CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1986

.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 }  The European Commission of Human Rights sitting in private on 1 December 1986, the following members being present:                         MM. C.A. NØRGAARD, President                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr. F. MARTINEZ                      Mr. J. RAYMOND, Deputy Secretary to the Commission     Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 5 February 1985 by A.K.Z. against the Federal Republic of Germany and registered on 14 March 1985 under file No. 11445/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   FACTS   The facts of the case as they have been submitted by the applicant may be summarised as follows:   The applicant, born in 1975, is a German national and resident in Karlsruhe.   She is a schoolgirl and legally represented by her parents.   Before the Commission she is represented by Mr. W. Küchler, a lawyer practising in Karlsruhe.   In 1975, upon her birth, the applicant fell ill while in hospital, inter alia, with meningitis.   Due to this disease and the necessary treatment with highly dosed medicaments, the applicant suffered lasting injuries to her health.   Apparently in 1978, the applicant instituted compensation proceedings before the Karlsruhe Regional Court (Landgericht) against both the hospital and Dr.   L, the pediatrician in charge at that hospital. During these and the following proceedings, the applicant was represented by a lawyer.   On 19 September 1980 the Regional Court held in a partial judgment that the applicant's claim of compensation for personal suffering was justified in principle.   Moreover, the opponents were obliged to compensate any future material damages caused by the disease.   The Court found in particular that Dr.   L had failed to discover the symptoms of the disease as well as to order a further careful control of the applicant.   Moreover, the medical organisation and service at the hospital had been   insufficient.   The Court thereby relied on the testimonies of several witnesses and the opinions of the medical experts Prof. B and Prof. G.   It moreover shifted the burden of proof concerning the causality of negligence and the injuries to the applicant's health on the ground that the mistakes and insufficiencies had to be considered as gross negligence.   This decision was quashed by the Karlsruhe Court of Appeal (Oberlandesgericht) upon the defendants' appeal on 14 December 1983. The Court dismissed the applicant's claims on the ground that she had failed to prove gross negligence and, therefore, the burden of proof could not be shifted.   The Court relied in particular on a further medical opinion of Prof. Sch.   On 23 October 1984 the Federal Court of Justice (Bundesgerichtshof) decided not to accept the applicant's appeal on points of law (Revision).   While this decision did not mention detailed reasons, it referred to S. 554 (b) para. 1 of the Code of Civil Procedure (Zivilprozessordnung) in its interpretation by the Federal Constitutional Court (Bundesverfassungsgericht) in a decision of 11 June 1980.   The Federal Court's decision was taken without an oral hearing.   S. 554 (b) para. 1 provides that, in litigations concerning pecuniary claims of more than forty thousand German Marks, the court of appeal (Revisionsgericht) may refuse to accept the appeal (Revision) if the case is of no fundamental importance.   According to S. 554 (b) para. 3 the decision may be taken without an oral hearing. In its decision of 11 June 1980 the Federal Constitutional Court held that, from a constitutional point of view, the Federal Court may only reject an appeal under S. 554 where it finds that it offers no prospect of success.   On 28 December 1984 the Federal Constitutional Court rejected the applicant's constitutional complaint as offering no prospect of success.   COMPLAINTS   The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Federal Court of Justice decided not to accept her appeal without conducting a fair and public hearing.   She submits in particular that the Court's decision was served without detailed reasons as to the grounds of appeal and the merits of her case.   She was, therefore, not able to verify the impartiality of the Court.   The decision might have been arbitrarily taken in order to reduce the Court's burden of work.   THE LAW   The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Federal Court of Justice decided without a fair and public hearing.   Article 6 para. 1 (Art. 6-1) states that "in the determination of his civil rights... everyone is entitled to a fair and public hearing... by an independent and impartial court established by law".   The Commission has first considered the applicant's complaint concerning the absence of a public hearing before the Federal Court of Justice.   It here recalls that Article 6 para. 1 (Art. 6-1) is in principle applicable to proceedings before courts of appeal or of cassation. However, the way in which it applies must clearly depend on the special features of such proceedings.   In particular, account must be taken of the entirety of the proceedings conducted in the domestic legal order.   Appeal proceedings before the Federal Court of Justice, which determines solely issues of law, do not require a public hearing, if only the appeal on points of law is dismissed and a judgment of the lower court, which becomes final, had been delivered in accordance with Article 6 para. 1 (Art. 6-1 (Eur. Court H.R., Axen judgment of 8 December 1983, Series A no. 72 pp. 12, 13).   The Commission notes that, in the instant case, the Federal Court of Justice refused to accept the applicant's appeal without a hearing according to S. 554 (b) paras. 1 and 3 of the Code of Civil Procedure as interpreted by the Federal Constitutional Court. According to that provision only two issues of law had to be determined, namely the fundamental importance of the case and the prospect of success.   The Federal Court's decision not to accept the appeal made the judgment of the Karlsruhe Court of Appeal final, and that judgment had been delivered after proceedings whose compatibility with the requirements of Article 6 para. 1 (Art. 6-1) is not contested.   In these circumstances the Commission finds that the absence of a public hearing before the Federal Court of Justice does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1).   The Commission has next examined the applicant's complaint under Article 6 para. 1 (Art. 6-1) that the proceedings before the Federal Court of Justice were unfair in that its decision of 23 October 1984 lacked reasons.   The Commission notes that the absence of reasons in court decisions might under specific circumstances raise an issue as to the fairness of the respective proceedings.   However, account must be taken of the special features of the proceedings at issue.   If the relevant domestic law authorises an appeal court to reject an appeal on the ground that it raises no legal issue of fundamental importance and offers no prospect of success, it may be sufficient for that court simply to refer to the provision authorising this procedure (cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).   In the instant case, the Federal Court of Justice, in referring to S. 554 (b) para. 1 of the Code of Civil Procedure and to the Federal Constitutional Court's decision, sufficiently indicated the reasons of its decision.   The applicant, who was represented by a lawyer, was thereby given to understand that, in the Federal Court's view the applicant's appeal on points of law raised no issue of fundamental importance and offered no prospect of success.   The Commission concludes that there is no appearance of a violation of the right to a fair hearing guaranteed by Article 6 para. 1 (Art. 6-1).   It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Deputy Secretary to the Commission         President of the Commission   (J. RAYMOND)                               (C.A. NØRGAARD)