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AS TO THE ADMISSIBILITY OF

Application No. 22770/93

by Adolf STIFTER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 9 May 1990 by

Adolf STIFTER against Austria and registered on 14 October 1993 under

file No. 22770/93;

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

18 October 1994 and the observations in reply submitted by the

applicant on 12 January 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is an Austrian citizen born in 1938. He lives in

Wolfurt, and is represented before the Commission by Mr. W.L. Weh, a

lawyer practising in Bregenz.

The applicant was involved in a car accident in March 1971. A

request for an invalidity pension (Versehrtenrente) was refused by the

Accident Insurance Office (Allgemeine Unfallversicherungsanstalt) on

18 December 1973, and the applicant's action before the Social

Insurance Arbitration Court (Schiedsgericht der Sozialversicherung) was

dismissed on 23 July 1976.

On 23 September 1983 the applicant made a second application for

an invalidity pension to the Accident Insurance Office because of

further consequences allegedly arising from the accident. The

application was refused by the Office on 25 October 1983 on the ground

that the applicant's ailments were not attributable to the accident.

On 26 January 1984 the applicant brought an action before the

Feldkirch Regional Court (Landesgericht) in its capacity as Labour and

Social Court.

The Regional Court heard the parties and took evidence from two

experts and also considered the court file from the earlier proceedings

before the Social Insurance Arbitration Court. A hearing was held.

The Regional Court dismissed the action on 18 August 1988, finding that

there was no reason to call further evidence as the injuries alleged

by the applicant could not be causally linked to the accident in 1971.

The applicant appealed.

On 18 October 1989 the Innsbruck Court of Appeal

(Oberlandesgericht) rejected the applicant's appeal, in which he had

alleged, inter alia, that the Regional Court had not dealt adequately

with the private experts' reports he had submitted. It noted that the

applicant's own expert report had been sent to the team of doctors who

had examined the applicant over a period of five days from 2 to 7 March

1987, and that the head of the team had confirmed that his team had

considered the matter raised (the question of whether the functioning

of the applicant's brain stem had been examined). The Court of Appeal

commented that this report had been prepared after the applicant had

stayed in hospital for several days, that it was comprehensive and

coherent, and that it could not be the function of an expert report to

keep examining a person until a conclusion was reached which was in the

plaintiff's favour.

The Supreme Court (Oberster Gerichtshof) rejected the applicant's

further appeal (Revision) on 23 January 1990. It noted that

allegations of procedural errors at first instance which had been

refuted by the appeal court could not be raised in a further appeal,

and it also noted that a further appeal could not be used to challenge

the assessment of the evidence by the courts of fact.

COMPLAINTS

The applicant complains of the length and alleged unfairness of

the proceedings. He considers that the period of seven years from his

application for a pension until the decision of the Supreme Court of

23 January 1990 does not comply with the 'reasonable time' requirement

of Article 6. In particular, he complains of the length of the first

instance proceedings.

As to the fairness of the proceedings, the applicant considers

that the Regional Court gave too much weight to the official court

experts and insufficient weight to the expert opinions he presented.

He refers to the case of Bönisch (Eur. Court H.R., judgment of

6 May 1985, Series A no. 92).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 May 1990 and registered on

14 October 1993.

On 5 July 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

18 October 1994. The applicant replied on 12 January 1995, after an

extension of the time-limit.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in several respects. Article 6 para. 1

of the Convention provides, so far as relevant, as follows:

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

... everyone is entitled to a fair and public hearing within a

reasonable time ..."

The applicant considers that the proceedings lasted unreasonably

long.

The Government consider that the case was complex because of the

complex medical issues which required the courts to consider numerous

and in part contradictory medical reports, and to call for a detailed

medical examination of the applicant. They accept that there were

certain delays, in particular concerning the preparation of experts'

reports (nine months in one case, six months in another, and some 10

months when the file could not be found), but consider that the

domestic courts dealt with the case expeditiously and without undue

procedural delays. They point to the applicant's conduct as

contributing to the length of the proceedings, in particular in

connection with medical examinations and the unclear submissions he

made. They conclude that the proceedings did not exceed the

"reasonable time" requirement of Article 6 (Art. 6).

The applicant rejects the Government's conclusions. He points

out that social insurance proceedings are particularly important for

individuals and must be dealt with particularly speedily. He also

points out that the courts in the present proceedings had the benefit

of the initial proceedings, which should have enabled them to deal with

the present case quicker. The proceedings concerned only the state of

the applicant's health, and lasted five years at first instance. The

applicant underlines that the Government accept that there was delay

of 25 months, but considers that there was also no justification for

the court's inactivity between 14 April and 11 July 1985, that there

need not have been a five month gap between his request of 27 September

1987 for a report to be discussed and the next hearing on 24 February

1988. He notes that it took the first instance court almost three

months to deliver its judgment after the oral hearing, notwithstanding

Article 415 of the Civil Code which requires judgment to be delivered

within four weeks.

The Commission notes that the proceedings in the present case,

which determined the applicant's second request for an invalidity

pension, began on 26 January 1984, when he brought proceedings before

the Feldkirch Regional Court, and ended on 8 March 1990, when he

received the Supreme Court's judgment of 23 January 1990. It

considers, in the light of the criteria established by the case-law of

the Convention institutions on the question of "reasonable time" (the

complexity of the case, the applicant's conduct and that of the

competent authorities), and having regard to all the information in its

possession, that a thorough examination of this complaint is required,

both as to the law and as to the facts.

2. The applicant also alleges a violation of Article 6

(Art. 6) of the Convention in connection with the fairness of the

proceedings. He alleges that the Regional Court gave too much weight

to the official court experts and insufficient weight to the expert

opinions he presented.

The Commission recalls that, under Article 19 (Art. 19) of the

Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention. In particular,

it is not competent to deal with an application alleging that errors

of law or fact have been committed by domestic courts, except where it

considers that such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention (see, in a

civil case, No. 8315/79, Dec. 15.7.81, D.R. 25 p. 203) In particular,

the Commission is not called upon to decide whether or not the domestic

courts have correctly assessed the evidence before them, but only

whether the proceedings in general have been conducted in such a way

that he has had a fair trial.

The applicant alleges that the Regional Court lent undue weight

to the opinions of the court expert, and paid too little attention to

his own expert. He refers to the case of Bönisch (Eur. Court H.R.,

judgment of 6 May 1985, Series A no. 92).

The Commission recalls that in the case of Bönisch, to which the

applicant refers, the expert in question had certain links with the

party which was responsible for the prosecution of the applicant. In

the present case, the applicant makes no complaint of a structural link

between the court appointed expert and the other party: he complains

rather that the courts followed the evidence of the court-appointed

expert rather than his own.

The practice of experts being appointed by the courts does not

in itself give rise to unfairness or inequality of arms unless the

circumstances of such appointment give doubts raised by the appearances

of the case which can be held to be objectively justified (see, in the

context of criminal proceedings, Eur. Court H.R., Brandstetter judgment

of 28 August 1991, Series A no. 211, p. 21, para. 44). The applicant

expresses no such doubts.

Further, the applicant was in the event permitted to bring the

evidence of his own expert. Whilst it is true that the court preferred

the evidence of the court experts to that of the applicant, there is

no indication in the case that that preference was based on any

different procedural position of the two experts. Moreover, as the

Court of Appeal noted, there are no apparent lacunae in the

neurological report which was before the court, and that report was

prepared on the basis of an extensive examination of the applicant as

an in-patient.

The Commission finds no indication in the present case that the

way in which the domestic courts dealt with the various experts'

reports was unfair or in conflict with the principle of equality of

arms. It follows that this part of the application must be declared

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint concerning the length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the President of the

First Chamber First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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STIFTER v. AUSTRIA

STIFTER v. AUSTRIA

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