STORCK v. GERMANY (European Court of Human Rights) Application no. 486/14

Last Updated on May 21, 2021 by LawEuro

The applicant complained about the domestic courts’ refusal to reopen the civil proceedings against the H. Clinic following the Court’s judgment in her case (Storck v. Germany, no. 61603/00, ECHR 2005‑V) finding a violation of Article 5 § 1 and Article 8 of the Convention.

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FIFTH SECTION
DECISION
Application no. 486/14
Waltraud STORCK
against Germany

The European Court of Human Rights (Fifth Section), sitting on 26 June 2018 as a Chamber composed of:

Erik Møse, President,
Angelika Nußberger,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 31 December 2013,

Having regard to the declaration submitted by the respondent Government, as amended on 31 August 2016, requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Waltraud Storck, is a German national, who was born in 1958 and lives in Hünfelden-Kirberg. She was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.

2. The German Government (“the Government”) were represented by two of their Agents, Ms K. Behr and Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant complained about the domestic courts’ refusal to reopen the civil proceedings against the H. Clinic following the Court’s judgment in her case (Storck v. Germany, no. 61603/00, ECHR 2005‑V) finding a violation of Article 5 § 1 and Article 8 of the Convention.

4. On 9 November 2015 the application was communicated to the Government.

A. The circumstances of the case

1. Background to the case: the applicant’s previous application to the Court (no. 61603/00)

(a) The domestic court proceedings at issue in application no. 61603/00

5. From 29 July 1977 until 5 April 1979 the applicant was placed in a closed ward of the H. Clinic, a private psychiatric clinic, at her father’s request. The applicant, who had reached the age of majority at the time, had not been placed under guardianship and had not signed the clinic’s admission form consenting to her treatment in the clinic. No court order had been obtained permitting her placement in a psychiatric hospital against her will. Having been diagnosed with schizophrenia, she was treated with strong medication including neuroleptics, which was administered by force on several occasions. The applicant attempted to flee from the clinic several times and was shackled in order to prevent her from absconding; she was taken back to the clinic by the police following one of her attempts to escape.

6. After her medical treatment in the clinic for what was thought to be schizophrenia, the applicant developed post-polio syndrome and is today 100% disabled. Between 1980 and 1992 she was unable to speak.

7. The applicant subsequently stayed in further psychiatric and other hospitals. In 1994 and 1999 two psychiatric experts commissioned by her found that at no point in time had she suffered from a schizophrenia-type psychosis, but she had been suffering from a puberty-related identity crisis at the relevant time.

8. On 9 July 1998 the Bremen Regional Court allowed an action for compensation in respect of pecuniary and non-pecuniary damage which the applicant had brought against the H. Clinic in 1997. It found that the applicant’s detention had been illegal under German law, as she had not validly consented to her detention and a court order authorising it had not been issued. Nor were her compensation claims time-barred.

9. On 22 December 2000 the Bremen Court of Appeal quashed the Regional Court’s judgment and dismissed the applicant’s action. It considered that the applicant had not been illegally deprived of her liberty during her stay at the clinic and did not have any compensation claims on a contractual basis. She had implicitly consented to her treatment and thus concluded a contract, but her treatment had not been erroneous. Any compensation claims were, in any event, time-barred.

10. An appeal by the applicant to the Federal Court of Justice was to no avail.

11. On 6 March 2002 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant.

(b) The Court’s judgment in application no. 61603/00

12. By a judgment dated 16 June 2005, the Court found that the applicant’s placement in the H. Psychiatric Clinic from 1977 to 1979, against her will and without the necessary court order, and the forcible medical treatment, had breached Article 5 § 1 and Article 8 of the Convention (see Storck, cited above).

13. In relation to the applicant’s complaint under Article 5 § 1 of the Convention, the Court found that the applicant, who had not consented to her stay at the clinic, had been deprived of her liberty. The Court further found that the applicant’s medical treatment against her will had interfered with her right to respect for her private life under Article 8 of the Convention.

14. The Court considered that the fact that the applicant had been deprived of her liberty at a private clinic and had received medical treatment against her will was imputable to the respondent State, in particular because the appellate courts, in their interpretation of the provisions of civil law relating to the applicant’s compensation claims, had failed to interpret those provisions in the spirit of Article 5 and Article 8 of the Convention. The respondent State’s responsibility was further based on the police’s involvement in the continuation of the applicant’s detention, and consequently her medical treatment. As there had been no court order authorising the applicant’s confinement and treatment at the H. Clinic, which had been necessary under domestic law for the detention and medical treatment of a person against his or her will for being of unsound mind, her detention had not been lawful under domestic law.

15. The Court also found that the State had failed to comply with its positive obligation to protect individuals such as the applicant against interferences with their right to liberty and respect for their private life by private persons, in particular by exercising sufficient supervision and control over private psychiatric institutions.

16. As to the application of Article 41 of the Convention, the relevant paragraphs of the Court’s judgment read as follows:

“176. With regard to the applicant’s claim for pecuniary damage, the Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention found, and that this may, where appropriate, include compensation in respect of loss of earnings or other sources of income (see, among other authorities, Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285-C, pp. 57-58, §§ 16-20, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV). In the present case, the Court notes that it has found violations of Article 5 § 1 and [Article] 8 with respect to the applicant’s stay in [the H.] clinic from 1977 to 1979. It observes that the applicant had neither trained in nor practised the profession of a technical engineer, or draughtswoman, before her confinement in the clinic, so that the detention did not interfere with an existing source of income. The Court is aware that the applicant’s involuntary placement in the clinic, her medical treatment there and its consequences for her health entailed a loss of opportunities with regard to her professional career. It cannot, however, speculate as to what profession the applicant would have taken up, or how much money she would have earned at a later stage if she had not stayed in the clinic from 1977 to 1979. Consequently, no clear causal connection between the applicant’s loss of estimated earnings and her pensions calculated on that basis has been established. Likewise, the Court, on the basis of the material before it, cannot discern a clear causal connection between the applicant’s confinement in [the H.] clinic and her claim for dentist’s fees and auxiliary devices not covered by her health insurance.

177. As to the applicant’s claim for compensation for all future pecuniary damage resulting from the treatment at [the H.] clinic in Bremen and at Mainz University Clinic, the Court observes that it has not found a violation of the Convention in respect of the applicant’s treatment at [the H.] clinic in 1981 and at Mainz University Clinic. Consequently, no claim for damages can arise in this respect. As to her claim concerning her treatment at [the H.] clinic from 1977 to 1979, the Court finds that it can neither speculate as to the exact amount of pecuniary damage that will arise from her confinement in that clinic, nor as to whether there will be a causal link between such future damage and her treatment there. Therefore, the Court makes no award in respect of pecuniary damage.

178. With regard to the applicant’s claim for non-pecuniary damage, the Court refers to its findings above of grave violations of Articles 5 § 1 and 8 of the Convention in the present case. It notes again that the applicant was confined in the clinic without a legal basis and was treated there at a rather young age for a period of more than twenty months. The interference with the applicant’s physical integrity as a result of her forced medical treatment was of particular gravity. It was the cause of the serious and irreversible damage to her health and, indeed, deprived her of the opportunity to lead an autonomous professional and private life. The Court points out that the applicant’s case, as regards the assessment of non-pecuniary damage, must also be distinguished from cases like H.L. v. the United Kingdom [no. 45508/99, §§ 148-150, ECHR 2004-IX]. In the present case, it is most questionable, and indeed was not assumed by either of the parties, that the applicant could have been detained at all against her will as a person posing a serious threat to public safety or order under the applicable legislation (section 2 of the Act of the Land of Bremen on the detention of mentally insane persons, mentally deficient persons and drug addicts …). Having regard to previous comparable applications in which there have also been substantive interferences with applicants’ physical and moral integrity (see, for example, A. v. the United Kingdom, judgment of 23 September 1998, Reports 1998‑VI, p. 2701, § 34, and Peers v. Greece, no. 28524/95, § 88, ECHR 2001-III), and deciding on an equitable basis, the Court awards the applicant EUR 75,000 in compensation for non-pecuniary damage, together with any tax that may be chargeable on that amount.”

17. The operative provisions concerning just satisfaction read as follows:

“10. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 75,000 (seventy-five thousand euros) in respect of non-pecuniary damage;

(ii) EUR 18,315 (eighteen thousand three hundred and fifteen euros) in respect of costs and expenses;

(iii) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

11. Dismisses the remainder of the applicant’s claim for just satisfaction.”

18. The judgment became final on 16 September 2005.

2. Proceedings at issue in the applicant’s present application to the Court

(a) Proceedings before the Bremen Court of Appeal

19. On 17 October 2005 the applicant applied to the Bremen Court of Appeal for legal aid in order to bring an action to reopen the compensation proceedings she had brought against the H. Clinic (see paragraphs 5-11 above). She claimed that her action against the clinic should be retried following the Court’s judgment in her application no. 61603/00 finding breaches of Article 5 and Article 8 of the Convention. The applicant argued that, by analogy, the Court’s judgment constituted grounds for a retrial under Article 580 no. 7 (b) of the Code of Civil Procedure (see paragraph 42 below). In particular, she requested that the clinic be ordered to pay her a monthly pension of 1,700 euros (EUR) for loss of earnings, and further compensation for non-pecuniary damage in the amount of EUR 425,000. She claimed that her 100% disability, her inability to work, her constant pain, and the fact that she could only move around in a wheelchair had been caused by her treatment in that clinic.

20. On 2 February 2006 the Bremen Court of Appeal dismissed the applicant’s request for legal aid as ill-founded, as her planned action to reopen her proceedings against the H. Clinic lacked sufficient prospects of success. The court found that the applicant’s intended action for a retrial of her case was inadmissible for lack of grounds for a retrial under Article 580 of the Code of Civil Procedure.

21. The Bremen Court of Appeal found that, other than for criminal proceedings (Article 359 no. 6 of the Code of Criminal Procedure; see paragraph 44 below), the Code of Civil Procedure did not provide for the reopening of proceedings concluded by a final judgment in cases in which the European Court of Human Rights had found a breach of the Convention. In accordance with the domestic courts’ well-established case-law, Article 580 no. 7 (b) of the Code of Civil Procedure could not be applied in respect of a judgment of the Court, either directly – as such judgments did not constitute “documents” for the purposes of that provision – or by analogy (see paragraph 42 below). With regard to the latter, the Court of Appeal considered that there was no gap in the legislative provisions on reopening proceedings which had to be filled by the analogous application of Article 580 no. 7 (b) of the Code of Civil Procedure. The legislature, by adopting (only) Article 359 no. 6 of the Code of Criminal Procedure in 1998, had made it clear that reopening proceedings should only be provided for in criminal proceedings, and not in civil proceedings in cases in which the European Court of Human Rights had found a breach of the Convention.

22. The Court of Appeal further considered that the applicant’s intended action did not raise a difficult or unanswered legal question which made it necessary to grant her legal aid in order to comply with the constitutional right to equality in respect of access to court. In particular, as shown above, under the domestic courts’ well-established case-law, it was clear that Article 580 no. 7 (b) of the Code of Civil Procedure could not be applied by analogy.

23. The Court of Appeal took the view that, in that context, having regard to the importance of the res judicata effect in domestic legal orders, Article 46 of the Convention permitted the Contracting Parties not to amend judicial decisions which had become final and which had subsequently been considered by the European Court of Human Rights not to comply with the Convention. Article 41 of the Convention permitted the Court to grant an applicant compensation in such circumstances. The applicant had been granted compensation in the European Court of Human Rights’ judgment of 16 June 2005 in her case.

24. On 20 April 2006 the Bremen Court of Appeal dismissed the applicant’s objection to its decision of 2 February 2006 as inadmissible, as she had failed to demonstrate that its decision had either breached procedural rights or was flagrantly illegal. In addition to the reasons it had set out in its decision of 2 February 2006, it added that the applicant’s request for legal aid was to be dismissed, as she now had sufficient means to bear the costs of the proceedings. She had received the payment of EUR 75,000 in respect of non-pecuniary damage awarded to her by the European Court of Human Rights, and could be expected to use part of that amount for the costs of the fresh proceedings she intended to bring. The Court of Appeal further found that the applicant had not submitted any grounds for it to amend its finding that there were no grounds for a retrial in her case.

(b) Proceedings before the Federal Constitutional Court

25. On 10 March 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the Court of Appeal’s decision of 2 February 2006. By submissions dated 22 May 2006, she extended her complaint to include the Court of Appeal’s decision of 20 April 2006. She alleged, inter alia, that it was discriminatory that, at that time, domestic law did not provide for retrials in respect of final judgments of the civil courts if the European Court of Human Rights found a violation of the Convention or the Protocols thereto and if the civil court’s judgment was based on that violation, whereas the possibility of a retrial was provided for in respect of criminal proceedings. Article 359 no. 6 of the Code of Criminal Procedure (see paragraph 44 below) should have been applied by analogy to allow for a retrial of the compensation proceedings she had brought against the H. Clinic. Moreover, by a submission dated 7 May 2008, the applicant informed the Federal Constitutional Court of the content of the Committee of Ministers’ Resolution of October 2007 closing the examination of the case of Storck v. Germany, application no. 61603/00 (see paragraphs 37-40 below).

26. On 18 August 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, which it had communicated to the Land of Bremen for observations, and declined to grant her legal aid in the proceedings before it (no. 2 BvR 1380/08).

27. The Federal Constitutional Court left open the question of whether the applicant’s constitutional complaint lacked prospects of success because she no longer lacked sufficient means to bring an action for the retrial of her case.

28. The Federal Constitutional Court noted that the Committee of Ministers, in its Resolution CM/ResDH(2007)123 of 17 October 2007, had decided to close the examination of the applicant’s case in accordance with Article 46 § 2 of the Convention (see paragraphs 38-40 below). It observed that the Committee of Ministers had considered that the applicant would not benefit from the introduction of Article 580 no. 8 of the Code of Civil Procedure as of 31 December 2006, owing to a lack of retroactive effect. The Committee of Ministers had further noted that the applicant had lodged a constitutional complaint against the Court of Appeal’s decision of February 2006 refusing her legal aid. The Committee of Ministers had finally stated that in the light of the Federal Constitutional Court’s consistent case-law, it was to be expected that that court would fully implement the Convention and the European Court of Human Rights’ case‑law in its decision, in order to grant full redress to the applicant (see paragraph 39 below).

29. The Federal Constitutional Court considered firstly that the applicant had not sufficiently substantiated her claim that the Court of Appeal had disregarded her right under Article 46 of the Convention to have a breach of the Convention stopped and to have sufficient redress granted. Her constitutional complaint was therefore inadmissible in this respect. The applicant had failed to demonstrate that the European Court of Human Rights’ judgment in her favour – by which the Court had ordered Germany to pay her EUR 75,000 in respect of non-pecuniary damage as well as EUR 18,315 for costs and expenses under Article 41 of the Convention – had not been executed. In its judgment, the Court had not imposed additional obligations on Germany beyond such payment. It had also not expressly suggested that reopening the proceedings before the domestic courts was the most appropriate form of redress, contrary to what it had done in a number of other judgments, for example in Sejdovic v. Italy ([GC], no. 56581/00, § 125, ECHR 2006‑II, with further references).

30. Secondly, the applicant had failed to substantiate that the Court of Appeal had breached the right to equality by applying Article 580 of the Code of Civil Procedure – an Article which, unlike Article 359 no. 6 of the Code of Criminal Procedure, had not at the material time provided that the finding of a breach of the Convention by the European Court of Human Rights constituted grounds for reopening a case. Notably, she had not complained of unequal treatment by the legislature in this respect.

31. Thirdly, as regards the alleged breach of the applicant’s right to equal treatment in the sphere of legal protection, the applicant’s constitutional complaint was in any event ill-founded. The Federal Constitutional Court confirmed the Court of Appeal’s finding that the legal question before that court had not been difficult, and the answer to that question had been clear. As a case in which the European Court of Human Rights had found a breach of the Convention, there had indeed been no provision for an action for the retrial of the applicant’s case under Article 580 of the Code of Civil Procedure. At the time of its decisions in 2006, the Court of Appeal had thus not been in a position to decide again on the applicant’s action for compensation by interpreting the law in a methodically defendable manner, which constituted the limit of what was expected in interpreting domestic law in a Convention-friendly manner. Therefore, the refusal of legal aid had not frustrated the purpose of legal aid, which was namely to give persons without sufficient means essentially the same access to court as persons having sufficient means.

32. Moreover, in the Federal Constitutional Court’s view, neither the Convention nor the European Court of Human Rights’ case-law required a different interpretation of Article 580 of the Code of Civil Procedure as it stood at the material time, an interpretation allowing for the reopening of the civil proceedings brought by the applicant.

33. In this regard, it considered that the German legal aid system did not raise concerns under the Convention per se. The Court’s case-law did not oblige Contracting States to provide legal aid for all disputes in civil proceedings. The right of access to a court, as guaranteed by the Convention, was not absolute and might be subject to restrictions, provided that these pursued a legitimate aim and were proportionate. Notably, it might be acceptable to impose conditions on the grant of legal aid based on, inter alia, a litigant’s financial situation or prospects of success in the proceedings, provided that the legal aid system offered individuals substantial guarantees to protect them from arbitrariness. Referring to a number of decisions by the Court, the Federal Constitutional Court noted that the German legal aid system offered litigants substantial guarantees to protect them from arbitrariness.

34. While Article 46 § 1 of the Convention obliged the Contracting States to abide by the final judgment of the Court in any case to which they were parties, the execution of such judgments was a matter for the Contracting States. They were obliged, as far as possible, to take general and, where required, individual measures in their domestic legal orders to put an end to the violation found by the Court and to redress the effects as far as possible, the aim being to put the applicant in the position he would have been in had the requirements of the Convention not been disregarded. However, this obligation did not entail the requirement to provide for the possibility to reopen civil proceedings which had been concluded by a final judgment.

35. The Federal Constitutional Court further stated that the European Court of Human Rights did not have jurisdiction to examine whether a Contracting State had complied with its duties to execute a judgment of the Court. Rather, the supervision of the execution of judgments was the responsibility of the Committee of Ministers under Article 46 § 2 of the Convention. The European Court of Human Rights had previously accepted an exception to this rule where measures which a Contracting State had implemented to provide redress for a violation of the Convention had given rise to new questions which had not been adjudicated by the Court in its judgment. Referring to Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) ([GC], no. 32772/02, ECHR 2009), the Federal Constitutional Court noted that the European Court of Human Rights had considered that the requirements of this exception were met where domestic law did, as a rule, provide for the reopening of proceedings and the Committee of Ministers had closed the examination of a case not knowing that the competent domestic court had rejected the request to reopen the case based on new facts.

36. The Federal Constitutional Court considered that the matter of which consequences such an exceptional case would have on German law could be left open. In the applicant’s case, there were no new questions arising after the Committee of Ministers’ decision to terminate the supervision of the execution of the Court’s judgment in her previous case which could lead to another substantive examination of the case by the Court. At the material time, reopening her case had not been possible under the applicable provisions of domestic law. The applicant’s submission that reopening the civil proceedings against the H. Clinic constituted the only possibility in German law for her to obtain “full redress” for the breaches of the Convention – which the Committee of Ministers expected – was incorrect. It had been open to the applicant to bring an action for damages under Article 5 § 5 of the Convention against the Federal Republic of Germany or the Free Hanseatic City (Land) of Bremen, at least in so far as pecuniary damage was concerned, for which the European Court of Human Rights had not made an award in its judgment. In accordance with the case-law of the German civil courts, a claim for damages against the State arose directly from that provision where a person had been deprived of his or her liberty in breach of Article 5 of the Convention; such a claim did not require any fault on part of the authorities. However, such a claim had probably become time-barred in the meantime in accordance with Article 195 and Article 199 § 1 of the Civil Code, as the rules on limitation for tort claims applied to it by analogy.

3. Supervision of the execution of the Court’s judgment in application no. 61603/00

37. The Committee of Ministers examined the case of Storck v. Germany, application no. 61603/00, during its 1007th meeting of 15‑17 October 2007, that is, at a point in time between the decisions of the Bremen Court of Appeal in 2006 and the decision of the Federal Constitutional Court of 18 August 2013.

38. Acting under the provisions of Article 46 § 2 of the Convention, which provides that it supervises the execution of final judgments of the European Court of Human Rights, the Committee of Ministers decided to close the examination of the applicant’s case (Resolution CM/ResDH(2007)123 of 17 October 2007). It reiterated that the finding of violations by the Court required, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of individual measures to put an end to the violations and erase their consequences so as to achieve, as far as possible, restitutio in integrum. Furthermore, the respondent State had to adopt general measures preventing similar violations.

39. The Committee of Ministers further reiterated that the Court had found that the applicant’s detention in a closed ward of the private psychiatric clinic in question and her medical treatment against her will had breached Article 5 § 1 and Article 8 of the Convention. In the Appendix to its Resolution, the Committee of Ministers stated:

“Individual measures

The European Court awarded 75 000 euros just satisfaction in respect of non‑pecuniary damage. Under German law until end of 2006 there was no explicit possibility to ask for reopening of civil proceedings on the grounds that the domestic court’s judgment did not interpret domestic law in the spirit of the Convention. In that respect the German Code of Civil Procedure differed from the Criminal Code of Procedure, which explicitly provides reopening in cases where the European Court found a violation which might have had repercussions on the outcome of the proceedings at issue (paragraph 359 Nr. 6 StPO).

On 31/12/2006 new legislation entered into force providing for reopening of civil proceedings in the same way as it was already the case for criminal proceedings (paragraph 580 Nr. 8 Code of Civil Procedures, introduced through the 2ndlaw on modernising the judiciary, BGBl. I 2006 no. 66 of 30/12/2006). As the law does not have any retroactive effect, it appears that the applicant might not benefit from it. The applicant could not initiate criminal proceedings for deprivation of liberty … and bodily harm … as they were already time-barred when the applicant regained her ability to speak. Nevertheless the applicant is currently seeking reopening of domestic proceedings with a view to receiving additional compensation for pecuniary damage caused by her illegal detention. Her claim for legal aid was rejected by the Bremen Court of Appeal in February 2006. In March 2006 the applicant lodged a constitutional complaint against this decision, arguing that under German constitutional law as well as under the Convention, reopening proceedings would be possible and not futile and therefore legal aid ought to be granted. Given the constant practice of the Federal Constitutional Court, it is expected that the domestic court in its decision will fully implement the Convention as well as the European Court’s case law in order to grant full redress to the applicant.”

40. Under the heading of general measures, the Committee of Ministers reiterated, inter alia, that the introduction into German law of the possibility to reopen civil proceedings following a violation found by the Court was in line with its Recommendation to Member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (Recommendation R(2000)2 adopted on 19 January 2000 at the 694th meeting of the Ministers’ Deputies).

41. Following the Federal Constitutional Court’s decision of 18 August 2013 declining to consider the applicant’s constitutional complaint, on 13 March 2014 the applicant asked the Committee of Ministers to reopen the proceedings for the supervision of the execution of the Court’s judgment of 16 June 2005. At the time of the present decision, the Committee of Ministers has not yet given a decision on the applicant’s request.

B. Relevant domestic law and practice

1. Provisions of the Code of Civil Procedure and the Introductory Act to that Code concerning the reopening of civil proceedings

42. Article 580 of the Code of Civil Procedure, as in force at the relevant time, enumerated in its nos. 1 to 7 (b) the grounds for reopening civil proceedings. Article 580 no. 7 (b) of the Code of Civil Procedure, in particular, provided and still provides that an action for the retrial of a case before the civil courts arises where a party finds or is put in a position to avail himself or herself of another document that would have resulted in a decision more favourable to his or her interests. In accordance with the case-law of the domestic courts as it stood in 2006, Article 580 no. 7 (b) of the Code of Civil Procedure was not applicable in respect of judgments of the European Court of Human Rights, either directly (see Brandenburg Court of Appeal, no. 4 U 34/04, judgment of 9 June 2004, and Bautzen Regional Court, no. 4 O 151/04, judgment of 8 October 2004), or by analogy (see the judgment of the Brandenburg Court of Appeal, cited above, and Saxony-Anhalt Court of Appeal, no. 11 U 135/04, judgment of 17 May 2005).

43. With effect from 31 December 2006, the legislature enacted new grounds for retrying a case in Article 580 of the Code of Civil Procedure. Under Article 580 no. 8, an action for retrial lies against final judgments of the civil courts if the European Court of Human Rights has found a violation of the Convention or the Protocols thereto and if the civil courts’ judgment is based on that violation. Under section 35 of the Introductory Act to the Code of Civil Procedure, Article 580 no. 8 of the Code of Civil Procedure does not apply to proceedings terminated by a final judgment prior to 31 December 2006.

2. Provision of the Code of Criminal Procedure concerning the reopening of criminal proceedings

44. Under Article 359 no. 6 of the Code of Criminal Procedure, reopening criminal proceedings terminated by a final judgment is permitted for the benefit of a convicted person if the European Court of Human Rights has found a violation of the Convention or the Protocols thereto and if the criminal court’s judgment is based on that violation. Those grounds for a retrial were introduced by the legislature in Article 359 of the Code of Criminal Procedure, with effect from 15 July 1998.

3. Provisions governing legal aid

45. The conditions for legal aid are set out in Articles 114 et seq. of the Code of Civil Procedure. In accordance with these provisions, a party that cannot afford the costs of proceedings is granted legal aid upon an application if the intended legal action offers sufficient prospects of success and does not appear to be unjustified (mutwillig). It is the court with jurisdiction to deal with the intended action itself which is called upon to decide on requests for legal aid and a decision refusing legal aid may be appealed against (Article 127 §§ 1 and 2 of the Code of Civil Procedure).

4. Claims for damages based on Article 5 § 5 of the Convention

46. In accordance with the consistent case-law of the domestic courts, a claim for damages against the State arises directly from Article 5 § 5 of the Convention where a person has been deprived of his or her liberty in breach of Article 5 of the Convention (see Federal Court of Justice, no. III ZR 118/64, judgment of 31 January 1966). The claim exists regardless of there being any fault (Verschulden) on the part of the authorities (ibid.). The domestic courts interpret a claim based on Article 5 § 5 of the Convention as being aimed at granting restitutio in integrum (echter Schadensersatz) to the injured party, covering both pecuniary and non-pecuniary damage (see Federal Court of Justice, no. III ZR 3/92, judgment of 29 April 1993). However, the respective damage must result from the unlawful deprivation of liberty itself, that is, from the violation of Article 5 of the Convention (see Federal Court of Justice, no. III ZR 342/12, judgment of 4 July 2013, where the court found that damage concerning conditions of detention in breach of Article 3 of the Convention was not covered by the scope of the claim based on Article 5 § 5 of the Convention). There is no settled domestic case-law as to whether there is room for additional compensation based on Article 5 § 5 of the Convention once the European Court of Human Rights has found a violation of Article 5 of the Convention and awarded just satisfaction under Article 41 of the Convention and the German authorities have paid that award to the person concerned (see Frankfurt/Main Court of Appeal, no. 15 W 2/12, decision of 9 April 2013).

47. The consistent case-law of the domestic courts provides that the rules on the prescription of compensation claims (deliktische Ansprüche) apply by analogy to a claim based on Article 5 § 5 of the Convention (see ibid.; Federal Constitutional Court, no. 1 BvR 414/04, decision of 6 October 2004). The prescription period of three years starts at the end of the year in which the claim arose and the claimant first had knowledge of the circumstances giving rise to the claim and the identity of the defendant, applied in accordance with Article 195 and Article 199 § 1 of the Civil Code. The domestic courts consider that such a claim arises at the time when the deprivation of liberty is objectively unlawful, without requiring a finding by a court to that end (see Hamm Court of Appeal, no. I‑11 U 131/13, judgment of 6 February 2015., and Marburg Regional Court, no. 2 O 63/13, judgment of 8 July 2014). Exceptionally, an unclear legal situation can result in the commencement of the limitation period being postponed owing to ignorance of the law (see Federal Court of Justice, no. III ZR 353/04, 3 March 2005).

COMPLAINTS

48. The applicant complained about the domestic courts’ refusal to reopen the civil proceedings against the H. Clinic following the Court’s judgment in her case (Storck v. Germany, no. 61603/00, ECHR 2005‑V) finding a violation of Article 5 § 1 and Article 8 of the Convention. She claimed that the domestic courts were obliged to reopen those proceedings, as this was the only way for her to obtain “full redress” for the Convention violations found by the Court in that judgment. The domestic courts’ failure to grant her legal aid to bring an action for the retrial of her case, and the failure to grant her legal aid in the proceedings before the Federal Constitutional Court, had breached her right to equal treatment in respect of access to court, the principle of equality of arms, the fairness of proceedings, and the right of access to court. The applicant relied on Articles 1, 5 § 1, 6 § 1, 8, 13, 14 and 46 of the Convention, and Article 1 of Protocol No. 1 to the Convention.

THE LAW

A. Preliminary remarks

49. The Court notes at the outset that it has previously dealt with the applicant’s complaints under the Convention relating to her placement in the H. Clinic and the forcible medical treatment administered there, finding a violation of Article 5 § 1 and Article 8 of the Convention and awarding her EUR 75,000 in respect of non-pecuniary damage while making no award in respect of pecuniary damage (see paragraphs 12-18 above). At the heart of the present application lies the applicant’s claim that she has so far not been provided with sufficient redress for the Convention violations found by the Court and that she ought to be granted additional compensation.

50. At the domestic level, she unsuccessfully sought to obtain additional compensation for the Convention violations found by requesting (legal aid for) the reopening of the civil proceedings against the private H. Clinic (see paragraphs 19-36 above). Her Convention complaints now before the Court relate to refusal of the domestic courts to reopen the civil proceedings against the H. Clinic and, respectively, to grant her legal aid for such retrial. The complaints raise questions as to the execution of the Court’s judgment in the applicant’s first case and the powers of the Court and the Committee of Ministers in this respect.

51. Lastly, the Court notes that the Government submitted that they considered the application as a whole to be inadmissible but that, having regard to the applicant’s medical history, they had decided to acknowledge, by way of a unilateral declaration, a violation of her procedural rights (see paragraphs 54 and 58 below).

B. Alleged violation of the applicant’s procedural rights due to the denial of legal aid

52. The applicant alleged that the Bremen Court of Appeal’s refusal to grant her legal aid to bring an action for reopening of the compensation proceedings against the H. Clinic had breached her right of access to court and of equal treatment in respect of that right, the principle of equality of arms and the fairness of proceedings.

53. After attempts by the Government to reach a friendly settlement directly with the applicant failed, by a letter of 1 March 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further asked the Court to strike out the application, in accordance with Article 37 of the Convention.

54. The declaration provided as follows:

“1. The Federal Republic of Germany hereby informs the Court that it has unfortunately been unable to reach agreement with the Applicant regarding a settlement.

2. The Federal Government … wishes to acknowledge – by way of a unilateral declaration – that the Applicant’s procedural rights under Article 6(1) of the Convention as well as rights arising from Article 5(1) and Article 8 of the Convention were violated by the denial of legal aid for the intended reopening of the Applicant’s lawsuit against Dr. Heine’s private clinic before the [Bremen Court of Appeal].

3. If the Court strikes this case from its list, the Federal Government is willing to accept a claim for compensation in the amount of €8,000. This sum of €8,000 would be deemed to settle all claims in connection with [application no. 486/14] against the Federal Republic of Germany and the Land of Bremen, including in particular compensation (also for non-pecuniary damage) as well as costs and expenses.

4. The Federal Government regards the amount of €8,000 as reasonable. First of all, this would leave the Applicant in the same economic position as if her request for legal aid had been granted. The offered amount covers the expected procedural costs that would be incurred by bringing an action to reopen the case. It also includes compensation for non-pecuniary disadvantages resulting from curtailment of the Applicant’s procedural rights in the legal aid proceedings. In addition, it provides appropriate recompense for the costs incurred by the Applicant in the proceedings before the [Court of Appeal] as well as the fees and expenses of her legal representative in the proceedings before the Federal Constitutional Court and the European Court of Human Rights.

5. The Applicant’s further claims to compensation for damage arising from loss of opportunity are regarded by the Federal Government as unjustified. For disadvantages suffered and occurring prior to April 1979, the Federal Government takes the view that the Applicant has already received an adequate settlement in the form of the compensation awarded by the Court in its judgment of 16 June 2005 (Application no. 61603/00). Had civil proceedings been reopened before the domestic courts, it is entirely unclear whether the Applicant would have been awarded compensation for any deterioration in her health materialising after April 1979. The declaration by the Bremen [Court of Appeal] – in its judgment of 22 December 2000 – that the Applicant’s treatment in the period from July 1977 to April 1979 had been correct and that no overdose of medication had taken place (§ 40 of the Court’s judgment of 16 June 2005) was seen by the Court as not violating the Applicant’s procedural rights (§§ 130-136 of the Court’s judgment of 16 June 2005).

6. The Application does not raise any wider-ranging issues about the protection of Convention rights beyond the scope of the Applicant’s individual case. For all proceedings concluded with final and binding effect after 31 December 2006, the Federal Republic has introduced a statutory provision – section 580(8) of the Code of Civil Procedure … – that opens up the possibility of a retrial.

7. The Federal Government therefore requests that this Application be struck out of the Court’s list of cases pursuant to Article 37(1)(c) of the Convention. The Federal Government’s acknowledgement of a violation of Articles 5, 6 and 8 of the Convention and its acceptance of the claim for compensation in the amount of €8,000 constitutes an ‘other reason’ within the meaning of that provision. …”

55. By a letter of 28 April 2016 the applicant indicated that she was not satisfied with the terms of the unilateral declaration. She noted that a unilateral declaration was not covered by Article 580 no. 8 of the Code of Civil Procedure, which allowed for the retrial of matters in which final judgments of the civil courts had been given if the European Court of Human Rights found a violation of the Convention or the Protocols thereto and if the civil courts’ judgment was based on that violation. Hence, despite the Government’s unilateral declaration, she would not be able to obtain a retrial of the compensation proceedings before the civil courts. Referring to Hakimi v. Belgium (no. 665/08, § 29, 29 June 2010) and to Rozhin v. Russia (no. 50098/07, § 23, 6 December 2011), she argued that the application should not be struck out, also emphasising that the problem of preventing retrials in matters where the final judgments of civil courts had been rendered prior to 31 December 2006 was structural in nature; there was at least one more case pending before the Court where such a retrial had been denied despite a judgment of the Court finding a violation of the Convention.

56. Moreover, the declaration did not cover all violations of the Convention. One of her complaints was about the legislature’s decision to prevent retrials in matters where the final judgments of civil courts had been rendered prior to 31 December 2006 if the European Court of Human Rights found a violation of the Convention or the Protocols thereto and if the civil court’s judgment was based on that violation, the possibility of such a retrial being provided for in respect of criminal proceedings (see paragraphs 70-76 below). That complaint, under Article 6 of the Convention alone and taken in conjunction with Article 14 of the Convention, was not covered by the unilateral declaration. If the Court struck out the application on the basis of the unilateral declaration by the respondent Government, there would subsequently be no possibility of reopening the compensation proceedings she had brought against the H. Clinic, as there would still be no grounds for reopening the case under domestic law, given that those proceedings had been terminated by a final judgment before the cut-off date of 31 December 2006.

57. Furthermore, the unilateral declaration did not cover her complaint that she had been denied “full redress” for the Convention violations found by the Court in her previous case (Storck, cited above). She reiterated that she was entitled, under domestic law, to a significantly higher amount in compensation for non-pecuniary damage and pecuniary damage, in particular for loss of earnings. Lastly, the sum of EUR 8,000 offered by the Government was inadequate and did not constitute sufficient compensation for the non-pecuniary damage she had sustained as a result of the violations of the Convention acknowledged by the Government. In this connection, she submitted that the costs and expenses which she had incurred in the legal aid proceedings before the Bremen Court of Appeal and the proceedings before the Federal Constitutional Court and this Court had amounted to a total of around EUR 4,200, and that the costs and expenses of the compensation proceedings before the Court of Appeal would have amounted to another EUR 10,608. EUR 25,000 would constitute just satisfaction for non-pecuniary damage in that regard. She wished for the examination of the case to be continued.

58. In their observations of 31 August 2016 the Government increased the amount offered to EUR 17,000, while maintaining, in substance, the scope of the unilateral declaration. They added that they considered the application as a whole to be inadmissible or, in the alternative, ill-founded, but stated that, having regard to the applicant’s medical history, they had decided to acknowledge a violation of her procedural rights to equal treatment in respect of access to court, the principle of equality of arms, the fairness of the proceedings and the right of access to court – a violation which was attributable to the Bremen Court of Appeal, given its refusal to grant her legal aid due to a lack of prospects of success.

59. They explained that the sum of EUR 17,000 now offered comprised: EUR 9,000 in pecuniary compensation, which corresponded to the amount of the hypothetical legal aid award for the proceedings before the Court of Appeal; the costs and expenses incurred in the legal aid proceedings; the costs and expenses incurred in the proceedings before the Federal Constitutional Court and this Court (the Government stating that, while the costs and expenses claimed for the proceedings before the Federal Constitutional Court were a bit too high and were estimated by them at EUR 436.97 instead of EUR 600.71, those claimed for the proceedings before this Court (EUR 3,320.87) were adequate); and EUR 4,000 in compensation for non-pecuniary damage sustained by the applicant due to the denial of legal aid.

60. In their observations of 31 August 2016, the Government no longer asked the Court to strike the entire application out of its list of cases on the basis of their unilateral declaration (see paragraph 54 above), but only as regards those violations of the applicant’s rights under the Convention which were acknowledged in the Government’s unilateral declaration of 1 March 2006. They asked the Court to declare the remainder of the application inadmissible or, in the alternative, to find that the applicant’s rights under the Convention have not been violated.

61. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:

“… for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

62. The Court also reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government, even if the applicant wishes the examination of the case to be continued.

63. To this end, the Court has examined the declaration in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Herman v. the Netherlands (dec.), no. 35965/14, §§ 15-18, 17 November 2015).

64. It notes that Article 6 § 1 of the Convention is, in principle, not applicable ratione materiae to proceedings concerning an application to reopen civil proceedings following the finding of a violation by the Court, but that there are exceptions to this rule (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 44-51, ECHR 2015). The Government consider the application as a whole to be inadmissible, or in the alternative, ill-founded but have decided – having regard to the applicant’s medical history – to acknowledge a violation of her procedural rights (see paragraph 58 above). Under these circumstances the Court does not need to address the question of the applicability of Article 6 § 1 of the Convention in the light of the Government’s unilateral declaration acknowledging a violation of the applicant’s procedural rights under Article 6 of the Convention – and Article 5 § 1 and Article 8 of the Convention – by the denial of legal aid.

65. Having regard to the nature of the admissions contained in the Government’s declaration, as amended on 31 August 2016, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1 (c)).

66. Moreover, in the light of the above considerations, and noting that this prejudges neither the rest of the applicant’s complaints not covered by the scope of the unilateral declaration (see paragraphs 58 and 60 above) nor any other cases that concern the refusal to retry cases where final judgments of German civil courts have been rendered prior to 31 December 2006, the Court is satisfied that respect for human rights, as defined in the Convention and the Protocols thereto, does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

67. The Court considers that the amount stated in the Government’s declaration, as amended on 31 August 2016, should be paid within three months of the date of notification of the decision issued by the Court in accordance with Article 37 § 1 of the Convention. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank, plus three percentage points.

68. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

69. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaints.

C. Alleged violation of Article 6 taken alone and in conjunction with Article 14 of the Convention owing to omissions of the legislature

70. The applicant complained under Article 6 of the Convention – taken alone and in conjunction with Article 14 of the Convention – about the absence of grounds in German law for a retrial where there are final judgments of the civil courts, in so far as the complaint relates to the decisions of the domestic courts rejecting an analogous application of the other provisions allowing for retrials, notably the provision allowing for retrials where there are final judgments of the criminal courts. The Court considers the complaint to be covered by the scope of the unilateral declaration by the respondent Government (see paragraphs 54 and 58-60 above) and the Court’s decision to strike that part of application out of the list (see paragraphs 61-69 above).

71. As regards the applicant’s complaint about the legislature’s omission to adopt a provision – from which she could benefit – allowing for a retrial where there were final judgments of civil courts, the Court considers that it is not covered by the Government’s unilateral declaration.

72. The Government submitted that this complaint was inadmissible – firstly because it was incompatible ratione materiae with Article 6 § 1 of the Convention, and secondly because the applicant had failed to exhaust domestic remedies, as she had not raised this complaint, even in substance, before the Federal Constitutional Court.

73. The applicant contested both objections. In respect of the latter, she argued that, having regard to her constitutional complaint as a whole, it was clear that she had complained about both the Court of Appeal’s failure to rely on another provision allowing for the reopening of proceedings by analogy so as to allow for such a reopening in her case, and the legislature’s omission to provide for respective grounds for reopening a case.

74. Noting that the Government consider the application as a whole to be inadmissible (see paragraph 58 above), the Court does not need to address the question of the applicability of Article 6 § 1 of the Convention as this part of the complaint was, in any event, inadmissible because the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

75. It is true that the applicant, in her constitutional complaint to the Federal Constitutional Court, alleged that it was discriminatory that domestic law did not, at the material time, provide for retrials where there were final judgments of the civil courts if the European Court of Human Rights found a violation of the Convention or the Protocols thereto and if the civil court’s judgment was based on that violation, whereas the possibility of such a retrial was provided for in respect of criminal proceedings (see paragraph 25 above). She argued that Article 359 no. 6 of the Code of Criminal Procedure should have been applied by analogy to allow for a retrial of the compensation proceedings she had brought against the H. Clinic. However, she did not specifically allege discriminatory treatment by the legislature in this respect, which led the Federal Constitutional Court to conclude that she had failed to substantiate her complaint in this respect (see paragraph 30 above).

76. In the light of the foregoing, the Court considers that the applicant failed to raise her complaint relating to the legislature’s omission appropriately before the Federal Constitutional Court, as required by procedural constitutional law. She thus failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, in respect of this complaint. This complaint must therefore be rejected as inadmissible in accordance with Article 35 § 4 of the Convention.

D. Alleged violation of Article 6 § 1 of the Convention owing to the denial of legal aid for the proceedings before the Federal Constitutional Court

77. The applicant further complained that the Federal Constitutional Court itself had refused to grant her legal aid in the proceedings at issue, despite the complexity of the proceedings, which was demonstrated by the duration of the proceedings and the twenty-one-page decision of that court.

78. The Court notes that this complaint is not covered by the scope of the unilateral declaration of the respondent Government, which exclusively relates to the denial of legal aid by the Bremen Court of Appeal (see paragraphs 54 and 58-60 above).

79. The complaint falls to be examined under Article 6 § 1 of the Convention granting the right of access to court. As the proceedings before the Federal Constitutional Court concerned a (refused) request to reopen civil proceedings, the Government submitted that Article 6 § 1 of the Convention was not applicable ratione materiae.

80. The Court considers that it does not need to address the question of the applicability of the Article 6 § 1 of the Convention (see paragraph 64 above) as this part of the complaint was, in any event, inadmissible for another reason.

81. The Court observes that the Federal Constitutional Court examined the applicant’s constitutional complaint in substance. There are thus no indications that the applicant’s right of access to court was unduly restricted by the denial of legal aid for those proceedings or that Article 6 § 1 of the Convention was violated.

82. This complaint is therefore manifestly ill-founded and must be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

E. Alleged violation of the substantive aspects of Article 5 § 1 and Article 8 of the Convention

83. The applicant complained of a violation of Article 5 § 1 and Article 8 of the Convention because the domestic courts had refused to provide her with “full redress” for the Convention violations found by the Court in its judgment in her previous case. She was entitled to additional compensation for non-pecuniary damage, as well as a significant amount of compensation in respect of pecuniary damage, in particular for loss of earnings.

84. The Government contested that argument.

1. The parties’ submissions

(a) The Government

85. The Government submitted that, in accordance with Article 46 of the Convention, the Court was not competent ratione materiae to examine the complaint, as it concerned the alleged lack of the proper execution of its judgment in the applicant’s previous case. The complaint did not raise a new issue undecided by the original judgment which would bring it within the Court’s jurisdiction. None of the criteria developed in the Court’s case‑law for the determination of the existence of a “new issue” was applicable in the present case.

86. The complaint did not concern a continuing violation, as the violation found in the applicant’s previous case concerned her placement in the H. Clinic between 1977 and 1979. The deprivation of liberty had ended in 1979 and restitutio in integrum was not possible in relation to her state of health. Rather, the complaint exclusively concerned the alleged lack of compensation for the Convention violations previously found, and thus a matter relating to the execution of the Court’s previous judgment, which fell within the competence of the Committee of Ministers.

87. There were, moreover, no substantive grounds that required the reopening of the compensation proceedings brought by the applicant against the H. Clinic. There were no disadvantages arising from the Convention violations found that had not yet been adequately compensated for. The operative provisions of the Court’s judgment in the applicant’s previous case did not indicate that she was to be granted compensation beyond the compensation in respect of non-pecuniary damage awarded by the Court in that judgment (point 10 (a)(i) of the operative part); rather, the Court had, in point 11 of the operative part, dismissed the remainder of the applicant’s claim for just satisfaction (see paragraph 17 above). Furthermore, there was no evidence of a causal connection between the applicant’s forced medical treatment administered in the H. Clinic between 1977 and 1979 and the damage to her health. In its judgment of 16 June 2005, the Court had found that there had been no violation of Article 6 § 1 in respect of the Bremen Court of Appeal’s assessment that such a causal connection, which was required for awarding compensation in civil proceedings, had not been established. Statements contained in paragraphs 176 to 178 of the reasoning of the Court’s judgment of 16 June 2005 (see paragraph 16 above) that went beyond the scope of the operative provisions in this regard did not have a binding effect, in line with the generally recognised rules of international law.

88. In its decision of 2 February 2006, the Bremen Court of Appeal had rejected the applicant’s request to reopen the compensation proceedings against the H. Clinic because, at the material time, domestic law had not provided for the reopening of civil proceedings following a finding by the Court of a violation of the Convention. The court had not addressed any of the substantive reasons advanced in its judgment of 22 December 2000 and examined by the Court in the judgment in the applicant’s previous case (see paragraphs 9 and 20-23 above).

89. Last but not least, the State had complied with its obligation to provide detailed, accurate and timely information to the Committee of Ministers about the measures taken to execute the Court’s judgment in the applicant’s previous case. The Committee of Ministers had been aware that the Bremen Court of Appeal had rejected the applicant’s request for legal aid to reopen the compensation proceedings against the H. Clinic. It had also been aware that the applicant had lodged a constitutional complaint against the decision and that the Federal Constitutional Court had not yet decided on that complaint at the time the Committee of Ministers had decided to close the examination of the case. Given the Federal Constitutional Court’s independence, the expectation contained in the Committee of Ministers’ resolution that the court would fully implement the Convention as well as the Court’s case-law in order to grant “full redress” to the applicant could not be interpreted as meaning that the Committee of Ministers expected that the Federal Constitutional Court would render a decision in favour of the applicant. The Federal Constitutional Court’s decision of 18 August 2013 declining to consider the applicant’s constitutional complaint could thus not bring the complaint within the Court’s competence ratione materiae, not least because by a letter of 13 March 2014 the applicant had informed the Committee of Ministers about the Federal Constitutional Court’s decision and asked it to reopen the proceedings for the supervision of the execution of the Court’s judgment of 16 June 2005 (see paragraph 41 above). Therefore, there was no risk that the matter would escape the scrutiny of the Convention organs if the Court declared the present complaint inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

(b) The applicant

90. The applicant pointed out that in its Recommendation R(2000)2 of 19 January 2000 the Committee of Ministers had encouraged the Contracting States to provide for the possibility of reopening proceedings where an injured party continued to suffer very serious negative consequences because of the outcome of a domestic decision breaching the Convention, consequences which were not adequately remedied by just satisfaction and could not be rectified except by reopening the proceedings. She continued to suffer from the very serious damage to her health resulting from the forced medication in the H. Clinic. This rendered the violations of the Convention, which had not been adequately compensated for, continuing violations.

91. The applicant further contested the alleged lack of a causal connection between the breaches of the Convention found and the damage to her health. She argued that, in its judgment of 16 June 2005, the Court had determined that there had been such a causal connection. The statements contained in paragraphs 176 and 178 of that judgment (see paragraph 16 above) had binding force. She was entitled to a significantly higher amount of compensation for non-pecuniary damage under domestic law than the amount awarded by the Court in its judgment. In its judgment of 16 June 2005, the Court had not awarded her compensation in respect of pecuniary damage for the sole reason that it could not determine the relevant amount. Under these circumstances, reopening the compensation proceedings she had brought against the H. Clinic, proceedings during which the amount of damages could be determined, had been the only way to obtain “full redress” for the Convention violations found.

92. As regards the Committee of Minister’s decision to close the examination of her previous case, the applicant emphasised that the Committee had stated in its resolution that it was expected that the Federal Constitutional Court would fully implement the Convention as well as the Court’s case-law in order to grant her “full redress” (see paragraph 39 above). To her, this statement contained two key aspects: firstly, the Committee of Ministers considered that, up to that point, she had not been provided with sufficient redress for the Convention violations found; and secondly, the expectation that the Federal Constitutional Court would provide her with full redress constituted the basis on which the Committee of Ministers had decided to close the examination of the case. Had the Federal Constitutional Court already decided to decline to consider her constitutional complaint prior to the Committee of Ministers’ decision, the latter would not have closed the examination. The decision of the Federal Constitutional Court thus constituted “relevant new information”. The absence of any action by the Committee of Ministers following the applicant’s letter of 13 March 2014 informing it about the Federal Constitutional Court’s decision and requesting that the proceedings for the supervision of the execution of the Court’s judgment in her previous case be reopened indicated that the Committee of Ministers considered that the Court was competent ratione materiae to examine the present application.

93. Moreover, the applicant’s complaints not only concerned the execution of the Court’s judgment of 16 June 2005, but also the way in which the domestic courts had rejected her request to reopen the compensation proceedings – notably, the courts’ insufficient regard to the findings contained in the Court’s judgment, which meant that the present case concerned a “new issue” which the Court was competent to examine (referring to Bochan v. Ukraine (no. 2), cited above, § 37). Lastly, the applicant submitted that the Government’s unilateral declaration – concerning only some of her complaints – also constituted “relevant new information”.

2. The Court’s assessment

(a) General principles

94. The relevant general principles have recently been summarised as follows in Bochan (cited above, §§ 33-34):

“33. The question of compliance by the High Contracting Parties with the Court’s judgments falls outside its jurisdiction if it is not raised in the context of the ‘infringement procedure’ provided for in Article 46 §§ 4 and 5 of the Convention (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 56, 18 October 2011). Under Article 46 § 2, the Committee of Ministers is vested with the powers to supervise the execution of the Court’s judgments and evaluate the measures taken by respondent States. However, the Committee of Ministers’ role in the sphere of execution of the Court’s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 61‑63, ECHR 2009).

34. The relevant general principles were summarised in Egmez v. Cyprus ((dec.), no. 12214/07, §§ 48-56, 18 September 2012), as follows:

‘48. The Court reiterates that findings of a violation in its judgments are in principle declaratory (see Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004; Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX; and Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B). It follows, inter alia, that a judgment in which the Court finds a breach of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 43, 24 October 2002 and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). Subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see the above-cited Scozzari and Giunta judgment, § 249). For its part, the Court cannot assume any role in this dialogue (Lyons and Others, cited above).

49. Although the Court can in certain situations indicate the specific remedy or other measure to be taken by the respondent State (see, for instance, Assanidze v. Georgia [GC], no. 71503/01, point 14 of the operative part, ECHR 2004-II; Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003), it still falls to the Committee of Ministers to evaluate the implementation of such measures under Article 46 § 2 of the Convention (see Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 107, 23 November 2010; Suljagić v. Bosnia and Herzegovina, no. 27912/02, § 61, 3 November 2009; Hutten Czapska v. Poland(friendly settlement) [GC], no. 35014/97, § 42, 28 April 2008; Hutten Czapska v. Poland [GC], no. 35014/97, §§ 231-239 and the operative part, ECHR 2006-VIII); Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005-IX; and Broniowski v. Poland [GC], no. 31443/96, §§ 189-194 and the operative part, ECHR 2004-V).

50. Consequently, the Court has consistently emphasised that it does not have jurisdiction to verify whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments. It has therefore refused to examine complaints concerning the failure by States to execute its judgments, declaring such complaints inadmissible ratione materiae (see Moldovan and Others v. Moldova (dec.), no. 8229/04, 15 February 2011; Dowsett v. the United Kingdom (no. 2) (dec.), no. 8559/08, 4 January 2011; Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010; Haase v. Germany, no. 11057/02, ECHR 2004 III; Komanický v. Slovakia (dec.), no. 13677/03, 1 March 2005; Lyons and Others, cited above; Krčmář and Others, cited above; and [Fischer] v. Austria (dec.), no. 27569/02, ECHR 2003 VI).

51. However, the Committee of Ministers’ role in this sphere does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Verein gegen Tierfabriken Schweiz (VgT), cited above, § 62; Hakkar v. France (dec.), no. 43580/04, 7 April 2009; Haase, cited above; Mehemi [v. France (no. 2), no. 53470/99, § 43, ECHR 2003‑IV]; Rongoni v. Italy, no. 44531/98, § 13, 25 October 2001; Rando v. Italy, no. 38498/97, § 17, 15 February 2000; Leterme v. France, 29 April 1998, Reports 1998-III; Pailot v. France, 22 April 1998, § 57, Reports 1998-II; and Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250) and, as such, form the subject of a new application that may be dealt with by the Court.

52. On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases for example where the domestic authorities have carried out a fresh domestic examination of the case by way of implementation of one of the Court’s judgments whether by reopening of the proceedings (see Emre v. Switzerland (no. 2), no. 5056/10, 11 October 2011, and Hertel [v. Switzerland (dec.), no. 53440/99, ECHR 2002-I]) or by the initiation of [an] entire new set of domestic proceedings (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, 18 October 2011 and Liu v. Russia (no. 2), no. 29157/09, 26 July 2011).

53. Moreover, in the specific context of a continuing violation of a Convention right following adoption of a judgment in which the Court has found a violation of that right during a certain period of time, it is not unusual for the Court to examine a second application concerning a violation of that right in the subsequent period (see, amongst others Ivanţoc and Others v. Moldova and Russia, no. 23687/05, §§ 93-96, 15 November 2011 regarding continuing detention; Wasserman v. Russia (no. 2), no. 21071/05, §§ 36-37, 10 April 2008 as to the non-enforcement of a domestic judgment; and Rongoni v. Italy, cited above, § 13, concerning length of proceedings). In such cases the ‘new issue’ results from the continuation of the violation that formed the basis of the Court’s initial decision. The examination by the Court, however, is confined to the new periods concerned and any new complaints invoked in this respect (see for example, Ivanţoc and Others, cited above).

54. It is clear from the Court’s case-law that the determination of the existence of a ‘new issue’ very much depends on the specific circumstances of a given case and that distinctions between cases are not always clear-cut. So, for instance, in the Verein gegen Tierfabriken Schweiz (VgT) case (cited above), the Court found that it was competent to examine a complaint that the domestic court in question had dismissed an application to reopen proceedings following the Court’s judgment. The Court relied mainly on the fact that the grounds for dismissing the application were new and therefore constituted relevant new information capable of giving rise to a fresh violation of the Convention (see Verein gegen Tierfabriken Schweiz (VgT), cited above, § 65). It further took into account the fact that the Committee of Ministers had ended its supervision of the execution of the Court’s judgment without taking into account the reopening refusal as it had not been informed of that decision. The Court considered that, from that standpoint also, the refusal in issue constituted a new fact (ibid, § 67). Similarly, in its recent judgment in the case of Emre (cited above) the Court found that a new domestic judgment given following the reopening of the case, and in which the domestic court had proceeded to carry out a new balancing of interests, constituted a new fact. It also observed in this respect that the execution procedure before the Committee of Ministers had not yet commenced. Comparable complaints were, however, dismissed in the cases of Schelling v. Austria (no. 2) (dec.), no. 46128/07, 16 September 2010 and Steck-Risch and Others v. Liechtenstein (dec.) no. 629061//08, 11 May 2010), as the Court considered, that on the facts, the decisions of the domestic courts refusing the applications for reopening were not based on or connected with relevant new grounds capable of giving rise to a fresh violation of the Convention. Further, in Steck-Risch the Court observed that the Committee of Ministers had ended its supervision of the execution of the Court’s previous judgment prior to the domestic court’s refusal to reopen the proceedings and without relying on the fact that a reopening request could be made. There was no relevant new information in this respect either.

55. Reference should also be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it ‘is substantially the same as a matter that has already been examined by the Court … and contains no relevant new information’: (i) an application is considered as being ‘substantially the same’ where the parties, the complaints and the facts are identical (see Verein Gegen Tierfabriken Schweiz (VgT) cited above, § 63 and Pauger v. Austria (dec.), nos. 16717/90 and 24872/94, Commission decisions of 9 January 1995); (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998-I and Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172); and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (see Patera v. the Czech Republic (dec.), no. 25326/03), Commission decision of 10 January 1996 and Chappex v. Switzerland (dec.), no. 20338/92, Commission decision of 12 October 1994).

56. Accordingly, the powers assigned to the Committee of Ministers by Article 46 to supervise the execution of the Court’s judgments and evaluate the implementation of the measures taken by the States under this Article will not be encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Verein Gegen Tierfabriken Schweiz (VgT) cited above, § 67).’”

(b) Application of these principles to the present case

95. The Court observes that, in the applicant’s previous case, it found violations of Article 5 § 1 and Article 8 of the Convention with regard to her placement in the private H. Clinic from 1977 to 1979 and her forced medical treatment there (see Storck, cited above, §§ 68-113 and §§ 137-153, and the operative part of the judgment). In the present case, the applicant alleged a violation of those provisions because the domestic courts had refused to provide her with “full redress” for those violations. She claimed that she was entitled to additional compensation for non-pecuniary damage and a significant amount in respect of pecuniary damage, in particular for her loss of earnings. Noting that the applicant did not allege that there had been any continued deprivation of liberty or forced medical treatment, but rather that there had been a failure to grant her sufficient compensation to give effect to the Court’s judgment, the Court cannot conclude that this complaint concerns a continuing violation of a Convention right within the meaning of the Court’s case-law (see Kudeshkina v. Russia (no. 2) (dec.), no. 28727/11, §§ 86-88, 17 February 2015, with further references).

96. It thus has to be determined whether the present complaint concerns a “new issue” undecided by the Court’s judgment in the applicant’s previous case. The Court notes that the Bremen Court of Appeal, when it rejected the applicant’s request for legal aid to reopen the compensation proceedings she had previously brought against the H. Clinic, argued that domestic law, as applicable at the relevant time, did not allow for the reopening of civil proceedings following a judgment of the Court finding a breach of the Convention (see paragraphs 20-23 above). It did not examine any substantive arguments as to whether or not the applicant was entitled to additional compensation because of the Convention violations found. This weighs in favour of considering the applicant’s complaint incompatible ratione materiae (compare Steck-Risch and Others, cited above; Kudeshkina, cited above; and Meltex Ltd. v. Armenia (dec.), no. 45199/09, 21 May 2013; compare and contrast Verein gegen Tierfabriken Schweiz (VgT), cited above, where the domestic courts had relied on new grounds to dismiss an application to reopen a case (ibid., § 65)).

97. The Court further observes that the Committee of Ministers, in its resolution closing the examination of the supervision of the execution of the judgment in the applicant’s previous case, acknowledged that until the end of 2006 there had been no explicit possibility under domestic law to ask for the reopening of civil proceedings following the finding of a violation of the Convention by the Court (see paragraph 40 above). It also acknowledged that the applicant might not benefit from the new legislation which had entered into force on 31 December 2006, as the law did not have retroactive effect, and that her claim for legal aid to reopen the compensation proceedings had been rejected by the Bremen Court of Appeal (ibid.). In this regard, the present case thus differs from Verein gegen Tierfabriken Schweiz (VgT), cited above, where the Committee of Ministers ended its supervision of the execution of the Court’s judgment, noting that the applicant was entitled to request the revision of the impugned judgment, when in fact the domestic court had already refused to reopen the proceedings (ibid., § 67).

98. In that same resolution, the Committee of Ministers went on to observe that in March 2006 the applicant had lodged a constitutional complaint against the Bremen Court of Appeal’s decision, arguing that, under German constitutional law as well as under the Convention, it was possible to reopen proceedings and not futile, and that therefore legal aid ought to be granted (see paragraph 39 above). The Committee of Ministers then stated that “[g]iven the constant practice of the Federal Constitutional Court, it is expected that the domestic court in its decision will fully implement the Convention as well as the European Court’s case law in order to grant full redress to the applicant” (see paragraph 39 above). On 18 August 2013 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (see paragraphs 26-36 above), finding, inter alia, that she had not sufficiently substantiated her claim that the Court of Appeal had disregarded her right under Article 46 of the Convention to have a breach of the Convention stopped and to have sufficient redress granted, which rendered the constitutional complaint inadmissible in this respect (see paragraph 29 above).

99. The Court notes that, on the one hand, the Committee of Ministers’ resolution stated that the applicant, owing to the lack of retroactive effect, might not benefit from amended legislation allowing for the reopening of civil proceedings following a judgment of the Court finding a violation of the Convention, and that the Bremen Court of Appeal had dismissed the applicant’s request for legal aid to reopen the compensation proceedings against the H. Clinic. On the other hand, it contained an expectation that the Federal Constitutional Court would fully implement the Convention as well as the Court’s case-law in order to grant “full redress” to the applicant. While it could be argued that the statement of the Committee of Ministers may not be clear, the closure of the case was made not dependent on a specific outcome of the proceedings before the Federal Constitutional Court. In any case, it was clear for the Committee of Ministers when it closed the proceedings that in Germany, at the given time, there did not exist any procedure for reopening cases under the Code of Civil Procedure, while such a remedy was available under the Code of Criminal Procedure. Consequently, the Court does not consider the Federal Constitutional Court’s decision of 18 August 2013, which did not grant the desired redress to the applicant, “relevant new information” for the purposes of the Court’s case-law on Article 46 of the Convention (see paragraph 96 above).

100. In this regard, the Court also reiterates that the Convention and its case-law do, in principle, not require the reopening of civil proceedings following a judgment of the Court finding a violation of the Convention in each and every case. It further notes that, in its judgment in the applicant’s previous case, the Court did not specifically indicate that reopening the compensation proceedings which the applicant had brought against the H. Clinic would be the most adequate individual measure to provide redress to the applicant. It considers that this is a matter which pertains to the execution of the Court’s judgment in the applicant’s previous case and is for the Committee of Ministers to assess. In this regard, the Court also observes that by a letter of 13 March 2014 the applicant informed the Committee of Ministers of the Federal Constitutional Court’s decision and asked for the proceedings supervising the execution of the Court’s judgment in her previous case to be reopened, and that the Committee of Ministers has not yet decided on that request (see paragraph 41 above). The matters raised by the applicant – notably the argument that she has so far not been provided with sufficient redress for the Convention violations found by the Court, and that she ought to be granted additional compensation – have thus not been excluded from the scrutiny of the Convention organs.

101. In the light of the foregoing, the Court considers that the Committee of Ministers’ competence would be encroached upon if the Court were to examine this part of the present application, and that it is not competent ratione materiae to examine it. This part of the application must therefore be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Takes note of the terms of the respondent Government’s declaration in relation to the violation of the applicant’s procedural rights by the denial of legal aid for an action to reopen the compensation proceedings against the H. Clinic before the Bremen Court of Appeal, as amended on 31 August 2016, and of the modalities for ensuring compliance with the undertakings referred to therein;

2. Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3. Declaresthe remainder of the application inadmissible.

Done in English and notified in writing on 19 July 2018.

Claudia Westerdiek                              Erik Møse
Registrar                                              President