FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10763/05 by Gisela ZWAR against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Margarita Tsatsa-Nikolovska , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges, and Claudia Westerdiek , Sec ion Registrar ,

Having regard to the above application lodged on 22 March 2005,

Having deliberated, decides as follows:

THE FACTS

The appli cant, Ms Gisela Zwar , is a German national who lives in Sonsbeck in Germany . She was represented before the Court by Mr R. Battenstein , a lawyer practising in D ü sseldorf.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

From August 1967 to November 1995 the applicant ’ s late husband Z. exercised the profession of a painter. In November 1995 he was diagnosed as suffering from leukaemia. He died of the disease on 6 August 1996.

On 29 December 1995 the medical clinic where the applicant was treated gave notice of the disease to the Wuppertal Insurance Association for the Building Professions ( Bau-Berufsgenossenschaft ) on the ground that Z. ’ s disease might have been work-related, which would entail pension benefits.

On 28 January 1997 the Insurance Association refused to establish that Z. ’ s leukaemia was work-related for having been caused by his exposure to benzene during his work as a painter. Following enquiries on Z. ’ s former working conditions and relying on expert opinion, the Insurance considered that the dosage of benzene Z. had been exposed to during his work had not been sufficiently high to cause a work-related disease.

On 4 February 1997 the applicant lodged an administrative appeal. She notably relied on two expert opinions commissioned by Z. ’ s health insurance. On 24 October 1997 the Insurance Association, having heard further expert opinion, rejected the applicant ’ s administrative appeal.

On 21 November 1997 the applicant lodged a motion with the Duisburg Social Court ( Sozialgericht ), alleging that Z. ’ s disease had been caused by over-exposure to benzene, notably during the first years of his professional life.

On 31 May and 26 August 1999 a court appointed expert submitted his expert opinion. He considered that there was no conclusive evidence that the applicant ’ s illness had been caused by exposure to benzene at his work-place.

On 4 February 2000 the Social Court summoned Z. ’ s health insurance to join the proceedings as a third party.

By judgment of 8 February 2000 the Social Court granted the applicant ’ s claim. Relying mainly on the expert opinions commissioned by the third party, the Social Court considered that it had been established with a sufficient amount of probability that Z. ’ s disease had been caused by his exposure to benzene at his workplace.

This judgment was served on the applicant ’ s counsel on 28 February 2000.

On 23 March 2000 the defendant Insurance Association lodged an appeal with the Northine-Westfalia Social Court of Appeal ( Landessozialgericht ). In support of her allegation that Z. ’ s disease had not been caused by exposure to benzene the defendant submitted a further expert opinion.

On request by the Court of Appeal one further expert submitted his expert opinion on 4 February 2002.

Subsequently, the applicant asked for a fresh expert opinion to be prepared pursuant to section 109 of the Social Courts Act (see relevant domestic law, below), and named Prof W. as an expert.

On 2 May 2002 Prof W. declined the request as he did not consider it possible to establish whether the disease had been caused by exposure to benzene.

Following this, the applicant named another medical expert who submitted his expert opinion on 31 October 2002.

In reply, the defendant party submitted a further opinion submitted by another expert on 30 April 2003.

During the hearing held before the Social Court of Appeal on 15 October 2003 the applicant submitted a presentation held by the expert Dr G. on a conference relating to the assessment of exposure to benzene at painter ’ s workplaces. According to the applicant, this presentation established that Z. had been exposed to dosages of benzene which exceeded the limits set down in the relevant safety guidelines. She requested the Court of Appeal once again to hear the experts with regard to these submissions.

On 15 October 2003 the Social Court of Appeal quashed the Social Court ’ s judgment, rejected the applicant ’ s claim and refused to grant the applicant leave to appeal. Having regard to the expert opinions and statements submitted during the administrative and court proceedings, the Court of Appeal considered that it could not be established with sufficient probability that Z. ’ s disease had been caused by overexposure to toxic substances at his workplace.

By way of conclusion, the Social Court of Appeal found as follows:

“ Summing up, the Senate considers that the facts of the case have been sufficiently established by the medical expertises and opinions by Dr P., Prof W i ., Prof T, and , in particular, by the expert Prof S. The differing assessment of the causation issue submitted by Prof M., Prof W e . and the expert Prof N o . - who had been heard according to section 109 of the Social Courts Acts - has been reliably rebutted. The plaintiff ’ s submissions do not induce the court to undertake further examinations. It was, in particular, not necessary to comply with the plaintiff ’ s request to hear the experts with regard to the presentation submitted during the oral hearing. Even assuming that the dosage of benzene Z. had been exposed to had exceeded the limits of the relevant safety guidelines, this does not prove that the disease had been work-related, as the safety guidelines are based on what is technically feasible and do not prove that an excess of the safety limits causes health damages. ”

This judgment was served on the applicant ’ s counsel on 22 March 2004.

On 9 July 2004 the Federal Social Court ( Bundessozialgericht ) rejected the applicant ’ s complaint against the refusal to grant her leave to appeal. That court considered that the applicant had failed sufficiently to establish which considerations should have induced the Court of Appeal to raise further evidence, as requested by the applicant.

On 1 August 2004 the applicant lodged a constitutional complaint.

On 8 September 2004 the Federal Constitutional Court (file-no. 1 BvR 1179/04), sitting as a panel of three judges, refused to admit the applicant ’ s constitutional complaint as being inadmissible. This decision was served on the applicant ’ s counsel on 22 September 2004.

B. Relevant domestic law

Section 109 of the Social Court Act reads as follows:

“(1) On application by the insured person, the disabled person, the person entitled to benefits or his surviving dependants, a physician to be determined shall be heard as an expert. The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and, unless the court decides otherwise, the applicant in the end bears the costs.

(2) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence.”

COMPLAINTS

1. The applicant complained under Article 6 § 1 about the length of the administrative and social court proceedings.

2. The applicant further complained under Article 6 § 1 of the Convention about a violation of her right to a fair hearing. She complained, in particular, that the Social Court of Appeal had been biased against her and that the rejection of her request to raise further evidence had not been based on any medical or technical specialist knowledge.

THE LAW

1. The complaint about the length of the proceedings

The applicant complained that the length of the administrative and social court proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The period to be taken into consideration began on 4 February 1997, when the applicant lodged her administrative appeal (see Janssen v. Germany , no. 23959/94, § 40 , 20 December 2001 ; König v. Germany , judgment of 28 June 1978, Series A no. 27, § 98) and ended on 22 September 2004 when the final decision of the Federal Constitutional Court was served on the applicant ’ s counsel. It thus lasted some seven years and seven months for the administrative appeal proceedings and four level s of jurisdiction.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court considers that the facts of the case have to be regarded as very complex. The social courts were faced with difficult problems arising in connection with the applicant ’ s late husband ’ s exposure to toxic substances at his workplace, which necessitated the taking of several expert opinions. The assessment of evidence was, in particular, complicated by the fact that the alleged exposure to benzene dated back over a period of almost thirty years. The complexity of the medical and technical questions in issue is demonstrated by the differing opinions expressed by the various experts involved at the different stages of the proceedings as well as by the discrepancy between the judgments at first instance and on appeal. The proceedings were further complicated by the participation of a third party. All parties introduced additional expert reports to the proceedings.

As regards the applicant ’ s own conduct, the Court observes that the applicant, during the proceedings before the Social Court of Appeal, lodged a request under section 109 of the Social Court Act to hear further expert opinion. This request and the ensuing difficulties to find an expert caused a delay of several months. However, in principle, the fact that the applicant availed herself of this possibility provided by the domestic law does not in itself lead to the overall assumption that the delays caused by this action will only be imputable to the applicant.

As for the conduct of the domestic authorities, the Court notes that the proceedings were pending for less than nine months before the administrative appeal board, for some two years and three months before the Social Court and for approximately three years and six months before the Social Court of Appeal. The Court considers that the length of the proceedings before the first and second instance courts was primarily owed to the necessity to take and assess extensive expert opinion. In this respect, the Court notes that the Social Court and the Court of Appeal each commissioned one expert report. One further expert report was commissioned by the Court of Appeal on the applicant ’ s request. Furthermore, the social courts were called upon to consider four expert reports submitted by the parties, including the third party. The Social Court of Appeal was thus called upon to consider an overall number of seven expert reports.

The Court further observes that the Federal Social Court and the Federal Constitutional Court swiftly processed the applicant ’ s appeals within a period of one and three months, respectively.

As to what was at stake for the applicant in the dispute, the Court observes that the proceedings concerned the question whether the applicant ’ s late husband ’ s illness was to be accepted as a work-related disease, thus ensuring pension benefits.

The Court accepts that the length of the proceedings at issue imposed a certain hardship on the applicant. However, having regard to all circumstances of the case, notably the high complexity of its subject matter, and the fact that the case had been dealt with by five instances, including the administrative appeal proceedings, the Court considers that the overall length of the proceedings can still be regarded as reasonable.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The remainder of the applicant ’ s complaints

Invoking Article 6 § 1 of the Convention the applicant further complained about a violation of her right to a fair hearing. She complained, in particular, that the Social Court of Appeal had been biased against her and that the rejection of her request to raise further evidence had not been based on any medical or technical specialist knowledge.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudi a Westerdiek Pee r Lorenzen Registrar President