CASE OF BUCHHOLZ v. GERMANY
No violation of Art. 6-1;No violation of Art. 3;No violation of Art. 8;No violation of Art. 12
Gaukur Jörundsson
12. Mr. Buchholz was born in 1918 and lives in Hamburg. From February 1949 onwards he worked for the dry-cleaning firm of J. H. Dependorf KG; he was mainly employed as a driver until the end of 1963 and thereafter as, in particular, controller of branch establishments. On 28 June 1974, he was given notice that he was dismissed with effect from 31 December of the same year as a result of rationalisation measures. He took proceedings before the appropriate courts contesting the lawfulness of this notice; in his submission, those courts did not determine his case within "a reasonable time" as required by Article 6 par. 1 (art. 6-1) of the Convention. 13. On 10 July 1974, the applicant commenced an action before the Hamburg Labour Court claiming that his dismissal was "socially unjustified" ("sozial ungerechtfertigt") within the meaning of section 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz). The other party ("the defendants") served a defence on 25 July, one day before the expiry of the time-limit granted for this purpose by the Labour Court. 14. At the first hearing on 16 August, Mr. Buchholz’s lawyer submitted new written pleadings. The Labour Court thereupon allowed an application by the defendants for time to reply and adjourned the case until 4 October. 15. In their written reply of 22 August, the defendants, as requested by the Labour Court, gave a detailed account of the reasons for the contested dismissal; they also described the economic situation of the firm and explained the rationalisation measures taken. The applicant’s lawyer appended to his counter-reply of 19 September a note written to him by his client. This note contained the charge that the managers of the Dependorf firm had "negligently squandered the millions (business and private assets) properly earned by Robert Dependorf" but had "personally secured to themselves such a safe position that these people are no longer interested in whether or not the Dependorf firm gets even deeper into the red". These accusations prompted the defendants on 30 September to send the applicant two further notices of dismissal, an extraordinary notice (ausserordentliche Kündigung) effective forthwith and, as an alternative or precautionary (vorsorglich) measure, an ordinary notice (ordentliche Kündigung) with effect from 31 March 1975. The extraordinary notice was based on Article 626 of the Civil Code (Bürgerliches Gesetzbuch) which requires a "serious reason" for a dismissal of this kind and the giving of notice within two weeks from the moment when the employers had knowledge of the facts judged by them to constitute such a reason. On 2 October, Mr. Buchholz’s lawyer filed two further sets of written submissions dated 1 and 2 October respectively; appended to the former was a copy of the defendant’s letter of 30 September; the latter extended the plaintiff’s action to cover the two dismissal notices of 30 September. 16. At a hearing on 4 October 1974, the Labour Court adjourned the proceedings until 25 October as the defendants’ lawyer had only received the applicant’s latest written pleadings at that hearing. On 14 October, the applicant’s lawyer submitted another memorandum. At the adjourned sitting on 25 October, the Labour Court, acting in accordance with the applicable legislation, proposed a friendly settlement, but the proposal was not accepted. 17. The Labour Court delivered judgment on 8 January 1975 immediately after hearing the final submissions of the parties. It held that neither the notice of 28 June 1974 nor the extraordinary notice of 30 September 1974 had terminated the applicant’s contract, since the former was "socially unjustified" within the meaning of section 1 of the Unfair Dismissal Act and the latter was invalid for lack of a "serious reason" as required by Article 626 of the Civil Code. The Court also rejected an alternative request by the defendants for discharge (Auflösungsantrag) of the contract of employment in pursuance of section 7 of the Unfair Dismissal Act. It ordered the defendants to pay Mr. Buchholz DM 5,700 arrears of wages but dismissed the claim for future salary. The judgment was notified in writing to the parties on 25 February 1975. 18. The defendants appealed to the Hamburg Labour Court of Appeal on 13 March 1975. In their submission, the accusations made by Mr. Buchholz constituted a "serious reason" warranting the extraordinary notice of 30 September 1974; the two ordinary notices of 28 June and 30 September 1974 were likewise valid, the former being "socially justified" for pressing reasons connected with the running of the business. They called on the Court to overrule the judgment appealed from and to dismiss the plaintiff’s action or, in the alternative, to discharge the contract of employment existing between the two parties. The applicant in turn lodged a cross-appeal (Anschlussberufung) on 25 March, seeking payment of arrears of wages for the first three months of 1975. 19. The parties then filed written pleadings dated 2 April and 15 May 1975 (the defendants) and 22 April (Mr. Buchholz). The applicant maintained his accusations against the managers of the firm and asked the Court of Appeal to call for an expert’s opinion in order to corroborate the allegations made. 20. In the course of this written procedure both the applicant and the defendants had requested the Court of Appeal not to hold sittings during certain periods, namely from 25 May to 5 June for the applicant and from 11 April to 2 May and from 6 to 11 June for the defendants. 21. Taking due note of this, the Court of Appeal on 16 May 1975 set the case down for hearing on 22 July. On that date, the Court examined, amongst other matters, the exact circumstances surrounding the tendering in evidence of the applicant’s accusations which had been appended to his lawyer’s written pleading of 19 September 1974 (see paragraph 15 above). When questioned whether he had intended use to be made of these accusations in the lawsuit, he stated that he had relied on the judgment of his lawyer. The Court also raised the possibility of employing Mr. Buchholz in some other capacity; it directed the defendants to submit within one month a chart setting out the firm’s commercial staff structure, indicating for each post whether it was suitable for the applicant and, if not, the reason why. The applicant was given one month to reply. 22. The defendants filed the chart, with accompanying explanations, on 31 July; then, on 6 August, they replied to a written pleading from Mr. Buchholz which, though presented on 16 July, had been communicated to them after the hearing of 22 July. On 20 August 1975, the applicant put forward a proposal for a friendly settlement, but this was rejected by the defendants on 19 September. By letter of 3 October, Mr. Buchholz’s lawyer filed a memorandum, dated 28 September, containing comments by his client and asked the Court to set the case down for an early hearing, thereby renewing a request he had already made on 18 September, one day before the defendants had refused the offer of friendly settlement. He stated, amongst other things, that "the disproportionately long state of suspense [had] become physically and psychologically unbearable" for Mr. Buchholz. On 9 October, the Court of Appeal decided to hold a hearing on 19 March 1976 and transmitted to the defendants the above mentioned written pleadings of 3 October. 23. On 12 November 1975, the applicant’s lawyer addressed to the Parliament (Bürgerschaft) of the Free and Hanseatic City of Hamburg a petition seeking measures to expedite proceedings before the labour courts. Early in 1976, as an apparent sequel to this petition and following an increase in the number of judicial posts (see paragraph 39 below), the Court of Appeal was able to establish a Sixth Chamber. Almost 50 per cent of the cases pending before the Third Chamber were referred to the new Chamber, although the former continued to deal with the Buchholz action. The Parliament advised the applicant in reply on 5 May 1976 that the authorities had immediately taken the necessary steps to ease the workload of the labour courts. 24. The legal and factual questions to be decided were debated by the two parties at the hearing held on 19 March 1976. At the close of the sitting, the Court of Appeal made an order setting out the various points in issue and their possible implications as seen by the Court; it then proposed a settlement whereby the contract of employment would be considered as having terminated on 31 December 1974 and the defendants would pay the applicant a lump sum of DM 34,200. The Court called on the parties to state their views by 30 April. 25. By memorandum of 7 April, the defendants refused the settlement proposal; they referred to the "undisputed" fact that the two notices of 30 September 1974 had been served on the applicant on the same day. For his part, Mr. Buchholz’s lawyer, in a written statement of 8 April in which he paid tribute to the Court of Appeal for its "thorough and prudent examination of the case", declined to accept the suggested settlement; he specified that he could only agree to such a solution if the contract were regarded as terminated on 31 December 1975. In addition, on 28 April 1976 he filed a brief reply to the above-mentioned memorandum of 7 April. He contested the defendants’ affirmations "insofar as they deviate[d] from the explanations" given by his client, but he did not however specifically deal with the matter of the date of receipt of the two notices of 30 September 1974. He added that he would be absent from 30 May to 18 June and requested the Court of Appeal to fix a hearing in May. On 3 May, the Court of Appeal directed that the hearings should resume on 27 August and so advised the parties on 1 June. 26. At the hearing on 27 August 1976, Mr. Buchholz denied that he had actually received the two notices of 30 September on that day and asked the Court to question on his wife on this point, which was material for the purposes of Article 626 of the Civil Code (see paragraph 15 above). The Court acceded to this request. Mrs. Buchholz, who was present in the court-room, confirmed the statements of her husband; she asserted that the notices had been served between 5 and 7 October 1974. The defendants contested this testimony and asked for the counter-evidence of four witnesses to be heard. The applicant objected to such a move on the ground that it would tend to protract the proceedings. The Court nevertheless decided that Mr. Buchholz, as well as the chief executive of the Dependorf firm and the four witnesses nominated by the defendants, should be heard on 11 January 1977. At the same time it invited the applicant, who had applied for free legal aid in the appeal proceedings, to supply the necessary certificate for that purpose. 27. The certificate was submitted under cover of a letter of 28 August from Mr. Buchholz’s lawyer. Consequently, on 29 September the Court granted free legal aid for the applicant’s defence against the main appeal; it reserved its decision as regards his cross-appeal (see paragraph 31 below). 28. Earlier, on 21 September 1976, the applicant had challenged the above-mentioned decision of 27 August before the Federal Constitutional Court. Complaining of the duration of the litigation and relying on Articles 2, 3, 12 and 20 of the Basic Law as well as Article 6 (art. 6) of the Convention, he had sought from the Constitutional Court an order requiring the Court of Appeal to bring its consideration of the matter to an immediate close. The case-file was sent to the Federal Constitutional Court which, sitting as a panel of three judges (section 93 (a) of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz), gave judgment on 2 November. The Court refused leave for the constitutional application to proceed: even supposing the application to be admissible, it did not offer sufficient prospects of success since there was nothing in the evidence to show that the Court of Appeal had protracted the proceedings; having regard to the extreme complexity of the facts of the case, the length of the lawsuit had been caused primarily by the applicant who had continuously supplemented his submissions and called for the taking of further evidence. 29. The presiding judge of the Third Chamber of the Labour Court of Appeal, which was dealing with the applicant’s case, retired on 19 November. 30. On 11 January 1977, the Court of Appeal heard four witnesses in connection with the date of receipt of the dismissal notices. It reserved until 28 January its decision whether, despite the objections of Mr. Buchholz’s lawyer, it should hear evidence from an additional witness nominated by the defendants and from Mr. Lentfer, the chief executive of the Dependorf firm. 31. On 28 January, the Court of Appeal granted the applicant free legal aid for his cross-appeal (see paragraph 27 above) and directed that Mr. Lentfer be called to give evidence on 22 March. By letter of 31 January, the defendants’ lawyer, pleading a prior commitment, asked for adjournment of the hearing of Mr. Lentfer; he further specified that both he and Mr. Lentfer would be on leave from 15 April until 4 May. The Court of Appeal granted this request on 2 February and postponed the hearing until 6 May. The applicant wrote on 5 February to the Secretary to the Commission - his petition to the Commission having been lodged on 18 December 1976 - to complain of this decision, but according to the Government there is no trace in the record of the case of his having entered any such objection before the Court of Appeal. 32. On 6 May, the representatives of both parties declared that the two disputed dismissal notices had indeed been received by Mr. Buchholz on 30 September 1974. On 13 May, the Court of Appeal ordered that an expert opinion should be obtained on the question whether or not the applicant’s accusations against the managers of the Dependorf firm were justified (see paragraph 15 above). The Hamburg Chamber of Commerce, on being so requested, nominated an expert on 14 June; after hearing the parties, the Court appointed the expert on 30 June. The expert’s report was filed on 2 December 1977; the Court communicated it to the applicant and the defendants for comment by 5 January 1978. 33. The last hearing was held on 3 February. The parties made their final submissions, following which the Labour Court of Appeal delivered its judgment. It allowed the defendants’ appeal and dismissed the applicant’s cross-appeal, awarding the costs of the proceedings against him. The Court of Appeal held that the extraordinary notice of 30 September 1974 was valid for the following reasons. The charges made by the applicant constituted a serious reason for dismissal within the meaning of paragraph 1 of Article 626 of the Civil Code and the dismissal notice had been served within the period of two weeks laid down by paragraph 2 of that Article. The thorough and convincing explanations furnished by the expert made it clear that Mr. Buchholz’s accusations were without foundation (haltlos): apart from being extremely defamatory, they were inappropriate and quite unnecessary for his cause of action contesting the ordinary notice of 28 June 1974 (see paragraph 15 above). The judgment was notified in writing to the parties on 5 April. 34. With a view to bringing a petition for a review on a point of law (Revision), Mr. Buchholz applied on 13 April to the Federal Labour Court for free legal aid; his application was granted on 12 September. On 20 September, he asked the Federal Court for leave to petition notwithstanding expiry of the legal time-limit; the Court gave leave on 10 October. The petition which had been filed earlier on 22 September, was transmitted to the defendants who replied in writing on 29 December. 35. On 26 April 1979, the Federal Court, after hearing the parties, proposed a settlement whereby the contract of employment would be considered as having terminated on 31 December 1974 and the defendants would pay the applicant a lump sum of DM 24,000 in addition to the DM 5,700 already paid as arrears of wages in compliance with the Labour Court’s judgment. The proposal was rejected by the defendants; by judgment of the same day, the Federal Court dismissed the petition for review as unfounded. 36. On 10 May 1979, Mr. Buchholz challenged this decision before the Federal Constitutional Court alleging violation of several basic rights. He complained of the length of the proceedings before the various labour courts, citing this factor as the cause of the contested decision. He further criticised the Federal Labour Court for having terminated a lawsuit "which in normal circumstances should not have been terminated yet"; in view of his application to the Commission, so he contended, the Federal Labour Court had "clearly not wished to make the breach of the Convention more evident by continuing the proceedings". In addition, the applicant claimed that the judgment being challenged was unsustainable as far as its reasoning was concerned (sachlich unhaltbar) and constituted an unacceptable domestic sanction intended to punish him for having taken his case to the Commission. On 19 July, the Constitutional Court refused leave for the constitutional application to proceed on the ground that it was inadmissible. The applicant had not, it was stated, identified with sufficient clarity any possible violation of his basic rights. In particular, his complaint regarding the length of the proceedings did not warrant a finding that the outcome of the action was incompatible with any of his basic rights; this was likewise true of his submission that the reasoning of the judgment being challenged did not bear examination. As in 1976 (see paragraph 28 above), the Court had sat in judgment as a panel of three judges. 37. For a year after his dismissal, Mr. Buchholz was paid weekly unemployment benefits (Arbeitslosengeld) under the Promotion of Employment Act (Arbeitsförderungsgesetz), that is to say, DM 202.20 from 9 October to 31 December 1974, DM 228 from 1 January to 30 September 1975 and DM 250.80 until 7 October 1975. The Hamburg Employment Office (Arbeitsamt) refused, on 23 December 1975, to grant him unemployment welfare assistance (Arbeitslosenhilfe) thereafter on account of his wife’s earnings. Since 1 August 1978, the applicant has been in receipt of a social security retirement pension (Sozialversicherungsrente), the amount of which – originally DM 1,462 per month - has been periodically adjusted. 38. According to the Government, from October 1974 onwards the Hamburg Employment Office endeavoured in vain to find the applicant some other employment, even offering financial help to potential employers. 39. As the result of an economic recession in the Federal Republic of Germany, the labour courts of appeal experienced a significant increase in their workload between 1974 and 1976. According to the statistics supplied by the Government at the request of the Court, the incidence of appeals from labour court judgments rose, as compared with the previous year, by 23.1 per cent in 1974, by 20.8 per cent in 1975 and by 9.7 per cent in 1976. In order to cope with this state of affairs, the relevant authorities increased the number of judicial posts by 9.6 per cent in 1974, by 12.5 per cent in 1975 and by 11.1 per cent in 1976. There were 17.3 per cent more cases dealt with in 1974, 27.5 per cent in 1975 and 13.4 per cent in 1976. As regards the Hamburg Court of Appeal in particular, 689 appeals were entered in 1974, 758 in 1975, 786 in 1976 and 756 in 1977; 716 appeals were decided in 1974, 700 in 1975, 798 in 1976 and 788 in 1977. The average length of proceedings progressed from 2.88 months in 1974 to 3.20 months in 1975, but then fell to 2.98 months in 1976, 2.79 months in 1977 and 2.53 months in 1978. In this respect, the Hamburg Court of Appeal was more favoured than the labour courts of appeal of the other Länder where, nevertheless, a downward trend was also registered. Examination of the 255 cases decided in 1975 and 1976 by the Third Chamber, which dealt with the Buchholz appeal, showed, according to the Government, that 163 cases were disposed of after one hearing, 59 cases after two hearings, 23 cases after three hearings and 10 cases after four to six hearings. 40. Faced with the backlog of labour court business in the 1970’s, the Government tabled in the legislative assemblies in 1978 a Bill designed, amongst other things, to expedite proceedings before the labour courts. The resultant Act entered into force on 1 July 1979.