Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

APPLICATION No. 15720/89

B.

against

the

FEDERAL REPUBLIC OF GERMANY

REPORT OF THE COMMISSION

(adopted on 8 September 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 36) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 37 - 54). . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 38) . . . . . . . . . . . . . . . . . . . . . . . 6

C. Compliance with Article 6 para. 1 of the Convention

(paras. 39 - 53) . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 54). . . . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX : Decision on the admissibility of the application . . . . 9

I. INTRODUCTION

1 The present Report concerns Application No. 15720/89 by B.

against the Federal Republic of Germany, introduced on 19 July and

registered on 30 October 1989.

The applicant, born in 1936, is a German national and resident

in Munich.

The Federal Republic of Germany are represented by their

Agent, Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal

Ministry of Justice.

2 The application concerns the length of court proceedings

instituted by the applicant against his employer. The application

was communicated to the Government on 7 January 1991. On

27 May 1991 the application was referred to a Chamber. Following an

exchange of memorials, the complaint relating to the length of

proceedings (Article 6 para. 1 of the Convention) was declared

admissible on 9 December 1991. The decision on admissibility is

appended to this Report. Application No. 20580/92 deals with the

applicant's further complaint about the alleged lack of impartiality

of Judges involved in the above proceedings.

In the present case, the applicant submitted further

observations on 22 and 23 January, 31 March, 2 May and 2 June 1992.

3 Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report in accordance with Article 31

para. 1 of the Convention, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

J.A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

4 In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the

Federal Republic of Germany.

5 The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 1 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6 In 1979 a dispute arose between the applicant and his

employer, a company producing motors and turbines, concerning the

compensation due for the invention of a steering mechanism patented

in the Federal Republic of Germany, Italy and the United Kingdom.

7 On 18 May 1979 the applicant instituted proceedings before the

Arbitration Committee (Schiedsstelle) of the German Patent Office

(Patentamt) under the Employees' Invention Act (Arbeitnehmererfin-

dungsgesetz). The arbitration proceedings, including a proposal for

settlement made by the Arbitration Committee on 26 March 1980, which

was served upon the applicant in April 1980, were to no avail.

8 On 23 December 1980 the applicant, represented by counsel,

filed an action for compensation with the Munich I Regional Court

(Landgericht). He requested the Court to fix the appropriate amount

of compensation which he considered should be DM 1.8 million minimum

and DM 3 million maximum.

9 In January 1982 the Regional Court decided to take extensive

expert evidence, and appointed the experts Prof. G. and Prof. W. in

agreement with both parties in April 1982.

10 The expert G. delivered his opinion on 8 December 1982. On

21 January 1983 the applicant requested the Regional Court to

expedite the proceedings. The expert W. delivered his opinion on

30 June 1983. Following further submissions by the parties, the

expert opinions were amended in November and December 1983.

11 On 13 December 1983 the Regional Court heard the parties and

the two experts.

12 On 13 March 1984 the Regional Court ordered the defendant

company to pay the applicant DM 1,381,403 with interest. It also

declared that the defendant was obliged to pay compensation for the

future use of the applicant's invention. The remainder of the

applicant's action, which had been amended several times and in

particular increased to a compensation claim of some DM 18 million

with interest, was dismissed. The Regional Court, in its judgment

comprising 63 pages, found in particular that the applicant was

entitled to compensation for his invention under S. 9 of the

Employees' Invention Act. The amount of compensation was fixed with

regard to the value of the applicant's invention in relation to the

defendant's sales in this respect.

13 In April 1984 both parties lodged appeals (Berufungen) with

the Munich Court of Appeal (Oberlandesgericht).

14 On 22 May 1984 the 6th Chamber of the Court of Appeal fixed a

hearing for 7 March 1985. In May and June 1984 the parties filed

the reasons for their respective appeals, and they made further

submissions in the period between November 1984 and February 1985.

15 On 12 February 1985 the Deputy of the Presiding Judge declared

himself biased. On 27 February 1985 the Court of Appeal accepted

his declaration.

16 The Court of Appeal held a hearing on 7 March 1985. On

25 March 1985 it inquired with the parties whether or not, having

regard to the increasing procedural costs and the constitutional

complaint (Verfassungsbeschwerde) envisaged by the defendant, the

proceedings should be continued. The parties subsequently informed

the Court that they wished to continue the proceedings.

17 At a hearing on 23 May 1985 the Court of Appeal ordered that

expert evidence be taken as regards the parties' submissions upon

appeal. Prof. W. and Prof. G. were again appointed.

18 On 30 May 1985 the applicant requested the Presiding Judge at

the Court of Appeal to further the proceedings.

19 On 19 June 1985 the files were sent to the expert W.

Following inquiries about his fees, the Court of Appeal requested W.

to start preparing his expert opinion on 18 September 1985, and sent

a reminder on 12 December 1985. On 12 March 1986 the expert W.

informed the Court that he was seriously ill. On 20 March 1986 the

Court of Appeal informed the parties that it intended to instruct

the expert G. to deliver his opinion first. Thereupon, in

April 1986 the applicant proposed to stop the taking of evidence and

to fix a hearing; and the defendant opposed an expertise by G. and

proposed another expert.

20 On 15 September 1986 the applicant again requested the Court

to expedite the proceedings. On 17 October 1986 he was informed

that due to illness of one judge no date for a hearing could be

fixed.

21 On 21 January 1987 the Court of Appeal proposed a settlement

of the case on the basis of DM 1.5 million. If the parties should

not agree, further extensive evidence would have to be taken.

22 At the next hearing on 14 May 1987 the Court's proposal for a

settlement was not accepted by the parties.

23 On 19 May 1987 the Court of Appeal asked the expert W. whether

he would again deliver an opinion. W. refused for health reasons on

28 May 1987.

24 On 1 June 1987 the applicant again urged the Court of Appeal

to render a judgment soon.

25 On 25 June 1987 the Court of Appeal ordered that further

expert evidence be taken and appointed the expert F. On 3 July 1987

the applicant objected to the appointment of the expert F. in view

of alleged contacts between F. and the defendant. On 28 August 1987

the files were transmitted to the expert F. He delivered his

opinion on 12 November 1987.

26 Between 24 November 1987 and 1 July 1988 the applicant three

times unsuccessfully challenged the expert F. for bias. On

22 September 1988 the Court of Appeal ordered another expert opinion

and invited the parties to propose an expert to be appointed. The

parties apparently agreed on two possible experts.

27 On 29 November 1988 the Court of Appeal proposed a settlement

of the case on the basis of the payments made by the defendant so

far, i.e. about DM 1.5 million.

28 On 6 February 1989 the Court of Appeal informed the parties

that another expert, namely Dr. S., had been asked to deliver the

expert opinion. The applicant objected to the appointment of Dr. S.

and challenged the judges of the 6th Chamber for bias. His motion

was dismissed by the 29th Chamber at the Court of Appeal on

22 March 1989.

29 On 6 April 1989 the applicant challenged the judges of the 6th

and 29th Chamber for bias. His motions were dismissed in May 1989.

30 On 7 June 1989 the Court of Appeal appointed Prof. M., one of

the two experts agreed by the parties. Prof. M. refused to deliver

an opinion.

31 On 11 July 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint dated 28 December 1988 concerning the length of the

proceedings. The Constitutional Court found that for the time being

the conduct of the proceedings by the Court of Appeal could not be

objected to, although it had not yet rendered a judgment.

32 The Constitutional Court recalled its jurisprudence according

to which there was a right to have court proceedings terminated

within a reasonable time. However, in examining the reasonableness

of the length in the particular circumstances of the case, the

Constitutional Court could not examine each procedural step, as

every court had to deal with numerous cases, and this necessarily

resulted in delays of the separate proceedings.

33 In the applicant's case the Constitutional Court considered

that it was not required to examine the delay before the hearing in

March 1985, which had been due to the Appellate Court's workload,

because the applicant had not expressly raised this issue. In any

case, the Chamber concerned had in the meantime been unburdened.

Furthermore, the late statement of the Presiding Judge's Deputy

about his being biased had not resulted in any delays. The length of

the proceedings was essentially due to the fact that the Court of

Appeal considered extensive taking of evidence necessary, which did

not appear arbitrary. The taking of evidence in successive steps

could not be objected to on the ground that the necessity of further

evidence in some respects depended upon the outcome of an earlier

taking of evidence. Moreover, the renewed recourse to expert

evidence could not be objected to. The delays in taking the expert

evidence could not be avoided, or were partly caused by the conduct

of the parties.

34 Finally, the Constitutional Court held that, though a

violation of constitutional law could not be found for the time

being, the proceedings before the Court of Appeal, which had already

lasted five years, had attained an unusual and, as a rule,

unacceptable length. In view of the length of the proceedings at

first instance, namely more than three years, this was even less

acceptable. The Court of Appeal would have to ensure that these

proceedings be terminated soon and, if necessary, give them

precedence.

35 On 18 August 1989 the Munich Court of Appeal again appointed

Dr. S. as expert. Thereupon, the applicant again challenged the

judges of the 6th Chamber for bias, objected to the appointment of

Dr. S. and challenged him for bias. His motions were dismissed in

October and November 1989, respectively.

36 At a hearing on 4 May 1990 the applicant and the defendant

entered into a settlement of the dispute, which provided in

particular for a payment of DM 1.8 million in view of the

applicant's compensation claim and the termination of his

employment.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

37 The Commission has declared admissible the applicant's

complaint that his case was not heard within a reasonable time.

B. Point at issue

38 The only point at issue is whether the length of the

proceedings complained of exceeded the "reasonable time" referred to

in Article 6 para. 1 (Art. 6-1) of the Convention.

C. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

39 Article 6 para. 1 (Art. 6-1) of the Convention includes the

following provision:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

40 The proceedings in question concerned the applicant's

compensation claims under the Employees Invention Act. The purpose

of the proceedings was to obtain a decision in a dispute over "civil

rights and obligations", and they accordingly fell within the scope

of Article 6 para. 1 (Art. 6-1) of the Convention.

a. Relevant period to be considered

41 The Government submit that the applicant brought his civil

action before the Munich I Regional Court on 23 December 1980. His

proceedings before the Arbitration Committee of the German Patent

Office could only be taken into account to the extent of six months,

as under the Employees Invention Act a civil suit could be brought

six months after having instituted proceedings before the

Arbitration Committee.

42 The Commission recalls that in civil matters the relevant time

may begin to run even before the issue of the writ commencing court

proceedings, if the plaintiff could not seize the competent court

before having preliminary proceedings terminated (Eur. Court H.R.,

König judgment of 28 June 1978, Series A no. 27, p. 33, para. 98).

43 The Commission notes that in the present case the applicant

had to submit the dispute concerning his invention first to an

Arbitration Committee under the Employees Invention Act. These

proceedings lasted from 18 May 1979 until 26 March 1980, i.e. about

ten months.

44 The Commission considers that the applicant could reasonably

await the termination of the arbitration proceedings with a detailed

proposal by the Arbitration Committee in order to possibly avoid

court proceedings. The relevant period under Article 6 para. 1

(Art. 6-1) therefore covers the arbitration proceedings in question.

45 The period to be considered thus started on 18 May 1979 and

lasted until the date of the settlement achieved in the course of

the appeal proceedings on 4 May 1990, i.e. almost eleven years

later.

b. The reasonableness of the length of the proceedings

46 The Government consider in particular that the proceedings

were extremely complicated, and involved the taking of special

expert evidence on very difficult technical matters. Moreover, the

applicant himself contributed to the prolongation of the proceedings

by submitting a large number of written pleadings and making use of

various remedies. The domestic courts were faced with a difficult

task. They did not remain inactive over any significant period of

time. The Government refer also to the findings of the Federal

Constitutional Court in its decision of 11 July 1989.

47 The applicant criticises mainly the conduct of the proceedings

by the Munich Court of Appeal. He submits that the Court of Appeal

had planned a total length of the appeal proceedings of eighteen to

twenty years and, moreover, decided to repeat the taking of

evidence.

48 The Commission recalls that the reasonableness to the length

of proceedings must be assessed in the light of the particular

circumstances of the case. In the present case, which was

terminated by settlement after almost eleven years, those

circumstances call for a global assessment (cf. Eur. Court H.R.,

Obermeier judgment of 28 June 1990, Series A no. 179, p. 23,

para. 72; Brigandi judgment of 19 February 1991, Series A no. 194-B,

p. 31, para. 30).

49 The Commission considers that the applicant's case was of

great complexity, as his compensation claim raised difficult factual

issues related to the technical aspects of his invention, the

patents concerned as well as the value of its use by his employer.

50 The Commission further considers that the parties' conduct is

not in itself sufficient to explain the length of the proceedings.

In this respect, the Commission notes in particular that the

applicant contributed to the overall length of the proceedings in

that he did not institute his action before the Munich I Regional

Court more than seven months after termination of the arbitration

proceedings. It does not appear that the parties, in other

respects, unduly delayed the proceedings. Moreover, the applicant

repeatedly asked for an expeditious handling of his case.

51 As regards the conduct of the German judicial authorities, the

Commission notes that the initial arbitration proceedings were

terminated within ten months. The proceedings before the

Munich I Regional Court lasted from 23 December 1980 until

13 March 1984, i.e. three years and two and a half months. The

appeal proceedings before the Munich Court of Appeal lasted more

than six years, namely from 9 April 1984 until 4 May 1990. The

Commission considers that major delays occurred at first and second

instance in fixing hearings and in taking expert evidence.

52 The Commission, bearing in mind that when the proceedings

terminated with a settlement, the Court of Appeal had again entered

into an extensive taking of evidence and no decision on the merits

was in sight, finds that no convincing explanation of the delays has

been advanced by the respondent Government.

53 In these circumstances, the Commission finds that the length

of the proceedings complained of exceeded the "reasonable time"

referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

54 The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary Acting President

to the First Chamber of the First Chamber

(M. de SALVIA) (F. ERMACORA)

Menu

B. v. GERMANY

B. v. GERMANY

LEXI