CASE OF FOLTIS v. GERMANY
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits
5. The applicant was born in 1953 and lives in Kassel. He is a lawyer and was appointed insolvency administrator of the German limited partnership M.K. KG (hereafter “the company”) in 1999. 6. On 12 July 2002 the applicant, in his position of insolvency administrator of the company, took legal action against Ms B., a former limited partner (Kommanditist) of the KG, to seek the reimbursement of close to 56,000 euros (EUR), which had been paid to her as advance payment on profits (Vorauszahlungen auf Gewinne) by the KG. 7. In his statement of claim, the applicant indicated that he might introduce an additional action concerning approximately EUR 1.7 million, to seek the reimbursement of payments received by Ms B. as compensation for her participation as a limited partner (Abfindung für Kommanditbeteiligung) and as advance payments for profit. The applicant declared that he had refrained from introducing an action concerning these claims at that point in time because of the costs involved. 8. Ms B. was notified of the legal action on 17 July 2002. 9. On 30 December 2004 the applicant requested legal aid for his initial action and with a view to introducing an action concerning the supplementary claims, amounting to approximately EUR 1.7 million. The statutory timelimit for those latter claims was 31 December 2004. This request for legal aid was placed in the case file. It was neither examined by a judge nor was notice given to Ms B. 10. On 24 March 2005 the applicant sent a letter to the Regional Court to enquire whether he had been granted legal aid. He did not receive a response. On 29 August 2005, he sent another letter, to which he received no response. The applicant claimed that, in addition, he had also made telephone calls to the Regional Court on 10 June 2005 and on 14 November 2005 to find out whether he had been granted legal aid and that, both times, he had been informed by the Registry that the file was at the judge’s office and that, therefore, no information could be given. 11. On 11 May 2007 the Regional Court granted the applicant’s request for legal aid, following another written inquiry of that same day. The decision to grant legal aid was served on Ms B. on 16 May 2007. On 5 July 2007 the Regional Court issued a decision, clarifying that the grant of legal aid covered the supplementary claims brought on 30 December 2004. 12. On 20 July 2007 the applicant introduced the additional action concerning the said claims. Ms B. was notified on 25 July 2007. On 1 October 2008 a hearing was held. 13. In its judgment on 19 November 2008 the Regional Court ordered Ms B. to pay EUR 15,338.76 to the applicant and dismissed the remainder of the applicant’s initial action. That court likewise dismissed the applicant’s additional action for reimbursement of approximately EUR 1.7 million in its entirety, finding that the claims were time-barred. It stated that the statutory time-limit for these claims was 31 December 2004 and that submitting the request for legal aid on 30 December 2004 had not been sufficient to suspend the running of time for purposes of limitation, because domestic law also required that the court arrange for notice to be given to the defendant (see relevant domestic law and practice paragraphs 25 to 27 below). 14. The Regional Court noted that Ms B. was notified of the request for legal aid only in mid-2007, hence more than two and a half years after the expiry of the limitation period. It considered that the exception foreseen by domestic law allowing for the retroactive effect of arranging for notice to be given was not applicable in the instant case. According to that exception, the running of time for the purposes of limitation was suspended with effect from the day a request for legal aid was lodged, if the notification of that request was arranged “shortly after” (demnächst). The Regional Court noted that, according to the constant case-law of the domestic courts, the term “shortly after” was interpreted in a way that required the litigant to act with the necessary diligence to effect the immediate notice or service. It found that the applicant – who, as a lawyer, must have known that arranging for notice to be given to the defendant of his request for legal aid “shortly after” its submission was required to prevent his claim from becoming timebarred – had in a reproachable manner contributed to the delay and thus not acted with the necessary diligence required. The Regional Court observed that the applicant had not asked the Regional Court to notify immediately the defendant of his request for legal aid, irrespective of its prospects of success, which he could have done without additional costs and without suffering any procedural disadvantages. Also, rather than enquiring whether the notification of the request had been arranged, the applicant limited himself to enquiring whether his request for legal aid had been successful. In relation to the alleged telephone calls in June 2005 and November 2005, it found that, given that the Regional Court had not responded to his written request of 24 March 2005, the applicant should not have relied on the registry’s alleged statement. The court found it incomprehensible that the applicant had waited until 29 August 2005, and 11 May 2007, to enquire again in writing about the success of his request for legal aid. 15. The Regional Court added that, in any event, the claim concerning the reimbursement of approximately EUR 1.7 million was ill-founded and thoroughly reasoned this finding. 16. On an unspecified date the applicant requested legal aid in order to lodge an appeal. 17. On 22 June 2009 the Frankfurt/Main Court of Appeal dismissed his request, finding that the appeal lacked prospects of success as the Regional Court had rightly considered the applicant’s claims to be time-barred. It observed that the Regional Court had arranged for notice to be given to Ms B. of the applicant’s request for legal aid at the earliest in 2007 and argued that notice two and a half years after the request’s introduction could not be considered as having taken place “shortly after” that introduction. The interests of the defendant, who had no knowledge of the submission of the request for legal aid, in the protection of her legal positions and the clarification of the legal situation, had to be taken into account. 18. The Court of Appeal pointed out that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification. Furthermore, there must not be legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). It confirmed the Regional Court’s finding that the applicant had not acted with the necessary diligence. It underlined that the applicant would have had to alert the Regional Court about the imminent expiry of the limitation period and to ask to arrange for the immediate notification of the defendant in order to suspend the running of time for the purposes of limitation. In fact the applicant had to take into account that the Regional Court also had the possibility to refuse his request for legal aid without hearing, and hence without notifying, the defendant if it considered the claim to be illfounded or the applicant to have the necessary means (decision a limine). The Court of Appeal likewise considered that the subsequent steps taken by the applicant were not sufficient, because he had not asked for the notification to be effected immediately. The Court of Appeal based its decision to refuse legal aid exclusively on the finding that the claims were time-barred. 19. On an unspecified date the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the refusal to grant him legal aid violated his right of access to a court and that he had been discriminated against as an impecunious person compared to a litigant with sufficient financial means. 20. On 19 July 2010 the Federal Constitutional Court, sitting as a formation of three judges, declined to accept the applicant’s constitutional complaint for adjudication (1 BvR 1873/09). It found that the period of processing the request for legal aid and the delay in arranging for notice to be given to the defendant constituted gross negligence (grob fehlerhaft) by the Regional Court. Nonetheless, it considered that the decision of the Court of Appeal was in conformity with the case-law of the Federal Court of Justice, according to which a notification could only be “shortly after” the submission of a request for legal aid if the applicant concerned acted with the necessary diligence to effect the immediate notification, and if there were no legitimate interests of the defendant that conflicted with such retroactive effect (see relevant domestic law and practice paragraph 26 below). The Federal Constitutional Court found that the Court of Appeal’s finding that the applicant had not acted with the necessary diligence did not raise concerns. The applicant failed to ask the Regional Court to notify immediately the defendant about the request for legal aid. Neither in his initial lawsuit nor in his subsequent enquiries did the applicant indicate the particular urgency of the matter, namely, the imminent limitation of the claims. 21. In relation to the alleged discrimination, the Federal Constitutional Court found that impecunious litigants and litigants with sufficient financial means were in a comparable situation as regards the possibilities and obligations in order to suspend the running of time for purposes of limitation. Referring to the case-law of the Federal Court of Justice (see relevant domestic law and practice paragraph 28 below), it considered that a litigant with sufficient financial means must not limit himself to submitting a lawsuit, but rather had to remind the court to ask him to pay the necessary court fees or even to pay the fees on his own initiative, if the court had failed to ask him, in order to effect the service of the legal action. The Federal Constitutional Court found that such obligations on the part of a litigant with sufficient financial means were comparable to those of the applicant, namely his obligation to ask the court concerned to notify immediately the defendant of the request for legal aid, and to remind the court to arrange for notice to be given.