FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 32830/96

by Klaus G. SATTLER [Note1]

against Germany [Note2]

The European Court of Human Rights ( Fourth Section) sitting on 19 janvier 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr L. Caflisch ,

Mr I. Cabral Barreto ,

Mr V. Butkevych ,

Mrs N. Vaji ć,

Mr J. Hedigan , Judges ,

with   Mr V. Berger, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 August 1996 by Klaus G. SATTLER [Note3] against Germany and registered on 30 August 1996 under file No. 32830/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1934, is a German national and resident at Obertshausen . He is an engineer by profession. Before the Court, he is represented by Mr C. von Stackelberg , a lawyer practising in Karlsruhe .

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

On 29 June 1991 the applicant, represented by counsel, commenced proceedings before the Stuttgart Regional Court ( Landgericht ) against Mr K., a lawyer, claiming compensation for alleged violation of professional duties in connection with bank transactions. The applicant explained that he had been in dispute with the SGZ bank over the purchase of a specific set of securities and that, as a result of that dispute, the securities in question were placed in a blocked deposit with the H bank. The applicant mandated Mr. K. to assist him in transferring all his securities with the H bank - including the blocked securities as soon as they would be released - to BHF, a third bank. Following an agreement between the applicant and the SGZ bank, the release occurred on 12 June 1990. In the applicant’s view, the defendant had failed to request for the transfer in due time; the securities were, therefore, transferred belatedly. The applicant, alleging that he had intended to sell the securities in July 1990, claimed the sum of DEM 291,800 as loss due to the decline in price of the securities until the date of sale in September 1990.

On 29 November 1991 the Regional Court, following a hearing on 16 October 1991, dismissed the applicant’s action. The Regional Court found that the defendant had violated his professional duties in that, contrary to the applicant’s instructions, he had, in first correspondence, requested the H bank to release the securities in question. Only by letter of 23 August 1990, had he requested the H bank to transfer the securities to the BHF bank. However, the applicant had failed to show that this shortcoming had resulted in any financial loss. In particular, having regard to all material before it, the court considered that it did not appear likely that, had the defendant acted in accordance with his instructions, the applicant would have sold the securities at an earlier stage when they had higher ratings. In this respect, the court noted that the applicant had known about the release of the securities in question and could have sold them earlier without prior transfer to the BHF bank.

On 10 August 1993 the Stuttgart Court of Appeal ( Oberlandesgericht ), following a hearing on 29 June 1993, dismissed the applicant’s appeal. The Court of Appeal, having regard to the testimony of several witnesses, the statements made by the applicant when interrogated as a party ( Parteivernehmung ), as well as documents confirmed the findings of the Regional Court. Thus the defendant had breached his duties towards the applicant in that, contrary to a written instruction of June 1991, he had only in late August 1991 requested the H bank to transfer the securities in question. However, it could not be established that the alleged loss in price resulted from this conduct. In this respect, the court, considering the evidence obtained from the witnesses, found that the applicant had failed to prove a firm intention to sell the securities, had they been transferred to the BHF bank at an earlier date. Moreover, the court considered that it could not be established that the defendant had wrongly advised the applicant to the effect that the securities should not be sold before September 1990.

On 24 March 1994 the Federal Court of Justice ( Bundesgerichtshof ) refused to admit the applicant’s appeal on points of law. According to the Court of Justice, the applicant’s case did not raise any issue of fundamental importance and, in any event, had no prospect of success. The decision was served on 29 March 1994.

On 25 April 1994 the applicant lodged an appeal with the Federal Constitutional Court  ( Bundesverfassungsgericht ), complaining about the judgments rendered by the Court of Appeal and by the Federal Court of Justice. By letter of 3 May 1994, the Federal Constitutional Court acknowledged receipt of the appeal on 28 April 1994.

Sitting with three judges, the Second Chamber of the Second Division ( zweite Kammer des Zweiten Senates ) of the Federal Constitutional Court declined to entertain the applicant's appeal on 8 February 1996. The decision was served upon his counsel on 14 February 1996.

COMPLAINTS

1. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention about the German court decisions and also of the alleged unfairness of the proceedings concerned. He submits in particular that the Court of Appeal did not duly consider his submissions, including his statements upon his interrogation as party, concerning his intentions to sell the securities and the risk that the SGZ bank might take a lien over the securities in question. Moreover, the applicant, referring to the documentary evidence before the civil courts, maintains that the Court of Appeal incorrectly considered that the defendant had not advised him wrongly.

2. The applicant further complains under Article 6 § 1 about the length of the proceedings before the Federal Constitutional Court.

3. Moreover, the applicant complains under Article 6 § 1 that the Federal Constitutional Court is not a “tribunal established by law” as the judges are assisted by legal secretaries in the preparation of decisions in individual cases.

THE LAW

1. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention about the German court decisions and also of the alleged unfairness of the proceedings concerned.

Article 6, as far as relevant, provides as follows:

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

The Court recalls that the effect of Article 6 § 1 is, inter alia , to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (cf. the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 21, § ï€ 66; and the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 19, § ï€ 59).

In the present case, there is nothing to show that the applicant, represented by counsel, could not duly present his arguments or that the proceedings before the German courts were otherwise unfair.

The Court considers in particular that the Court of Appeal based its assessment regarding the applicant’s intentions to sell the securities in question, as well as the consequences of the defendant’s advice, on the parties’ submissions, including the statements made by the applicant, and the statements of the witnesses heard. The Court of Appeal drew different conclusions from the material before it and thereby arrived at a result which was not favourable to the applicant.  However, the assessment of the facts is within the province of the national courts (cf. the afore -mentioned van de Hurk judgment, pp. 19-20, § 60).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3.

2. The applicant further complains under Article 6 § 1 about the length of the proceedings before the Federal Constitutional Court.

The Court, assuming that Article 6 § 1 applies to the present proceedings before the Federal Constitutional Court  (see the Süßmann v. Germany judgment of 16 September 1996, Reports 1996-IV, No. 15, p. 1117, § 41; Pammel and Probstmeier v. Germany judgments of 1 July 1997, Reports 1997-IV, No. 4, p. 1109, § 53, and p. 1135, § 48, respectively), has examined the length of the Constitutional Court proceedings, against the background of the civil proceedings as a whole.

The Court notes that the proceedings before the ordinary courts commenced on 29 June 1991 and terminated on 29 March 1994, when the decision of the Federal Court of Justice of 24 March 1994 was served upon the applicant’s counsel. This part of the proceedings thus lasted two years and nine months.

The ensuing proceedings before the Federal Constitutional Court lasted from 28 April 1994 until 14 February 1996 when counsel received the Constitutional Court’s decision dated 8 February 1996. The length of the proceedings criticised by the applicant was thus one year, nine months and sixteen days.

The reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard in particular to the complexity of the case and the conduct of the parties and the relevant authorities (see the afore -mentioned Süßmann judgment, pp. 1172-73, § 48).

As regards the complexity of the case, the Court notes that the civil proceedings concerned claims for loss due to breach of professional duties and required taking of evidence. Nevertheless, the Constitutional Court’s decision not to entertain the applicant’s appeal was taken in preliminary proceedings that did not necessitate a detailed examination in substance by the court.

The applicant did not cause any delay in the proceedings.

When examining the conduct of the Federal Constitutional Court, the Court recalls that Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time. Although this obligation applies also to a Constitutional Court, it cannot be construed in the same way as for an ordinary court.  Its role as guardian of the Constitution makes it particularly necessary for a Constitutional Court to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see the afore -mentioned Süßmann judgment, p. 1174, §§ 55-56).

The Court finds that the length of the preliminary proceedings before the Federal Constitutional Court cannot be explained by any particular features of the present case. In this context, it notes that the Federal Constitutional Court has been burdened by an excessive case-load since the end of the 1970s (see the afore -mentioned Pammel and Probstmeier judgments , pp. 1111-1112, §§ 66, 69, and pp. 1137-1138, §§ 61, 63). However, the civil court decisions did not cause the applicant a prejudice which would have imposed on the Constitutional Court a duty to deal with his case as a matter of very great urgency. Having regard to all circumstances and also taking into account that the applicant’s case had been dealt with by four instances in four years and seven months, the Court considers that the procedure as a whole has not exceeded a reasonable time within the meaning of Article 6 § 1.

Accordingly, there is no appearance of a breach of that provision on this point.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3.

3. The Court finds that the remainder of the applicant’s submissions regarding the Federal Constitutional Court’s organisation of judicial work do not disclose any appearance of a violation of his right to a hearing by a tribunal established by law, as guaranteed by Article 6 § 1. It follows that this part of the application must also be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpää Registrar President

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.