AS TO THE ADMISSIBILITY OF
Application No. 20335/92
by Uta, Anke and Carsten ELLIES
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 August 1981 by
Uta, Anke and Carsten ELLIES against Germany and registered on
21 July 1992 under file No. 20335/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 7 September 1993 to communicate the
application;
- the observations submitted by the respondent Government on
20 December 1993 and the observations in reply submitted by the
applicant on 14 March 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are German citizens living in Mainz. Mrs. Ellies
was born in 1937 and has two children, Anke born in 1963 and Carsten
in 1965.
They are represented by Mr. R. Battenstein, a lawyer practising
in Düsseldorf.
The applicants complain about the fairness and length of Social
Court (Sozialgericht) proceedings.
The facts as undisputed between the parties may be summarised as
follows.
The first applicant's husband, father of the two other
applicants, died in 1980 as a consequence of cancer.
On 8 July 1980 the applicants requested insurance cover from the
competent employers liability insurance (Berufsgenossenschaft) claiming
that Mr. Ellies had been the victim of a professional disease as during
his professional career he had been exposed to asbestos dust and
consequently his lung cancer had been caused thereby.
On 12 May 1981 the insurance refused to grant insurance cover
denying that the cancer was a professional disease. This decision was
based on a pathological report of Professor O./Dr. H. who had examined
the lung of the deceased and found no evidence of asbestosis.
The applicants' objections (Widerspruch) were rejected on
20 October 1983, on the basis of a supplementary expert opinion by
Professor V./Dr. H. who confirmed the prior medical report and
considered that the cancer had been caused by smoking. The objection
proceedings had repeatedly been stayed at the request of the
applicants' counsel. On 3 March 1983 supplementary grounds of
objection had been submitted on behalf of the applicants.
On 14 November 1983 the applicants lodged an action before the
Social Court.
On 22 May 1985, after an exchange of written observations by the
parties and having obtained information from the defendant about
similar proceedings as well as information from the deceased's family
physician the Social Court ordered that an expert opinion be prepared.
On 12 August 1985 an expert opinion from Professor W./ Dr. B.-A.
of the Institute for Labour and Social Medicine at the University of
Giessen was submitted. The experts first denied a causal link stating
that Mr. Ellies had only for a short time been exposed to asbestos.
In a supplementary expert opinion submitted on 4 August 1986 they
corrected however their prior analysis as according to another expert,
Professor M., Mr. Ellies had been exposed to asbestos longer than they
had initially thought. They therefore considered that there was a
certain probability of a causal link. The defendant however submitted
an expert opinion of Professor O. who had shown that the slide
preparation of Mr. Ellies' lung which Professor W/Dr.B.-A. had examined
had been kept together with other specimens and thereby had been de-
natured. Subsequently the Social Court made a request for the
submission for information of files relating to a similar matter and
for information from the Ministry of Labour and Social Affairs.
On 14 April 1987 the Social Court (Sozialgericht) in Mainz
dismissed the action. The court considered that Mr. Ellies' cancer was
not a professional disease within the meaning of Section 551 (1) of the
Insurance Code (Reichsversicherungsordnung-RVO) as lung cancer was
recognised as a professional disease only if there existed at the same
time an asbestosis. The requirements of Section 551 (2) of the RVO
were likewise not met as it was not established in medical science that
people exposed to asbestos ran an increased risk of cancer even if
asbestosis was not present at the same time.
On 18 May 1987 the applicants lodged an appeal and in June 1987
the defendant submitted replies. On 24 November 1987 the defendant
informed the appellate court that it was intended to amend the Decree
on Professional Diseases (Berufskrankheitenverordnung) but that the new
regulations would not affect the pending case, i.e. the applicants'
claim would not thereby become well-founded.
On 3 April 1989 the appellate court informed the applicants that
there existed doubts as to the admissibility of part of their appeal.
It also stated that it did not intend to obtain ex officio, further
expert evidence. The applicants replied that they considered it
necessary to obtain an expert opinion from an expert of a foreign
country.
On 25 April 1989 the court requested the expert Professor W. to
provide additional explanations. It also requested the Ministry for
Labour and Social Affairs to state whether there existed new scientific
findings to the effect that in the case at issue the fatal disease of
the insured person could be recognised as having been caused in
relation with his professional activity. The Ministry replied on
16 June 1989 that so far there existed no research results justifying
the affirmation of a causal link but the question was still under
consideration.
Subsequently another expert opinion was obtained on the question
whether or not the deceased's lung tissue samples had in fact been
de-natured and could therefore no longer be used for the purpose of
obtaining evidence.
On 15 August 1989 the appellate court received at its request
information from the International Labour Organisation.
At the applicants' insistence the appellate court eventually,
i.e. on 21 November 1989, requested Dr. St. for another expert opinion
which was submitted on 20 February 1990.
On 5 July 1990 Professor R., a member of the Institute for Labour
Medicine at the University of Bochum, was ordered by the appellate
court to establish an expert opinion (Obergutachten). He submitted it
on 10 September 1990. It was negative for the applicants' case.
The applicants challenged this expert on the grounds that he
worked in an institution which was linked to the defendant insurance.
The challenge was rejected on 23 January 1991.
The applicant's appeal was partly rejected as being inadmissible
and partly rejected as being unfounded by the Regional Social Court of
Rhineland-Palatinate (Landessozialgericht) on 23 January 1991. The
Appellate Court likewise considered that there was no sufficient proof
that Mr. Ellies' death had been caused by a professional disease.
The court stated that, inter alia, it also based its findings on
the expert opinion submitted by Professor R. who had been challenged
by the plaintiffs. It underlined that the fact that Professor R.
worked in a professional organisation which was linked to the defendant
insurance did not put in question the validity of his expert opinion.
The applicant's complaint to the Federal Social Court
(Bundessozialgericht) about the denial of leave to appeal on points of
law was rejected on 19 August 1991 as being inadmissible. It was
stated in the decision that the applicants had not shown that any
evidence which they had named or offered had been disregarded by the
Lower Social Court in an arbitrary manner. Rather the Social Court had
given sufficient reasons for the refusal of taking further expert
evidence.
The applicant then lodged a constitutional complaint against the
Federal Social Court's decision of 19 August 1991. This complaint was
rejected by a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 25 November 1991.
On 18 December 1992 an amendment to the Decree on Professional
Diseases came into force. According to the new regulations, applicable
to cases that occurred after 31 March 1988, lung cancer is now
recognised as a professional disease, inter alia, if the person
concerned has been at his/her workplace exposed to asbestos for at
least 25 years. On 28 January 1993 the competent liability insurance
refused to re-open the applicants' case, stating that its decision of
12 May 1981 was not unlawful and it was furthermore not affected by the
new regulations as they applied only to cases that occurred after
31 March 1988 while Mr. Ellies had died already in 1980.
COMPLAINTS
The applicants complain that they were denied a fair hearing
before the Social Court in particular in view of the fact that the
Appellate Social Court based its decision, inter alia, on the expert
opinion of Professor R. who could not be considered as being unbiased
and impartial given that he worked for an institution which is related
to the defendant party in the social insurance proceedings. The
applicants also complain that the fairness of the proceedings was
affected by the alleged fact that the defendant was represented by a
subordinate agent and not its statutory representatives. They also
invoke Article 6 of the Convention in relation to the proceedings
before the Federal Constitutional Court. Lastly they complain about
the length of the proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 August 1981 and registered
on 21 July 1992.
On 7 September 1993 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
20 December 1993, after an extension of the time-limit fixed for that
purpose. The applicants replied on 14 March 1994.
THE LAW
1. The applicants first complain of the decisions given against them
in the domestic proceedings and consider that their right to a fair
trial as guaranteed under Article 6 (Art. 6) of the Convention has been
violated, inter alia, because of the participation of an expert,
Professor R., whom they unsuccessfully challenged, the defendant not
being represented in the proceedings by its statutory agent, the
Federal Social and Federal Constitutional Court refusing to deal with
the merits of their complaints.
The applicability of Article 6 (Art. 6) of the Convention to
Social Court proceedings relating to alleged claims for insurance cover
has repeatedly been confirmed by the European Court of Human Rights
(see Feldbrugge and Deumeland judgments of 29 May 1986, Series A nos.
99 and 100) and is not disputed by the parties.
The Commission first notes that the applicants unsuccessfully
challenged the expert Professor R., which means that the competent
domestic court saw no reason to question the expert's impartiality.
It is true that the European Court of Human Rights found in the Bönisch
judgment of 6 May 1985 (Series A, no. 92) that the neutrality of an
expert in criminal proceedings was questionable as that expert had also
drafted the report which had set in motion the proceedings in question
and during these proceedings he acted more like a witness against the
accused (loc. cit, p. 15, paras. 30-33).
The present case relates to civil proceedings in which various
experts were heard and the applicants had ample opportunity to comment
on and criticise the reports submitted by these experts. It is in
various respects distinguishable from the Bönisch case and the
Commission does not find that the participation of an expert in the
domestic proceedings before the appellate court amounted to an
impairment of the applicants' claim to a fair hearing for the only
reason that the expert in question is allegedly working for an
institution which is related to the defendant civil party (cf. Eur.
Court H.R., Le Compte, Van Leuven and De Meyere judgment of
23 June 1981, Series A no. 43, p. 25, para. 58).
Insofar as the applicants complain that the defendant party was
represented by a subordinate agent and not its statutory agent, the
Commission notes that it is principally for the domestic courts to
verify whether or not the parties to civil proceedings are correctly
represented. The applicants have not shown that the Social Courts
arbitrarily failed to see to it that the defendant party was
represented by a competent person. In any event there is nothing to
show that the fairness of the proceedings could in any way have been
affected by the status of the defendant party's representative within
the organisation of that party.
The Commission further points out that it is a matter for the
domestic judge to appreciate the relevance of all available evidence
(see Eur. Court H.R., Barbèra, Messegué and Jabardo judgment of
6 December 1988, Series A no. 146, p. 31 para. 68). In the present
case the Social Court of Appeal had several expert opinions before it.
The expert Professor R. was not the only expert who denied a
causal link between the first applicant's late husband's disease and
his prior exposure to asbestos. In these circumstances it cannot be
found that the taking of evidence and the appreciation of the available
evidence by the Social Court and the Social Court of Appeal discloses
any arbitrariness.
Finally, and insofar as the applicants complain of the
proceedings before the Federal Social and the Federal Constitutional
Court, the Commission refers to its constant jurisprudence according
to which it is compatible with the Convention that superior courts
refuse to deal with the merits of appeals which they consider do not
comply with the requirements of admissibility set up in domestic
procedural law (see No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240 and
No. 11445/85, Dec. 1.12.86, unpublished).
For the above reasons it follows that this part of the
application has to be rejected as being manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants have also complained about the length of the
domestic proceedings.
The Government question the applicants' status as victim but do
not raise an express plea of non-exhaustion of domestic remedies. They
consider that the complaint is in any event unfounded.
The applicants mainly point out that the appeal proceedings
disclose an important period of inactivity.
The Commission notes that the Government have themselves
expressed doubts as to the effectiveness of a constitutional complaint.
As no other remedies have been shown to exist, the Commission considers
that the present complaint cannot be rejected for non-exhaustion of
domestic remedies. It further considers that, particularly as far as
the proceedings before the Social Court of Appeal are concerned, the
case raises complex questions of law and fact which necessitate an
examination on the merits.
No other reasons to declare this part of the application
inadmissible have been established.
For these reasons, the Commission, unanimously,
DECLARES INADMISSIBLE the applicants' complaint about the
fairness of domestic proceedings;
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicants' complaint about the length of the domestic
proceedings.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy