CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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 }                         AS TO THE ADMISSIBILITY OF                         Application No. 27353/95                       by E. K.                       against Switzerland        The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM    M.P. PELLONPÄÄ, President                 S. TRECHSEL                 N. BRATZA                 A. WEITZEL                 C.L. ROZAKIS            Mrs   J. LIDDY            MM    L. LOUCAIDES                 B. MARXER                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 13 April 1995 by E. K. against Switzerland and registered on 17 May 1995 under file No. 27353/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 2 May      1997 and the observations in reply submitted by the applicant on      23 June 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, an Austrian citizen born in 1946, is a pensioner residing in Grasnitzberg in Austria.   Before the Commission he is represented by Mr B. Gachnang, a lawyer practising in Lucerne in Switzerland.        The facts of the case, as submitted by the parties, may be summarised as follows.        From 1979-1984 the applicant resided in Switzerland, working as a driver and paying contributions to the Swiss social security insurance.        In 1983 the applicant suffered an injury.   On 7 November 1985 he requested pension benefits from the Swiss Invalidity Insurance (Invalidenversicherung).   On 23 December 1987 the Swiss Compensation Office (Schweizerische Ausgleichskasse) dismissed the request as the applicant was only partly hindered in exercising his profession as a driver.        On 28 January 1988 the applicant filed an appeal against this decision with the Federal Appeals Commission for Old Age, Survivors' and Invalidity Insurance (Eidgenössische Rekurskommission für die Alters-, Hinterlassenen- und Invalidenversicherung).   The latter, on 25 October 1988, upheld the applicant's appeal and referred the case back to the Compensation Office for renewed examination.        Proceedings were resumed before the Swiss Compensation Office which obtained from the Austrian insurance institutions various medical opinions and other information.   A Swiss medical expert drew further conclusions in his opinion of 16 June 1990.   Upon the applicant's observations in reply, medical examinations were undertaken in 1991 in Zurich.   Further information was obtained from the Austrian institutions whereupon the Swiss medical expert filed further reports in 1992.   In 1992 the Austrian institutions informed the Compensation Office that the applicant had not paid certain social security contributions in Austria in 1984 and 1985.   The applicant then filed further observations.        On 7 April 1993 the Swiss Compensation Office dismissed the applicant's request for pension benefits as he had not been insured at the time concerned.        The applicant's appeal was dismissed by the Federal Appeals Commission for Old Age, Survivors' and Invalidity Insurance on 21 February 1994.        On 5 April 1994 the applicant filed an administrative law appeal in which he stated, inter alia:   <Translation>        "It is surprising that the authorities required nearly ten years to      determine that (the applicant) had lacked the quality of an insured      person on 7 April 1984.   At least the Federal Appeals Commission      determined in para. 4 of its decision that there was an invalidity.      Now we are faced with the situation that an invalid person has been      held off for nearly ten years and has been called to submit to      examinations, although he is apparently not even insured.   The decision      of 23 December 1987 refused to grant a pension on the grounds that      there was no invalidity, without even dealing with the allegedly      missing insurance quality.   The conduct of the authorities, and in      particular the result of this conduct, breaches good faith and must be      described as arbitrary."     <Original>        "Es ist erstaunlich, dass die Behörden beinahe zehn Jahre gebraucht      haben, um herauszufinden, dass es (dem Beschwerdeführer) an der      Versicherteneigenschaft mangelte.   Nachdem die Rekurskommission unter      Ziff. 4 ihres Urteils immerhin feststellt, dass eine Invalidität      vorliegt, stehen wir also vor der Tatsache, dass ein Invalider während      annähernd zehn Jahren hingehalten und zu Untersuchungen aufgeboten      wird, obwohl er angeblich gar nicht versichert ist.   Nachdem mit      Verfügung vom 23. Dezember 1987 die Ausrichtung einer Rente mit der      Begründung verweigert wurde, es liege keine Invalidität vor, ohne dass      auf die angeblich fehlende Versicherteneigenschaft eingegangen worden      war, verstösst das Verhalten der Behörden und insbesondere das Resultat      dieses Verhaltens gegen Treu und Glauben und muss als willkürlich      bezeichnet werden."        On 18 November 1994 the Federal Insurance Court dismissed the applicant's administrative law appeal, the decision being served on 25 November 1994.     COMPLAINTS        Under Article 6 para. 1 of the Convention the applicant complains about the length of the proceedings.        The applicant submits that the Swiss authorities should have examined at the outset of the proceedings whether or not he was duly insured.   By only doing so at a later stage, they breached good faith and acted arbitrarily.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 April 1995 and registered on 17 May 1995.        On 26 February 1997 the Commission decided to communicate the applicant's complaint under Article 6 para. 1 of the Convention concerning the length of proceedings to the respondent Government.        The Government's written observations were submitted on 2 May 1997.   The applicant replied on 23 June 1997.     THE LAW   1.    Under Article 6 para. 1 (Art. 6-1) of the Convention the applicant complains about the length of the proceedings.   The applicant submits that the Swiss authorities should have examined at the outset of the proceedings whether or not he was duly insured.   By only doing so at a later stage, they breached good faith and acted arbitrarily.        Article 6 para. 1 (Art. 6-1) of the Convention states, as far as relevant:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair ... hearing within a reasonable      time by (a) ... tribunal ..."   2.    The Government submit that the applicant has not complied with the requirement as to the exhaustion of domestic remedies according to Article 26 (Art. 26) of the Convention.   Thus, the applicant never complained before the domestic authorities about the length of the proceedings.   In respect of the Swiss Compensation Office he would have had the possibility to complain to the higher authority about the undue length of the proceedings.   Moreover, the mere fact that he filed an administrative law appeal before the Federal Insurance Court is insufficient.    He should have complained, with reference to Article 6 (Art. 6) of the Convention or the corresponding S. 4 of the Federal Constitution, of the length of the proceedings.        The applicant replies that in his administrative law appeal of 5 April 1994 he raised the substance of the complaint he is now raising before the Commission.        Under Article 26 (Art. 26) of the Convention "the Commission may only deal with the matter after all domestic remedies have been exhausted according to the generally recognised rules of international law ...".        In the present case, the Commission notes that the applicant, in his administrative law appeal to the Federal Insurance Court, complained of the ten years that the authorities had required to reach their conclusion, and that such conduct breached good faith and was arbitrary.        In the Commission's opinion, the applicant thus sufficiently raised the complaint before the Federal Insurance Court which he is now raising before the Commission.   His complaint cannot, therefore, be declared inadmissible according to Article 27 para. 3 (Art. 27-3) of the Convention for non-exhaustion of domestic remedies.   3.    The Government contend that the application would in any event be inadmissible as being manifestly ill-founded.   It is submitted that the period to be examined commenced on 28 January 1988 when the applicant contested the administrative decision refusing him a pension. The period lasted until 25 November 1994, the date when the decision of the Federal Insurance Court was served on the applicant, i.e. for six years and ten months.   It is nevertheless pointed out that the Federal Insurance Court required less than eight months to give its decision.   Similarly, the procedures before the Federal Appeals Commission were conducted within nine months, in 1988, and within 9 and a half months, in 1993/94.        The Government point out that the case was unusually complex, and that the authorities cannot be blamed for any inactivity.   This applies particularly to the Compensation Office.   It may appear long if this authority required four and a half years to give its decision a second time, however, a speedier decision was not possible.   Contrary to the applicant's submissions, the Swiss Compensation Office was called upon first to examine the conditions of invalidity, and only later whether the conditions of insurance had been met.        The applicant replies that the proceedings at issue affected his livelihood to a considerable extent.   It was of vital importance for him to know whether or not he would obtain an invalidity pension. Moreover, while the authorities examined the more complex question as to whether he was incapacitated or not, they failed to examine at the same time the significantly simpler question as to whether he was insured.   This decision was only given on 7 April 1993.   This manner of proceeding also breached the principle of the equality of arms.   It is also hard to understand why the Swiss Compensation Office was unable to reach its decision more quickly.   It had sufficient medical information at its disposal to reach a conclusion.    Finally, the applicant points out that he conducted himself correctly throughout the entire proceedings.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.   The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2(Art. 27-2)   of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.     M.F. BUQUICCHIO                              M.P. PELLONPÄÄ      Secretary                                    President to the First Chamber                         of the First Chamber