VEIT v. GERMANY



Application No. 10474/83

 

Otto VEIT

 

against

the FEDERAL REPUBLIC OF GERMANY

 

REPORT OF THE COMMISSION

 

(adopted on 12 March 1987)

 

 

TABLE OF CONTENTS

 

                                                                Page

 

I.      INTRODUCTION

        (paras. 1-18) .........................................    1

 

        A.      The application

                (paras. 2-7) ..................................    1

 

        B.      The proceedings

                (paras. 8-13) .................................    2

 

        C.      The present Report

                (paras. 14-18) ................................    3

 

 

II.     ESTABLISHMENT OF THE FACTS

        (paras. 19-68) ........................................    4

 

        A.      Relevant domestic legislation

                (paras. 19-21) ................................    4

 

        B.      Particular circumstances of the case

                (paras. 22-68) ................................    6

 

                a) Institution of court proceedings

                   (paras. 22-25)..............................    6

 

                b) Proceedings before the Stuttgart Court

                   of Appeal

                   (paras. 26-60)..............................    6

 

                   aa) Evidence proceedings

                       (paras. 27-53)..........................    6

 

                   bb) Conclusion of the appeal proceedings

                       (paras. 54-60)..........................   10

 

                c) Proceedings before the Federal Court

                   of Justice and the Federal Constitutional

                   Court

                   (paras. 61-66)..............................   11

 

                d) Final conclusion of litigation

                   (paras. 67-68)..............................   12

 

 

III.    SUBMISSIONS OF THE PARTIES

        (paras. 69-105) .......................................   13

 

        A.      The applicant

                (paras. 70-80) ................................   13

 

 

        B.      The Government

                (paras. 81-105) ...............................   15

 

                a) On the admissibility

                   (paras. 81-89) .............................   15

 

                b) On the merits

                   (paras. 90-105) ............................   17

 

 

IV.     OPINION OF THE COMMISSION

        (paras. 106-142) ......................................   21

 

        A.      Point at issue

                (para. 106) ...................................   21

 

        B.      Applicability of Article 6 para. 1

                (paras. 107-108) ..............................   21

 

        C.      Period to be taken into consideration

                (paras. 109-113) ..............................   21

 

        D.      Relevant criteria

                (para. 114) ...................................   22

 

        E.      Complexity of the case

                (paras. 115-119) ..............................   22

 

        F.      Conduct of the parties

                (paras. 120-125) ..............................   23

 

        G.      Conduct of the authorities

                (paras. 126-138) ..............................   25

 

        H.      Overall assessment

                (paras. 139-141) ..............................   27

 

        I.      Conclusion

                (para. 142) ...................................   28

 

 

APPENDIX I      :  History of the proceedings before

                   the Commission .............................   29

 

APPENDIX II     :  Decision on the admissibility of

                   the application ............................   31

 

APPENDIX III    :  Commission's proposals (separate document)

 

 

I.      INTRODUCTION

 

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

 

 

A.      The application

 

 

2.      The applicant, a German citizen and businessman, resided in

Stuttgart.  He died on 7 February 1982.  His widow who resides in

Stuttgart is the sole heir.

 

3.      The applicant was represented before the Commission by

Mr.  H.-J. Pohl, a lawyer practising in Mannheim, who is now also

representing the applicant's widow before the Commission.

 

        The Government of the Federal Republic of Germany have been

represented by their Agent, Mrs.  I. Maier, Ministerialdirigentin in

the Federal Ministry of Justice.

 

4.      The application concerns court proceedings in which the

applicant was involved.  The latter was the owner of a warehouse in

Stuttgart which was built by the W. company in 1970.  On 17 May 1971

the W. company brought an action before the Stuttgart Regional Court

in which it requested from the applicant the remaining payment for the

construction expenses of the warehouse.  The applicant put forward

counter-claims based on alleged deficiencies in the construction work

which the W. company had carried out.  By judgment of 10 September

1971 the Stuttgart Regional Court ordered the applicant to pay the W.

company a sum of approximately 660,000.-DM.

 

5.      The applicant appealed against this decision to the Stuttgart

Court of Appeal on 12 November 1971.  On 28 July 1972 the Court of

Appeal instructed an expert to prepare an opinion on the construction

expenses and the alleged deficiencies of the warehouse.  Following

numerous further submissions by the parties and a number of visits on the

spot, the expert submitted his opinion to the Court on 13 January 1977,

i.e. approximately 4 1/2 years after his instruction.  On 31 March 1977

the Court of Appeal rejected the applicant's appeal in its essential parts.

 

6.      The applicant's subsequent appeal on points of law to the

Federal Court of Justice  was dismissed though on 11 June 1980 this

decision was quashed by the Federal Constitutional Court on the ground

that it had been insufficiently substantiated.  The Federal Court of

Justice then again dismissed the appeal.  The applicant's renewed

constitutional complaint was dismissed by the Federal Constitutional

Court on 5 March 1981.

 

7.      When introducing the application, the applicant complained

under Article 6 para. 1 of the Convention of the length of the

proceedings, in particular of the long delay caused by the preparation

of the expert opinion before the Court of Appeal.  He also alleged a

violation of his right, under Article 6 para. 1, to a fair hearing.

 

        Following the applicant's death his widow pursued the

proceedings before the Commission.

 

 

B.      The proceedings

 

 

8.      The application was introduced on 2 September 1981 and

registered on 4 July 1983.  On 7 December 1983 the Commission decided

in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to

give notice of the application to the respondent Government and to

invite them to present before 25 February 1984 their observations in

writing on the admissibility and merits of the application.

 

9.      By letter of 16 February 1984 the Government submitted

information indicating that the applicant had died.  They requested

that the application should be struck off the list of the Commission's

cases as the applicant's heirs could not be considered to have a

sufficient legal interest of their own in a continuation of the case.

 

        By letter of 18 April 1984 the applicant's representative

informed the Commission that the applicant had died on

7 February 1982, and that his widow, Mrs.  Erna Veit, who had inherited

him wished to continue the case before the Commission.

 

        On 11 July 1984 the Commission decided that there were not

sufficient reasons to strike the application off its list of cases.

It therefore maintained its decision of 7 December 1983 to invite

the Government to submit observations on the admissibility and merits

of the application.

 

10.     Following requests on 30 October and 27 November 1984 for

extension of time-limits, the Government's observations of

14 December 1984 were received on 28 December 1984.  Following a

request on 18 March 1985 for extension of the time-limit, the reply of

the applicant's widow of 26 April 1985 was received on 30 April 1985.

 

11.     On 8 July 1985 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the applicant's complaint

under Article 6 para. 1 concerning the length of the proceedings.

 

        The hearing took place on 6 May 1986.  The applicant's widow

who was present was assisted by Mr.  H.-J. Pohl, as her

representative, and Mr.  R. Schuhmann, as adviser.  The respondent

Government were represented by Mr.  H.A. Stöcker, Agent and

Ministerialrat in the Federal Ministry of Justice, as well as by Mrs.

R. Adlerstein, Regierungsdirektorin in the Federal Ministry of

Justice, and Mr.  H. Krukenberg, judge at the Stuttgart Court of

Appeal, as advisers.

 

12.     Following the hearing the Commission declared admissible the

complaint concerning the length of the court proceedings and declared

inadmissible the remainder of the application.

 

13.     After declaring the case in part admissible, the Commission,

acting in accordance with Article 28 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case.  Consultations with the parties took

place between 6 May and 26 November 1986.  In the light of the

parties' reaction, the Commission now finds that there is no basis

upon which such a settlement can be effected.

 

 

C.      The present Report

 

 

14.     The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberation and

votes, the following members being present:

 

 

                MM. C.A. NØRGAARD, President

                    G. SPERDUTI

                    J.A. FROWEIN

                    G. JÖRUNDSSON

                    B. KIERNAN

                    A.S. GÖZÜBÜYÜK

                    A. WEITZEL

                    J.C. SOYER

                    H.G. SCHERMERS

                    H. DANELIUS

                    H. VANDENBERGHE

 

 

15.     The text of this Report was adopted on 12 March 1987 and is

now transmitted to the Committee of Ministers of the Council of Europe

in accordance with Article 31 para. 2 of the Convention.

 

16.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is:

 

i)      to establish the facts, and

 

ii)     to state an opinion as to whether the facts found

        disclose a breach by the State concerned of its

        obligations under the Convention.

 

17.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

 

18.     The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

 

 

II.     ESTABLISHMENT OF THE FACTS

 

 

A.      Relevant domestic legislation

 

 

19.     The court proceedings in which the applicant was involved fall

under the German Code of Civil Proceedings (Zivilprozessordnung).

Sections 402-414 of the Code govern, also in respect of appeal

proceedings, the evidence given by experts (Beweis durch

Sachverständige).

 

20.     According to S.404(1), and subject to paras. (2)-(4), the

court will select the experts and determine their number.  S. 409

concerns the consequences of failure to appear or of refusal (Folgen

des Ausbleibens oder der Weigerung) and reads:

 

        "(1)  Im Falle des Nichterscheinens oder der Weigerung eines

        zur Erstattung des Gutachtens verpflichteten

        Sachverständigen werden diesem die dadurch verursachten

        Kosten auferlegt.  Zugleich wird gegen ihn ein Ordnungsgeld

        festgesetzt.  Im Falle wiederholten Ungehorsams kann das

        Ordnungsgeld noch einmal festgesetzt werden.

 

        (2)  Gegen den Beschuss findet Beschwerde statt."

 

        (translation)

 

        "(1)  If an expert who has been instructed to give an expert

        report fails to appear or refuses to do so, the costs

        occasioned thereby shall be borne by him.  He will also be

        ordered to pay a disciplinary fine.  In the event of

        repeated disobedience, a further disciplinary fine may be

        imposed.

 

        (2)  The decision is appealable."

 

        S.411 concerns the written expert opinion (schriftliches

Gutachten) and reads:

 

        "(1)  Wird schriftliche Begutachtung angeordnet, so hat der

        Sachverständige das von ihm unterschriebene Gutachten auf

        der Geschäftsstelle niederzulegen.  Das Gericht kann ihm

        hierzu eine Frist bestimmen.

 

        (2)  Versäumt ein zur Erstattung des Gutachtens

        verpflichteter Sachverständiger die Frist, so kann gegen ihn

        ein Ordnungsgeld festgesetzt werden.  Das Ordnungsgeld muss

        vorher unter Setzung einer Nachfrist angedroht werden.  Im

        Falle wiederholter Fristversäumnis kann das Ordnungsgeld in

        der gleichen Weise noch einmal festgesetzt werden. § 409

        Abs. 2 gilt entsprechend.

 

        (3)  Das Gericht kann das Erscheinen des Sachverständigen

        anordnen, damit er das schriftliche Gutachten erläutere."

 

        (translation)

 

        "(1)  If a written expert opinion is ordered, the expert

        shall deposit the opinion bearing his signature at the court

        office.  The Court can impose a time-limit.

 

        (2)  If an expert who has been instructed to give an

        expert opinion fails to observe the time-limit, a

        disciplinary fine may be imposed on him.  He must have

        previously been threatened with the imposition of the

        disciplinary fine, and an extension granted.  In the event

        of repeated non-observance of the time-limit, a further

        disciplinary fine may be imposed.  Section 409 (2) is

        applicable.

 

        (3)  The Court may order the expert to appear before it in

        order to provide explanations concering the written expert

        opinion."

 

21.     Alterations of the order to take evidence (Änderung des

Beweisbeschlusses) are governed by S.360 which states:

 

        "Vor der Erledigung des Beweisbeschlusses kann keine Partei

        dessen Änderung auf Grund der früheren Verhandlungen

        verlangen.  Das Gericht kann jedoch auf Antrag einer Partei

        oder von Amts wegen den Beweisbeschluss auch ohne erneute

        mündliche Verhandlung insoweit ändern, als der Gegner

        zustimmt oder es sich nur um die Berichtigung oder Ergänzung

        der im Beschluss angegebenen Beweistatsachen oder um die

        Vernehmung anderer als der im Beschluss angegebenen Zeugen

        oder Sachverständigen handelt.  Die gleiche Befugnis hat der

        beauftragte oder ersuchte Richter.  Die Parteien sind

        tunlichst vorher zu hören und in jedem Falle von der

        Änderung unverzüglich zu benachrichtigen."

 

        (translation)

 

        "Before the order to take evidence has been executed, each

        party can request its alteration on the basis of the

        previous hearings.  However, the Court can also, upon

        application by one party or ex officio, alter the order to

        take evidence even without a new oral hearing to the extent

        that the opponent agrees or that it concerns merely the

        correction or supplementation of facts of evidence mentioned

        in the order or the hearing of witnesses or experts other

        than mentioned in the order.  The same authority falls to

        the judge so charged or requested.  The parties must be duly

        heard beforehand and in each case they must immediately be

        informed of the alteration."

 

        According to para. 3 of S. 567, which concerns the

admissibility of an appeal (Zulässigkeit der Beschwerde) in particular

against procedural measures, an appeal is not possible against

decisions of courts of appeal, subject to certain provisions of the

Code not relevant to the present case.

 

 

B.    Particular circumstances of the case

 

 

        a) Institution of court proceedings

 

22.     The applicant was the owner of a warehouse in

Stuttgart-Wangen, which was built by the firm Gebrüder Albert und

Ernst Waiss by virtue of a contract concluded on 12 March 1970.  The

contract stipulated that the applicant would pay over 2.3 million DM

for the construction, of which he initially paid 1.7 million DM.

 

23.     On 17 May 1971 the Waiss company brought an action before the

Stuttgart Regional Court (Landgericht) in which it requested from the

applicant the remaining payment for the construction expenses

(Werklohn) of the warehouse in the amount of 628,440 DM.  The

applicant refused to pay and put forward counter-claims of more than

1 million DM.  He based these counter-claims on alleged deficiencies

in the construction work that the company had carried out.

 

24.     By partial judgment (Teilurteil) of 10 September 1971 which

numbered 62 pages the Stuttgart Regional Court ordered the applicant

to pay to the company a sum of 600,000 DM, excluding interest.  The

action was rejected to the extent of 3,226.49 DM and judgment was

reserved as to the remainder of the plaintiff's claim and as to costs.

 

        The company was permitted to offer the applicant during the

execution a directly liable bank guarantee as security amounting to

660,000 DM including interest.  This bank guarantee would have been the

only asset available to the applicant to satisfy his claims if his

subsequent appeal proved to be successful and the Waiss company had

meanwhile gone bankrupt.

 

25.     The Waiss company, which was then a company under civil law

(Gesellschaft), later became a limited partnership (Kommanditgesell-

schaft).  On 16 February 1977 the company and the solely liable

partner filed bankruptcy petitions which were rejected by the

Stuttgart District Court (Amtsgericht) on 1 and 2 March 1977 on the

ground that there were no assets.  The company and its partner were,

when the application was filed, without means and in liquidation.

 

        b)  Proceedings before the Stuttgart Court of Appeal

 

26.     On 15 November 1971 the applicant appealed against the

judgment of 10 September 1971 to the Stuttgart Court of Appeal

(Oberlandesgericht).  The reasons for the appeal were submitted by

letter of 28 January 1972.

 

        aa) Evidence proceedings

 

27.     A first hearing was held on 11 July 1972.  On the same day the

applicant requested the Court in writing to visit the warehouse.  By

an order of 28 July 1972 concerning the taking of the evidence

(Beweisbeschluss) the Court entrusted an engineer, Dr.  A., with the

task of providing the Court with an expert opinion regarding the

deficiencies caused by dampness in the construction work.   The Court

also ordered the hearing of witnesses and stated that it would visit

the warehouse together with Dr.  A.  The Court determined that the

expert opinion should be submitted after the visit to the warehouse.

 

        On 1 August 1972 the documents were sent to Dr.  A. to enable

him to assess the probable costs of his opinion.  He replied on

1 September 1972 that these would amount to 12,000 DM.  Both parties

accepted this.

 

28.     The Court passed a further order concerning evidence on

13 November 1972, whereupon on 11 January 1973 the Court visited the

warehouse together with Dr.  A. and thereby also questioned four

witnesses.

 

        On 26 February 1973 the Court supplemented its order to take

evidence by requesting Dr.  A. to comment on allegations by the

applicant concerning deficiencies of material and damage caused by

dampness.

 

29.     On 1 March 1973 the file was sent to Dr.  A.  However, on

14 May and 8 June 1973 the applicant invoked new facts concerning

deficiencies caused by water.  The Court therefore requested Dr.  A. on

13 June 1973 to return the file.

 

30.     On 22 June 1973 the Court supplemented its order to take

evidence.  It ordered in particular a new visit to the warehouse and

the hearing of witnesses in the presence of Dr.  A. The Court also

determined that Dr.  A. should only prepare his opinion after this

evidence had been taken.  However, on 11 July 1973 the Court told

Dr.  A. that the planned visit could only take place after the Court

holidays.

 

31.     On 28 June and 11 July 1973 the applicant announced further

deficiencies of the warehouse caused by water.  Also on 11 July 1973

the Court informed the expert that a new date for the taking of

evidence would be determined after the summer recess.

 

        On 18 July 1973 Dr.  A. told the Court that in view of teaching

obligations he could only be available on a few days in autumn for a

visit to the warehouse.

 

32.     On 24 September 1973 the Court fixed 5 November 1973 as the

new date for the taking of evidence.

 

33.     On 27 September 1973 the applicant submitted two expert

opinions, one prepared by the Stuttgart Public Institute for Research

and Examination of Materials (Amtliche Forschungs- und Materialprüfungs-

anstalt), the other by a private expert, Mr.  D. These opinions

commented on certain deficiencies of the warehouse and were

transmitted by the Court to Dr.  A. on 4 October 1973.

 

34.     On 5 November 1973 the Court executed the order to take

evidence in its extended form of 22 June 1973 by visiting the

warehouse and hearing five witnesses.  The documents were then

transmitted to Dr.  A.

 

35.     On 2 and 28 November 1973 the applicant mentioned new

deficiencies, namely new cracks and new damage caused by water.  He

also announced that he would furnish proof of these points by means of

a supplementary opinion of the Stuttgart institute.  He requested the

opportunity to submit this opinion as well as an extension of the

time-limit to produce further documents.

 

36.     On 4 December 1973 the Court sent the file to Dr.  A. and

instructed him to prepare the opinion on the basis of the Court's

orders of 28 July 1972, 26 February 1973 and 22 June 1973, and to take

into consideration the applicant's statements of 28 November 1973.

 

37.     On 7 December 1973 and 8 January 1974 both parties submitted

additional statements alleging new deficiencies.  These statements

were transmitted to Dr.  A.  On 11 January 1974 the latter was

requested by the Court to undertake a supplementary visit to the

warehouse in January.  Dr.  A. then fixed 28 January 1974 for the visit.

 

        On 21 January and 2 April 1974 the Court received further

contradictory statements by the parties concerning the possibilities

of repairs.

 

38.     On 3 May 1974 the plaintiff company reminded the Court of its

interest in an early preparation of the expert opinion.  On

13 May 1974 the presiding judge requested Dr.  A. to submit his opinion

early.

 

        The applicant submitted on 27 May 1974 a further opinion of

the Stuttgart institute which the Court transmitted to the expert

Dr.  A. on 30 May 1974.

 

39.     Dr.  A. informed the Court on 1 June 1974 in reply to its

inquiry of 13 May 1974 that he had waited with the preparation of his

opinion until he had received the supplementary opinion of the

Stuttgart institute.  He announced that after returning from his

holidays on 21 June 1974 he planned to prepare the opinion in July

1974.  This letter was transmitted by the Court to both parties.

 

40.     On 8 August 1974 the applicant requested the Court to remind

Dr.  A. that his opinion should be prepared at an early date.  The

Court transmitted this request to Dr.  A. on 3 September 1974.  On

2 October 1974 the applicant asked the Court whether Dr.  A.'s opinion

had been submitted.  The letter continues: "Should the opinion not yet

be ready, it is politely requested to remind the expert of its

preparation."  On 9 October 1974 the Court again requested the

expert to deliver his opinion promptly.  On 11 October 1974 the Court

informed the applicant of this request.

 

41.     On 15 October 1974 the applicant filed photographs allegedly

showing new deficiencies of the warehouse which had only become

apparent in October 1974.  He also announced the submission of further

photographs to evidence the development of new cracks in the walls of

the warehouse.  Thereupon, on 18 October 1974, the Court instructed

the plaintiff to comment on these new statements before

4 November 1974.  The applicant was told to produce the further

photographs as soon as possible.

 

        These photographs were submitted by the applicant on

24 October 1974 together with an opinion of his private expert, Mr.  D.

A copy of the opinion had been sent directly to Dr.  A.

 

42.     After a further extension of the plaintiff's above time-limit,

the latter submitted on 9 November 1974 a statement containing an

opinion of the company's own private expert, Mr.  S., on the opinion of

the applicant's private expert, Mr.  D.  The plaintiff also requested

an early preparation of Dr.  A.'s opinion.

 

43.     From 12 November 1974 onwards, a new lawyer represented the

applicant.

 

44.     In an order of 13 November 1974 the Court supplemented its

decisions of 28 July 1972, 26 February and 22 June 1973.  It

instructed Dr.  A. also to consider the new deficiencies alleged by the

applicant in his statements of 15 and 24 October 1974 and to comment

on the possibilities and expenses of repairs as well as on a possible

depreciation in value of the warehouse.

 

        On 15 November 1974 the Court again sent the file to Dr.  A.

together with the photographs and the new private expert opinions.

 

45.     On 10 December 1974 the Court received a statement by the

applicant in respect of the new deficiencies which had appeared.  This

statement was communicated to Dr.  A.

 

        On 26 May 1975 the applicant suggested to the Court that it

remind Dr.  A. that his opinion was overdue.  The letter continues:

"Consideration might be given to setting the expert a formal

time-limit."  On 28 May 1975 the Court transmitted this statement to

Dr.  A. who at the same time was urgently requested to submit his

opinion speedily.

 

46.     Meanwhile, the Court appointed a new rapporteur who on 16

September 1975 asked Dr.  A. when he would submit his opinion.  The

latter replied on 2 October 1975 that he would probably do so in

spring 1976.  Dr.  A. explained in his letter that the recession in the

building industry had resulted in an unpredictable wave of proceedings

for preserving evidence, and that all his normal engagements as court

expert had been disrupted.  He was involved as expert in other major

building proceedings which would occupy him until the end of 1975.  The

preparation of the opinion could be envisaged for spring 1976.

 

47.     On 3 February 1976 the plaintiff formally requested the Court

to set a time-limit for the submission of Dr.  A.'s opinion.  The Court

answered that the conditions therefore were, as yet, not met since

Dr.  A. himself had announced that the opinion would be ready by spring

1976; this announcement had not been opposed by either of the parties.

Nevertheless, Dr.  A. had been instructed to keep within this

time-limit.  If this did not happen, the Court would give a ruling on

the application for a time-limit to be set.

 

48.     On 23 March 1976 Dr.  A. told the Court that he would make a

"technical" visit to the warehouse which eventually took place on 27

April 1976 with the parties and their private experts, Messrs.  D. and

S., but not the judge, being present.  On 29 April 1976 Dr.  A.

informed the Court that he needed further information concerning the

issue of diminution of value.  For these purposes the parties

exchanged further pleadings and submitted contradictory statements on

12 May and 28 June 1976.

 

        On 12 July 1976 Dr.  A. explained in a letter to the Court that

the heat wave of the past weeks had delayed the conclusion of his

opinion.

 

49.     On 9 and 18 August 1976 the applicant submitted further

opinions of his private expert, Mr.  D., upon which the plaintiff

commented on 30 August and 21 September 1976.  The plaintiff also

submitted an opinion of its private expert Mr.  S.

 

50.     On 29 September 1976 Dr.  A. informed the Court that he was

entering the final stages of preparing the opinion and was including

therein the parties' submissions of the current year.  However, until

the end of October 1976 he would be abroad.  This information was

passed on to the parties on 30 September.

 

        On 4 October 1976 the applicant requested in a letter to the

Court that the expert be urged to submit his opinion.  The applicant

also commented on the plaintiff's statement of 30 August 1976.  On 7

October 1976 Dr.  A.'s secretariat informed the Court that the opinion

would soon be ready.

 

51.     On 16 November 1976 Dr.  A. told the Court's rapporteur on the

telephone that the opinion would be ready before Christmas.

 

52.     On 19 October, 25 November and 15 December 1976 the parties

submitted further statements and evidence.  On 15 December the

plaintiff requested the Court to send to Dr.  A. an expert opinion

prepared by the expert Mr.  P. concerning a different case.

 

53.     On 13 January 1977 Dr.  A. personally delivered to the Court

his opinion dated 29 December 1976 of 37 pages.  The applicant's

representative received a copy on 19 January 1977.

 

        bb) Conclusion of the appeal proceedings

 

54.     On 4 January 1977 the Court ordered a hearing to be held on

22 March 1977 at which the parties were to be present.

 

55.     On 14 February 1977 the applicant's representative requested

to see the case-file on the ground that certain documents might have

been lost due to the applicant's change of representatives.  The file

was then made available to the applicant's representative from 18 to

23 February 1977.

 

56.     On 16 March 1977 the applicant requested a postponement of the

hearing in order sufficiently to prepare the hearing and to enable his

private expert, Professor Dr.  Dr.  L., to study Dr.  A.'s opinion.  This

was refused by the Court on 17 March 1977.

 

57.     At the hearing of 22 March 1977 the applicant submitted a

further statement, dated 21 March 1977, with four annexes and

requested them to be taken into account by the Court.  The Court

refused the postponement and reserved its decision as to the issue

whether or not the statement and annexes should be utilised.  The

Court also refused the applicant's request to appoint L. as court

expert.

10473/83

 

        At the hearing the Court then heard Dr.  A., and the parties

put questions to him.  The applicant's representative was also able to

include in his submissions Prof.  L.'s provisional criticism of Dr.

A.'s opinion.  The applicant's private expert D. was also present.

 

58.     On 24 March 1977 the applicant requested the judges of the

Court to visit the warehouse since the Court, in its present

composition, had not yet personally seen the warehouse.

 

59.     On 31 March 1977 the Stuttgart Court of Appeal pronounced its

judgment in which it partly altered the lower court's judgment and

arrived at new conclusions.  The judgment, which was made available on

7 April and numbered 110 pages, rejected on the basis of Dr.  A.'s

opinion the applicant's appeal in its essential parts.

 

        The amount the applicant had to pay to the company was fixed at

571,924 DM and his counter-claims were not accepted, since the Court

arrived at the conclusion, on the basis of Dr.  A.'s opinion, that there

were not, on the whole, any deficiencies in the construction work of

the kind the applicant had alleged.  The action was dismissed to the

amount of 31,301 DM.

 

60.     On 23 May 1977 the applicant's expert, Prof.  L., prepared an

opinion of 14 pages in which he stated, inter alia, that the decision

of the Court of Appeal diverged strongly from the facts, and that Dr.

A. had insufficiently considered deficiencies and damages which had

been irrefutably evidenced by the applicant's private expert Mr.  D.

 

        c) Proceedings before the Federal Court of Justice

           and the Federal Constitutional Court

 

61.     The applicant's further appeal on points of law (Revision) to

the Federal Court of Justice (Bundesgerichtshof) was rejected on

19 January 1978.

 

62.     The applicant lodged a constitutional complaint with the

Federal Constitutional Court (Bundesverfassungsgericht) on 20 February

1978.  Therein he complained inter alia of a violation of his right to

a hearing in accordance with the law, as guaranteed by Article 103

para. 1 of the Basic Law (Grundgesetz).  In respect of the complaint

that he was not granted sufficient time to comment on the opinion of

Dr.  A., he stated that "the expert required 4 1/2 years for his

opinion.  This shows how difficult the investigation was."

 

63.     Following a decision of 11 June 1980 by the plenary Federal

Constitutional Court, the first chamber (Senat) of the Court decided

on 18 November 1980 to quash the decision of the Federal Court of

Justice of 19 January 1978 and to refer the case back to that Court on

the ground that the latter had not sufficiently motivated its

rejection of the appeal on points of law.

 

64.     On 18 December 1980 the Federal Court of Justice again

rejected the appeal on points of law stating that the case did not

involve any point of principle and did not offer any prospect of

success.

 

65.     The applicant then again filed with the Federal Constitutional

Court a constitutional complaint on 29 January 1981.  Therein he

complained of a violation of Article 103 para. 1 and Article 3 para. 1

of the Basic Law.  The complaint stated that "the respective members

of the (Court) Senate which were dealing with the case did not have

'the courage' to treat the matter on account of its volume and the

difficulty of the subject-matter."

 

66.     The constitutional complaint was rejected by the Federal

Constitutional Court on 5 March 1981 as not offering sufficient

prospect of success.  Insofar as the applicant had invoked Article 6

of the Convention, the Court rejected the appeal as being inadmissible

on the ground that a constitutional complaint could not be based on

provisions of the Convention.  The decision was served on the

applicant's representative on 10 March 1981.

 

        d) Final conclusion of litigation

 

67.     On 16 February 1973 the Stuttgart Regional Court delivered

final judgment in the litigation between Waiss Brothers and the

applicant (cf. paras. 22 f above).  The applicant was ordered to pay

an additional sum of 17,661 DM, together with the interest thereon, as

remuneration for work expenses.  The remainder of the plaintiff's claim

was rejected.

 

68.     Upon appeal the applicant claimed compensation and

depreciation in value to the extent of approximately 1,000,000 DM.  As

proof of the deficiencies in the warehouse, the applicant relied on

experts' reports and submitted a report dated 23 May 1977 prepared by

L.  In a further pleading, the applicant presented a counter-claim

according to which the Waiss company were to pay him 660,000 DM

together with the interest thereon.  On 6 June 1978 the Stuttgart

Court of Appeal dismissed the appeal and the counter-claim as being

unfounded.  The applicant's appeal on points of law to the Federal

Court of Justice and his subsequent constitutional complaint were both

unsuccessful.

 

 

III.    SUBMISSIONS OF THE PARTIES

 

 

69.     The following is a summary of the parties' main arguments,

submitted at the admissibility stage and during the examination of the

merits, on the merits of the admitted complaint concerning the length

of the proceedings.

 

 

A.      The applicant

 

 

70.     The applicant and, after his death, his widow refer to the

proceedings before the Court of Appeal which lasted from the

submission of the appeal statement in January 1972 until the hearing

of 22 March 1977.  In this respect, only delays attributable to

domestic authorities and courts would allow a conclusion that the

requirement of a reasonable time has not been observed.  However, the

assertion is disputed that the length of the proceedings was caused,

not by the respective court, but solely by Dr.  A. and the new factual

submissions of the parties.  In fact, the long duration of the taking

of evidence was also caused by the frequent changes of judges of the

Court of Appeal.

 

71.     The Court of Appeal's decision to take evidence is dated 28

July 1972.  The first visit to the scene took place together with the

expert on 11 January 1973.  The opinion could therefore have been

ready in the months March - May 1973.  The decision to take evidence

was supplemented on 22 June 1973 on account of further deficiencies.

This decision might have necessitated a supplementary expert opinion

on Dr.A.'s opinion which at this stage would already have been

prepared.   After the scene had again been visited on 5 November 1973

together with the expert, his opinion could have been ready in spring

1974, if the evidence proceedings had been conducted in an orderly

manner, and no damage would then have arisen.  Moreover, the order of

28 July 1972 contained six pages with 17 positions, and the order of

22 June 1973 four pages with 9 positions.  It would have been possible

for the expert successively to deal with the various positions in

order speedily to conclude his opinion.  In any event, the party

filing new submissions before a German court always runs the risk of

coming too late, i.e. that the court will already have given its

judgment.

 

72.     The same considerations apply to the further extension

of 13 November 1974 of the decision to take evidence.  The opinion

could now have been ready at the latest in summer 1975.  The new

submissions concerning further alleged deficiencies and the statements

concerning the repair costs and the diminution of value could well

have been dealt with in a supplementary expert opinion.  The Court of

Appeal could possibly also have passed a partial judgment.

 

        Even if it is assumed that Dr.  A. could only have reached his

final opinion after 15 November 1974 when the file was again sent to

Dr.  A., the opinion should then have been ready by spring 1975.

However, the Court did not react adequately to the parties'

admonitions of 3 May, 8 August, 2 October and 9 November 1974 and

26 May 1975.  It made no use of the possibility of determining a

time-limit or imposing a fine, and also did not appoint a new expert.

 

73.     Such measures of the Court would have been all the more

necessary in view of Dr.  A.'s explanation of 2 October 1975 that the

recession in the building trade was delaying the preparation of his

opinion.  This recession only started at the end of 1973, not in 1972.

The applicant's widow also cannot accept that the expert was busy with

teaching obligations or with other cases involving high costs; or

that, after 4 years, he explained further delay with the excessive

summer heat.  The Court should have rejected these explanations and

simultaneously threatened to apply procedural means.  The Court could

at least have indicated to the expert that he had to grant priority to

his old appointment of 1972 as expert in the present case.

 

74.     The new visit to the scene on 27 April 1976 was necessary

due to the new developments.  It was also necessary because the

expert was no longer aware of the facts on account of the delay in

time.  Even the preparation of the opinion at this stage could have

averted damage from the applicant in view of the fact that the Waiss

company only went bankrupt in 1977 and the Court of Appeal was at this

stage not yet under pressure to decide on account of the imminent

change in the person of the Court rapporteur.

 

75.     There were delays in the proceedings after the case-file was

again transmitted to Dr.  A. on 15 November 1974.  It was not possible

for the parties to file an appeal under S. 567 (3) of the Code of

Civil Procedure.  Both parties unsuccessfully raised with the Court of

Appeal the possibility of fixing a time-limit for the expert.  However,

the Court of Appeal was not obliged, according to the Code of Civil

Procedure, to determine such time-limits or to terminate the expert's

appointment since such a measure fell within the Court's discretion.

 

        The parties were legally powerless in respect of the various

announcements of new dates by the expert.  They could do no more than

make suggestions or remonstrances (Gegenvorstellungen).  The parties

requested the Court on altogether seven occasions to remind the expert

of his opinion.  Moreover, before the Court of Appeal polite language

is used; one does not "thump on the table".  To request more rigid

measures would have meant alienating the expert and, if a new expert

had been nominated, to prolong the proceedings.

 

76.     The Court of Appeal did not exercise its discretion without

fault.  The development of the delays since 1972 demonstrated that it

was insufficient for the Court merely to make urgent requests to the

expert.  Moreover, after the new visit to the scene on 27 April 1976,

the Court should have determined a final time-limit for the delivery

of the opinion.  The Government confirm that the Court of Appeal had

to expedite proceedings.  Finally, if it is true that the expert would

not have accepted time-limits being fixed for him, this should have

prompted the Court very early on to think of a replacement.

 

77.     It can also not be said that the applicant had, until November

1974, himself caused the delay in the preparation of the expert

opinion by requesting extensions of the taking of evidence and by

alleging new deficiencies.  Long before that point the expert should

have prepared his opinion on the basis of the original procedural

situation.  Subsequent complaints concerning new deficiencies could

possibly have led to a supplementary expert opinion.  The Court of

Appeal would at that stage have had a sufficient basis for

deliberating on, and adjudicating, the original deficiencies.

 

78.     The obligation of the German courts to expedite proceedings

has been seriously violated by the Court of Appeal.  Already in the

Buchholz case the Commission regarded time-limits of five to six

months as constituting an extraordinary delay (Comm.  Report 14.5.80).

The Court did not employ the effective measures at its disposal, and

it was insufficient only to ask the expert about the state of the

proceedings and at the same time to transmit the parties' admonitions.

In the present case, especially strict standards had to be applied as

the object of litigation was of extraordinary importance to the

applicant (see Eur.  Court H.R., König judgment of 23 April 1977,

Series A no. 27 para. 111).

 

79.     The applicant's widow submits that the possible damages

amounted at least to 660,000 DM.  These damages occurred because,

after failing in the appeal proceedings, the applicant could not be

repaid the amount expended after the first instance decision, i.e.

more than 600,000 DM as well as interests and costs.  The bank

guarantee amounting to 660,000 DM had to be given back.  Such damages

would normally not have arisen if evidence had been taken speedily.

There would either have been a different result, or the applicant's

objections would have been heard.  Had the proceedings been conducted

in an orderly manner, the pressure to pass judgment which lay on the

Court of Appeal in March 1977 due to an imminent change of a judge

would not have occurred.

 

80.     The applicant's widow concludes that the Federal Republic of

Germany has violated Article 6 para. 1 of the Convention and the

rights of the applicant and his heir by means of the decision of the

Federal Constitutional Court of 5 March 1981 and the judgment of the

Court of Appeal of 31 March 1977, and that they have suffered damages

of 660,000 DM.

 

 

B.      The Government

 

 

        a) On the admissibility

 

81.     In their further observations on the merits of the application

the Government have included the following submissions on the

admissibility of the application so that failure to do so may not be

held against them, should the application subsequently be examined by

the Court (see Eur.  Court H.R., Corigliano judgment of 10 December

1982, Series A No. 57, p. 11 para. 26).

 

82.     In the Government's view it is insufficient under Article 26

of the Convention for the applicant to have raised the complaint of

the undue length of proceedings by means of a constitutional complaint

only after final completion of the proceedings.

 

83.     The Government do not share the Commission's view expressed in

application No. 8961 (Dec. 8.12.81, D.R. 26, p. 202) that the question

whether the applicant could and should have taken steps to speed up

the proceedings is not one of exhaustion of remedies, but simply one

aspect of the merits of the application.  The notion of "exhaustion of

domestic remedies" can in the Government's view only be interpreted

according to domestic procedural law.  Even in cases such as the

present one, the applicant must have availed himself of the

possibility of submitting a constitutional complaint before being able

to make an application under Article 26 (see No. 8961/80, ibid).

 

84.     The only issue in the present case is whether the Stuttgart

Court of Appeal failed in its duty by not setting the expert Dr.  A. a

time-limit in which to complete the expert opinion, if necessary by

imposing a fine or eventually by replacing him by another expert.  The

applicant assumed that there were no legal means available to him to

oppose the Court's dilatory conduct of the proceedings.  He only

suggested from time to time to the Court that it should consider

setting the expert a time-limit.

 

        This argument is in the Government's view incorrect.  Thus,

the applicant could under the second sentence of S. 360 of the Code of

Civil Proceedure, have made a formal application for the

replacement of Dr.  A.  Only then would the Court have had grounds to

take a formal decision.  Indisputably, the applicant neither applied

for a replacement nor for the imposition of a fine since he wished

Dr.  A. to remain "well disposed" towards him.

 

85.     According to S. 567 (3) of the Code of Civil Procedure, an

appeal (Beschwerde) is not possible against decisions of courts of

appeal.  Moreover, in accordance with S. 567 (3), a procedural

decision of an appeal court must be challenged directly by means of a

constitutional complaint.  In the present case, however, there has not

been a formal decision on the matter by the Court of Appeal, since the

applicant failed to make a formal application.

 

86.     It follows that the applicant did not avail himself of the

possible remedies.  It cannot be argued that according to the practice

of the Federal Constitutional Court a constitutional complaint would

not have been admissible until after a decision had been reached on

the appeal on points of law against the judgment of the Court of

Appeal.  This argument is not borne out by the law, and the Government

refer to and cite extensively two decisions of the Federal

Constitutional Court (BVerfGE 5, 10 and 33, 247).

 

        In the light thereof, a person wishing to lodge a

constitutional complaint must have claimed a violation of the relevant

basic right in the "most closely relevant proceedings" (sachnächstes

Verfahren) and have availed himself of the remedy specifically

provided for against the violation.  The person concerned cannot be

content in such cases to lodge a constitutional complaint after final

completion of the proceedings (cf. the indication by the Federal

Constitutional Court in BVerfGE 5, 10).  Moreover, it happens in

practice that constitutional complaints on grounds of undue length of

proceedings, directed against specific procedural decisions of

ordinary courts, may be filed before the final judgment has acquired

the force of res judicata; an example of such a constitutional

complaint is mentioned in the König judgment (Eur.  Court H.R.,

28 June 1978, Series A No. 27 p. 23 para. 64).

 

87.     The applicant failed to compel the Stuttgart Court of Appeal

by means of a formal application to take a formal decision, which

could have been challenged by means of a constitutional complaint.

The applicant has admitted that he did not take this obvious step to

speed up the proceedings, because he did not wish to incur the

expert's displeasure.  This argument does not excuse the applicant.

The fact that the applicant constantly alleged further deficiencies

was such as to give the Court of Appeal the impression that he was in

fact not interested in substantially speeding up the proceedings.  This

impression is clearly conveyed by the fact that not even in his

constitutional complaint of 20 February 1978 did the applicant claim

that he considered a right under Article 6 para. 1 of the Convention

to have been violated by the length of proceedings.

 

88.     Furthermore, the Federal Constitutional Court's decision of

5 March 1981 must be understood to mean that in respect of Article 6

para. 1 the constitutional complaint was not properly substantiated.

However, a constitutional complaint which is disallowed for lack of

proper substantiation does not meet the requirement of exhaustion of

domestic remedies.

 

89.     Finally, the applicant's widow can no longer have a

financially based legal interest after the application was declared

inadmissible insofar as it concerned the right to a fair hearing.  The

complaint still at issue merely states that the proceedings lasted too

long, not that they would have had a different outcome.

 

        b) On the merits

 

90.     By way of a general introduction the Government point out

that according to the Commission's case-law the guarantees in Article

6 para. 1 need not be examined in respect of the proceedings before

the Federal Constitutional Court.  Moreover, the applicant has also not

complained of the proceedings before the Regional Court or the Federal

Court of Justice.  The Government therefore concentrate on the appeal

proceedings before the Court of Appeal lasting from 15 November 1971,

when the applicant filed his appeal, until 31 March 1977 when the

Court pronounced its judgment.  Again, during these proceedings the

dispute is over the time taken by the expert for the preparation of

his opinion, in particular the extent to which the Court of Appeal

could at all be made responsible therefor.

 

91.     According to the principle of party disposition governing

civil proceedings the parties have the means to determine the

commencement and termination of proceedings, e.g. by filing an action

or by withdrawing it, or by not filing any remedies.  The parties may

indeed have different interests as regards the issue of expediting

civil proceedings.  In this light, a violation of the requirement in

Article 6 para. 1 of the Convention that proceedings must be conducted

expeditiously can only arise in civil cases where the affected party

himself has let it be known during the proceedings that he is

interested in the speedy conduct of proceedings and therefore expects

the court to take certain measures, or reproaches the court for the

length of proceedings.  On the other hand it lies in the court's

discretion whether it employs the means mentioned in S. 411 of the

Code of Civil Procedure.

 

92.     The expert appointed by the Court of Appeal, Dr.  A., was a

well-known and very busy expert in the Stuttgart District where there

was a dearth of qualified building experts.  Dr.  A., who was born in

1910, was nominated after 20 years' experience in the free building

market by the Regional Administration (Regierungspräsidium) of North

Württemberg as expert for the building industry.  Per year he dealt

with approximately 100-130 opinions of varying nature and length.

 

93.     As regards the relevant stages of the proceedings at

issue, the Stuttgart Court of Appeal stated, in its order to take

evidence of 28 July 1972, that the expert's opinion should be

delivered only after the visit to the warehouse.  After both parties

had agreed on the costs of the opinion, the visit to the warehouse

took place on 11 January 1973.  After this inspection the original

order to take evidence had to be supplemented on 26 February 1973 on

account of the applicant's new submissions.  Therefore, the case files

could not be forwarded to the expert until 1 March 1973.  The Court

again supplemented its order to take evidence on 22 June 1973 due to

further alleged defects.  The Court again ordered a new visit to the

warehouse on 5 November 1973 and decided that the report would only

have to be delivered thereafter.  This instruction and the documents

of the proceedings were transmitted to the expert on 4 December 1973.

 

94.     After the expert had visited the warehouse on 28 January 1974,

both parties submitted further documents and private expert opinions

to be considered by Dr.  A.  On 13 November 1974 the Court again had to

supplement its order to take evidence requesting further views from

the expert on the newly reported defects, on the repair costs and on

the depreciation in value.  These new documents were transmitted to

Dr.  A. on 15 November 1974.

 

95.     Upon inquiry by both parties and by the Court, the expert

stated on 2 October 1975 that the report would be ready in spring 1976

and that his work on the report had been delayed as a result of the

recession in the building trade.  On 27 April 1976 the expert carried

out another visit to the warehouse together with both parties and

their private experts.  He included in his opinion the subsequent

submissions and private expert opinions of the parties.  Information

received from the expert after each inquiry by the Court as to the

state of the opinion was passed on to both parties without delay.  They

did not object to the expert's announcements concerning the date for

submission of his opinion; nor did they object to references to delays

caused by the recession in the building trade, to his appointment

abroad, and to impairment of his health resulting from the excessive

summer heat.

 

96.     As regards the responsibility of the German authorities,

it is pointed out that the documents of the proceedings together with

the instruction to deliver an opinion in accordance with the orders to

take evidence made on 28 July 1972, 26 February and 22 June 1973 were

not conveyed to the expert again until 4 December 1973.  The order to

take evidence had to be supplemented yet again on 13 November 1974 on

account of new party submissions of fact.  During this period the

expert did not even have the documents at his disposal.  In view

thereof, no criticism can be made with regard to the period ending on

15 November 1974 when the case-file was again sent to the expert.

 

97.     Delays in the expert's work did, however, occur during the

period from 15 November 1974 to 27 April 1976 (when he again visited

the warehouse) and also from June 1976 (receipt of the parties'

submissions on questions put by the expert) until delivery of the

report on 29 December 1976.  During these periods the applicant drew

the Court's attention to the possibility of setting the expert a time-

limit, and the plaintiff actually applied for this.

 

98.     However, as indicated above, the Court was not obliged to

proceed in this manner.  Setting a time-limit for delivery of a report

is a matter within the Court's discretion.  The Court exercised its

discretion correctly.  The Court could not anticipate the applicant's

many subsequent submissions or that the expert Dr.  A. would be

involved in very important parallel cases.  The taking of evidence, as

described above, shows that the Court conveyed to the expert without

delay the various, partly urgent requests of the parties, adding its

own urgent requests.  After the expert had requested forbearance for

the delays until spring 1976 and neither of the parties objected

thereto, the Court was able to refrain from setting a time-limit.

 

99.     In the present case both parties requested on altogether seven

occasions that the expert be reminded to submit his opinion.  On the

other hand, they themselves caused delays until November 1974, and

subsequently they did not object to the dates given by the expert and,

in particular, did not call for the appointment of a new expert.

While the German courts are also under a duty to expedite proceedings,

they are not responsible for the object and substantiation of the

action and for procuring evidence.

 

100.    For this reason it is not to the point if it is maintained

that the Court of Appeal did not take any steps to expedite the

preparation of the opinion, or to appoint a new expert.  At regular

intervals the Court asked the expert for information on the current

position.  It also forwarded to him every reminder submitted by the

parties.  In view of both parties' conduct, the Court was able to

dispense with further measures against the expert, such as setting a

time-limit and threatening with the imposition of a fine.  The Court

was also not obliged to commission a new expert of its own accord.

 

101.    In this respect the following arguments are expounded:  First,

in view of the importance of his oath as expert, Dr.  A. regularly

reserved his right himself to set priorities when dealing with his

various opinions.  The judges at the Court of Appeal who knew this

position respected it and had confidence therein.  It thus becomes

patent that Dr.  A. could not have been given a time-limit for

preparing an opinion.  Second, on account of the many private opinions

submitted by the applicant, it was necessary to call upon a

particularly prominent, sworn expert who could guarantee an objective

assessment of the alleged deficiencies.  Indeed, the parties

themselves disclosed confidence in Dr.  A. and paid a lump sum of

12,000 DM for the preparation of his opinion.  Third, Dr.  A. could

hardly have been fined, as it would have been necessary to prove that

he culpably violated his obligations.  In any event, Dr.  A. had never

been fined on these grounds in 30 years.  Fourth, had another expert

been nominated, this would have further prolonged the proceedings as

he would have had to commence afresh.  Such a course of proceeding

would have been particularly counter-productive as from September 1976

when Dr.  A. announced that he was in the final stages of preparing his

opinion.  Fifth, the applicant did not formulate his various requests

in respect of Dr.  A. too firmly although the plaintiff formally

applied to the Court that Dr.  A. should be given a time-limit.

Finally, envisaging the preparation of only a partial expert opinion

would not have been practicable and would have had little

justification insofar as discussion of the alleged deficiencies at

issue had already been postponed by the Regional Court in first

instance.

 

102.    The applicant should have made it clear while evidence was

being taken that he had an interest in swifter delivery of the opinion

by objecting to the expert's explanations or by applying for a new

expert.  The applicant never objected to the explanations given by the

expert for his delays.  He should also have tried to accelerate the

proceedings by lodging a constitutional complaint.

 

103.    There is a contradiction between the present complaint and

those made before the domestic courts.  Thus, in both constitutional

complaints the applicant had argued that the time reqired by the

expert to prepare his report showed "how difficult the investigations

were and what extensive considerations had to be taken into account".

Only in his constitutional complaint of 29 January 1981 did he refer

to the length of the proceedings.  However, he only referred to the

total length of the litigation, without specifying more closely delays

allegedly caused by the courts or by the expert.

 

104.    The Government conclude that the actual course of proceedings

for the taking of evidence indicates that the time taken was not

caused by the Court of Appeal but predominantly fell within the

applicant's or the plaintiff's responsibility.

 

105.    As regards the issue of damages, the Government emphasise

that the claim to compensation asserted by the applicant and his widow

also does not arise on the merits.  These claims to compensation have

been adjudicated by the courts, and the final judgment has acquired

the force of res judicata.  The courts recognised these claims to a

minimal extent and to that extent only dismissed the Waiss company's

action for remuneration for their work.  The applicant has suffered no

disadvantage through the length of the proceedings (see Preikhzas v.

the Federal Republic of Germany, Comm.  Report 13.12.78, D.R. 16 p. 5).

 

 

V.      OPINION OF THE COMMISSION

 

 

A.      Point at issue

 

 

106.    The issue to be determined in the present case is whether the

court proceedings in which the applicant was involved were concluded

within a "reasonable time" as required by Article 6 para. 1 of the

Convention.

 

 

B.      Applicability of Article 6 para. 1

 

 

107.    Article 6 para. 1 insofar as it is relevant, reads as follows:

 

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

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

        time ..."

 

108.    The Commission notes that the applicability of Article 6

para. 1 is not in dispute between the parties.  Indeed, the

proceedings at issue resulted from claims and counter-claims in

respect of construction costs for a warehouse and thus clearly

concerned the determination of the applicant's civil rights and

obligations within the meaning of Article 6 para. 1 of the Convention.

Accordingly, the guarantees of this provision are applicable in the

present case.

 

 

C.      Period to be taken into consideration

 

 

109.    The starting point of the period to be considered is 17 May

1971, the date on which the Waiss company initiated proceedings before

the Stuttgart Regional Court.

 

110.    As regards the end of the period, the time to be considered

under Article 6 para. 1 covers in principle the entirety of the

litigation, including the appeal proceedings.  However, the question

arises whether it also includes the proceedings before the Federal

Constitutional Court.  In this respect the European Court of Human

Rights has held in one case that proceedings before the Federal

Constitutional Court are to be taken into account when considering the

issue of the length of civil court proceedings under Article 6

para. 1, the reason being that, although the Federal Constitutional

Court has no jurisdiction to rule on the merits, its decision is

capable of affecting the outcome of the claim (see Eur.  Court H.R.,

Deumeland judgment of 29 May 1986, Series A No. 100, p. 26 para. 77).

 

        Consequently, the proceedings in the present case were

terminated on 10 March 1981 when the decision of the Federal

Constitutional Court of 5 March 1981 was served on the applicant's

representative.

 

111.    Therefore, the period to be considered under Article 6 para. 1

is nine years, nine months and three weeks (17 May 1971 - 10 March 1981).

 

112.    While it is the entire span of the proceedings which the

Commission has to examine, it observes that the main question of the

present case concerns the time taken, during the proceedings before

the Stuttgart Court of Appeal, for the preparation of the expert

opinion.  There is no dispute between the parties as to the

reasonableness of the time required for the remainder of the

proceedings.

 

        Thus, the Court of Appeal entrusted Dr.  A., by order of 28

July 1972, with the task of providing it with an expert opinion.  The

opinion which was finally submitted was dated 29 December 1976 and was

delivered personally by Dr.  A. to the Court on 13 January 1977.

 

113.    The time taken for the preparation of the expert opinion

was, therefore, four years, five months and sixteen days

(28 July 1972 - 13 January 1977).

 

 

D.      Relevant criteria

 

 

114.    The reasonableness of the length of proceedings has to be

assessed in each case according to the particular circumstances and

having regard, in particular, to the complexity of the case, the

conduct of the parties and the competent authorities and to what is

at stake for the former.  The present case which concerns civil

proceedings must also take into account whether the applicant has

shown due diligence by taking the necessary steps to expedite the

proceedings and whether delays occurred for which the applicant cannot

be held responsible.  Only delays attributable to the State may

justify a finding of a failure to comply with the "reasonable time"

requirement (see Eur.  Court H.R., Deumeland judgment of 29 May 1986,

Series A No. 100 p. 26 para. 78; Poiss v.  Austria, Erkner and Hofauer

v.  Austria, Comm.  Reports 24.1.86, paras. 94 and 95, respectively).

 

 

E.      Complexity of the case

 

 

115.    Neither the applicant nor subsequently his widow made

submissions before the Commission on the complexity of the case as

such.  However, in respect of the applicant's other complaint under

Article 6 para. 1 concerning a fair hearing, which was declared

inadmissible by the Commission, he indicated the complexity of the

case by pointing out that the period of nine weeks at his disposal

after the expert had delivered the opinion was insufficient for him

adequately to prepare the hearing fixed for 22 March 1977.

 

        The Government have drawn attention to the applicant's two

constitutional complaints.  Therein, he argued that the time required

by Dr.  A. to prepare his opinion showed how difficult the

investigations had been and what extensive considerations had to be

taken into account.

 

116.    The Commission has first examined the object of the domestic

court proceedings.  It notes that they resulted from an action brought

by the Waiss company which requested from the applicant the remaining

payment of 618 440 DM for the construction costs for a warehouse.  The

applicant put forward counter-claims of more than one million DM.  The

Commission also notes the extensive judgments given by the German

courts.  Thus, the partial decision of the Stuttgart Regional Court of

10 September 1971 numbered 62 pages, the decision of the Court of

Appeal of 31 March 1977 110 pages.

 

117.    The Commission recalls its case-law according to which large

claims and counter-claims put forward by the parties to the

proceedings do not in themselves justify longer proceedings (see

Andorfer Tonwerke v.  Austria, Comm.  Report 8.3.82, D.R. 32, p. 110

para. 81).  Nevertheless, the Commission is satisfied that the present

case as a whole raised a number of difficult technical questions of

fact which account, to a certain extent, for the long duration of the

proceedings.

 

118.    The questions to be answered in the expert opinion itself

concerned the alleged deficiencies in the warehouse caused by dampness

in the construction work.  In this respect, however, a number of

reasons demonstrate that the questions were not of such complexity as

to justify the very long time it took to prepare the expert opinion.

 

        First, Dr.  A., the person appointed, was an expert of

considerable and specialised knowledge in the field.  Second, in his

various statements to the Court of Appeal, Dr.  A. explained the delays

mainly by referring to elements which had little to do with the

complexity of the matter, namely his other obligations, his journey

abroad, and on one occasion the summer heat.  Third, the expert

opinion was a document of 37 pages and was not, therefore,

particularly lengthy.  Fourth, the applicant's private expert,

Professor L., was able, despite an illness, to prepare his own opinion

of 14 pages, which strongly criticised Dr.  A.'s opinion, within

approximately 4 months after the applicant had received a copy of

Dr.  A.'s opinion on 19 January 1977.

 

119.    It follows that the period of approximately 4 1/2 years which

elapsed before Dr.  A. presented his opinion was not justified by the

complexity of the matter.

 

 

F.      Conduct of the parties

 

 

120.    The applicant and subsequently his widow have submitted that

the applicant cannot be made responsible for the delays in preparing

the expert opinion.  In fact, the new deficiencies alleged by him

should not have delayed the expert's work but could have been dealt

with in a separate expert opinion.  Moreover, when the expert failed

to produce his expert opinion, the parties could do no more than make

suggestions or remonstrances to the Stuttgart Court of Appeal.  To

request more rigid measures would have meant alienating the expert.

 

        The Government have submitted that the parties to the

proceedings, in particular the applicant, are responsible for the

delays until 15 November 1974 by frequently filing new submissions.

As to the period thereafter, the Government submit, with reference to

the principle of party disposition governing civil proceedings, that

the applicant did not object to the explanations given by the expert

as to the progress of his work.  He did not formally request the

fixing of a time-limit or call for the appointment of a new expert.

He thus failed to show that he had an interest in a swifter delivery

of the opinion, and he did not sufficiently accelerate the

proceedings.

 

121.    The Commission observes, on the one hand, that the parties and

in particular the applicant frequently filed submissions on the facts

or their private expert opinions.  In a number of instances, the

applicant thereby alleged new deficiencies in the warehouse.  As a

result, the Court of Appeal was obliged on four occasions (13 November

1972, 26 February and 22 June 1973, 13 November 1974) to supplement

its order of evidence of 28 July 1972 and subsequently again to

transmit the case-file to the expert.

 

        On the other hand, the submissions in which the applicant

alleged new deficiencies were filed no later than 10 December 1974.

In 1975, he filed no submissions.  In 1976 the parties filed further

submissions between 9 August and 15 December 1976.

 

122.    Thus, it can be assumed that the parties and in particular the

applicant himself, through their conduct, caused some delays in the

proceedings during the period up to December 1974 and again in the

second half of 1976.

 

123.    The applicant was standing to lose a substantial sum of money

in the proceedings before the Court of Appeal which centred on the

alleged deficiencies of the construction of the warehouse.  He must

therefore have regarded it as essential to his case to be able to

invoke as many deficiencies as possible and to have them examined by

the expert.  Accordingly, the Commission finds no reason to believe

that by filing new submissions on several occasions the applicant

failed to show due diligence during the proceedings.

 

124.    In this context the Government have also submitted that the

applicant did not take adequate measures to expedite the proceedings

before the Court of Appeal and did not, therefore, disclose his

interest in their speedy conclusion.

 

        These submissions have already been addressed by the

Commission at the admissibility stage.  Insofar as they now concern

the merits of the application, the Commission has had regard to the

measures mentioned in S. 360 and 411 (2) of the Code of Civil

Procedure.  As the Government themselves have pointed out, the

possibility under these provisions of fixing a time-limit for the

expert, or of terminating his appointment, lay solely within the

Court's discretion.  Indeed, when on 3 February 1976 the plaintiff

formally requested the Court of Appeal to determine a time-limit, the

latter replied that the conditions were not yet at hand.

Nevertheless, on at least four occasions (8 August and 2 October 1974,

26 May 1975 and 4 October 1976) the applicant reminded the Court of,

or inquired about, the preparation of the opinion, or suggested

setting a time-limit.

 

        The Commission has considered the argument of the Government

according to which the applicant could have formally applied for the

appointment of a new expert under the second sentence of S. 360 of the

Code of Civil Procedure.  However the Commission is of the opinion that

the applicant could not be required to take a step which would have

been likely to create a conflict with Dr.  A., who was the generally

recognised expert in the field, and which might therefore have been

prejudicial to the applicant's own interests.  A party to civil

litigation cannot be expected to act against its interests concerning

the outcome of the litigation.

 

        The Commission is therefore satisfied that, from 8 August 1974

onwards, the applicant sufficiently disclosed to the Court of Appeal

his interest in a speedy conclusion of the proceedings.

 

125.    Consequently, although the applicant's conduct up to December

1974 and again in the second half of 1976 caused certain delays in the

proceedings, it can in no way account for the period of nearly 4 1/2

years which it took to prepare the expert opinion.

 

 

G.      Conduct of the authorities

 

 

126.    The Commission considers, and it has not been disputed by the

parties, that in the proceedings before the Stuttgart Regional Court,

the Federal Court of Justice, and the Federal Constitutional Court,

the authorities dealt with the case efficiently and speedily.

 

127.    As regards the proceedings before the Court of Appeal, the

applicant and subsequently his widow have submitted that the expert

Dr.  A. caused the delays by not preparing his opinion.  The Court did

not react adequately to his explanations as to the progress of his

work and to the parties' admonitions.  In particular, it made no use

of the possibility of fixing a time-limit, or of appointing a new

expert.

 

        The Government have submitted that, while some delays in the

expert's work occurred during the period from 15 November 1974 until

27 April 1976, and also from 28 June until 29 December 1976, the Court

at regular intervals asked the expert for information on the current

position.  More was not required since the parties had not objected to

the explanations given by Dr.  A.  The Court had respected Dr.  A.'s

right himself to set his priorities; a fine would have presupposed

proof of a culpable violation of his obligations.  Nomination of

another expert would have further prolonged the proceedings, and

preparation of a partial opinion would not have been practicable.

 

128.    The first issue to be clarified by the Commission is the

position of the expert in civil proceedings.  The Commission notes

that the Court of Appeal ordered the expert opinion on 28 July 1972,

but that the opinion was not submitted until 13 January 1977.

However, the expert's conduct cannot as such fall to be examined under

Article 6 para. 1 of the Convention since he was not acting in the

name of the public authorities.  Nevertheless, the expert remains

subject to the control of the judicial authorities which have a duty

to ensure that the task is discharged properly (see Capuano v.  Italy,

Comm.  Report 15.10.85, para. 69).

 

129.    It is true that in the Federal Republic of Germany civil

proceedings are governed by the principle of party disposition, which

means that the main responsibility for the conduct of a case rests

with the parties.  Nevertheless, this principle cannot relieve the

courts of the duty to ensure that the case is heard within a

reasonable time.  The respondent Government themselves have

pointed out that the German courts are under a duty to expedite

proceedings.  This demonstrates that in German law, as indeed under

the Convention, the principle of party disposition must be reconciled

with the right to a proper administration of justice, which will be

impaired by the existence of excessively long proceedings (see

Capuano, ibid. para. 70).

 

        The principle of party disposition is subject to certain

limitations, when the court itself has appointed an expert.  Where the

court deems it necessary to have expert advice it must be its

responsibility to supervise the expert as far as compliance with the

time-limits is concerned.  The court must, if necessary, appoint a new

expert.  The Commission is of the opinion that, although S. 360 of the

German Code of Civil Procedure gives a party the possibility formally

to apply for the appointment of a new expert, the court cannot, for

the reasons explained in paragraph 124, expect the parties to take

steps which may be disadvantageous for them.

 

130.    The Commission thus turns to the means at the disposal of the

Court of Appeal to ensure the proper discharge of the expert's task.

It considers, inter alia, that the Court could at an early stage have

requested the expert to respect the time-limits.  It could also have

requested the expert to set, or to explain, the priorities among his

different obligations.  According to S. 411 of the Code of Civil

Procedure, the Court could thereafter have fixed a time-limit for the

expert, or even threatened him with a fine.  Further possibilities for

the Court would have been the appointment of a new expert, or a

request for a partial opinion followed by the rendering of a partial

judgment.

 

131.    In this context the Commission sees a number of reasons which

should have prompted the Court of Appeal, by resorting to these or

other means, actively to pursue and to expedite the proceedings, in

particular at the stage when one or both of the parties had shown

impatience with the slow progress in the expert's work.

 

132.    The Commission has already pointed out that, particularly from

August 1974 onwards, the applicant clearly disclosed his interest in

the speedy conclusion of the proceedings.  A similar indication had

been given already in May 1974 by the other party.  Moreover, the

proceedings were already at an advanced stage in that the case was

being dealt with in second instance and the Court ought to have been

aware of a possible further lapse of time in subsequent proceedings

before higher judicial bodies.  Indeed, in the present case nearly

four years were still to pass, after the Court of Appeal handed down

its judgment on 31 March 1977, until the Federal Constitutional Court

finally rejected the applicant's constitutional complaint on 5 March

1981.

 

133.    In particular, however, the reasons given by the expert for

the delay were not satisfactory.  The extraordinarily long time

required to prepare the opinion - almost 4 1/2 years - could only have

been justified in very exceptional circumstances.  In fact, however,

the expert explained the delays with his commitments in other proceedings,

teaching obligations, travels abroad, and the summer heat.  These

explanations were clearly insufficient.  Insofar as the expert invoked

as an excuse the fact that the applicant had frequently invoked new

deficiencies in the warehouse, the Commission has already found (para.

125) that some delays were caused thereby, but this can only account

for a part of the long time the expert took to prepare his opinion.

 

134.    The Commission has thus listed some means which the Court of

Appeal had at its disposal to control the expert's discharge of his

task as well as a number of reasons which should have prompted the

Court actively to pursue and speedily to conclude the proceedings.  It

must now turn its attention to the manner in which the Court of Appeal

in fact conducted the proceedings in question at their various stages.

 

135.    The Commission notes that, as a rule, the Court of Appeal

reacted promptly to the parties' submissions insofar as it transmitted

them to the expert.  The Court also transmitted the expert's

explanations for the delays to the parties.  During the initial period

from July 1972 to the end of 1973 the Court took a number of other

measures.  After instructing the expert on 28 July 1972 it took

further decisions on the taking of evidence on 13 November 1972 and on

26 February and 22 June 1973.  The Court also visited the warehouse on

11 January and 5 November 1973.  Moreover, during this initial period

there were frequent new submissions or allegations by the applicant

which affected the work to be done by the expert, and it is

understandable that at that stage the Court did not take further

measures to expedite the preparation of the expert opinion.

 

136.    In the period 1974-1976 the situation gradually changed.  It

is true that during parts of this period new submissions and

allegations were again made by the applicant and counter-submissions

by the plaintiff, but this was not the case, for instance, in 1975

and the first half of 1976.  Moreover, the parties had now indicated

to the Court that they were anxious to expedite the proceedings.  The

plaintiff made a statement to this effect on 3 May 1974 and the

applicant made several requests to the Court - from 8 August 1974

onwards - in order to accelerate the preparation of the expert

opinion.

 

137.    Consequently, and in view also of the fact that a considerable

time had elapsed since the expert was instructed by the Court's

decision of 28 July 1972, there were good reasons for the Court at

this stage to take effective steps to expedite the proceedings.  The

reasons for the delay indicated by the expert could not be accepted,

and in these circumstances the means employed by the Court - reminding

the expert of his work, requesting him to prepare his opinion,

exchanging communications, etc. - were inadequate to advance the

proceedings and to bring them to a speedy conclusion.

 

138.    The Commission therefore considers that the conduct of the

Court of Appeal in the years 1974-1976 was not conducive to a speedy

conclusion of the proceedings in the applicant's case.

 

 

H.      Overall assessment

 

 

139.    The Commission will finally consider whether, in view of the

various elements indicated above, there has been a violation of the

applicant's right under Article 6 para. 1 of the Convention to a

hearing within a reasonable time.

 

140.    In all, the proceedings lasted for nearly ten years.  However,

there is no appearance of any unreasonable delay except in the

proceedings before the Court of Appeal.  During these proceedings it

took almost 4 1/2 years to prepare an expert opinion on the alleged

deficiencies in a warehouse.  The complexity of the subject-matter was

not such as to justify such a long delay.  Although the applicant's

own conduct in the proceedings made the work of the expert more

difficult, it can in no way explain a delay of this kind.  On the

other hand, it is clear that the Court of Appeal did not take

sufficiently strong and effective measures to expedite the

proceedings, and the Court must therefore be held to have contributed

to the delay.

 

 

141.    Consequently, the Commission finds that the applicant did not

get a hearing within a reasonable time in the meaning of Article 6

para. 1 of the Convention.

 

 

I.      Conclusion

 

 

142.    The Commission concludes by a unanimous vote that there has

been a violation of Article 6 para. 1 of the Convention in that the

applicant's case was not heard within a reasonable time.

 

 

Secretary to the Commission            President of the Commission

 

 

 

 

       H.C. KRÜGER                            C.A. NØRGAARD

 

 

&-APPENDIX I&S

 

 

 

HISTORY OF PROCEEDINGS

 

 

Date                    Item

 

----------------------------------------------------------------------

 

2 September 1981        Introduction of the application

 

4 July 1983             Registration of the application

 

Examination of admissibility

 

7 December 1983         Commission's deliberations and decision to

                        invite the Government to submit observations

                        on the admissibility and merits of the

                        application

 

16 February 1984        Government's request that the Commission

                        strike the application off its list of cases

                        in view of the applicant's decease

 

18 April 1984           Statement of the applicant's representative

                        that the applicant's widow wished to continue

                        the application

 

11 July 1984            Commission's decision to maintain its decision

                        of 7 December 1983

 

14 December 1984        Government's observations

 

20 April 1985           Applicant's observations in reply

 

8 July 1985             Commission's decision to invite the parties to

                        a hearing on the admissibility and merits of

                        the application

 

6 May 1986              Hearing and Commission's decision on

                        admissibility.  At the hearing the parties were

                        represented as follows:

 

                        Government

 

                        Mr.  H.A. Stöcker

                        Mrs.  R. Adlerstein

                        Mr.  H. Krukenberg

 

                        Applicant

 

                        Mr.  H.-J. Pohl

                        Mr.  R. Schuhmann

                        The applicant's widow was also present

 

Examination of the merits

 

8 December 1986         Commission's consideration of the state

                        of proceedings

 

3 March 1987            Commission's deliberations on the merits and

                        final vote

 

12 March 1987           Adoption of the Report

 

 

 

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