THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66046/01 by Alexander KORONIOTIS against Germany

The European Court of Human Rights (Third Section) , sitting on 30 January 2003 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 2 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Alexander Koroniotis, is of both German and Greek nationality. He was born in 1986 and lives in Munich, Germany. The applicant is represented before the Court by his parents, Panagiotis Koroniotis and Rita Eggendinger-Koroniotis.

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

The applicant was born on 4 June 1986. During his birth in a public hospital, he suffered a lack of oxygen due to a delayed Caesarean section, which resulted in a permanent paralysation of his arms and legs.

In July 1989, the applicant, represented by his parents, filed an action with the Munich Regional Court against the doctors F., H. and P., who had participated in his birth, requesting a declaratory judgment , compensation for the three years following his birth, and further compensation for pain and suffering. He claimed that the doctors concerned had negligently delayed the necessary Cesarean section and were thus responsible for his ensuing physical disabilities. In these proceedings, the parties were represented by counsel.

On 26 November 1990, the Regional Court interviewed several witnesses during an oral hearing.

On 30 January 1991, the Regional Court ordered that an expert opinion be prepared by A., a gynaecologist and medical superintendent of a gynaecological clinic in Düsseldorf , on whether the doctors’ comportment during birth had led to the applicant’s paralysation . Detailed questions regarding the different stages of the birth and the doctors’ actions were attached.

On 17 January 1992, A. presented his expert opinion.

On 18 May 1992, the Regional Court ordered A. to prepare a supplementary opinion, in answer to questions put by the parties on the contents of his first opinion.

On 16 July 1992, A. presented his second expert opinion.

On 29 October 1992, the Regional Court ordered that A. should answer further questions submitted by the applicant.

On 9 February 1993, A. presented his third expert opinion.

On 27 September 1993, the Regional Court, in a partial decision, rejected the applicant’s actions with regard to F. It found that he had behaved correctly during the applicant’s birth and was thus not responsible for the applicant’s ensuing paralysation . As regards the proceedings against H. and P., the Regional Court ordered that the applicant’s parents be interviewed at an oral hearing.

On 23 October 1996, the applicant’s mother was heard before the Regional Court. The applicant’s father, although summoned to attend the hearing, had furnished her with the power to represent him in this matter and had not attended the hearing. The applicant’s counsel was present at the hearing.

On 4 December 1996, the Regional Court rejected the applicant’s remaining claims. It found that the applicant’s condition was not attributable to the conduct of H. and P. The Regional Court, based on eye-witness reports and the expert reports, the Regional Court was convinced that the delay in conducting a Caesarean section had been caused by the applicant’s parents’ refusal to agree to such a measure.

On 18 September 1997, following the applicant’s appeal, the Munich Court of Appeal held a hearing.

On 8 January 1998, the Munich Court of Appeal confirmed the Regional Court’s decision in all points.

On 8 December 1998, the Federal Court of Justice refused to entertain the applicant’s appeal on points of law.

On 9 January 1999, the applicant lodged a constitutional complaint with the Federal Constitutional Court, in which he complained about the allegedly erroneous court decisions. He also referred to the allegedly excessive length of proceedings.

On 18 April 2000, the Federal Constitutional Court refused to entertain the applicant’s complaint. It found that some of the points raised by the applicant were inadmissible, as the applicant had failed to raise them before the lower courts and had thus not exhausted the ordinary remedies prior to lodging a constitutional complaint.

As for the remaining points, the Federal Constitutional Court considered that the assessment of evidence during oral hearings fell within the sole responsibility of the competent lower courts. It did not find that the impugned court decisions appeared in any way arbitrary or unfounded.

This decision was served on 5 May 2000.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention about the length of the proceedings before the German courts.

2. He further complains that the court proceedings were not fair, in particular that the ensuing court decisions were arbitrary and did not correspond to the facts submitted during the oral proceedings. He also feels discriminated due to his physical disability under Article 14 of the Convention.

THE LAW

1. The applicant complains that the proceedings before the German courts were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.

Article 6 § 1, insofar as relevant, reads as follows:

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

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. As regards the remainder of the application, the Court, in the light of all the material in its possession, finds that the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint about the length of the proceedings;

Declares inadmissible the remainder of the application.

Vincent Berger Ireneu Cabral Barreto Registrar President