Summary:

I.

The constitutional complaint relates to civil proceedings concerning settlement claims asserted after the termination of a partnership contract of a firm of tax consultants. The plaintiff (in this proceedings: the complainant) had terminated the contract because the defendant had acted for clients on his own account.

The proceedings have been pending before the Hanover Regional Court (Landgericht) since 1995, i.e. for 14 years. In 2004 and 2008, the Higher Regional Court (Oberlandesgericht) reversed two partial rulings issued by the Regional Court, and remanded the matter back to the Regional Court on both occasions. The dispute concerns the value of the firm and especially whether and to what extent the complainant continued to act for clients after the termination of the partnership and thereby generated turnover that would reduce her settlement claim. The outcome of the proceedings is of particular importance to the complainant for two reasons: Firstly, the complainant submits that the asserted settlement accounts for the major part of her assets. Secondly, she is still burdened by debts incurred in connection with the acquisition of the now terminated share in the firm of tax consultants.

The extraordinarily long duration of the complicated proceedings, in which an opinion and five supplementary opinions from independent experts have been sought to date, results from circumstances which cannot be attributed to the court. Apart from the complexity of the legal dispute, it must be taken into account that a considerable period of time passed while seeking the expert opinions. Their delivery was delayed by the fact that necessary documents were temporarily seized by the public prosecution office. Moreover, the result of the public prosecutor’s investigations was important for assessing the value of the firm; for reasons of efficiency it was therefore waited for, so that the first expert opinion could only be delivered in 2000. A counterclaim filed in 2001 as well as setoffs asserted in 2002 have further complicated and delayed the proceedings.

II.
The Third Chamber of the First Panel of the Federal Constitutional Court admitted the constitutional complaint for decision and found a violation of the right to effective legal protection under Article 2.1 in conjunction with Article 20.3 of the Basic Law.

The Regional Court cannot be reproached for delaying the proceedings by plain inaction. What the finding of a violation of the Constitution is based on is, however, that due to the increasing and, ultimately, extraordinarily long duration of the proceedings, the Regional Court should not have confined itself to treating the proceedings like a usual albeit complicated legal dispute. Instead it should have made use of all possibilities at its disposal to speed up the proceedings - at least after a few years had passed. Accessing other internal court resources should also have been considered. Thereby, the Regional Court could have avoided some of the delays. When, for instance, the composition of the chamber presiding over the case changed, procedural orders such as scheduling the oral hearing and asking for one of the supplementary opinions were only made by the chamber in its new composition though this would have been possible for the chamber in its former composition. Apart from avoidable minor delays, it is particularly significant that the Regional Court did not start to take evidence - at least not until April 2009 - as to whether the complainant’s claim might be reduced due to her possibly continuing to act for clients of the partnership. No evidence was taken although the parties had named many witnesses and although the Higher Regional Court had bindingly established the relevance of this point as early as in 2004. The Regional Court could have examined the witnesses while seeking the supplementary opinions. Considering the duration of the proceedings, the efforts resulting from having to compile a duplicate record would have been reasonable. Furthermore, the supplementary opinions were not of prior importance to the examination of the witnesses; it was therefore not mandatory to seek them in advance. It is also not understandable why the Regional Court did not order the fourth supplementary opinion parallel to the appellate proceedings on the second partial ruling in 2007. At this advanced stage, this would have considerably sped up the proceedings.