CEDH · CASELAW;REPORTS;ENG — 12 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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