967 and in 1971 to challenge, respectively, the withdrawal of the permit to run his clinic and the withdrawal of the authorisation to practise medicine. In the second matter, the Administrative Court had dismissed the applicant’s action by a judgment delivered on 9 June 1976 which had been affirmed by the Hessen Administrative Court of Appeal on 2 May 1978. Dr. König lodged an appeal (Nichtzulässigkeitsbeschwerde) and an application to quash (Revision) but these were rejected by the Federal Administrative Court (Bundesverwaltungsgericht), in two final decisions, on 10 September and 18 October 1979. In the case concerning the clinic, the Frankfurt Administrative Court had dismissed Dr. König’s action on 22 June 1977. An appeal by him against that decision is still pending before the Hessen Administrative Court of Appeal which, with the agreement of the parties, stayed the proceedings on 21 February 1979 pending the outcome of the above-mentioned proceedings before the Federal Administrative Court. 10. After delivery of the Court’s judgment of 28 June 1978, the Government and the applicant attempted, with the Commission’s assistance, to arrive at a friendly settlement of the latter’s claims, details whereof had been given by Mr. Hofferbert in his letter of 18 September 1978 (see paragraph 3 above). The attempt met with failure in November 1978: Dr. König found that the Government’s offer of DM 20,000 in full and final settlement was not sufficient. 11. The applicant seeks pecuniary compensation for the two heads of damage allegedly caused to him by the violation of Article 6 par. 1 (art. 6-1): he maintains that his financial and professional situation may have been permanently ruined and, secondly, that his personal and professional reputation had been indirectly lowered. Without quantifying his claims, he furnishes certain particulars – regarding notably the average annual income he could have anticipated as a medical practitioner and as the head of a clinic - on the basis of which he considers it possible to gauge the extent of his aggregate loss and to assess the fraction thereof attributable to the fact that the "reasonable time" was exceeded. In addition, the applicant asks for reimbursement of the expenses he incurred both in Germany, in order to expedite the hearing of his actions, and before the Convention institutions. Dr. König leaves the assessment of the sum to be awarded to him to the Court’s discretion, thereby confirming the position he had adopted in 1977 (Series A no. 27, p. 41, par. 113). 12. In their observations of 6 October 1978 (see paragraph 3 above), the Commission’s Delegates stated that they did not wish to comment on the first of the applicant’s claims which they saw as being concerned with the consequences of the two withdrawals of authorisation; at the hearing, they submitted that in their opinion the attribution of specific material losses to the breach found by the Court was impossible, at least on the strength of the evidence before it. On the other hand, the Delegates suggest that account should be taken of the fact that the applicant was left in a prolonged state of uncertainty as to his professional future, and this at a time of life - between the ages of forty-nine (in 1967) and sixty (in 1978) - when a man is normally at the peak of his career. They also consider that the breach of Article 6 par. 1 (art. 6-1), taken by itself, may be another factor having a bearing on an award of just satisfaction. As far as concerns the costs of the proceedings, the expenditure incurred by Dr. König in order to expedite the domestic litigation and to present his case in Strasbourg is regarded by the Delegates as a relevant item. They express no firm view as to whether the same applies to the expenditure arising from his applications to the German courts for restoration of the suspensive effect of his appeal against the withdrawal of the authorisation to practise; in their opinion, those applications were aimed not at speeding up the proceedings but at limiting the consequences of their excessive length. Neither do the Delegates comment on the justification for the figures given by the applicant. 13. The Government’s position is as follows: there is no causal link between the breach found by the Court and the alleged damage to Dr. König’s professional career; on the other hand, "reasonable", "necessary" and proven costs resulting from the exercise of the domestic legal remedies can give rise to compensation to the extent that those remedies were aimed at accelerating the procedure; furthermore, the "reasonable costs" incurred in connection with the proceedings before the Convention institutions should be reimbursed; finally, it is for the Court to determine whether the applicant should be awarded monetary compensation for the "non-material" injury he suffered by reason of the mere fact that the "reasonable time" was exceeded.