CASE OF GISELA MULLER v. GERMANY
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
8. The applicant was born in 1942 and lives in Lilienthal in Germany. 9. Since 1973 the applicant, her sister M. and their mother S. were the joint owners of a plot of land situated in Bremerhaven. The lease of the plot was managed by a partnership consisting of the applicant, M., S. and a limited company (S company). Partners of the S company were also the applicant, M. and S. Over the years, serious arguments arose between the applicant on one side and her mother and sister on the other side about questions of the proper administration of the partnership, in particular in respect of taxation matters. 10. By letter dated 28 March 1986, the applicant filed an action with the Bremen Regional Court (Landgericht Bremen), sitting as a court competent in commercial matters (Kammer für Handelssachen), against S., M. and the S company (hereafter “the defendants”). According to the Government’s submissions – which are contested by the applicant – the Regional Court received the action on 11 June 1986. The applicant asked the Regional Court to prohibit the defendants from excluding her from the management of the business. She also demanded that the defendants surrender all annual accounts since 1973 and that they distribute the net profits accordingly. The applicant alleged that the defendants had failed to consult her about the management. She further complained about mistakes in the management, in particular about the fact that the defendants insisted on paying business taxes without being obliged to do so. 11. On 21 July 1986 the applicant’s counsel stated that the applicant was willing to reach a friendly settlement. 12. On 30 September 1986, during a first oral hearing, the parties declared that they were willing to reach an understanding and only thereafter hold another hearing. 13. On 4 November 1986 the applicant’s counsel informed the Regional Court that negotiations on a settlement had not taken place. 14. On 20 March 1987, during a further hearing, the Regional Court’s continuing efforts to induce the parties to agree on a friendly settlement failed. However, S. agreed to submit all documents on the annual accounts since 1973 to the applicant’s counsel for inspection. 15. On 27 July 1987 the applicant’s counsel informed the Regional Court that S. had failed to comply. 16. On 11 August 1987 the Regional Court scheduled an oral hearing which was subsequently postponed on the applicant’s request. 17. On 6 November 1987 S. agreed to submit the relevant documents on the annual accounts since 1975 to the applicant’s counsel. 18. On 30 December 1987 the Regional Court instructed the defendants to submit the partnership agreements and the annual accounts since 1973 and to disclose the use of the reported profits. It further instructed the applicant to quantify her claims. 19. In December 1987 and January and April 1988 the Regional Court called for the case-file of a separate law suit which the applicant conducted against the partnership’s former tax consultant. On 4 February 1988 – according to the Government’s submissions, which are contested by the applicant – the defendants submitted the annual balances and reported on the use of the profits. 20. On 15 June 1988 the presiding judge noted that “particularly on emotional grounds, the sensible pursuit of progress in this case” was not possible before a final decision had been reached in the proceedings against the tax consultant. 21. On 24 July 1989 the applicant complied with the conditions imposed in the order of 30 December 1987. In September 1989 and January, March, April and May 1990 the Regional Court filed for further information on the proceedings against the tax consultant. 22. On 4 September 1998 the Regional Court scheduled a further hearing for 20 October 1989. On 20 October 1989 that court decided to schedule a further hearing only after the tax authority’s decisions on the partnership’s tax liability for the years 1984 to 1986 had become final. On 23 November 1989 the applicant’s counsel informed the court that the tax decisions had become final. On 19 March, 13 June and 6 August 1990 the applicant’s counsel requested the Regional Court to schedule a new oral hearing. On 8 August 1990 the Regional Court scheduled an oral hearing for 3 September 1990, noting that the delay was owed to the chamber’s excessive workload during the previous six months. 23. On 12 October 1990, following the oral hearing, the Regional Court delivered a partial decision ordering the defendants to pay DEM 29,657.58 to the applicant and to grant her a restricted power over the commercial partnership’s bank accounts. 24. In a letter directed to the presiding judge of the Court of Appeal, the presiding judge of the Regional Court expressed his regrets of the fact that his attempts to reconcile the parties had failed. 25. On 19 November 1990 the defendants lodged an appeal against the Regional Court’s partial decision. 26. On 11 April 1991 the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht in Bremen), having received submissions from both parties, scheduled an oral hearing for 22 August 1991. 27. On 27 May 1991 the applicant informed the Court of Appeal that she had changed counsel. 28. On 6 June and 17 September 1991 the Court of Appeal postponed the hearing, once following the applicant’s request and a second time because of the rapporteur’s illness. 29. On 5 December 1991 the Court of Appeal further postponed the hearing on the ground that the rapporteur had been seconded to the eastern part of Germany. 30. On 26 March 1992, following an oral hearing on 5 March 1992, the Hanseatic Court of Appeal quashed the Regional Court’s partial decision and rejected the applicant’s claims. 31. On 23 June 1992 the Regional Court scheduled an oral hearing for 2 October 1992. On 28 September 1992 and 6 October 1992, following requests from the defendants, the Regional Court postponed the hearing. 32. On 17 November 1992 the Regional Court, once again, tried to induce the parties to reach a friendly settlement. On 15 and 18 December 1992 the parties informed the Regional Court that no settlement had been reached. 33. On 15 January 1993 the Regional Court ordered the preparation of an expert opinion as to whether the annual accounts for the years 1975 to 1991 of both the commercial partnership and the S company had been prepared in accordance with the rules on accounting and balances. It found that the annual balances did not form a sufficient basis to calculate the applicant’s possible net profit claims. 34. On 23 March 1993, upon payment of the advance costs, the Regional Court sent the files to the Chamber of Tax Consultants for the nomination of a suitable expert. 35. On 5 April 1993 the applicant’s counsel informed the Regional Court that he had relinquished his mandate. 36. On 28 April 1993 the Chamber of Tax Consultants named an expert. 37. On 29 April 1993 – according to the Government’s submissions – the presiding judge of the Regional Court orally informed the applicant that he would only commission the expert after she had nominated a new counsel. 38. On 13 August 1993 the applicant informed the Regional Court that she had mandated new counsel. 39. On 27 August 1993 the Regional Court ordered the parties to pay further advance costs. 40. On 22 October 1993 the Bremen Regional Court appointed the certified accountant D. to prepare the expert opinion. 41. On 19 September 1994, after having received the necessary documents towards the end of 1993, D. submitted his report. 42. On 3 March 1995, following the submissions of both parties and requests filed by the defendants to postpone the hearing, the Regional Court held an oral hearing and asked D. to amend his report in view of supplementary documents to be submitted by the defendants. 43. On 15 May 1995 the applicant lodged a criminal charge against the defendants for withholding documents, which led to a search of S.’s apartment. 44. On 24 May 1995 – according to the Government’s submissions – the Public Prosecutor requested the Regional Court to transmit the case-file. On 28 August 1995 the presiding judge of the Regional Court informed the parties that he was prevented from pursuing proceedings as the Prosecutor’s Office had not yet returned the case-file. 45. On 18 December 1995 the Regional Court asked D. to resume his work on the amendment of his expert report. 46. On 8 January 1996 the applicant addressed a letter to the President of the Regional Court, referring to the excessive length of proceedings and requesting that her case be given priority. 47. On 7 March 1996 the presiding judge of the Regional Court informed the parties that he was unable to proceed because the files had not yet returned from the President’s office. On 14 March 1996 the President informed the applicant that he could not find any delay in proceedings attributable to the court. 48. On 22 March 1996 the expert informed the Regional Court that the defendants had not submitted all necessary documents. 49. On 24 May 1996, during an oral hearing, the defendants stated that they would submit the requested documents at the beginning of June. The Regional Court scheduled a date to proclaim a decision for 30 August 1996. 50. On 26 August 1996 the applicant requested the oral hearing to be reopened and announced new applications. 51. On 30 August 1996 the Regional Court re-opened proceedings and scheduled a hearing for 13 September 1996. On 25 September 1996, following the defendant’s request of 9 September 1996, the Regional Court postponed the hearing to 15 November 1996. 52. On 15 November 1996 the Regional Court suggested another friendly settlement and scheduled a final hearing for 29 November 1996. 53. On 22 November 1996, following the defendant’s request, the Regional Court postponed the hearing to 13 December 1996. Following that hearing the Regional Court announced that it would issue a decision on 31 January 1997. 54. On 19 December 1996 the Regional Court received D.’s amended expert opinion. 55. On 31 January 1997 the Regional Court ordered the parties to file their comments on the report and scheduled to give a decision on 1 April 1997. 56. On 1 April 1997 the Regional Court issued a judgment combined with a judgment on the basis of the cause of action (Grundurteil), concluding that the applicant had effectively revoked the managerial rights of the defendants, that the defendants – in collaboration with the applicant – were obliged to draw up the annual accounts from 1 January 1975 onwards and rejecting the majority of the applicant’s further claims. In his reasoning, the presiding judge noted that the parties conducted their arguments since more than ten years “with consistent stubbornness and with an uncompromising attitude” the like of which he – the presiding judge – had never before experienced in his professional career. 57. On 5 and 7 May 1997 all parties lodged their appeals. On 18 August 1997, having received submissions from all parties, the Hanseatic Court of Appeal scheduled a hearing for 13 November 1997. On 25 September 1997, following a request by the applicant, the Court of Appeal postponed the hearing to 18 December 1997. 58. On 18 December 1997 the Court of Appeal suggested that the parties should seek a separation. At the end of the hearing, following the request of all parties, the court decided that proceedings should only be continued on request of one of the parties. 59. On 5 January 1998, following the defendants’ application in a separate proceeding, the Bremerhaven District Court (Amtsgericht) ordered that the piece of land administered by the commercial partnership be sold by compulsory auction with a view to partitioning the property concerned (Teilungsversteigerung). 60. On 29 January 1998, following the applicant’s request to continue proceedings, the Court of Appeal scheduled an oral hearing for 23 April 1998 which was later postponed on the defendants’ request to 28 May 1998. 61. On 28 May 1998 the Court of Appeal announced its intention to suspend proceedings until the termination of the auction proceedings, against which the applicant protested. 62. On 9 July 1998 the Court of Appeal passed an order to suspend the proceedings until a final decision had been reached in the auction proceedings. The Court of Appeal found that the outcome of at least part of the lawsuit depended on the conclusion of these auction proceedings. On 25 February and 31 August 1999 and 7 July and 12 September 2000 the Court of Appeal rejected the applicant’s requests to resume proceedings on the ground that the auction proceedings had not yet been terminated. 63. On 18 August 2000 the applicant raised a constitutional complaint. She complained that despite the undue length of the proceedings, the Hanseatic Court of Appeal refused to resume them. She also gave a chronological account of the proceedings and maintained that their excessive length had violated her rights under the Basic Law. 64. On 22 November 2000 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s complaint. 65. On 27 November 2001 the Hanseatic Court of Appeal, in separate proceedings, rejected the applicant’s final complaint against the compulsory sale of the plot of land. On this occasion, the Hanseatic Court of Appeal was sitting as the same chamber as in the above mentioned proceedings. 66. On 2 November 2004 S. passed away. 67. By an undated letter dispatched on 19 November 2004 the presiding judge of the Court of Appeal referred to this Court’s decision on the admissibility of the present complaint and asked the applicant if she wished to pursue the proceedings. 68. By letter of 30 November 2004 the applicant insisted that the Court of Appeal was legally obliged to revoke its suspension order of 9 July 1998 before pursuing proceedings. 69. On 14 January 2005 the Court of Appeal lifted its suspension order and scheduled an oral hearing for 14 April 2005. 70. On 3 May 2005, following the oral hearing, the Court of Appeal suspended the proceedings against S. because of the latter’s death. At the same time, the Court of Appeal issued four pages of legal assessment of the case and invited the parties to submit any comments they would like to make within eight weeks. A new hearing would be scheduled after expiry of this time-limit. The proceedings are still pending before the Hanseatic Court of Appeal. 71. On 17 July 1998, upon the applicant’s complaint, the Bremerhaven District Court revoked the auction order. On 29 September 1998 this decision was set aside by the Bremen Regional Court; a further appeal was dismissed on 25 November 1998 by the Hanseatic Court of Appeal. 72. The applicant’s various further motions aimed at the prevention of the sale of the plot, including a further constitutional complaint, remained unsuccessful. 73. On 9 July 2001 the Bremerhaven District Court ordered the auction of the plot of land. It was purchased by M. The applicant’s complaints remained unsuccessful (see paragraph 65 above). 74. The relevant Rules of Civil Procedure on the suspension of proceedings read as follows: “The court may order, if the decision of the legal dispute wholly or partly depends on the existence or non-existence of a legal relationship which forms the subject of another pending legal dispute ... that the proceedings be suspended until the other legal dispute is settled ...” “The court may lift its orders of suspension...” “Suspended or interrupted proceedings are resumed by filing a statement with the court which is then served on the other party.” “A decision by which the suspension of proceedings is ordered or denied on the ground of provisions of this title ... may be appealed...” “(4) Against the decisions of the courts of appeal, no appeal is admissible...”