FIFTH SECTION
FINAL DECISION
Application no. 22367/04
by Bahman SAMADI
against Germany
The European Court of Human Rights (Fifth Section), sitting on 
7 October 2008 as a Chamber composed of:
	Rait Maruste, President,
	Volodymyr Butkevych,
	Renate Jaeger,
	Mark Villiger,
	Isabelle Berro-Lefèvre,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva, judges,
	Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 May 2004,
Having regard to the partial decision of 12 February 2008,
Having regard to the Government's request to strike the case partly out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the length of the proceedings,
Having regard to the applicant's comments on the Government's proposal for a unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Bahman Samadi, is an Iranian national who was born in 1946 and lives in Munich. In 2002 he also acquired German nationality. The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Administrative proceedings
In 1985 the applicant was refused to be granted a residence permit. 
His subsequent administrative action succeeded at third instance before the Federal Administrative Court.
2.  First action for damages claiming official liability (Amtshaftungsklage)
In 1992 the applicant unsuccessfully brought an action for damages claiming official liability before the German courts because of the authorities' refusal to grant him a residence permit. During the official liability proceedings the applicant lodged numerous legal remedies which were inter alia rejected by the Munich Court of Appeal.
3. Second action for damages claiming official liability
a. Proceedings before the Munich Regional Court
On 9 November 1998 and 13 December 1999 the applicant brought a second action for damages before the Munich Regional Court claiming official liability of the Bavarian State in the amount of DEM 2,000,000. 
In particular, he claimed damages for the alleged denial of justice by, 
inter alia, the first division of the Munich Court of Appeal, which had been involved in his first official liability proceedings.
On 23 January 2002 the Regional Court dismissed the action.
b. Proceedings before the Munich Court of Appeal
On 4 March 2002 the applicant appealed against that judgment before the Munich Court of Appeal.
Between 12 and 16 April 2002 the President of the Court of Appeal's first division and three further members of that division declared that they would be excluded from hearing the applicant's case according to section 41 no. 1 of the Code of Civil Procedure as the applicant's liability action had also been directed against themselves.
On 2 July 2002, following a further declaration of the members of the Court of Appeal's first division to be excluded from hearing the applicant's case, a judge of the Court of Appeal's tenth division noted in a memorandum that the judges of the court's first division had ipso jure been excluded from the appellate proceedings as the applicant's claim for damages had apparently also been directed against the judges of the first division.
On 7 October 2003, after having considered the course of the proceedings, the Deputy President of the Court of Appeal's tenth division declared that only the Bavarian State and not the judges of the first division had been sued by the applicant. Therefore, the latter were not a party to the proceedings and thus not excluded from them.
On 20 October 2003 the Court of Appeal informed the parties that on 7 October 2003 the Deputy President of the Court of Appeal's tenth division had decided that the judges of the first division had not been excluded from the proceedings.
On 14 November 2003 the applicant responded that his action had been exclusively directed against the Bavarian State and not against the judges of the Court of Appeal. Nevertheless, he stressed that the judges should be excluded from the proceedings according to Article 41 no. 1 of the Code of Civil Procedure (see “Relevant domestic law” below) as the claim for damages concerned the judges' alleged misconduct during his first set of official liability proceedings.
On 3 June 2004 the substitute judges of the Court of Appeal's first division decided that the regular judges of the first division were not excluded from adjudicating the applicant's case and refused to grant him leave to appeal on points of law (Rechtsbeschwerde) in this connection. Nevertheless, on 7 June 2004 the President of the first division declared that, in her view, she was excluded from the proceedings. On 21 June 2004 the substitute judges of the Court of Appeal's first division declared the applicant's request to reconsider their decision of 3 June 2004 inadmissible as he had not been represented by a lawyer.
In the meantime, on 14 June 2004 the applicant had lodged a complaint of bias against the judges of the Court of Appeal's first division, in accordance with Article 42 of the Code of Civil Procedure (see “Relevant domestic law” below).
On 24 August 2004 the substitute judges of the Court of Appeal's first division rejected that complaint, arguing that the applicant had lost his right to lodge complaints of bias, in accordance with Article 43 of the Code of Civil Procedure. In particular, the applicant had stated his intention to pursue the case without having previously challenged the judges under Article 42 of the Code of Civil Procedure. Moreover, the Court of Appeal refused to grant him leave to appeal on points of law in this connection. 
On 11 October 2004 the substitute judges of the Court of Appeal's first division refused to reconsider their decision.
On 17 March 2005 the ordinary judges of the Court of Appeal's first division dismissed the applicant's appeal and allowed the appeal on points of law as the case raised questions in respect of the judges' impartiality. 
In particular, it remained unclear whether the judges sitting in an action for damages claiming official liability for an alleged breach of their own duties would be excluded ipso jure from the proceedings within the meaning of Article 41 no. 1 of the Code of Civil Procedure or biased according to Article 42 of that Code.
c. Proceedings before the Federal Court of Justice
On 21 December 2005 the Federal Court of Justice refused to grant the applicant legal aid as his proposed appeal on points of law lacked reasonable prospects of success. It found that the questions raised by the Court of Appeal in connection with their alleged partiality had not been relevant in the instant case because the Court of Appeal's findings in its judgement of 17 March 2005 were not based on a potential breach of Articles 41 and 42 of the Code of Civil Procedure for the following reasons. Firstly, the Court of Appeal could not have reasoned differently on the merits from its actual reasoning in its judgment. Secondly, there was no fundamental error in the application of the law (absoluter Revisionsgrund). In particular, the requirements of Article 547 no. 2 of the Code of Civil Procedure (see “Relevant domestic law” below) were not fulfilled as on 
3 June 2004 the Court of Appeal had already refused the applicant's request to exclude the judges in dispute.
On 30 November 2006 the Federal Court of Justice dismissed the applicant's appeal on points of law.
d. Proceedings before the Federal Constitutional Court
On 5 April 2006 the Federal Constitutional Court refused to admit his complaint against the Court of Appeal's decisions of, inter alia, 3 June 2004, and against the Federal Court of Justice's decision of 21 December 2005 (no. 1 BvR 624/06).
On 19 June 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint against the Federal Court of Justice's decision of 30 November 2006 (no. 2 BvR 647/07).
B.  Relevant domestic law
1. Provisions concerning the exclusion of judges
Pursuant to Article 41 of the Code of Civil Procedure a judge is excluded ipso jure from all judicial acts that relate to proceedings where he or she is a party to the dispute.
Article 42 §§ 1 and 3 of the Code of Civil Procedure provides that the parties to the dispute may challenge a judge if they doubt his or her complete impartiality.
Pursuant to Article 43 of the Code of Civil Procedure parties are banned from challenging a judge when they have stated their intention to pursue the case or lodged requests without having previously raised the grounds for the judges' bias.
In case of doubts as to whether judges are excluded ipso jure from the proceedings, sections 45 and 48 of the Code of Civil Procedure provide that the court to which the judges in dispute belong decides ex officio and in the absence of those judges about their exclusion.
2. Provisions concerning an appeal on points of law
Article 547 no. 2 of the Code of Civil Procedure establishes that a judgment shall always be considered to be based on a violation of the law if a judge participates in a decision although he or she is excluded ipso jure from the proceedings and if a respective complaint of bias has not been rejected.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that the judges of the Munich Court of Appeal had been biased as they had decided on his case although their own misconduct had been the object of his action.
THE LAW
By letter dated 6 June 2008 the Government informed the court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“In these proceedings, the Court proposed a friendly settlement which was rejected by the Applicant in his letter dated 20 May 2008. The Federal Government would have been prepared to follow the Court's suggestion.
The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the Applicant did not have a fair hearing by an “impartial tribunal” in the second proceedings on the liability of public officials before Munich Higher Regional Court, as required by Article 6 § 1 of the Convention.
If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant's claim for compensation in the amount of EUR 18,500. With this sum, payable within three months following the Court decision to strike the litigation out of its list of cases, all of the Applicant's claims in connection with the above-mentioned Application filed against the Federal Republic of Germany or the Land Bavaria, in particular compensation for the Applicant (also in respect of non-pecuniary damage) costs and outlays, would be deemed have been settled.
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 acknowledgment of a violation of Article 6 § 1 of the Convention and its acceptance of the claim for compensation constitutes “[an]other reason” within the meaning of this provision.”
The applicant in his written replies of 1 and 6 July 2008 requested the Court to reject the Government's proposal arguing that his case was unique and not comparable to issues already determined by the Court. In particular, he refers to the cases of Kyprianou (Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005‑... where the applicant was convicted for contempt of court by the judges in respect of which he had allegedly committed contempt) and of Demicoli (Demicoli v. Malta, judgment of 
27 August 1991, Series A no. 210, where two members of the parliament participated in disciplinary proceedings against the applicant although the public criticism by the applicant of those members had been the object of the proceedings). He argues that unlike in his case, the judges in Kyprianou and Demicoli had not decided on their own misconduct. Furthermore, he submits that the amount proposed by the Government did not cover the damages amounting to 2,500,000 EUR he had allegedly incurred because he had been refused a residence permit. Moreover, the applicant reiterated his complaints under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 which the Court had rejected in its partial decision of 
12 February 2008.
 The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 6 June 2008 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration.
The Court recalls 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. Article 37 § 1 (c) enables the Court in particular 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”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the criteria emerging from its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey, no. 25754/94, § 23, judgment of 26 March 2002, Akman v. Turkey(striking out), no. 37453/97, §§ 30-31, ECHR 2001‑VI, and Meriakri v. Moldova (striking out), no. 53487/99, §§ 30-32, 1 March 2005; MacDonald v. the United Kingdom(dec.), no. 301/04, 6 February 2007, Oleksiw v. Germany (dec.), no. 31384/02, 
11 September 2007).
As to the circumstances of the instant case, the Court first notes that the facts are not in dispute between the parties.
It also notes that the present case raises the question of objective impartiality of the judges of the Munich Court of Appeal who decided on their own alleged misconduct which had been the object of the applicant's official liability proceedings. In this connection the Court recalls that it has already specified in a number of cases the nature and extent of the obligations which arise for Contracting States under Article 6 as regards the concept of an “objectively impartial tribunal” and the principle that no one should be a judge in his or her own cause (see, for example, Kyprianou, cited above, § 127; and Demicoli,cited above, §§ 41-42). In particular, the Court had found a violation of Article 6 § 1 where judges were called upon to evaluate and determine their own alleged mistakes and thus being requested to judge themselves (see San Leonard Band Club v. Malta, no. 77562/01, § 63, ECHR 2004‑IX).
The Government's declaration contains an acknowledgment that the applicant was denied a fair hearing by an “impartial tribunal”. The Court considers the sum of EUR 18,500 for the applicant's damage, including non-pecuniary damage and costs and expenses, to be acceptable.
Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine).

For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
	Claudia Westerdiek	Rait Maruste
	Registrar	President