CEDH · CASELAW;REPORTS;ENG — 16 octobre 1996

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 20335/92                    Ute, Anke and Carsten Ellies                               against                               Germany                      REPORT OF THE COMMISSION                    (adopted on 16 October 1996)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-27) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 28-45) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 28). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 29). . . . . . . . . . . . . . . . . . . . .5        C.    Article 6 of the Convention           (paras. 30-44). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 45). . . . . . . . . . . . . . . . . . . . .7   APPENDIX:       DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8   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 applicants are German citizens living in Mainz. Mrs. Ellies was born in 1937 and has two children, Anke born in 1963 and Carsten in 1965.         They are represented by Mr. R. Battenstein, a lawyer practising in Düsseldorf.   3.    The application is directed against the Federal Republic of Germany.   The respondent Government are represented by their Agent, Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   4.    The case concerns the length of civil proceedings.   The applicants invoke Article 6 of the Convention.   B.    The proceedings   5.    The application was introduced on 6 August 1981 and registered on 21 July 1992.   6.    On 7 September 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicants' complaint about the length of the domestic proceedings. The remainder of the application was declared inadmissible.   7.    The Government's observations were submitted on 20 December 1993, after an extension of the time-limit fixed for that purpose.   The applicants replied on 14 March 1994.   8.    On 6 September 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 13 September 1995 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted further observations on 31 October 1995 and 17 May 1996, the respondent Government on 24 April 1994.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                B. MARXER                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                M. VILA AMIGÓ   12.   The text of this Report was adopted on 16 October 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 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.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   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   16.   The first applicant's husband, father of the two other applicants, died in 1980 as a consequence of cancer.   17.   On 8 July 1980 the applicants requested insurance cover from the competent Employers Liability Insurance (Berufsgenossenschaft) claiming that Mr. Ellies had been the victim of a professional disease as during his professional career he had been exposed to asbestos dust and thereby had developed lung cancer.   18.   On 12 May 1981 the insurance refused to grant insurance cover denying that the cancer was a professional disease.   This decision was based on a pathological report according to which there was no evidence of asbestosis in the lungs of the deceased.   The decision contained an instruction as to the further remedies (Rechtsmittelbelehrung), pursuant to the relevant provisions of the Social Court Act (Sozialgerichtsgesetz), in force at that time.   According to the instruction, there was a choice between lodging, within a period of one month, objections (Widerspruch) with the Complaints Board (Widerspruchsstelle) of the insurance body concerned, and, in case of a negative outcome, filing an action with the social court, or, in the alternative, filing an action with the social court alone.   19.   The applicants' objections of June 1981 were rejected by the competent Employers Liability Insurance on 20 October 1983, on the basis of a supplementary expert opinion.   The objection proceedings had repeatedly been stayed at the request of the applicants' counsel, who had submitted supplementary grounds of objection on 3 March 1983.   20.   On 14 November 1983 the applicants lodged an action before the Mainz Social Court (Sozialgericht).   21.   On 22 May 1985, after an exchange of written observations by the parties and having obtained information from the defendant about similar proceedings as well as information from the deceased's family physician, the Social Court ordered that an expert opinion be prepared. The expert opinion was submitted on 12 August 1985 and amended on 4 August 1986. The defendant also submitted an expert opinion. Subsequently the Social Court made a request for the submission for information of files relating to a similar matter and for information from the Ministry of Labour and Social Affairs.   22.   On 14 April 1987 the Mainz Social Court dismissed the action. The Court considered that Mr. Ellies' cancer was not a professional disease within the meaning of the relevant provisions of the Reich Insurance Code (Reichsversicherungsordnung) as lung cancer was recognised as a professional disease only if there existed at the same time an asbestosis, and, further, as it had not been established in medical science that people exposed to asbestos ran an increased risk of cancer, even if asbestosis was not present at the same time.   23.   On 18 May 1987 the applicants lodged an appeal with the Rhineland Palatinate Social Court of Appeal (Landessozialgericht).   24.   On 3 April 1989 the Social Court of Appeal, after a preparatory deliberation, informed the applicants that there existed doubts as to the admissibility of part of their appeal, and also that it did not intend to obtain, ex officio, further expert evidence. On 25 April 1989, upon the applicants' insistence that further expert evidence be taken, the Court requested the expert who had been heard at first instance to provide additional explanations.   It also requested the Ministry for Labour and Social Affairs to state whether there existed new scientific findings to the effect that in the case at issue the fatal disease of the insured person could be recognised as having been caused in connection with his professional activity. The Ministry replied on 16 June 1989 that so far there existed no research results justifying the finding of a causal link but the question was still under consideration.   Moreover, on 21 November 1989 the Court requested another expert to prepare an opinion which was submitted on 20 February 1990.   Finally, on 5 July 1990 the Court appointed a member of the Institute for Labour Medicine at the University of Bochum to establish a further expert opinion (Obergutachten).   This opinion was submitted on 10 September 1990.   The applicants' motion to challenge the expert in question was to no avail.   25.   On 23 January 1991 the Rhineland Palatinate Social Court of Appeal partly rejected the applicants' appeal as being inadmissible and partly dismissed it as being unfounded.   The Court of Appeal confirmed the findings of the first instance court that there was no sufficient proof that Mr. Ellies' death had been caused by a professional disease.   26.   On 19 August 1991 the Federal Social Court (Bundessozialgericht) rejected the applicant's request for leave to appeal on points of law (Beschwerde über die Nichtzulassung der Revision).   27.   On 25 November 1991 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   28.   The Commission has declared admissible the applicants' complaint that their action for insurance cover has not been determined within a reasonable time.   B.    Point at issue   29.   The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     C.    Article 6 (Art. 6) of the Convention   30.   The applicants submit that the proceedings before the German courts have exceeded a reasonable time.   They invoke Article 6 para. 1 (Art. 6-1) of the Convention which includes the following provision:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a ... hearing within a reasonable time      by (a) ... tribunal ..."   31.   The Commission considers that the proceedings regarding the applicant's entitlement to insurance cover after Mr. Ellies' death concerned the "determination of civil rights and obligations". Article 6 para. 1 (Art. 6-1) is accordingly applicable.   32.   As regards the period to be taken into account the applicants, in their application, pointed out that they had brought their social court action in 1983.   The Government submit that the court proceedings lasted from 14 November 1983, when the Social Court received the applicants' action, until 19 August 1991, when the Federal Social Court decided on the applicants' request for leave to appeal on points of law.   33.   The Government further raise the question whether or not the proceedings before the Employers Liability Insurance between June 1981 and October 1983 is required to be taken into account when determining the relevant period.   In this respect, they state that, according to the legal provisions in force at the relevant time, preliminary proceedings were obligatory in case of discretionary decisions and they were not obligatory regarding decisions prescribed by statute. The decision challenged by the applicants had been based on a legal provision leaving no discretion to the Employers Liability Insurance. However, in their submissions of March 1983, the applicants had also complained about the alleged failure to consider a further legal provision granting discretion.   34.   The Commission recalls that in civil proceedings the reasonable time normally begins to run from the moment the action was instituted before the tribunal. It is conceivable, however, that in certain circumstances the time may begin to run earlier (cf. Eur. Court HR., Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 15, para. 32; König v. Germany judgment of 28 June 1978, Series A no. 27, p. 33, para. 98; Erkner and Hofauer v. Austria judgment of 23 April 1983, Series A no. 117, p. 61, para. 64).   35.   In the present case, the applicants filed their action with the Mainz Social Court on 14 November 1983, following the decision of the competent Employers Liability Insurance of 20 October 1983, rejecting their objections against the refusal of insurance cover under the Reich Insurance Code.   The applicants had raised these objections on 4 June 1981, in accordance with the relevant provisions of the Social Court Act and the instruction contained in the decision of 12 May 1981. The dispute to be determined thus arose on 4 June 1981, which accordingly marks the beginning of the period to be taken into consideration.   36.   As to the end of the period, the Commission observes that the social court proceedings terminated on 19 August 1991 when the Federal Social Court rejected the applicants' request for leave to appeal on points of law. The overall proceedings terminated with the Federal Constitutional Court's decision of 25 November 1991.   37.   Consequently, the length of time to be considered amounted to almost ten and a half years.   38.   The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the case-law of the Convention organs, i.e. the complexity of the case, the conduct of the parties and that of the authorities dealing with the case, and in the light of the circumstances of the case, which in this instance call for an overall assessment (cf. Eur. Court HR., Vernillo v. France judgment of   February 1991, Series A no. 198, p. 18, para. 30; Hentrich v. France judgment of 22 September 1994, Series A no. 296, p. 23, para. 58).   39.   In the Government's submission, most of the time, the competent insurance body dealing with the applicants' objections and the courts actively furthered the progress of the proceedings; their long duration was a result primarily of the difficult nature and the complexity of the medical problem lying at the heart of the case.   40.   The applicants dispute the Government's views.   41.   The Commission considers that the insurance cover in dispute related to a medical issue, namely whether Mr. Ellies had died as a consequence of a professional disease within the meaning of the relevant provisions of the Reich Insurance Code, which was not settled from the medical scientific point of view and necessitated the taking of medical expert evidence.   42.   The Commission finds that the applicants must be held responsible for the length of the proceedings before the Employers Liability Insurance regarding their objections against the refusal of insurance cover, as these proceedings had been repeatedly stayed upon their request.   As regards the ensuing course of the proceedings, the parties' conduct does not appear to have caused any considerable delay. In particular the Government have not shown the extent to which the applicants, in the circumstances of their case, had effective judicial means to ensure the due progress of the court proceedings.   43.   Turning to the conduct of the German courts, the Commission notes that the proceedings before the Mainz Social Court lasted three years and five months.   This time was mainly taken by the taking of medical expert evidence and the exchange of submissions by the parties.   There is no period of inactivity or any other element of significant delay at the first instance stage.   As regards the course of the appeal proceedings before the Rhineland Palatinate Social Court of Appeal, which lasted three years and eight months, the Commission, taking into account the length of the proceedings so far and the financial importance of their outcome for the applicants' living, finds that the Social Court of Appeal was under a special duty to act expeditiously. Moreover, the Commission notes an important period of inactivity between the institution of the proceedings in May 1987 and April 1989. The Government have not furnished any explanation of this delay. Moreover, following this delay, it took the Social Court of Appeal more than twenty months to conclude the appeal proceedings.   No particular delays occurred in the proceedings before the Federal Social Court and the Federal Constitutional Court, which reached their decisions in less than seven months and three months, respectively.   44.   In sum, the Commission, having regard to what was at stake for the applicants, cannot regard the lapse of time in the instant case as having been "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1).        CONCLUSION   45.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     M.F. BUQUICCHIO                             J. LIDDY      Secretary                                President to the First Chamber                     of the First Chamber