FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36296/97 by Werner WEITZ against Germany

The European Court of Human Rights ( Fourth Section ) sitting on 13 January 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress, Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mrs N. Vajić, judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 21 October 1996 by Werner Weitz against Germany and registered on 31 May 1997 under file no. 36296/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 26 January 1999 and the observations in reply submitted by the applicant on 19 March 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1943 and residing in Kaisheim .

A previous application No. 29857/96 by the applicant concerning criminal proceedings was declared inadmissible.

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

A. The administrative proceedings

On 19 October 1993 the Munich Labour Office ( Arbeitsamt ) dismissed the applicant’s request of 9 March 1993 for payment of unemployment benefits because he had not fulfilled the statutory condition of having been employed for a minimum of 360 days within the last three years at the time of his request. The Office considered that the applicant had performed functions as manager and thus as employer in Austria .

On 18 November 1993 the applicant lodged an administrative appeal ( Widerspruch ) against the above decision, arguing that he had worked as an employee in Austria , where he had paid social security contributions.

On 22 March 1994 the Munich Labour Office dismissed the applicant’s administrative appeal without giving reasons on the substance.

On 26 March 1994 the applicant filed suit with the Munich Social Court ( Sozialgericht ) requesting the award of unemployment benefits in the period from 9 March to 28 April 1993.

On 13 September 1994 the Social Court granted him legal aid. In the further course of the proceedings, the applicant was represented by counsel.

On 19 September 1994 the Social Court asked the lawyer to submit a power of attorney given by the applicant. On 23 December 1994 the lawyer answered that he had not been able yet to contact the applicant. On 21 March 1995 the Social Court reminded the lawyer of the necessity to submit the power of attorney. On 18 May 1995 the Social Court drew the applicant’s attention to the fact that he had to inform the Court of the address at which service could be effected.

The lawyer submitted his memorial on 8 November 1995.

On 15 February 1996, the applicant having asserted on 9 January 1996 that the correct address for sending him information was the Institute for Trade and Industry Social Insurance in Vienna , the Social Court , after hearing the Federal Institute for Employment (the Munich Employment Office), requested information from the former agency.

On 11 April 1996 the Institute for Trade and Industry Social Insurance in Vienna informed the Social Court that the applicant had been subject to compulsory insurance, but that the latter had not contained any contribution to unemployment insurance.

On 23 April 1996 the Social Court requested the applicant’s lawyer to indicate the addresses of two witnesses in Austria upon which service could be effected. On 16 June 1996, the applicant replied that he was not able to give the necessary indications.

On 1 August 1996 the Social Court requested supplementary information from the Institute for Trade and Industry Social in Vienna , which answered the Court’s requests on 22 August and 11 September 1996.

On 28 October 1996 the Social Court set 18 November 1996 as the date for a hearing to discuss the issues of the case, but had to adjourn it : on 29 October 1996 the Social Court received a motion by the applicant challenging the Presiding Judge of the 36 th division, sitting with three judges, on grounds of bias.

On 18 December 1996 the Bavarian Regional Social Court ( Landessozialgericht ) dismissed the applicant’s motion.

On 11 February 1997 the applicant repeated his motion challenging the Presiding Judge for bias.

On 17 February 1997 the Munich Social Court , following an oral hearing, dismissed the applicant’s action. It found that it was competent to adjudicate the case as the applicant’s motion of 11 February 1997 was abusive, serving the only purpose of obstructing the proper course of the proceedings. As regards the substance of the action, the Social Court , referring to information forwarded by the competent Austrian social security body, considered that the applicant failed to fulfil the statutory conditions both under German and Austrian law, as he had been self-employed between August 1990 and March 1995, and thus rejected the applicant’s claim.

On 3 March 1997 the applicant filed an appeal with the Bavarian Regional Social Court .

On 24 March 1997 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint about the excessive length of the social court proceedings.

On 1 October 1997, the applicant’s new lawyers applied for an inspection of the files, which were sent to them on 10 October 1997.

On 4 December 1997 the Regional Social Court refused to grant legal aid to the applicant.

On 19 January 1998 the Regional Social Court set 19 February 1998 as the date for the oral hearing.

On 23 January 1998 the applicant’s counsel withdrew from the case.

On 11 February 1998 the applicant indicated addresses of witnesses who could make a statement to the effect that his function had been liable to contributions.

As a result, the Regional Social Court adjourned the oral hearing and wrote to the witnesses on 11 March and 3 July 1998.

On 3 August 1998 the Vienna Labour and Social Court was requested to question a witness designated by the applicant. This request was transmitted to the Weidling Local Court ( Bezirksgericht ) for reasons of competence.

In its judgment of 25 June 1999 the Bavarian Regional Social Court dismissed the applicant’s appeal and confirmed the decision of the Munich Social Court . The Regional Social Court also refused to authorise the applicant to lodge a complaint on points of law ( Revision ) before the Federal Court of Justice ( Bundesgerichtshof ).

The applicant complains about the excessive length of the social court proceedings. He invokes Article 6 § 1 of the Convention.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 21 October 1996 and registered on 31 May 1997.

On 22 October 1998 the Commission decided to communicate the application to the respondent Government

The Government’s written observations were submitted on 26 January 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 19 March 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

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

The Government submit that the length of proceedings at issue was essentially caused by the applicant’s conduct, whose aim it was, not to obtain a judgment, but to lodge a complaint on the excessive length of proceedings with the possibility of obtaining compensation. Instead of expediting the social court proceedings, notably by providing the addresses of witnesses, he filed an application with the European Commission of Human Rights, already during the first-instance proceedings, on 21 October 1996. Only two days later, the applicant filed his first application to disqualify the judge in the social court proceedings and thus contributed to the delay.

This is disputed by the applicant. He submits that he cannot be held responsible for the delays which occurred, which were due, in particular, to the Social Court ’s workload, as he was allegedly told by the presiding judge of that Court. Regarding his demands challenging the presiding judge for bias, the applicant considers that it was his legitimate interest to do so because the latter had refused to hear certain witnesses requested by him.

The Court notes that the applicant complains only of the length of the social court proceedings.

These proceedings started on 26 March 1994, when the applicant filed his complaint with the Munich Social Court , and ended on 25 June 1999, when the Bavarian Regional Social Court rendered its judgment. The proceedings thus lasted approximately 5 years and 3 months.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard in particular to the complexity of the case and the conduct of the parties and the relevant authorities, which in this instance call for an overall assessment (see the Cesarini v. Italy judgment of 12 October 1992, Series A no. 245-B, p. 26, § 17, and, mutatis mutandis , the Pammel v. Germany judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1110, § 60).

The Court considers that the case was not particularly complex, but as it concerned the social insurance status of the applicant, who had worked in Austria, the German social courts had to request information from the Austrian social authorities and to search for witnesses in Austria, which undoubtedly contributed in holding up the proceedings.

As regards the conduct of the applicant, the Court observes that he is at least partly responsible for the length of proceedings : after the Munich Social Court had appointed a lawyer for him on 13 September 1994, the latter submitted a written memorial fully 14 months later, on 13 November 1995, after having informed the Social Court that he had had difficulty in contacting the applicant ; furthermore, the applicant himself filed several requests challenging the presiding judge for bias which also notably contributed to the length of the proceedings. The Social Court , on several occasions, had to ask the applicant to give his address and to provide the addresses of witnesses in Austria .

As to the conduct of the judicial authorities, the Court notes that the case was dealt with at two levels of jurisdiction. In respect of the first-instance proceedings, which lasted 2 years and 10 months, the Court observes that the Munich Social Court waited for 6 months before appointing a lawyer for the applicant.

Nevertheless, having regard in particular to the applicant’s attitude and taking into account the necessity for the German social courts to obtain information from the Austrian social authorities and to search for witnesses in Austria , the delays that occurred do not appear to be substantial enough for the total length of the proceedings to be regarded as excessive.

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 .

Vincent Berger Matti Pellonpää Registrar President