THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69584/01 by Gisela MÃœLLER against Germany

The European Court of Human Rights (Third Section) , sitting on 30 September 2004 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr L. Caflisch , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr K. Traja, judges , and Mr M . Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 26 March 2001 ,

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

The applicant, Ms Gisela Müller, is a German national, who was born in 1942 and lives in Lilienthal in Germany .

The facts of the case, as submitted by the parties, may be summarised as follows .

A. The circumstances of the case

1 .  Background to the case

Since 1973 t he applicant, her sister M. and their mother S. were the joint owners of a plot of land situated in Bremerhaven . The lease of the plot was managed by a partnership consisting of the applicant, M., S. and a limited company (S company ). Partners of the S company were also the applicant, M. and S. Over the years, serious argumen ts aro se between the applicant on one side and her mother and sister on the other side about questions of the proper administration of the partnership, in particular in respect of taxation matters .

2 . Proceedings before the domestic courts

(a) The p roceedings before the Bremen Regional Court

By letter dated 28 March 1986 , the applicant filed an action with the Bremen Regional Court ( Landgericht Bremen ) , sitting as a court competent in commercial matters ( Kammer für Handelssachen ) , against S., M. and the S compa ny (hereafter “the defendants”). According to the Government ' s submissions , the Regional Court received the action on 11 June 1986 . The applicant asked the Regional Court to prohibit the defendants from excluding her from the management of the business . She also demanded that the defendants surrendered all annual accounts from 1973 to 1995 and that they distributed the net profits accordingly. The applicant alleged that the defendants had failed to consult her about the management. She further complained about mistakes in the management, in particular about the fact that the defendants insisted on paying business taxes w ithout being obliged to do so.

On 21 July 1986 the app licant ' s counsel stated that the applicant was willing to reach a friendly settlement.

On 30 September 1986 , during a first oral hearing, the parties declared that they were willing to reach an understanding and only thereafter hold another hearing.

On 4 November 1986 the applicant ' s counsel informed the Regional Court that negotiations on a settlement had not taken place.

On 20 March 1987 , during a further hearing, the Regional Court ' s continuing efforts to induce the parties to agree on a friendly settlement failed. However, S. agreed to submit all documents on the annual accounts since 1973 to the applicant ' s counsel for inspection.

On 27 July 1987 the applicant ' s counsel informed the Regional Court that S. had failed to comply.

On 11 August 1987 the Regional Court scheduled an oral hearing which was subseq u ently postponed on the applicant ' s request.

On 6 November 1987 S . agreed to submit the relevant documents on the annual accounts since 1975 to the applicant ' s counsel.

On 30 December 1987 the Regional Court instructed the defendants to submit the partnership agreements and the annual accounts since 1973 and to disclose the use of the reported profits.

In December 1987 and January and April 1988 the Regional Court called for the case-file of a separate law suit which the applicant conducted against the part nership ' s former tax consultant. On 15 June 1988 the presiding judge noted that “particularly on emotional grou nds, the sensible pursuit of progress in thi s case ” was not possible before a final decision had been reached in the proceedings against the tax consultant.

In September 1989 and January, March, April and May 1990 the Regional Court filed for further information on the proceed ings against the tax consultant . On 24 July 1989 – according to the Government ' s submissions – the defendants complied with the conditions imposed in the order of 30 December 1987 .

On 4 September and 20 October 1989 the Regional Court held further hearing s . On 20 October 1989 that c ourt decided to schedule a further hearing only after the tax authority ' s decisions on the partnership ' s tax liability for the years 1984 to 1986 had become final. On 23 November 1998 the ap plicant ' s counsel informed the c ourt hat the tax decisions had become final. On 19 March, 13 June and 6 August 1990 the applicant ' s counsel requested the Regional Court to schedule a new oral hearing. On 8 August 1990 the Regional Court scheduled an oral hearing for 3 Septembe r 1990 , noting that the delay was owed to the chamber ' s excessive workload during the previous six months.

On 12 October 1990, following the oral hearing, the Regional Court delivered a partial decision ordering the defendants to pay DEM 29,657. 58 (approximately 15,200 Euro) net profit to the applicant out of the annual accounts and to grant her a restricted power over the commercial partnership ' s bank accounts.

(b) The appeal proceedings against the partial decision of 12 October 1990 before the Hanseatic Court of Appeal

On 19 November 1990 the defendants lodged an appeal against the Regional Court ' s partial decision.

On 11 April 1991 the Hanseatic Court of Appeal ( Hanseatisches Oberlandesgericht in Bremen ) , having received submissions from both parties, scheduled an oral hearing for 22 August 1991 .

On 27 May 1991 the applicant informed the Court of Appeal that she had changed counsel.

On 6 June and 6 September 1991 the Court of Appeal postponed the hearing, once following the applicant ' s request and a second time because of the rapporteur ' s illness.

On 17 September 1991 the Court of Appeal further postponed the hearing on the ground that the rapporteur had been seconded to the eastern part of Germany .

On 26 March 1992 , following an oral hearing on 5 March 1992 , the Hanseatic Court of Appeal quashed the Regional Court ' s partial decision and rejected the a pplicant ' s claims.

(c) The continuation of the proceedings before the Bremen Regional Court

On 23 June 1992 the Regional Court scheduled an oral hearing for 2 October 1992 . On 28 September 1992 and 15 October 1992 , following requests from the defendants and the applicant, the Regio nal Court postponed the hearing.

On 17 November 1992 , the Regional Court , once again, tried to induce the parties to reach a friendly settlement. On 15 and 18 December 1992 the parties informed the Regional Court that no settlement had been reached.

On 15 January 1993 the Regional Court ordered the preparation of an expert opinion as to whether the ann ual accounts for the years 1975 to 1991 of both the c ommercial partnership and the S company had been prepared in accordance with the rules on accounting and balances. On 23 March 1993 , upon payment of the advance costs, the Regional Court sent the files to the Chamber of Tax Consultants for the nomination of a suitable expert.

On 5 April 1993 the applicant ' s counsel informed the Regional C ourt that he had relinquished his mandate.

On 28 April 1993 the Chamber of Tax Consultants named an expert.

On 29 April 1993 – according to the Government ' s submissions - the presiding judge of the Regional Court orally informed the applicant that he would only commission the expert after she had nominated a new counsel.

On 13 August 1993 the applicant informed the Regional Court that she had mandated new counsel.

On 27 August 1993 the Regional Court ordered the parties to pay further advance costs.

On 22 October 1993 the Bremen Regional Court appointed the certified accountant D. to prepare the expert opinion.

On 19 September 1994 , after having received the necessary documents towards the end of 1993, D. submitted his report.

On 3 March 1995, following the submissions of both parties and requests filed by both parties to postpone the hearing, the Regional Court held an oral hearing and requested D. to amend his report in view of supplementary documents to be submitted by the defendants.

On 15 May 1995 the applicant lodged a criminal charge against the defendants for withholding documents. On 24 May 1995 the Public Prosecutor requested the Regional Court to transmit the case-file. On 28 August 1995 the presiding judge of the Regional Court informed the parties that he was prevented from pursuing proceedings as the Prosecutor ' s Office had not yet returned the case-file. The file was returned to the Regional Court on 21 November 1995 .

On 18 December 1995 the Regional Court asked D. to resume his work on the amendment of his expert report.

On 8 January 1996 the applicant addressed a letter to the President of the Regional Court , referring to the excessive length of proceedings and requesting that her case be given priority.

On 7 March 1996 the presiding judge of the Regional Court informed the parties that he was unable to proceed because the files had not yet returned from the President ' s office. On 14 March 1996 the President informed the applicant that he could not find any delay in proceedings attributable to the court.

On 22 March 1996 the expert informed the Court that the defendant s had not submitted all necessary documents.

On 24 May 1996 , during an oral hearing, the defendants stated that they would submit the requested documents at the beginning of June.

On 26 August 1996 the applicant requested the oral hearing to be reopened and announced new applications.

On 30 August 1996 the Regional Court re-opened proceedings and scheduled a hearing for 13 September 1996 . On 25 September 1996 , following the defendant ' s request, the Regional Court postponed the hearing to 15 November 1996 .

On 15 November 1996 the Regional Court suggested another friendly settlement and scheduled a final hearing for 29 November 1996 .

On 22 November 1996 , following the defendant ' s request, the Regional Court postponed the hearing to 13 December 1996 . Following that hearing the Regional Court announced that it would issue a decision on 31 January 1997 .

On 19 December 1996 the Regional Court received D. ' s amended expert opinion.

On 31 January 1997 the Court ordered the parties to file their submissions o n the report and scheduled to give a decision on 1 April 1997 .

On 1 April 1997 the Regional Court issued a judg ment , concluding that the applicant had effectively revoked the managerial rights of the defendants and rejecting t he majority of the applicant ' s further claims.

On 12 May 1997 the Regional Court rejected the applicant ' s request to correct the name of the S company in the operative part of the judgment of 1 April 1997 on the ground that the name used in the judgment was the same one as the one which was used in the company ' s partnership agreement. On 9 June 1997 the Court of Appeal rejected the applicant ' s complaint .

(d) The appeal proceedings against the judgment of 1 April 1997 before the Hanseatic Court of Appeal

On 5 and 7 May 1997 all parties lodged their appeals. On 18 August 1997 , having received submissions from all parties, the Hanseatic Court of Appeal scheduled a hearing for 10 October 1997 . On 25 September 1997 , following a request by the defendants, the Court of Appeal postponed the hearing to 18 December 1997 .

On 18 December 1997 the Court of Appeal suggested that the parties should seek a separation. At the end of the hearing, f ollowing the request of all parties, the court decided that proceedings should only be continued on request of one of the parties .

On 5 January 1998, following the defendants ' application in a separate proceeding , the Bremerhaven District Court ( Amtsgericht ) ordered that the piece of land administered by the commercial partnership be sold by compulsory auction with a view to partitioning the property concerned ( Teilungsversteigerung ).

On 29 January 1998 , following the applicant ' s request to continue proceedings, the Court of Appeal scheduled an oral hearing for 23 April 1998 which was later postponed o n the defendant s ' request to 28 May 1998 .

On 28 May 1998 the Court of Appeal announced its intention to suspend proceedings until the termination of the auction proceedings , against which the applicant protested .

On 9 July 199 8 the Court of Appeal passed an order to suspend the proceedings until a final decision had been reached in the auction proceedings. The Court of Appeal found that the outcome of at least part of the lawsuit depended on the conclusion of the se auction proceedings. On 31 August 1999 , 7 July 2000 and 6 September 2000 t he Court of Appeal rejected the applicant ' s request s to resume proceedings on the ground that the auction proceedings had not yet been terminated.

On 18 August 2000 the applicant raised a constitutional complaint . She complained that despite the undue length of the proceedings, the Hanseatic Court of Appeal refused to resume them . S he also gave a chronological acco unt of the proceedings and maintained that their excessive length had violated her rights under the German Basic Law.

On 22 November 2000 the Federal Constitutional Court ( Bundesverfassungsgericht ) refused to entertain the applicant ' s complaint.

( e ) The sale of the property by auction proceedings

On 17 July 1998 , upon the applicant ' s complaint, the Bremerhaven District Court revoked the auction order. On 29 September 1998 t his decision was set aside by the Bremen Regional Court ; a further appeal was dismissed on 25 November 1998 by the Hanseatic Court of Appeal.

The applicant ' s various further motions aimed at the prevention of the sale of the plot , including a further constitutional complaint, remained unsuccessful.

On 9 July 2001 the Bremerhaven District Court ordered the auction of the p lot of land. It was purchased by M. On 28 September 2001 t he Bremen Regional Court rejected the applicant ' s complaint. On 27 November 2001 the Hanseatic Court of Appeal rejected the applicant ' s further complaint. On this occasion, the Hanseatic Court of Appeal was sitting as the same chamber as in the above mentioned proceedings.

B. Relevant domestic Law

The relevant Rules of Civil Procedure on the suspension of proceedings read as follows:

Section 148

“The court may order, if the decision of the legal dispute wholly or partly depends on the existence or non-existence of a legal relationship which forms the subject of another pending legal dispute ... that the proceedings be suspended until the other legal dispute is settled ... ”

Section 252

“ A decision by which the suspension of proceedings is ordered or denied on the ground of provisions of this title ... may be appealed ... ”

Section 567

“ ...

(4) Against the decisions of the court s of appeal , no appeal is admissible ... ”

COMPLAINT S

1. The applicant com plains under Article 6 § 1 of the Convention about the undue length of the proceedings before the civil courts, in particular about the Hanseatic Court of Appeal ' s failure to continue proceedings following its order of suspension of 9 July 1998.

2. She further complains under Article 6 § 1 of the Convention about the Regional Court ' s refusal to correct the name of the defendant company in the operative part of the judgment of 9 July 1998 , alleging that the judgment could not be executed.

THE LAW

1. The applicant ' s first co mplaint relates to the undue length of the civil law proceedings. She relies on Article 6 of the Convention which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

a) The Government ' s objections

The Government argue that the applicant did not exhaust domestic remedies because she did not complain before the Federal Constitutional Court about the overall leng th of the proceeding s , but merely complained about the Hanseat ic Court of Appeal ' s order of suspension and about that court ' s ensuing inactivity. The y further allege that the applicant had failed to lodge a n appeal against the order of suspension and that she had not lodged her constitutional complaint within the statutory time limit of one month . Finally, the Government emphasise that the applicant did not inform the Court of Appeal about the termination of the auction proceedings and did not request proceedings to be resumed thereafter.

The applicant contest s these submissions. She claims that no legal remedy was available against the Court of Appeal ' s order of suspension . She did not lodge an immediate constitutional complaint against the order of suspension because such a complaint would not have had any prospect of success. The applicant finally t akes the view that she was not obliged to file a request with the Court of Appeal to continue proceedings because that court already kne w about the termination of the auction proceedings after having rejected the applicant ' s final appeal against the auction order on 27 November 2001 . In her view, t he Court of Appeal would have been obliged to continue proceedings without being requested to do so.

The Court reiterates that under Article 35 § 1 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged . Whereas Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see, among other authorities, Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 18, § 34). The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite a ccessibility and effectiveness. Furthermore, in the area of the exhaustion of domestic remedies, it is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time (see, among other authorities, Hartman v. Czech Republic, no. 53341/99, §§ 57-58, ECHR 2003-VIII , and Horvat v. Croatia , no. 51585/99, § 39, ECHR 2001-VIII).

Turning to the circumstances of the case, the Court notes first that, in the context of her principal constitutional complaint about the inactivity of the Hanseatic Court of Appeal, the applicant gave a chronological account of the proceedings and maintained that their excessive length had violated her rights under the Basic Law. Under these circumstances, the Court finds that the applicant has in substance raised the complaint about the undue length of proceedings before the Federal Constitutional Court .

Second, the Court notes that the Government failed to demonstrate that the applica nt could have effectively lodged a n appeal against the Court of Appeal ' s order of suspension. According to s ection 567 subsection 4 of the German Code of Civil P rocedure (see relevant domestic law above) no appeal is admissible against decisions passed by a court of a ppeal. Inso far as the Government allege d that the applicant could have lodged an exceptional complaint, the y d id not submit any evidence that such a legal remedy w as effe c t ively available to the applicant at the relevant time.

As the relevant proceedings in question were still pending at the time the applicant raised her constitutional complaint, there is no indication that she failed to comply with the statutory time limit of one month following the lower cou rt s ' final decision.

The applicant must therefore be regarded as having exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

Finally, the Court recalls that in respect of the length of civil proceedings the issue how the applicant could have accelerated the proceedings does not relate to the exhaustion of domestic remedies but to the merits of the application, that is to say to the question if the applicant ' s conduct contributed to the length of proceedings (see, among other authorities, Horvat v. Croatia , cited above, § 46 , and Hartman v. Czech Republic , cited above, § 60).

b)  Merits

The Government consider that the length of proceedings was not unreasonable having regard to all the circumstances of the case . The subject matter of the law suit raised difficult questions of fact and law, reaching back over a period of 30 years . Fu rthermore, the law suit was connected with several other legal disputes. According to the Government, the applicant considerably contributed to the length of the proceedings by submitting numerous and lengthy written statements – including a request to re-open the oral hearing - and by lodging various procedural motions as well as criminal charges. B oth parties applied numerous times for postponing the dates for hearings. The Government insist that the parties to the civil law proceedings lacked any willingness to reach a friendly settlement, but abused the courts as a means to carry out a family feud. The order of suspension was in accordance with the relevant legal provisions.

The applicant contests these submissions. According to her allegations, the Court of Appeal ' s order to suspend proceedings was un lawful because the law suit had been ready for adjudication by the time the order was passed. She maintains that the domestic courts ' proposals to reach a friendly settlement exclusively favoured the defendants and that , furthermore, the courts failed to prevent the defendants from delaying proceedings.

The Court notes that the civil law proceedings were instigated on 11 June 1986 and are still pending . Thus, they have lasted for more than eighteen years.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ' s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. With respect to the applicant ' s second complaint under Article 6 § 1 of the Convention about the Regional Court ' s refusal to correct the defendant S company ' s name in its judgment of 1 April 1997 , the Court notes that the applicant has not demonstrated that sh e had requested execution of this

judgment and that this had been denied because the defendant company was wrongly named . This part of the application is therefore manifestly ill-founded with in the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ' s complaint about the length of proceedings;

Declares inadmissible the remainder of the application.

Mark Villiger Ireneu Cabral Barreto Deputy Registrar President