FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31384/02 by Tadeusz OLEKSIW against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 September 2007 as a Chamber composed of:

Mrs S. Botoucharova , President, Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger , judges, and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 29 July 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility a nd merits of the case together,

Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,

Having regard to the Government ’ s request to strike the case partly out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the length of the proceedings,

Having regard to the applicant ’ s comments on the Government ’ s proposal for a unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tadeusz Oleksiw, is a Polish national who was born in 1956 and lives in Feldkirchen. He is represented before the Court by Mr T. Hauck , a lawyer practising in Munich .

The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice.

A. The circumstances of the case

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

1. First set of proceedings

By decision of 22 October 1998 the Oberbayern Pension Office ( Landesversicherungsan s talt ) granted the applicant a stay in a clinic for the purpose of medical rehabilitation from 24 November 1998 until 5 January 1999. On 11 November 1998 the Pension Office rejected the applicant ’ s request for a temporary allowance ( Übergangsgeld ) for the aforementioned period of about six weeks according to section 20 § 1 sentence 1 of the Social Code No. VI (see “Relevant domestic law and practice” below). On 17 November 1998 the applicant lodged an objection with the Pension Office which was rejected on 29 April 1999.

On 21 May 1999 the applicant brought an action in the Munich Social Court . The court then ordered an expert opinion on the applicant ’ s ability to work which was given by the expert on 13 April 2000.

On 18 May 2004 the Munich Social Court held a hearing. By judgment of the same day the court rejected the applicant ’ s action for a temporary allowance. The court noted that the applicant had received sickness benefits only until 21 May 1997, whereas he had started his medical rehabilitation on 24 November 1998. Thus, there had been a period of eighteen months between the discontinuation of sickness benefits and the medical rehabilitation. The court found that this was too long a gap to qualify for a temporary allowance. The applicant then appealed against that judgment within the statutory time-limit of one month.

On 3 May 2005 the Social Court of Appeal rejected the applicant ’ s appeal confirming that he was not entitled to a temporary allowance. The court added that the applicant was not entitled to a temporary allowance according to section 20 § 1 no. 3 of the Social Code No. VI either, as he had not been continuously unable to work during the relevant period. Lastly, it refused leave to appeal on points of law. On 16 January 2006 the Federal Social Court rejected the applicant ’ s complaint.

On 19 April 2006 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint directed against the judgments of the Social Court and the Social Court of Appeal.

2. Second set of proceedings

On 13 September 1999 the applicant requested an occupational disability or invalidity pension ( Berufs- oder Erwerbsunfähigkeitsrente ). On 15 October 1999 the Oberbayern Pension Office rejected his request stating that the applicant, despite his illnesses, was not unable to work. The applicant then lodged an objection on 12 November 1999 with the Pension Office, which was rejected on 30 November 2000.

On 21 December 2000 the applicant brought an action in the Munich Social Court . On 25 April 2002 the court ordered an expert opinion on the applicant ’ s state of health.

The expert submitted her opinion in writing on 21 October 2002.

On 18 May 2004 the court held a hearing. By judgment of the same day the Social Court rejected the applicant ’ s action holding that, pursuant to the expert opinion, he was neither unable to work ( erwerbsunfähig ) nor occupationally disabled ( beruf sunfähig ). The applicant then appealed against that judgment.

The Social Court of Appeal ordered a supplementary expert opinion on the state of the applicant ’ s health. The expert examined the applicant on 29 December 2004 and rendered his opinion on 26 February 2005. The expert furthermore came to the conclusion that the applicant was neither occupationally disabled nor unable to work. The applicant ’ s representative was served a copy of that expert opinion on 8 March 2005.

On 9 April 2005 a second legal counsel informed the court that he would also represent the applicant in court. On 28 May 2005 the second representative challenged the aforementioned expert for bias.

On 31 May 2005 the court rejected the applicant ’ s motion. The court stated that an expert could either be challenged within two weeks after his appointment or without undue delay ( unverzüglich ) after he had given his opinion. The court pointed out that the applicant ’ s first representative had received the expert opinion already on 8 March 2005 and found that that knowledge could be attributed to the second representative. Hence the motion for bias dated 28 May 2005 had been lodged out of time.

On 7 June 2005 the Social Court of Appeal rejected the applicant ’ s appeal confirming the lower court ’ s reasoning. In its judgment the Social Court of Appeal held that it was not barred from taking recourse to the aforementioned expert opinion since the applicant had lodged his motion for bias out of time. Moreover, the court held that it had not been called for to obtain another expert opinion. The court based its decision on the aforementioned expert opinion, the expert opinion obtained in the first instance and furthermore referred to three other expert opinions which had been obtained in previous sets of proceedings. The court refused leave to appeal on points of law.

On 13 October 2005 the Federal Social Court rejected the applicant ’ s complaint confirming the lower court ’ s holding that he had lodged his motion for bias out of time.

On 4 January 2006 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint against the decisions of the Social Court and the Social Court of Appeal.

B. Relevant domestic law

According to section 20 § 1 sentence 1 of the Social Code No. VI the insured is entitled to temporary allowance, if, cumulatively, he or she receives medical rehabilitation, is unable to work and has received sickness benefits ( Krankengeld ) up until the medical rehabilitation commenced. Section 20 § 1 no. 3 of the Social Code No. VI stipulates that temporary allowance is also to be granted if the insured was continuously unable to work until the commencement of the medical rehabilitation.

COMPLAINTS

In respect of the first set of proceedings the applicant complained under Article s 6 and 14 of the Convention about their outcome maintaining that he was entitled to the temporary allowance under domestic law . Furthermore, he complained under Article 6 of the Convention about the length of those proceedings.

As regards the second set of proceedings the applicant submitted firstly under Article 6 of the Convention that the length of proceedings had been excessive. Secondly, he argued that the expert opinion obtained by the Court of Appeal had been erroneous and that the expert had been biased. He therefore contested that the court had not ordered an additional expert opinion.

THE LAW

1. The applicant complained about the outcome of the first set of proceedings under Articles 6 and 14 of the Convention.

Furthermore, he submitted in respect of the second set of proceedings that the expert opinion had been erroneous and that the expert had been biased, thus violating his right of a fair trial within the meaning of Article 6 § 1 of the Convention.

As far as those complaints are concerned, in the light of all the material in its possession, and insofar 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. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant submitted that the length of the two sets of proceedings had been excessive and thus in violation of the “reasonable time” - requirement of Article 6 § 1, the relevant parts of which read as follows:

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

On 2 May 2007 the Court received the following declaration from the Government signed on 26 April 2007:

“In this case the court proposed a friendly settlement which was rejected on behalf of the applicant by his counsel on 26 March 2007.

The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the length of the two proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article 6 para. 1 of the Convention.

If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant ’ s claim for compensation in the amount of EUR 3,500.00. This sum of EUR 3,500.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany or the Free State of Bavaria, including in particular compensation for the Applicant ’ s damage (including non-pecuniary damage) as well as costs and expenses. In light of the Court ’ s rulings in similar cases, the Federal Government considers the amount of EUR 3,500.00 to be reasonable.

The Federal Government therefore requests that this application be struck out of the Court ’ s list of cases pursuant to Article 37 para. 1 (c) of the Convention. The Federal Government ’ s acknowledgment of a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings and its acceptance of the claim for compensation in the amount of EUR 3,500.00 constitutes “[an]other reason” within the meaning of this provision.”

The applicant in his written reply dated 5 June 2007 requested the Court to reject the Government ’ s proposal. He argued that the requirements of Article 37 § 1 (c) of the Convention were not met, since the Government ’ s proposal covered solely the applicant ’ s complaints about the length of the proceedings. Yet his two further complaints about the unfairness of the proceedings were not taken into account and from the applicant ’ s point of view the sum offered was thus insufficient to compensate him for the violations sustained in the present case.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 27 February 2006 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

In deciding whether or not it should strike the present case out its list of cases, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey , no. 25754/94, § 23, judgment of 26 March 2002 , Akman v. Turkey (striking out), no. 37453/97, §§ 30-31, ECHR 2001 ‑ VI , and Meriakri v. Moldova (striking out), no. 53487/99, §§ 30-32, 1 March 2005 ; MacDonald v. the United Kingdom (dec.), no. 31/04, 6 February 2007) .

The Court notes that the present case raises as issue as to the undue length of the proceedings within the meaning of Article 6 of the Convention.

It recalls that it has already specified in various judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, also in respect of the Federal Republic of Germany (see, among many others, Sürmeli v. Germany [GC], no. 75529/01, ECHR 2006-...; Nold v. Germany , no. 27250/02, 29 June 2006; Stork v. Germany , no. 38033/02, 13 July 2006; Klasen v. Germany , no. 75204/01, 5 October 2006; Grässer v. Germany , no. 66491/01, 5 October 2006; Herbst v. Germany , no. 20027/02, 1 January 2007).

The Government ’ s declaration contains an acknowledgment that the length of the two sets of proceedings in the instant case was not in accordance with the “reasonable time”- requirement. Furthermore, the Court considers the sum of EUR 3,500 for the applicant ’ s damage, including non-pecuniary damage and costs and expenses, to be acceptable.

Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application insofar as the applicant complained about the length of the proceedings (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine ).

3. In view of the above, it is appropriate to discontinue the application of A rticle 29 § 3 of the Convention.

For these r easons, the Court unanimously

Declares the applicant ’ s complaints about the unfairness and outcome of the impugned proceedings inadmissible;

Takes note of the terms of the respondent Government ’ s declaration;

Decides to strike the remainder of the appli cation out of its list of cases.

Claudia Westerdiek Snejana Botoucharova Registrar President