Lexploria

THE FACTS

Whereas the common elements of the four Applications can be summarised

as follows:

The Applicant is a German citizen born in 1910 and living in Hamburg.

His four Applications concern similar although not identical facts. In

each instance he has brought civil law-suits against firms for which

he had been a commercial agent and he alleges that he has never

received any decision from the competent Courts. Therefore he lodged

constitutional appeals in all four cases, but allegedly the Federal

Constitutional Court, too, failed to give a decision. The Applicant has

submitted only very few documents in support of his Applications. Upon

several requests of the Secretary to the Commission he has replied that

he could submit no further documents, since he had received no further

communications from the Courts concerned.

On 17th December, 1966, the Commission has decided to join the four

Applications in accordance with Rule 39 of the Rules of Procedure and

to ask the agent of the Federal Government for information as to the

state of the proceedings both before the ordinary courts and before the

Federal Constitutional Court.

By letter of 16th January, 1967, the agent of the Federal Government

submitted to the Commission detailed information together with

photocopies of the relevant documents from which it appears that, in

fact, the Applicant had accepted a settlement in one case before the

Regional Court and that in all other cases both the ordinary courts and

the Federal Constitutional Court had given decisions before the

introduction of the present Applications and that the Applicant had

received these decisions.

By registered letter of 2nd February, 1967, the Secretary to the

Commission sent the Applicant a copy of the information and copies of

the documents received from Mr. Bertram (Agent of the Federal

Government) and invited him to make before 15th February, 1967 any

comments which he might think appropriate. This letter was returned on

8th March, 1967 marked "non réclamé".

Whereas the facts particular to each of the Applications as appearing

from the submissions of the Applicant and from the information obtained

from the agent of the Federal Government may be summarised as follows:

I. Application No. 2364/64

(a) Submissions of the Applicant:

This complaint concerns a law-suit before the Regional Court

(Landgericht, Kammer für Handelssachen) at Kempten (file No. ...). In

spite of repeated requests by the Secretary to the Commission, he has

submitted no documents concerning these proceedings but only presents

the following facts:

In July, 1961, he brought an action for a statement of account and for

payment of commissions against a stocking factory at Lindau for which

he had been a commercial agent. On .. November, 1961, the Court, after

having heard the evidence, decided to deliver a written judgment.

However, according to the Applicant, no judgment was passed or any

further action taken by the Court.

For this reason the Applicant lodged on .. April, 1964, a

constitutional appeal (Verfassungsbeschwerde) which was registered by

the Federal Constitutional Court (Bundesverfassungsgericht) under No.

... . But, according to the Applicant, this Court too, failed to take

a decision and he received no further communication.

He complains that both Courts, in violation of Article 6, paragraph

(1), of the Convention, have denied him a decision within a reasonable

time.

(b) Information obtained from the agent of the Federal Government:

The claim brought on .. July, 1961 before the Regional Court

(Landgericht, Kammer für Handelssachen) at Kempten (file No. ...) was

rejected on .. February, 1962 by a written judgment according to

Article 128, paragraph 2, of the Code of Civil Procedure. The judgment

was notified to the Applicant's lawyer on .. March, 1962, and again to

him personally on .. August, 1963.

The constitutional appeal (file No. ...) lodged by the Applicant on ..

April, 1964 was rejected (nicht zur Entscheidung angenommen) as being

inadmissible on .. July, 1964 by a committee of three judges of the

Federal Constitutional Court.

In a letter of .. July, 1964, the Applicant acknowledged receipt of

this decision but alleged that it was not in proper form, since it did

not bear the seal of the Court, the original signatures of the judges

and the words "IM NAMEN DES VOLKES".

II. Application No. 2584/65

(a) Submissions of the Applicant:

This complaint concerns a law-suit before the District Court

(Amtsgericht) of Lindau (file No. ...). He has submitted no documents

concerning these proceedings but only lays before the Commission the

following facts:

In 1961 he brought proceedings for payment of commissions against a

stocking factory at Lindau for which he had been a commercial agent.

The judgment was fixed to be given on .. January, .. February, ..

April, 1962, but never pronounced in fact. On .. October, 1962 the

matter was again adjourned until .. November, 1962, when the competent

judge, Oberamtsrichter K, refused to hear the Applicant. Again,

judgment was never pronounced.

For this reason, the Applicant lodged, on .. April, 1964, a

constitutional appeal (Verfassungsbeschwerde) which was registered by

the Federal Constitutional Court (Bundesverfassungsgericht) under No.

... But, according to the Applicant, this Court, too, failed to take

a decision and he received no further communication.

He complains that both Courts, in violation of Article 6, paragraph

(1), of the Convention, have denied him a decision within a reasonable

time.

(b) Information obtained from the agent of the Federal Government:

The claim brought by the Applicant in July, 1961 before the District

Court at Lindau (file No. ...) was rejected on .. April, 1964 by a

default judgment as the Applicant, although summoned, had not appeared.

A copy of the judgment was sent to the Applicant on .. April, 1964.

The length of the proceedings is said to be due to the fact that only

upon repeated requests the Applicant presented his case in a coherent

manner (mehrfach zu einer geschlossenen Begründung seiner Klage

angehalten), that he requested several adjournments, that he lodged

numerous hierarchical appeals (Dienstaufsichtsbeschwerden) and demanded

that the proceedings should be stayed pending the decision on these

appeals.

The constitutional appeal (file No. ...) lodged by the Applicant on ..

April, 1964, was rejected as being inadmissible by a committee of three

judges of the Federal Constitutional Court on .. June, 1964. On ..

July, 1964 the Applicant acknowledged receipt of the decision but also

objected to its form.

III. Application No. 2662/65

(a) Submissions of the Applicant:

This complaint concerns a law-suit before the Regional Court

(Landgericht,

1. Zivilkammer) of Kempten (file No. ...). In spite of repeated

requests by the Secretary to the Commission, the Applicant has

submitted no documents but only presents the following facts:

In 1963, he brought an action for a statement of account against a

stocking factory at Lindau for which he had been a commercial agent.

On .. April, 1964, he paid the costs due at the filing of an action.

However, according to the Applicant, no judgment was given or any other

action taken by the Court.

For this reason, the Applicant lodged on .. April, 1964, a

constitutional appeal (Verfassungsbeschwerde) which was registered by

the Federal Constitutional Court (Bundesverfassungsgericht) under No.

... . But, according to the Applicant, this Court, too, failed to take

a decision and he received no further communication.

He complains that both Courts, in violation of Article 6, paragraph

(1),of the Convention, have denied him a decision within a reasonable

time.

(b) Information obtained from the agent of the Federal Government:

The claim brought on .. April, 1963, before the Regional Court at

Kempten (file No. ..., later ...) was rejected on .. April, 1964 by a

default judgment, since on that date no lawyer appeared on behalf of

the Applicant, his second lawyer on whom the summons for this hearing

had been served having withdrawn from the case two weeks before. A copy

of the judgment was sent to the lawyer on ..April, 1964, and the

Applicant had knowledge of it by a taxed bill of costs

(Kostenfestsetzungsbeschluss) which was served on him on .. April,

1964.The constitutional appeal (file No. ...) lodged by the Applicant on ..

April, 1964, was rejected as being inadmissible by a committee of three

judges of the Federal Constitutional Court, on .. July, 1964. In this

case, too, the Applicant acknowledged receipt of the decision on ..

July, 1964, but objected to the form of the decision. By a letter of

.. July, the Applicant was informed by the Federal Constitutional Court

that the decision given in this and in the two above-mentioned cases

as well as those given with regard to 8 further constitutional appeals

lodged by him in the same year, were final and could not be attacked

any more.

V. Application No. 2748/66

(a) Submissions of the Applicant:

This complaint concerns a law-suit before the Regional Court

(Landgericht, Kammer für Handelssachen) of Ulm (file No. ...), against

an underwear and clothing factory for which he had been a commercial

agent until his contract was allegedly terminated on .. October, 1960

without notice.

On .. November, 1960 a lawyer at Ulm filed on his behalf a claim for

compensation under Article 89 b of the Commercial Code

(Handelsgesetzbuch) and for a declaration of the factory's liability

for any further damages. On .. July, 1961, the Court decided to hear

evidence from both parties on .. September, 1961. However, according

to the Applicant no further action was taken by the Court and no

judgment pronounced. He states that his lawyer in Ulm and the lawyers

acting for him in Hamburg failed to pursue the claim and he accuses

these lawyers of collusion with the opposite party.

On .. October, 1965, he lodged a constitutional appeal

(Verfassungsbeschwerde) which was registered by the Federal

Constitutional Court (Bundesverfassungsgericht) under No. ... But,

according to the Applicant, this court, too, failed to take a decision

and he received no further communication.

He complains that both courts in violation of Article 6, paragraph (1),

of the Convention, have denied him a decision within a reasonable time.

(b) Information obtained from the agent of the Federal Government:

The law-suit instituted on .. November, 1960, by the Applicant's lawyer

before the Regional Court (Landgericht, Kammer für Handelssachen) at

Ulm (file No. ...) was settled by the lawyers of both parties in the

presence of the Applicant at a hearing on .. October, 1961, to the

effect that the defendant's firm had to pay 3,500 DM to the Applicant

and that the latter withdrew his complaint.

The constitutional appeal (file No. ...) lodged by the Applicant on ..

October, 1965, was rejected as being inadmissible on .. December, 1965.

THE LAW

Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention

provides that "the Commission shall consider inadmissible any petition

submitted under Article 25 (Art. 25), which it considers an abuse of

the right of petition";

Whereas the Applicant has deliberately misled the Commission by his

false statements that he had received no further communications from

the Courts concerned, although, in fact, he had accepted a settlement

in one case before the Regional Court and received decisions in all

other cases and even acknowledged receipt of them; whereas this clearly

constitutes an abuse of the right of petition within the meaning of

Article 27, paragraph (2) (Art. 27-2);

Now therefore the Commission declares this Application INADMISSIBLE.

Menu

X. v. THE GERMANY

X. v. THE GERMANY