Lexploria

The European Commission of Human Rights sitting in private on

1 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 February 1985 by

A.K.Z. against the Federal Republic of Germany and

registered on 14 March 1985 under file No. 11445/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The facts of the case as they have been submitted by the applicant may

be summarised as follows:

The applicant, born in 1975, is a German national and resident in

Karlsruhe. She is a schoolgirl and legally represented by her

parents. Before the Commission she is represented by Mr. W. Küchler,

a lawyer practising in Karlsruhe.

In 1975, upon her birth, the applicant fell ill while in hospital,

inter alia, with meningitis. Due to this disease and the necessary

treatment with highly dosed medicaments, the applicant suffered

lasting injuries to her health.

Apparently in 1978, the applicant instituted compensation proceedings

before the Karlsruhe Regional Court (Landgericht) against both the

hospital and Dr. L, the pediatrician in charge at that hospital.

During these and the following proceedings, the applicant was

represented by a lawyer.

On 19 September 1980 the Regional Court held in a partial judgment

that the applicant's claim of compensation for personal suffering was

justified in principle. Moreover, the opponents were obliged to

compensate any future material damages caused by the disease. The

Court found in particular that Dr. L had failed to discover the

symptoms of the disease as well as to order a further careful control

of the applicant. Moreover, the medical organisation and service at

the hospital had been insufficient. The Court thereby relied on the

testimonies of several witnesses and the opinions of the medical

experts Prof. B and Prof. G. It moreover shifted the burden of

proof concerning the causality of negligence and the injuries to the

applicant's health on the ground that the mistakes and insufficiencies

had to be considered as gross negligence.

This decision was quashed by the Karlsruhe Court of Appeal

(Oberlandesgericht) upon the defendants' appeal on 14 December 1983.

The Court dismissed the applicant's claims on the ground that she had

failed to prove gross negligence and, therefore, the burden of proof

could not be shifted. The Court relied in particular on a further

medical opinion of Prof. Sch.

On 23 October 1984 the Federal Court of Justice (Bundesgerichtshof)

decided not to accept the applicant's appeal on points of law

(Revision). While this decision did not mention detailed reasons, it

referred to S. 554 (b) para. 1 of the Code of Civil Procedure

(Zivilprozessordnung) in its interpretation by the Federal

Constitutional Court (Bundesverfassungsgericht) in a decision of

11 June 1980. The Federal Court's decision was taken without an oral

hearing.

S. 554 (b) para. 1 provides that, in litigations concerning pecuniary

claims of more than forty thousand German Marks, the court of appeal

(Revisionsgericht) may refuse to accept the appeal (Revision) if the

case is of no fundamental importance. According to S. 554 (b) para. 3

the decision may be taken without an oral hearing. In its decision of

11 June 1980 the Federal Constitutional Court held that, from a

constitutional point of view, the Federal Court may only reject an

appeal under S. 554 where it finds that it offers no prospect of

success.

On 28 December 1984 the Federal Constitutional Court rejected the

applicant's constitutional complaint as offering no prospect of

success.

COMPLAINTS

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the Federal Court of Justice decided not to accept her

appeal without conducting a fair and public hearing. She submits in

particular that the Court's decision was served without detailed

reasons as to the grounds of appeal and the merits of her case. She

was, therefore, not able to verify the impartiality of the Court. The

decision might have been arbitrarily taken in order to reduce the

Court's burden of work.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the Federal Court of Justice decided without a fair

and public hearing.

Article 6 para. 1 (Art. 6-1) states that "in the determination of his

civil rights... everyone is entitled to a fair and public hearing...

by an independent and impartial court established by law".

The Commission has first considered the applicant's complaint

concerning the absence of a public hearing before the Federal Court of

Justice. It here recalls that Article 6 para. 1 (Art. 6-1) is in

principle applicable to proceedings before courts of appeal or of

cassation. However, the way in which it applies must clearly depend on

the special features of such proceedings. In particular, account must

be taken of the entirety of the proceedings conducted in the domestic

legal order. Appeal proceedings before the Federal Court of Justice,

which determines solely issues of law, do not require a public

hearing, if only the appeal on points of law is dismissed and a

judgment of the lower court, which becomes final, had been delivered

in accordance with Article 6 para. 1 (Art. 6-1 (Eur. Court H.R., Axen

judgment of 8 December 1983, Series A no. 72 pp. 12, 13).

The Commission notes that, in the instant case, the Federal Court of

Justice refused to accept the applicant's appeal without a hearing

according to S. 554 (b) paras. 1 and 3 of the Code of Civil Procedure

as interpreted by the Federal Constitutional Court. According to that

provision only two issues of law had to be determined, namely the

fundamental importance of the case and the prospect of success. The

Federal Court's decision not to accept the appeal made the judgment of

the Karlsruhe Court of Appeal final, and that judgment had been

delivered after proceedings whose compatibility with the requirements

of Article 6 para. 1 (Art. 6-1) is not contested.

In these circumstances the Commission finds that the absence of a

public hearing before the Federal Court of Justice does not disclose

any appearance of a violation of Article 6 para. 1 (Art. 6-1).

The Commission has next examined the applicant's complaint under

Article 6 para. 1 (Art. 6-1) that the proceedings before the Federal

Court of Justice were unfair in that its decision of 23 October 1984

lacked reasons.

The Commission notes that the absence of reasons in court decisions

might under specific circumstances raise an issue as to the fairness

of the respective proceedings. However, account must be taken of the

special features of the proceedings at issue. If the relevant

domestic law authorises an appeal court to reject an appeal on the

ground that it raises no legal issue of fundamental importance and

offers no prospect of success, it may be sufficient for that court

simply to refer to the provision authorising this procedure

(cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).

In the instant case, the Federal Court of Justice, in referring to

S. 554 (b) para. 1 of the Code of Civil Procedure and to the Federal

Constitutional Court's decision, sufficiently indicated the reasons of

its decision. The applicant, who was represented by a lawyer, was

thereby given to understand that, in the Federal Court's view the

applicant's appeal on points of law raised no issue of fundamental

importance and offered no prospect of success.

The Commission concludes that there is no appearance of a violation of

the right to a fair hearing guaranteed by Article 6 para. 1 (Art. 6-1).

It follows that the application is manifestly ill-founded within the

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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Z. v. THE FEDERAL REPUBLIC OF GERMANY

Z. v. THE FEDERAL REPUBLIC OF GERMANY

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