Lexploria

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

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ELLIES v. GERMANY

ELLIES v. GERMANY

LEXI