EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27353/95

E. K.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

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. 16-31) ......................................... 3

III.        OPINION OF THE COMMISSION

             (paras. 32-53) ......................................... 5

             A.    Complaint declared admissible

                    (para. 32) ......................................... 5

             B.    Point at issue

                    (para. 33) ......................................... 5

             C.    Alleged violation of Article 6 para. 1 of the Convention

                    (paras. 34-52) ...................................... 5

                    CONCLUSION

                    (para. 53) ......................................... 7

SEPARATE OPINION OF MR TRECHSEL ......................... 8

APPENDIX:  DECISION OF THE COMMISSION AS TO THE

                      ADMISSIBILITY OF THE APPLICATION ................. 9

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, 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.

3. The application is directed against Switzerland.  The respondent Government are represented by Mr Ph . Boillat , Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.

4. The case concerns the applicant's complaint about the length of social security proceedings.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 13 April 1995 and registered on 17 May 1995.

6. On 26 February 1997 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 applicant's complaint under Article 6 para. 1 of the Convention concerning the length of proceedings.

7. The Government's observations were submitted on 2 May 1997.  The applicant replied on 23 June 1997.

8. On 16 April 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 30 April 1998 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 9 June 1998.

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:

MM M.P. PELLONPÄÄ, President

S. TRECHSEL

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 21 October 1998 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. From 1979-1984 the applicant resided in Switzerland, working as a lorry driver and paying contributions to the Swiss social security insurance.

17. In 1983 the applicant suffered an injury.  On 7 November 1985 he requested pension benefits from the Swiss Invalidity Insurance ( Invalidenversicherung ).  As a result, the Invalidity Insurance Commission ( Invalidenversicherungs-Kommission ) was called upon to examine the case and the Swiss Compensation Office ( Schweizerische Ausgleichskasse ) to decide it.

18. Based on ten medical reports issued between 1983 and 1987, the Swiss Compensation Office dismissed the applicant's request on 23 December 1987, as he was only partly hindered in exercising his profession as a lorry driver.

19. 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, considered that the previous decision was contradictory in respect of the applicant's ability to work; it upheld the applicant's appeal and referred the case back to the Compensation Office for renewed examination.

20. Proceedings were resumed before the Swiss Compensation Office which obtained various medical opinions and other information.

21. In 1989, various reports were filed by Austrian experts.  Thus, on 20 January 1989 Dr. R., an internist, submitted a medical report of four pages.  On 14 February 1989 Dr. W. replied to a medical questionnaire.  The orthopaedist Dr. P. presented a report of three pages on 23 February 1989.  A neurologist, Professor O., submitted a report of five pages on 26 May 1989.  A second report of one page was prepared by Dr. R. on 31 August 1989.  The psychologist Dr. T. filed a report of three pages on 5 September 1989.  A second report of one page was filed by Dr. W. on 19 September 1989.  Dr. P. submitted a second report of one and a half pages on 16 October 1989.  The radiologist Dr. G. transmitted his report of 2 pages on 31 October 1989. Finally, Dr. W. submitted his third report of half a page on 14 December 1989.

22. On 7 February 1990 the Austrian orthopaedist Dr. L.-K. submitted a report of four pages.

23. Based on these various reports, Dr. M.-L., a Swiss specialist in labour medicine, submitted a report of two pages on 27 April 1990 in which he concluded that the applicant would not be hindered in exercising his former profession as a lorry driver.  Dr. S., a doctor employed by the Swiss Compensation Office submitted a report of half a page on 16 June 1990.  Therein he agreed with Dr. M.-L.'s conclusions, while determining the applicant's ability to work as a lorry driver at 80 %, and at 100 % for other professions.

24. The Invalidity Insurance Commission considered in its proposal of 19 July 1990 that the applicant had not sufficiently demonstrated his invalidity.  The applicant was given the opportunity to reply thereto.

25. Dr. S., who had meanwhile filed two further reports, each of half a page, on 29 May and 16 June 1990, requested in a report of 4 November 1990, consisting of a few lines, a further examination of the applicant which took place in Zürich on 23 May 1991.  The Swiss orthopaedist Dr. Sta. then filed a report of ten pages on 28 November 1991 in which he concluded that the applicant was unable to work as a lorry driver, though he could be expected to work up to 50 % in certain other professions.  Meanwhile, the Austrian orthopaedist Dr. L.-K. submitted a second report of four pages on 27 June 1991.

26. In 1992 Dr. S., employed by the Compensation Office, submitted three further reports.  In his report of 25 January 1992, consisting of half a page, he disagreed with the conclusion that the applicant could not be expected to work at all.  A report of 11 June 1992, consisting of four lines, complemented a previous report.  Finally, in his report of 9 July 1992, consisting of half a page, he replied to a further question put to him by the Invalidity Insurance Commission.

27. Further information was submitted by the Austrian pension authorities on 29 April and 4 September 1992, in particular that the applicant had not paid certain social security contributions in Austria in 1984 and 1985.

28. On 30 October 1992 the applicant was issued a preliminary decision ( Vorbescheid ) according to which he had not been insured when the injury had occurred for which reason one formal condition for granting an invalidity pension had not been met.  The applicant was granted a time-limit of 30 days to reply.  Following the applicant's request for a prolongation of one month, his submissions in reply were filed on 4 January 1993.

29. 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.

30. The applicant's appeal was dismissed by the Federal Appeals Commission for Old Age, Survivors' and Invalidity Insurance on 21 February 1994.

31. On 5 April 1994 the applicant filed an administrative law appeal which was dismissed on 18 November 1994 by the Federal Insurance Court, the decision being served on 25 November 1994.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

33. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 of the Convention.

C. Alleged violation of Article 6 para. 1 of the Convention

34. The applicant complains that the social security proceedings which he had instituted were not concluded within a reasonable time.  He relies on Article 6 para. 1 of the Convention which includes the following provision:

"In the determination of his civil rights and obligations ...,  everyone is entitled to a fair ... hearing within a reasonable time by (a) ... tribunal ..."

35. The Government submit that the proceedings did not attain an unreasonable length.

36. The Commission considers, and it is not in dispute between the parties, that Article 6 is applicable to the proceedings (see Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993,  Series A no. 263, p. 17, paras. 44 et seq.).

a. Period to be considered

37. The period to be examined under Article 6 para. 1 of the Convention commenced on 28 January 1988 (see above, para. 19), i.e. the date when the applicant contested the administrative decision refusing him a pension (see Eur. Court HR, König v. Germany judgment of 28 June 1978, Series A no. 27, p. 33, para. 98).

38. The period ended on 25 November 1994 when the final decision of the Federal Insurance Court of 18 November 1994 was served on the applicant (see above, para. 31).

39. The period to be considered under Article 6 para. 1 of the Convention therefore lasted approximately 6 years and ten months.

40. Within this period the applicant complains mainly of the proceedings before the Swiss Compensation Office which, after its decision was quashed by the Federal Appeals Commission on 25 October 1988, gave its further decision on 7 April 1993, i.e. after four years, five months and 13 days.

b. Reasonableness of the length of the period to be considered

41. The applicant submits 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 was arbitrary and breached the principles of equality of arms and of good faith.  He fails 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.

42. The Government contend that the procedures before the Federal Appeals Commission were conducted in 1988 within nine months, and in 1993/94 within nine and a half months; the Federal Insurance Court required less than eight months to give its decision.

43. The Government point out that the case was unusually complex, particularly as investigations had to be carried out in Austria.  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.  Already in the first set of proceedings before the Compensation Office, it was  confronted with ten medical opinions.  Contrary to the applicant's submissions, the Office was called upon first to examine the conditions of invalidity, and only later whether the conditions of insurance had been met.

44. The Government submit that the applicant himself did not appear preoccupied by the length of the proceedings.  Indeed, in a letter dated 11 December 1989 he requested the authorities to order the most thorough examination by another medical expert.  It is further pointed out that during five years after his accident he obtained a salary, and that he has meanwhile obtained a pension from the Austrian authorities.

45. The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard in particular to the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant (see Eur. Court HR, Duclos v. France judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2180 et seq., para. 55, and p. 2185 et seq., para. 75).

46. The Commission considers at the outset that the proceedings, concerning the conditions for granting an invalidity pension, required various medical opinions and other information which, in part, had to be obtained in Austria.  It has nevertheless not been demonstrated that the proceedings were exceedingly complex.

47. The Commission finds, next, that the applicant contributed only to a minor extent to the length of the proceedings when he requested a prolongation of the time-limit of one month before filing his observations on 4 January 1993 (see above, para. 28).

48. As regards the conduct of the proceedings, the Commission considers that the main issue of the case relates to the proceedings before the Federal Compensation Office, lasting approximately four and a half years (see above, para. 39).

49. The Commission notes that during this time a host of medical reports and other information was filed.  It considers, nevertheless, that the prolonged period before the Compensation Office cannot be justified solely by the high number of reports, as these often consisted of only a few pages or, indeed, only a few lines, and as a number of specialists prepared multiple reports.

50. The Commission has had particular regard to the period from May 1990 after Dr. M.-L.'s report, until 7 April 1993 when the Compensation Office gave its decision,  i.e. a period of approximately three years.  During this time, apart from two reports filed by Drs. Sta. and L.-K., and seven reports filed by Dr. S. (see above, paras. 25 and 26), the Invalidity Insurance Commission filed a proposal on 19 July 1990 (see above, para. 24), and a preliminary decision was given on 30 October 1992 (see above, para. 28).  The applicant filed submissions on both.  Moreover, the Austrian authorities submitted further information, namely that the applicant had not paid social security contributions in 1984 and 1985 (see above, para. 27).

51. However, in the Commission's opinion, a more active role by the Compensation office during this period would have been called for, particularly as by May 1990, a period of approximately 18 months had already elapsed after the Federal Appeals Commission, on 25 October 1988, referred the case back to the Compensation Office for renewed decision.  Moreover, the Compensation Office was in fact confronted with the same case a second time, as it had already considered the case in previous proceedings, involving ten different medical reports (see above, para. 18).

52. As a result, having regard to the authorities' conduct, in particular the proceedings before the Compensation Office, the Commission finds that the length of the proceedings exceeded the requirement of a "reasonable time" referred to in Article 6 para. 1 of the Convention.

CONCLUSION

53. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

       M.F. BUQUICCHIO   M.P. PELLONPÄÄ

          Secretary      President

    to the First Chamber of the First Chamber

(Or. English)

SEPARATE OPINION OF MR TRECHSEL

I have voted together with my colleagues for the finding of a violation of  Article 6, basing myself on the fact that the application has been declared admissible.  However, I would like to express my dissent with the decision on admissibility itself.

In my view, the applicant has not seriously raised the issue regarding the length of the proceedings.  The way I read his appeal, the relevant part of which is reproduced in the decision on admissibility attached to this Report, the time passed is only referred to in the context of the complaint about the alleged arbitrary character of the decision on the merits.  What he states is this: "The authorities ought to have found out earlier that I am not insured: the fact that they took so long to find out, makes the decision worse."  I do not regard this as a valid complaint of the length of the proceedings which would have allowed the Federal Insurance Court to examine this procedural aspect.