CASE OF AXEN v. GERMANY
No violation of Art. 6-1
C. Russo
11. The applicant, a German national born in 1914, is resident in Hamburg. On 6 August 1950, he drove his car into the parked and unlighted trailer of a lorry belonging to a firm. His mother, a passenger in the car, died from her injuries and Mr. Axen himself was severely injured. The driver of the lorry and two other persons, namely a garage owner and a filling-station assistant, who had undertaken to repair the trailer and tow it off the road, were convicted by the Lüneburg Regional Court (Landgericht) on 31 January 1951 of negligently causing death and personal injuries. 12. Mr. Axen brought actions for damages against the driver and the owner of the lorry before the Hamburg Regional Court and against the garage owner and the filling-station assistant before the Lüneburg Regional Court. The first action concluded with two judgments of the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) in Hamburg, one of 23 January 1968 awarding the applicant about DM 41,000 for loss of earnings and the other of 6 August 1973 awarding him DM 8,000 for non-pecuniary damage. 13. In the proceedings against the garage owner and the filling-station assistant, the Celle Court of Appeal (Oberlandesgericht) awarded Mr. Axen on 16 January 1969 compensation of DM 40,000 for non-pecuniary damage, subject to deduction of the DM 8,000 awarded by the Hamburg Court of Appeal. Mr. Axen appealed on points of law (Revision), but the Federal Court of Justice (Bundesgerichtshof) dismissed the appeal on 29 September 1970. 14. As regards the claims for loss of earnings, the Celle Court of Appeal awarded the applicant on 27 February 1975 a lump-sum of about DM 39,000 together with an annuity, subject to deduction of the compensation already granted in Hamburg. The Court of Appeal was ruling on an appeal by the applicant against a judgment of 12 May 1972 of the Lüneburg Regional Court. The hearings before these courts and the pronouncement of their decisions took place in public. 15. Mr. Axen filed with the Federal Court of Justice an appeal on points of law (Revision) against the Celle Court of Appeal’s judgment. The appeal related to the quantum of his loss of earnings. In his memorial of 18 May 1976, setting out the grounds of appeal (Revisionsbegründung), he complained of the Court of Appeal’s failure to grant his request that an expert be heard on the subject of the reports made by other experts concerning his loss of earning capacity; according to him, the Court of Appeal should at least have called for a further expert opinion (Obergutachten). He also challenged the method used by the Court of Appeal for assessing the respective share of responsibility of the persons involved in the accident. A last ground of appeal concerned the question whether the Court of Appeal was entitled to take into account the social security benefits received by the applicant. 16. On 26 October, the 6th Chamber of the Federal Court refused to grant Mr. Axen legal aid, on the ground that the appeal offered no prospects of success. 17. On 8 December 1976, the applicant’s lawyer asked the 6th Chamber to hold a hearing in the case. On 15 December, its President informed him that the Chamber was going to deliberate on the possibility of examining the appeal without oral argument. The President directed that the lawyer should have until 20 January 1977 to file any observations he might wish to make. The latter acknowledged receipt of this communication on 16 December 1976, but submitted no comments. However, on 7 January 1977 his client sent to him a letter protesting against the proposed procedure. A copy was sent to the Federal Court, but it could not be included with the papers in the case since it was not a document prepared by the applicant’s lawyer, only the latter having the right of audience before that Court. On 8 March 1977, the 6th Chamber of the Federal Court of Justice, without holding a hearing, unanimously rejected the appeal. Its judgment (Beschluss) was neither pronounced in open court nor published but was served on the applicant on 15 March 1977 pursuant to Article 329 of the Code of Civil Procedure (Zivilprozessordnung), which provides (translation): "decisions adopted by courts after a hearing must be pronounced" and "decisions which are not pronounced shall be communicated to the parties in such manner as may be found appropriate". The judgment read as follows (translation): "Having informed the parties and sought their views (gehört), the 6th Chamber of the Federal Court, at its session of 8 March 1977 ..., considered unanimously that it was not necessary to hold a hearing and decided ...: the appeal ... is dismissed. The appellant is to bear the costs of the proceedings ..." 18. The decision not to hold a hearing was based on section 1 of the Federal Court of Justice (Reduction of Work-Load in Civil Cases) Act of 15 August 1969 (Gesetz zur Entlastung des Bundesgerichtshofs in Zivilsachen). Originally this Act was due to expire on 15 September 1972 but its validity was extended until 15 September 1975 by an Act of 7 August 1972. The Act, as so extended, applied to proceedings in appeals on points of law concerning decisions delivered or notified between 15 September 1969 and 15 September 1975; it therefore covered the examination of the applicant’s appeal, which was directed against a judgment of 27 February 1975 (sections 4 para. 2 and 6 of the 1969 Act; sections 1 and 3 of the 1972 Act; sections 3 para. 3 and 5 of the Appeals on Points of Law in Civil Cases (Modification of Procedure) Act of 8 July 1975 - Gesetz zur Äenderung des Rechts der Revision in Zivilsachen). Section 1 para. 2 of the Act of 15 August 1969 provided as follows (translation): "A court determining an appeal on points of law (Revisionsgericht) may take its decision without holding a hearing if it unanimously considers that the appeal is ill-founded and that oral argument is not necessary. The parties shall be informed and asked for their views (gehört) beforehand. The judgment (Beschluss) shall record that the conditions for adopting this procedure are satisfied; no further reasons need be given." 19. On 4 April 1977, the applicant appealed to the Federal Constitutional Court against the Celle Court of Appeal’s judgment of 27 February 1975 and the Federal Court of Justice’s judgment of 8 March 1977; in a supplementary memorial of 16 April he complained of the above-mentioned legislation itself, relying, inter alia, on Article 6 (art. 6) of the Convention. In a ruling given on 14 July 1977 by a panel of three judges, the Federal Constitutional Court decided not to hear the appeal. It considered that, in so far as the appeal concerned the legislation, it was inadmissible as being out of time and that, as regards the judicial decisions complained of, it did not offer sufficient prospects of success since there had been no violation of a right specifically guaranteed by the Basic Law and notably Article 3 thereof.