FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1126/05
by D.E.
against Germany
The European Court of Human Rights (Fifth Section), sitting on 13 November 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 27 December 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr D.E., is a German national who was born in 1947 and lives in Barnag, Hungary.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a business consultant who joined the insurance scheme of the Mülheim Administrative Health Insurance Association (Verwaltungs-Berufsgenossenschaft). Between 1982 and 1997 he had lived and worked in premises with wood-paneled walls and ceilings which were mostly covered in planking the applicant had treated with timber preservative. During this time the applicant began to suffer from concentration and respiration problems. In 1986, the medical service of the Administrative Health Insurance Association established the applicant’s inability to practice his profession. The applicant’s internist informed the Administrative Health Insurance Association that the applicant presumably suffered from an allergy against timber preservative. The applicant moved out of the house in 1997 and retired.
The applicant filed a motion for compensation for a work-related disease within the meaning of the Occupational Disease Act (Berufskranken-verordnung). On 25 October 1990, the Administrative Health Insurance Association dismissed his motion. His objection was dismissed by the Appeals Board of the Administrative Health Insurance Association on 8 October 1990. In November 1999, the applicant subsequently commenced proceedings before the Duisburg Social Court.
On 8 January 1998, the Duisburg Social Court quashed the refusal of 25 October 1990 and declared that the applicant’s brain-related organic psycho syndrome (hirnorganische Psychosyndrom) which diminished the applicant’s ability to concentrate and remember was the result of a work-related disease within the meaning of the Occupational Disease Act.
It obtained a medical expert opinion by Dr S. which the latter, after the applicant had refused to travel form Hungary to Germany, filed on 30 March 1995 only on the basis of available written documents. The Social Court obtained another expert opinion by another medical doctor, Dr Sch., on 11 January 1997.
On 11 June 2003, the North-Rhine Westphalia Social Court of Appeal quashed the judgment by the Social Court of 8 January 1998, dismissed the applicant’s claim and refused to grant leave to appeal on points of law.
It found that the Social Court had wrongfully found that there had been a work-related disease as the latter could not be proven by the applicant.
As the applicant did not give pertinent information, the Social Court of Appeal examined the available medical materials about the applicant’s health conditions. Noting that the applicant had failed to present materials from other sources, the Social Court of Appeal found that there was no reason to take further evidence in view of the applicant’s behaviour during the proceedings in which he had demonstrated his lack commitment to cooperate, a contradictory behaviour and a willingness to delay the proceedings. The Social Court of Appeal had informed the applicant several times during the appeals proceedings about his obligation to cooperate and about the resulting consequences in case of his failure to do so.
On 10 August 2000, the Social Court of Appeal obtained an expert opinion by Dr D. who had only regard to the files as the applicant refused to participate in a medical examination. After the defendant Administrative Health Insurance Association had submitted comments on his expert opinion, Dr D. submitted additional comments on 30 November 2000.
The Social Court of Appeal obtained a therapy report from a Hungarian hospital on 12 February 2001 and a further expert opinion by a medical doctor specialised in psychiatry and environmental issues, Dr K. After the applicant had disputed the expert opinion, Dr K. made additional comments on 8 January 2001. The Social Court of Appeal subsequently requested another expert opinion by a medical doctor specialised in work-related health issues, Dr P. The applicant’s motion to declare that expert biased was dismissed by the Social Court of Appeal on 29 January 2003. The applicant refused to be examined by Dr P. as well as to hand over files to Dr D. for a final medical expert opinion.
On 11 March 2004, the Federal Social Court dismissed the applicant’s motion to be granted leave to appeal on points of law as inadmissible because his ground of appeal had not been sufficiently substantiated.
On 28 June 2004, a panel of three judges of the Federal Constitutional Court refused to admit the applicant’s constitutional complaint because it lacked reasonable prospects of success.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about the allegedly erroneous court decisions, in particular about the length of the proceedings.
THE LAW
A. Article 6 § 1 of the Convention
The applicant complained about the length of proceedings under Article 6 § 1, which, as 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 by [a] ... tribunal...”
The Court notes that the present proceedings began with bringing the action in the Duisburg Social Court in November 1990 and ended with the decision of the Federal Constitutional Court of 28 June 2004. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.
B. The remainder of the complaints
Invoking Article 6 § 1 of the Convention the applicant complained in substance about the decisions rendered in the aforementioned proceedings. In particular, the applicant complained about the alleged partiality of the Social Court of Appeal and the Federal Constitutional Court’s refusal to admit his constitutional complaint without giving any reasons for its decision. 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.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy