Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20335/92

by Uta, Anke and Carsten ELLIES

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 6 August 1981 by

Uta, Anke and Carsten ELLIES against Germany and registered on

21 July 1992 under file No. 20335/92;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 7 September 1993 to communicate the

application;

- the observations submitted by the respondent Government on

20 December 1993 and the observations in reply submitted by the

applicant on 14 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

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.

The applicants complain about the fairness and length of Social

Court (Sozialgericht) proceedings.

The facts as undisputed between the parties may be summarised as

follows.

The first applicant's husband, father of the two other

applicants, died in 1980 as a consequence of cancer.

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

consequently his lung cancer had been caused thereby.

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 of Professor O./Dr. H. who had examined

the lung of the deceased and found no evidence of asbestosis.

The applicants' objections (Widerspruch) were rejected on

20 October 1983, on the basis of a supplementary expert opinion by

Professor V./Dr. H. who confirmed the prior medical report and

considered that the cancer had been caused by smoking. The objection

proceedings had repeatedly been stayed at the request of the

applicants' counsel. On 3 March 1983 supplementary grounds of

objection had been submitted on behalf of the applicants.

On 14 November 1983 the applicants lodged an action before the

Social Court.

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.

On 12 August 1985 an expert opinion from Professor W./ Dr. B.-A.

of the Institute for Labour and Social Medicine at the University of

Giessen was submitted. The experts first denied a causal link stating

that Mr. Ellies had only for a short time been exposed to asbestos.

In a supplementary expert opinion submitted on 4 August 1986 they

corrected however their prior analysis as according to another expert,

Professor M., Mr. Ellies had been exposed to asbestos longer than they

had initially thought. They therefore considered that there was a

certain probability of a causal link. The defendant however submitted

an expert opinion of Professor O. who had shown that the slide

preparation of Mr. Ellies' lung which Professor W/Dr.B.-A. had examined

had been kept together with other specimens and thereby had been de-

natured. 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.

On 14 April 1987 the Social Court (Sozialgericht) in Mainz

dismissed the action. The court considered that Mr. Ellies' cancer was

not a professional disease within the meaning of Section 551 (1) of the

Insurance Code (Reichsversicherungsordnung-RVO) as lung cancer was

recognised as a professional disease only if there existed at the same

time an asbestosis. The requirements of Section 551 (2) of the RVO

were likewise not met as it was not 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.

On 18 May 1987 the applicants lodged an appeal and in June 1987

the defendant submitted replies. On 24 November 1987 the defendant

informed the appellate court that it was intended to amend the Decree

on Professional Diseases (Berufskrankheitenverordnung) but that the new

regulations would not affect the pending case, i.e. the applicants'

claim would not thereby become well-founded.

On 3 April 1989 the appellate court informed the applicants that

there existed doubts as to the admissibility of part of their appeal.

It also stated that it did not intend to obtain ex officio, further

expert evidence. The applicants replied that they considered it

necessary to obtain an expert opinion from an expert of a foreign

country.

On 25 April 1989 the court requested the expert Professor W. 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

relation with his professional activity. The Ministry replied on

16 June 1989 that so far there existed no research results justifying

the affirmation of a causal link but the question was still under

consideration.

Subsequently another expert opinion was obtained on the question

whether or not the deceased's lung tissue samples had in fact been

de-natured and could therefore no longer be used for the purpose of

obtaining evidence.

On 15 August 1989 the appellate court received at its request

information from the International Labour Organisation.

At the applicants' insistence the appellate court eventually,

i.e. on 21 November 1989, requested Dr. St. for another expert opinion

which was submitted on 20 February 1990.

On 5 July 1990 Professor R., a member of the Institute for Labour

Medicine at the University of Bochum, was ordered by the appellate

court to establish an expert opinion (Obergutachten). He submitted it

on 10 September 1990. It was negative for the applicants' case.

The applicants challenged this expert on the grounds that he

worked in an institution which was linked to the defendant insurance.

The challenge was rejected on 23 January 1991.

The applicant's appeal was partly rejected as being inadmissible

and partly rejected as being unfounded by the Regional Social Court of

Rhineland-Palatinate (Landessozialgericht) on 23 January 1991. The

Appellate Court likewise considered that there was no sufficient proof

that Mr. Ellies' death had been caused by a professional disease.

The court stated that, inter alia, it also based its findings on

the expert opinion submitted by Professor R. who had been challenged

by the plaintiffs. It underlined that the fact that Professor R.

worked in a professional organisation which was linked to the defendant

insurance did not put in question the validity of his expert opinion.

The applicant's complaint to the Federal Social Court

(Bundessozialgericht) about the denial of leave to appeal on points of

law was rejected on 19 August 1991 as being inadmissible. It was

stated in the decision that the applicants had not shown that any

evidence which they had named or offered had been disregarded by the

Lower Social Court in an arbitrary manner. Rather the Social Court had

given sufficient reasons for the refusal of taking further expert

evidence.

The applicant then lodged a constitutional complaint against the

Federal Social Court's decision of 19 August 1991. This complaint was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 25 November 1991.

On 18 December 1992 an amendment to the Decree on Professional

Diseases came into force. According to the new regulations, applicable

to cases that occurred after 31 March 1988, lung cancer is now

recognised as a professional disease, inter alia, if the person

concerned has been at his/her workplace exposed to asbestos for at

least 25 years. On 28 January 1993 the competent liability insurance

refused to re-open the applicants' case, stating that its decision of

12 May 1981 was not unlawful and it was furthermore not affected by the

new regulations as they applied only to cases that occurred after

31 March 1988 while Mr. Ellies had died already in 1980.

COMPLAINTS

The applicants complain that they were denied a fair hearing

before the Social Court in particular in view of the fact that the

Appellate Social Court based its decision, inter alia, on the expert

opinion of Professor R. who could not be considered as being unbiased

and impartial given that he worked for an institution which is related

to the defendant party in the social insurance proceedings. The

applicants also complain that the fairness of the proceedings was

affected by the alleged fact that the defendant was represented by a

subordinate agent and not its statutory representatives. They also

invoke Article 6 of the Convention in relation to the proceedings

before the Federal Constitutional Court. Lastly they complain about

the length of the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 August 1981 and registered

on 21 July 1992.

On 7 September 1993 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

20 December 1993, after an extension of the time-limit fixed for that

purpose. The applicants replied on 14 March 1994.

THE LAW

1. The applicants first complain of the decisions given against them

in the domestic proceedings and consider that their right to a fair

trial as guaranteed under Article 6 (Art. 6) of the Convention has been

violated, inter alia, because of the participation of an expert,

Professor R., whom they unsuccessfully challenged, the defendant not

being represented in the proceedings by its statutory agent, the

Federal Social and Federal Constitutional Court refusing to deal with

the merits of their complaints.

The applicability of Article 6 (Art. 6) of the Convention to

Social Court proceedings relating to alleged claims for insurance cover

has repeatedly been confirmed by the European Court of Human Rights

(see Feldbrugge and Deumeland judgments of 29 May 1986, Series A nos.

99 and 100) and is not disputed by the parties.

The Commission first notes that the applicants unsuccessfully

challenged the expert Professor R., which means that the competent

domestic court saw no reason to question the expert's impartiality.

It is true that the European Court of Human Rights found in the Bönisch

judgment of 6 May 1985 (Series A, no. 92) that the neutrality of an

expert in criminal proceedings was questionable as that expert had also

drafted the report which had set in motion the proceedings in question

and during these proceedings he acted more like a witness against the

accused (loc. cit, p. 15, paras. 30-33).

The present case relates to civil proceedings in which various

experts were heard and the applicants had ample opportunity to comment

on and criticise the reports submitted by these experts. It is in

various respects distinguishable from the Bönisch case and the

Commission does not find that the participation of an expert in the

domestic proceedings before the appellate court amounted to an

impairment of the applicants' claim to a fair hearing for the only

reason that the expert in question is allegedly working for an

institution which is related to the defendant civil party (cf. Eur.

Court H.R., Le Compte, Van Leuven and De Meyere judgment of

23 June 1981, Series A no. 43, p. 25, para. 58).

Insofar as the applicants complain that the defendant party was

represented by a subordinate agent and not its statutory agent, the

Commission notes that it is principally for the domestic courts to

verify whether or not the parties to civil proceedings are correctly

represented. The applicants have not shown that the Social Courts

arbitrarily failed to see to it that the defendant party was

represented by a competent person. In any event there is nothing to

show that the fairness of the proceedings could in any way have been

affected by the status of the defendant party's representative within

the organisation of that party.

The Commission further points out that it is a matter for the

domestic judge to appreciate the relevance of all available evidence

(see Eur. Court H.R., Barbèra, Messegué and Jabardo judgment of

6 December 1988, Series A no. 146, p. 31 para. 68). In the present

case the Social Court of Appeal had several expert opinions before it.

The expert Professor R. was not the only expert who denied a

causal link between the first applicant's late husband's disease and

his prior exposure to asbestos. In these circumstances it cannot be

found that the taking of evidence and the appreciation of the available

evidence by the Social Court and the Social Court of Appeal discloses

any arbitrariness.

Finally, and insofar as the applicants complain of the

proceedings before the Federal Social and the Federal Constitutional

Court, the Commission refers to its constant jurisprudence according

to which it is compatible with the Convention that superior courts

refuse to deal with the merits of appeals which they consider do not

comply with the requirements of admissibility set up in domestic

procedural law (see No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240 and

No. 11445/85, Dec. 1.12.86, unpublished).

For the above reasons it follows that this part of the

application has to be rejected as being manifestly ill-founded within

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

2. The applicants have also complained about the length of the

domestic proceedings.

The Government question the applicants' status as victim but do

not raise an express plea of non-exhaustion of domestic remedies. They

consider that the complaint is in any event unfounded.

The applicants mainly point out that the appeal proceedings

disclose an important period of inactivity.

The Commission notes that the Government have themselves

expressed doubts as to the effectiveness of a constitutional complaint.

As no other remedies have been shown to exist, the Commission considers

that the present complaint cannot be rejected for non-exhaustion of

domestic remedies. It further considers that, particularly as far as

the proceedings before the Social Court of Appeal are concerned, the

case raises complex questions of law and fact which necessitate an

examination on the merits.

No other reasons to declare this part of the application

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the applicants' complaint about the

fairness of domestic proceedings;

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicants' complaint about the length of the domestic

proceedings.

Secretary to the First Chamber President of the First Chamber

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

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ELLIES v. GERMANY

ELLIES v. GERMANY

LEXI