DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1. Article 6 para. 1 (art. 6-1) of the Convention guarantees a fair trial in the determination of a person ’ s "civil rights and obligations" and of "any criminal charge against him".

2. No question of a "criminal charge" arises in the present case. Did the facts involve the determination of civil rights and obligations?

3. Mr. Deumeland Senior was an employee ( Angestellter ) of the Berlin City Authorities and he was compulsorily insured against industrial accidents (see paragraph 10 of the judgment).

For employees of private firms, the bodies responsible for insurance against industrial accidents are the occupational associations ( Berufsgenossenschaften ) (see paragraph 52 of the judgment), whose funds are provided by the employers by means of private contributions which depend essentially on the salaries of the persons covered and on the likelihood of accidents (see paragraph 51).

In Berlin, Land employees are covered by the Industrial Accident Insurance Office ( Eigenunfallversicherung ), a public body directly controlled by the Land authority and financed chiefly by a sum included annually in the Land budget, that is by public monies, and for the rest by contributions paid by certain public concerns (see paragraph 53). The contract of employment constituted a mere condition of entitlement and Mr. Deumeland Senior had not paid any contributions towards the insurance.

4. I conclude - by reason of the lack of dependence on the occupational associations, the connection with a public body under the direct control of the Land, and the funding of this industrial-accident insurance which was chiefly provided from the budget of the Land - that one cannot speak of a determination of a "civil right" and that Article 6 (art. 6) was not applicable and hence not breached.

CONCURRING OPINION OF JUDGES PETTITI AND RUSSO

(Translation)

We have voted with the majority in favour of the applicability and violation of Article 6 (art. 6). What was crucial for our vote was the predominance of the features of civil law in the succession of very different proceedings brought by the members of the Deumeland family.

1. At the origin of the affair was a street accident suffered by Mr. Deumeland Senior. The fact of his being granted or not being granted benefits as the victim of an industrial accident on the way to or from work does not alter the nature of the right at issue. The damage sustained as a result of the accident could raise an issue of civil liability or criminal liability entailing civil consequences on the part of the owner of the building in front of which the snow-covered pavement caused the fall of Mr. Deumeland Senior.

2. The principal litigation was concerned with the possible causal link between the accident on the way home from work (in so far as treated as an industrial accident) and the death of Mr. Deumeland Senior. This, if established, would have entailed the attribution of additional years of service between the date of the accident and the date of the death, which would in turn have increased to a certain extent the old-age pension received by Mrs. Deumeland . What was at stake was not a supplementary insurance, but the basis of calculation of a pension.

3. A further feature of civil law is to be found in the procedural incident concerning the proof of Mr. Deumeland Junior ’ s status as heir.

4. The action for recovery of damages that could have been brought against the owner of the building as a result of the Industrial Accident Insurance Office being subrogated to the rights of Mr. Deumeland Senior related to a civil liability claim. It was for those concerned to reserve their right of action against the building owner. The final refusal of responsibility by the Insurance Office could have raised another issue of liability. All these features - subrogation, surrender of rights, exercise of the right to sue - are features of civil law.

The Court has situated the unreasonable length of the proceedings mainly in the period relating to the litigation concerning the causal link and to the subsequent procedural incidents, and not in the first stage of the social insurance dispute which dealt with whether the accident on the way home from work should be classified as an industrial accident.

The Deumeland case does not, in our view, involve putting in issue the German system for settlement of social insurance disputes concerning industrial accidents. The extremely interesting controversy - which is remarkably expounded in the separate opinion of the minority - surrounding the interpretation of the travaux préparatoires of the United Nations and the Council of Europe in connection with the expression "civil rights and obligations" does not necessarily furnish a crucial element of appraisal, having regard to the particular circumstances of the present case and to the predominant features of private law described above.

[*]  Note by the Registrar: The case is numbered 9/1984/81/128.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.