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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:

"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."

"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

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E.K. v. SWITZERLAND

E.K. v. SWITZERLAND

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