Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26564/95

by Hrvoje GRBAVAC

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. S. TRECHSEL

J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, 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 9 December 1994

by Hrvoje Grbavac against Switzerland and registered on 21 February

1995 under file No. 26564/95;

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

27 February 1997 and the observations in reply submitted by the

applicant on 25 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1948, is a pensioner

residing in Basel. Before the Commission he is represented by Mr M.F.

Suter, a lawyer practising in Bern.

The facts of the case, as submitted by the parties, may be

summarised as follows.

In 1981 the applicant, who was employed in the chemical industry,

suffered a cyanurfluorid-poisoning after a production plant had been

repaired. The Swiss Accident Insurance Foundation (SUVA), a public

body, paid for the ensuing medical treatment.

In 1984 new health problems arose, whereupon the SUVA ordered the

preparation of various medical tests. As a result, it refused to pay

the applicant an invalidity pension, though it paid him transitional

monies until 1989.

In 1989 the applicant suffered a car accident. In the same year

he filed a request for an invalidity pension. Following a new medical

examination, the SUVA refused the request on 12 September 1990.

Against the refusal the applicant on 3 October 1990 filed an

appeal which was dismissed by the SUVA on 8 January 1991.

On 5 April 1991 the applicant filed an appeal against the

decision of 8 January 1991 with the Insurance Court (Versicherungs-

gericht) of the Canton of Basel-Stadt.

On 24 May 1991 the parties agreed to adjourn the proceedings in

order to obtain a medical expert opinion by Professor K. On 27 May

1991 the proceedings were adjourned. Professor K. submitted his expert

opinion on 9 January 1992.

On 6 April 1992, the proceedings were resumed whereby the SUVA

was granted a time-limit of six weeks to file further observations.

The latter were submitted on 29 May 1992.

The applicant was granted a time-limit until 15 August 1992 to

reply thereto. His observations were filed on 31 July 1992.

On 13 August 1992 the written proceedings were closed, and the

parties invited to a hearing which took place on 21 October 1992.

On 23 November 1992 the Insurance Court upheld the applicant's

appeal. The Court, which relied on the expert medical opinion, found

in particular that the applicant was entitled to an invalidity pension

as from 1 October 1989, and it referred the case back to the SUVA for

renewed decision.

On 7 January 1993 the SUVA filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) with the Federal Insurance Court

(Eidgenössisches Versicherungsgericht), requesting the Court to quash

the decision of the Insurance Court of 23 November 1992. The applicant

filed observations on the SUVA's appeal on 4 February 1993, requesting

its dismissal by the Federal Insurance Court.

In the proceedings before the Federal Insurance Court, S. 14

para. 2 of the Court's Rules of Procedure envisages the possibility of

the parties requesting an oral hearing.

By judgment of 11 July 1994 the Federal Insurance Court upheld

the SUVA's administrative law appeal and quashed the judgment of the

Insurance Court of 23 November 1992. The decision, numbering 13 pages,

was served on the applicant on 21 July 1994.

In its decision the Federal Insurance Court considered, inter

alia, that it was confronted with the novel issue of a cumulation of

a transitional allowance (Übergangsentschädigung) and an invalidity

pension. This issue had also been raised in a parallel appeal which

it had recently decided. The Court then examined in detail the legal

and factual issues of the applicant's case.

On 12 September 1994 the applicant filed a request for the

reopening of the proceedings which the Federal Insurance Court

dismissed on 30 November 1994.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

"my case was not dealt with within a reasonable time (mein Fall wurde

nicht in angemessener Frist erledigt)".

The applicant further complains under Article 6 para. 1 of the

Convention that the Federal Insurance Court did not conduct an oral

hearing and that it was not impartial. The applicant raises various

further complaints under Articles 2, 5, 8, and 14 of the Convention,

and under various other human rights instruments.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 December 1994 and registered

on 21 February 1995. When introducing the application, the applicant

was not represented by a lawyer.

On 27 November 1996 the Commission decided to communicate the

applicant's complaint under Article 6 para. 1 of the Convention

concerning the length of the proceedings to the respondent Government.

As from 14 February 1997 the applicant was represented by his

lawyer.

The Government's written observations were submitted on

27 February 1997. The applicant's observations in reply were filed on

25 April 1997.

On 15 April 1997 the Commission decided not to grant legal aid

to the applicant.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention of the undue length of the proceedings.

a) The Government submit that the applicant who has invoked

Article 8 (Art. 8) of the Convention, has not sufficiently

substantiated this complaint. The applicant replies that, when filing

the application, he did not have the benefit of legal representation.

He requests the Commission to examine ex officio whether there has been

a complaint under Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission observes that in his application the applicant

indubitably complained of the length of the proceedings in which he was

involved by stating that his case had not been dealt with within a

reasonable time.

While the applicant, who was at that time not represented by a

lawyer, invoked in respect of this complaint Article 8 (Art. 8) of the

Convention, the Commission considers that the complaint falls to be

examined under Article 6 para. 1 (Art. 6-1) of the Convention which

states, insofar as relevant:

"In the determination of his civil rights and obligations ... ,

everyone is entitled to a ... hearing within a reasonable time

by an independent and impartial tribunal ..."

b) The Government contend that the applicant has not complied with

the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies. Thus, he failed to raise the

complaint at issue in the proceedings before the SUVA, and before the

Insurance Court of the Canton of Basel-Stadt. On the other hand, the

applicant had no means at his disposal to complain of the length of the

proceedings before the Federal Insurance Court.

The applicant submits that he filed no complaint about the

proceedings before the SUVA and the Insurance Court of the Canton of

Basel-Stadt as the latter upheld his appeal, granting him a pension.

The subsequent administrative appeal which led to the proceedings

before the Federal Insurance Court was filed not by him, but by the

SUVA.

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, on the one hand, that

the applicant saw no need for filing a complaint against the decision

of the Insurance Court of the Canton of Basel-Stadt of 23 November

1992. Thus, the Insurance Court upheld his appeal, granting him a

pension.

On the other hand, the SUVA then filed an administrative law

appeal before the Federal Insurance Court. It is not in dispute

between the parties that there was no remedy available to complain

about the length of the proceedings before this Court.

The applicant's complaint cannot, therefore, be declared

inadmissible for non-exhaustion of domestic remedies.

c) The Government contend that the complaint is in any event

manifestly ill-founded as the proceedings did not last too long. It

is submitted that the period to be examined under Article 6 para. 1

(Art. 6-1) of the Convention commenced on 3 October 1990, the date when

the applicant filed his appeal against the decision of the SUVA, and

ended on 11 July 1994 when the Federal Insurance Court gave its

decision.

The Government further submit that the cantonal proceedings

lasted altogether 25 months, 19 months before the Insurance Court of

the Canton of Basel-Stadt. However, a period of more than ten months

(24 May 1991 until 6 April 1992) concerned the adjournment of the

proceedings, to which the applicant agreed. It cannot be said that in

the remaining time the Court was inactive.

As regards the proceedings before the Federal Insurance Court,

the Government point out that the Court was confronted with the novel

issue of a cumulation of a transitional allowance and an invalidity

pension. This issue had also been raised in a parallel appeal which,

as it was already pending before the Court, had to be decided first.

Moreover, as the Court was free in the examination of the facts and the

law, it had to undertake a thorough examination of the facts since the

applicant's accident in 1981.

The Government further submit that the applicant's case raised

complex and highly technical issues. The applicant did nothing to

hasten the proceedings. Moreover, in view of his fortune, amounting

to approximately 300,000 Swiss Francs, it could not be said that he had

a particular interest in the conclusion of the proceedings.

The applicant submits that the outcome of the proceedings was of

considerable importance for him as he has had three accidents in 1989,

1991 and 1995 and can no longer work. In view of his great pains, he

depends on strong medication and therapy. The monies mentioned by the

Government are in fact partial compensation payments (Akontozahlungen)

by the insurance companies for his invalidity.

The applicant claims that the technical character of the case did

not justify the length of the proceedings. In fact, it was a standard

case, and insurance courts are by their nature called upon to examine

such cases. The applicant cannot be blamed for prolonging the

proceedings, though he did agree to the adjournment of the case before

the Insurance Court of the Canton of Basel-Stadt. On the other hand,

he could not hasten the proceedings before the Federal Insurance Court,

though he did phone three times to inquire about the state of the

proceedings. The Federal Court itself, rather than ordering further

investigations, was able to decide on the basis of the case-file.

The Commission has first considered the period to be examined

under Article 6 para. 1 (Art. 6-1) of the Convention. It recalls the

judgment in the König case according to which that applicant "could not

seise the competent court before having the lawfulness and the

expediency of the impugned administrative acts examined in preliminary

proceedings ... before the administrative authority ... Consequently

... the reasonable time stipulated by Article 6 para. 1 (Art. 6-1)

starts to run on the day on which (the applicant) lodged an objection

against the withdrawals of his authorisations" (Eur. Court HR, König

v. Germany judgment of 28 June 1978, Series A no. 27, p. 33, para. 98).

In the present case, after the SUVA refused the applicant's

request for an invalidity pension, the applicant filed an appeal

against this decision on 3 October 1990. The Commission finds that on

this date the period to be examined under Article 6 para. 1 (Art. 6-1)

of the Convention commenced.

The proceedings ended on 21 July 1994 when the decision of the

Federal Insurance Court of 11 July 1994 was served on the applicant.

The relevant period therefore lasted three years, nine months and

18 days.

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

1996-VI, No. 25, paras. 55 and 75 et seq.).

The Commission considers at the outset that the proceedings,

concerning the conditions for granting an invalidity pension, and the

cumulation with a transitional allowance, could be regarded as having

some complexity.

The Commission furthermore finds no indication that the applicant

contributed to the length of the proceedings. On the other hand, it

notes that the applicant agreed to an adjournment of the proceedings

before the Insurance Court of the Canton of Basel-Stadt lasting from

27 May 1991 to 9 January 1992, i.e. a period of approximately seven and

a half months.

As regards the conduct of the authorities, the Commission

considers that the Insurance Court of the Canton of Basel-Stadt on the

whole diligently pursued the proceedings, insofar as they had not been

adjourned with the applicant's agreement.

It is true that thereafter, more than 18 months lapsed after the

SUVA had filed its administrative law appeal on 7 January 1993, until

the Federal Insurance Court gave its judgment on 11 July 1994.

However, the Commission notes that the Federal Insurance Court was

confronted with a novel question raising legal and factual issues.

Finally, in view of the applicant's financial circumstances

referred to by the parties, it cannot be said that in these proceedings

the applicant's livelihood was at stake within the meaning of the

Convention organs' case-law (see Duclos v. France judgment, op. cit.).

Making an overall assessment of the proceedings, the Commission

finds that there is no indication of any periods of delay attributable

to the authorities which would exceed the requirement of a "reasonable

time" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

This part of the application is, therefore, manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that he did not have an oral hearing

before the Federal Insurance Court.

The Commission notes that already the Insurance Court of the

Canton of Basel-Stadt conducted a hearing in the applicant's case on

21 October 1992.

Insofar as the applicant requests, in addition, a hearing before

the Federal Insurance Court, the Commission recalls that Article 6

para. 1 (Art. 6-1) of the Convention does not prevent a person from

waiving of his own free will, either expressly or tacitly, the

entitlement to have his case heard in public (see Eur. Court HR,

Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no.

263, p. 19, para. 58).

In the present case, S. 14 para. 2 of the Federal Insurance

Court's Rules of Procedure expressly envisages the possibility of the

parties requesting an oral hearing in the proceedings before that

court. However, the applicant has not shown that he raised such a

request. He must therefore be considered as having waived his right

to a public hearing. This part of the application is therefore also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that the Federal Insurance Court was not impartial.

He raises various further complaints under Articles 2, 5, 8, and 14

(Art. 2, 5, 8, 14) of the Convention, and under various other human

rights instruments.

The Commission has examined the remainder of the applicant's

complaints as they have been submitted by him. However, after

considering the case as a whole, the Commission finds that they do not

disclose any appearance of a violation of the rights and freedoms set

out in the Convention.

It follows that the remainder of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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GRBAVAC v. SWITZERLAND

GRBAVAC v. SWITZERLAND

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