Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15720/89

by K.B.

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 9 December 1991, the following members being present:

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

J.A. FROWEIN

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

Mr. M. de SALVIA, Secretary to the First Chamber.

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 July 1989 by

K.B. against the Federal Republic of Germany and registered on 30

October 1989 under file No. 15720/89;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

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

in Munich. He is an engineer by profession.

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 which was patented in the

Federal Republic of Germany, Italy and Great Britain.

On 18 May 1979 the applicant instituted proceedings before the

Arbitration Committee (Schiedsstelle) of the German Patent Office

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

gesetz). 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.

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

an action for compensation with the Munich I Regional Court (Land-

gericht). 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.

On 10 March 1981 the defendant filed submissions in reply to the

action.

On 18 September 1981 the Regional Court, following further

written submissions by the parties, held an oral hearing. A further

hearing took place on 13 November 1981.

On 19 January 1982 the Regional Court decided to take extensive

expert evidence, and invited the parties to propose appropriate

experts. On 28 April 1982 the Regional Court appointed the experts

Prof. G. and Prof. W., with whose appointments both parties agreed.

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

On 21 January 1983 the applicant requested the Regional Court to

expedite the proceedings.

On 18 February 1983 the expert W., upon a reminder by the

Regional Court, stated that due to health problems the termination of

his opinion would be delayed. He delivered his opinion on

30 June 1983.

On 27 September 1983 the Munich I Regional Court, upon the

defendant's request, decided to hear both experts in court, and fixed

13 December 1983 as date for the hearing.

Following further submissions by the parties in October and

November 1983, the expert opinions were amended on 10 and 17 November

and 7 December 1983.

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

two experts.

On 13 March 1984 the Regional Court ordered the defendant company

to pay the applicant DM 1,381,403 with interest. Furthermore it

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.

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

Munich Court of Appeal (Oberlandesgericht).

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. In particular,

the applicant amended his appeal on 6 February 1985.

On 12 February 1985 the Deputy of the Presiding Judge declared

that there were grounds for bias, and that he was excluded from the

proceedings. On 27 February 1985 the Court of Appeal accepted his

declaration.

At the hearing on 7 March 1985 the Court of Appeal fixed 25 April

1985 as date for the next hearing and passing of a decision.

Furthermore, it fixed the value in dispute (Streitwert) relevant for

the calculation of the cost of the proceedings at DM 37.5 million;

however, having regard to the applicant's financial situation his

obligation to contribute to the court fees was to be calculated on the

basis of DM 400,000.

On 7 March 1985 the applicant again amended his appeal.

On 25 March 1985 the Court of Appeal inquired with the parties

whether or not, having regard to the increasing cost of the proceedings

and the constitutional complaint (Verfassungsbeschwerde) envisaged by

the defendant, the proceedings should be continued. The hearing was

postponed until 23 May 1985. The parties subsequently informed the

Court that they wished to continue the proceedings.

On 25 April 1985 the defendant filed objections against the Court

of Appeal's decision of 7 March 1985 fixing the value in dispute.

At the 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.

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

Court of Appeal to further the proceedings.

On 19 June 1985 the files were sent to the expert W. On 5 August

1985 the Court of Appeal asked the expert W. about the cost of his

opinion and when he would deliver it. W. informed the Court about his

fees on 15 August 1985. On 18 September 1985 the Court of A

the

requested W. to start preparing his expert opinion. On 12 December

1985 the Court of Appeal again sent him a reminder.

In the meantime the parties had made further submissions on the

question whether the expert G. should deliver a second opinion, or

whether a supplementary expert should be appointed.

On 17 December 1985 the defendant also requested the Court of

Appeal to quash the decision of 7 March 1985 as regards the

preferential treatment of the applicant in fixing the value in dispute.

The defendant submitted that, following execution proceedings upon the

first instance judgment, the applicant had been paid more than DM one

million. On 27 February 1986 the Court of Appeal postponed a decision

on this matter until the main files were returned by the expert W.

On 12 March 1986 the expert W. informed the Court that he was

seriously ill. It appears that he also stated that, having regard to

the defendant's submissions, he saw no reason to amend his opinion

given at first instance.

On 20 March 1986 the Court of Appeal informed the parties that

it intended to instruct the expert G. to deliver his opinion first. On

26 March 1986 the Court of Appeal dismissed the defendant's request of

17 December 1985 concerning the value in dispute.

On 4 April 1986 the applicant proposed to stop the taking of

evidence and to fix a hearing. On 21 April 1986 the defendant opposed

an expertise by G. and proposed another expert.

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.

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. The decision

on the taking of evidence of 23 May 1985 would have to be set aside.

The appeal proceedings could not be terminated in the near future;

already the appointment of appropriate experts would be considerably

time-consuming. The Court fixed 14 May 1987 as next date for a

hearing.

Subsequently the parties filed numerous further submissions, the

defendant inter alia a private expert opinion of the expert Prof. B.

dated 15 April 1987.

On 14 May 1987 the Court of Appeal held a second hearing. The

proposal for a settlement was not accepted.

On 19 May 1985 the Court of Appeal asked the expert W. whether

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

28 May 1987.

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

render a judgment soon.

On 25 June 1987 the Court of Appeal set aside its decision on the

taking of evidence of 23 May 1985. It 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., and requested his statement in how far he had contacts with

the defendant.

On 28 August 1987 the files were submitted to the expert F. He

delivered his opinion on 12 November 1987.

On 24 November 1987 the applicant challenged the expert F. for

bias. The expert F. submitted further explanations on 17 December

1987. On 21 January 1988 the Court of Appeal dismissed the applicant's

motion of challenge. The applicant objected to that decision on

26 February, and filed further reasons on 15 March 1988. The Court of

Appeal dismissed these motions on 4 April 1988. The expert F. gave

further explanations on 18 May 1988. The applicant's third motion to

challenge F. was dismissed on 1 July 1988.

On 22 September 1988 the Court of Appeal, having heard the expert

F. in presence of the parties on 7 July 1988, ordered another expert

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

The defendant proposed four experts on 20 October 1988. It appears that

the parties eventually agreed on two possible experts.

On 29 November 1988 the Court of Appeal proposed a friendly

settlement of the case on the basis of the payments made by the

defendant so far, i.e. about DM 1.5 million.

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.

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

and 29th Chamber for bias. His motions were dismissed on 10 and 29 May

1989, respectively. His further objections were to no avail.

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

two experts agreed by the parties. On 2 July 1989 Prof. M. refused to

deliver an expert opinion.

On 11 July 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) 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.

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.

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.

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.

Having regard to 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.

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 decision of 18 August 1989

and challenged the expert S. for bias.

On 18 October 1989 his motion to challenge the judges was

dismissed.

On 19 October 1989 the applicant filed a hierarchical complaint

as regards the length of the proceedings.

On 16 November 1989 the Court of Appeal dismissed the applicant's

challenge of the expert S. On 23 November 1989 it dismissed the

applicant's request of 9 November to set the decision of 22 September

1988 on the taking of expert evidence aside. His further objections

were dismissed on 30 November 1989.

On 25 January 1990 the applicant announced settlement

negotiations with the defendant. On 12 February 1990 the defendant

requested that the files be sent to the expert S.

At a hearing on 4 May 1990 the parties agreed on a friendly

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.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 July 1989 and registered on

30 October 1989.

On 7 January 1991 the Commission decided that notice should be

given to the respondent Government of the application and that the

Government should be invited to submit written observations on the

admissibility and merits of the case.

The Government's observations were submitted on 3 May 1991. The

applicant's submissions in reply were submitted on 12 June 1991.

On 27 May 1991 the Commission decided that the application should

be referred to the First Chamber.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not receive a hearing within a reasonable time.

Article 6 para. 1 (Art. 6-1) provides, inter alia, that in the

determination of his civil rights and obligations, everyone is entitled

to a hearing within a reasonable time.

The respondent Government do not contest the admissibility of the

application. In particular, they agree that the applicant,

notwithstanding the settlement reached in the civil proceedings at

issue, can claim to be a victim within the meaning of Article 25 para.

1 (Art. 25-1) of the Convention. However, having regard to the

relevant criteria established by the Convention organs, they consider

that the applicant's right to a hearing within a reasonable time was

not violated. They refer in particular to the findings of the Federal

Constitutional Court in its decision of 11 July 1989.

The Commission considers that the applicant's complaint about the

length of the civil proceedings concerning his compensation claims for

an invention raises questions of facts and of law, which can only be

determined upon an examination of the merits. The application cannot,

therefore, be declared manifestly ill-founded under Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to Acting President of

the First Chamber the First Chamber

(M. de SALVIA) (F. ERMACORA)

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B. v. GERMANY

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