THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37309/97 by Hedwig JAKOB against Austria

The European Court of Human Rights (Third Section) , sitting on 21 November 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr L. Loucaides, Mrs F. Tulkens,

Sir Nicolas Bratza, Mr K. Traja,

Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 March 1997 and registered on 7 August 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1925, residing in Vienna. She is represented before the Court by Mr Graff , a lawyer practising in Vienna.

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

The applicant suffers from cancer. Since an operation in 1988 she has been treated with “ Ukrain ”, a medicine which is not registered in the Austrian pharmacopeia ( Arzneimittelverzeichnis ). The applicant asked the Vienna Health Insurance ( Gebietskrankenkassa ) to reimburse the various costs of her treatment. On 13 April 1995 the Vienna Health Insu r ance refused to meet the costs.

On 2 May 1995 the applicant filed an action with the Vienna Labour and Social Court ( A r beits - und Sozialgericht ) against the Vienna Health Insurance, requesting the reimbursement of the treatment costs. On 12 May 1995 the Vienna Labour and Social Court appointed an expert who deli v ered his opinion in June 1995.

On 24 October 1995 a witness was heard and the expert opinion was discussed. On 6 February 1996 the proceedings were adjourned because the Constitutional Court was expected to deliver a judgment co n cerning “ Ukrain ”.

On 8 February 1996 the applicant appealed against the adjournment, which was quashed by the Vienna Court of Appeal ( Oberlandesgericht ). On 29 May 1996 a witness was heard. In August 1996 another expert delivered his opinion. On 16 September 1996 the expert delivered a supplementary opinion. A further hearing appears to have been held on 5 December 1996. On 19 December 1996 the applicant gave notice that two witnesses were going to be absent for some time and asked the court to schedule the following hearing no sooner than the beginning of March 1997. On 30 December 1996 the Vienna Labour and S o cial Court appointed another expert who – after having been admonished by the judge three times – finally delivered his opinion in May 1997. On 23 July 1997 a hearing was held to discuss the expert opinion.

On 19 September 1997 the applicant’s counsel submitted documents in Russian which were translated into German by 13 October 1997.

On 17 December 1997 the expert delivered a supplementary opinion on the basis of the submitted documents.

On 9 February 1998 the court fixed the date for a hearing on 27 March 1998, but at the request of the applicant counsel’s postponed the hearing until 24 April 1998.

On 24 April 1998 the hearing was postponed until 15 June 1998 due to the judge’s illness. On 13 May 1998 the applicant’s counsel requested a further postponement.

On 11 September 1998, after the hearing, the Vienna Labour and Social Court dismissed the applicant’s a c tion, referring to section 133 of the Social Insurance Act ( Allgemeines Sozialversicherungsg e setz ) which states that the treatment provided has to be sufficient and appropriate but must not exceed what is actually necessary. The court found that the mere fact that “ Ukrain ” was not registered in the Austrian pharmacopoeia did not in itself prevent the reimbursement of trea t ment costs. However, in the applicant’s case, registered medicines would have had the same curative effects and, given the evidence produced during the proceedings (submissions of the parties and witnesses, expert opinions), their prescription could not be considered unre a sonable or unacceptable. In addition, the “ Ukrain ” treatment cost six times as much. Besides, the court noted that no curative effect had been proved. Therefore the “ Ukrain ” trea t ment was neither a necessary nor an appropriate treatment within the meaning of section 133 of the Social Insurance Act.

On 22 March 1999 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the appl i cant’s appeal. On 29 April 1999 the applicant lodged an appeal on points of law with the S u preme Court ( Obe r ster Gerichtshof ).

On 31 August 1999 the Supreme Court dismissed the applicant’s appeal on points of law. The decision was served on 6 October 1999.

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the proceedings. She further complains that the delay in the proceedings threatened her life. She does not invoke any Convention Articles in this respect.

THE LAW

1. The applicant complains under Article 6 of the Convention about the length of civil proceedings.

Article 6 § 1, in so far 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 Government submit that the case was especially complex because of its medical background. Numerous expert opinions had to be obtained to evaluate the effects of a medicine which the applicant was using and which had not been accepted in standard medical practice. The Government submit that at no stage did the proceedings come to a real stan d still. Minor delays occurred either as the result of a judge’s illness or the applicant’s requests for postponements. Furthermore, the applicant submitted documents in Russian which had to be translated.

This is disputed by the applicant. In her view the case was not particularly complex. She also submits that many delays were caused by inadequate expert opinions and the necessity to procure supplementary opinions. Furthermore, the court had sometimes fixed too long an interval between the summons and the hearing itself.

The Court notes that the proceedings started on 2 May 1995 when the applicant filed an action with the Vienna Labour and Social Court. The proceedings lasted until 6 October 1999 when the decision of the Supreme Court was served on the applicant. Thus they lasted for four years, five months and four days.

The Court recalls that the reasonableness of the length of proceedings must be a s sessed in the light of the particular circumstances of the case, namely the complexity, the conduct of the applicant and the authorities . In the present case the circumstances call for an overall assessment (see the Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, § 17).

The Court finds that the proceedings were rather complex: the Austrian courts had to assess the necessity of the treatment of a tumour with an unacknowledged medicine. They had to study different medical documents and the opinions of medical experts.

As regards the conduct of the applicant, the Court observes that on two occasions she requested postponements of the hearing.

As to the conduct of the Austrian courts, the Court notes that the case was dealt with at three levels of jurisdiction. The second and third instances each acted quickly, as the Court of Appeal and the Supreme Court gave their judgments within just over two months after they had been seized, whereas the first instance proceedings took substantially longer.

Insofar as the first instance proceedings are concerned, the Court observes that the proceedings maintained an acceptable rhythm with no substantial intervals between the court hearings which took place. It is true that some delay was caused by an expert opinion. However, the Court notes that the judge intervened on this matter several times.

Having regard to these particular circumstances and the proceedings as a whole, the Court finds that there is no appearance of a violation of the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time.

2. As to the applicant’s complaint regarding a threat to her life as a consequence of the delay of the proceedings, the Court finds this complaint wholly unsubstantiated. No appearance of a violation of the Convention has thus been disclosed.

3. It follows that the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President