SUR LA RECEVABILITÉ
Application No. 25040/94
by Hans-Joachim ENDERS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, 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
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 30 March 1994 by
Hans-Joachim ENDERS against Germany and registered on 31 August 1994
under file No. 25040/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1946, living in
Paderborn where he is practising as a medical doctor in Altenbeken.
The applicant is a member of the medical association
(Ärztekammer) and he is admitted to practice as a social security
doctor (Kassenarzt). Both positions oblige him to participate in the
medical emergency service (Notfalldienst).
Between 2 January 1979 until 31 July 1991 the applicant was on
emergency duty for two thousand one hundred and fifteen days.
Medical emergency services are provided for by law and serve the
purpose of ensuring medical care in emergency cases on days on which
medical practices are closed.
In 1991 the applicant brought a civil action against his regional
medical association (Kassenärztliche Vereinigung) of Westfalen-Lippe
with a view to obtaining a finding that insofar as the defendant had
appointed him emergency duty doctor for more than 14 days per year it
was responsible for a violation of his rights. Furthermore the
applicant requested the court to find that the defendant had to pay him
damages resulting from the fact that since January 1979 he had to be
on emergency duty for more than 14 days per year. In the event he
claimed damages from January 1988 onwards and also claimed damages that
might arise in the future.
On 23 October 1991 the Paderborn Regional Court (Landgericht)
dismissed the action.
The court found that insofar as the applicant requested a finding
that the emergency duty regulation was unlawful the action was
inadmissible, because the court had no competence for such
declarations.
Insofar as the applicant claimed a finding that he was entitled
to damages the court considered that he had neither shown that his
rights had been violated by the defendant nor that he had incurred any
material damage. He had not submitted any figures showing that his
costs were not covered by his income as a medical doctor. The court
furthermore noted that the applicant had failed to bring a social court
action complaining that he was too often chosen for the emergency
medical service. Finally the court denied the applicant's claim that
the appointments in question constituted a de facto expropriation.
The applicant lodged an appeal (Berufung) which was rejected by
the Hamm Court of Appeal (Oberlandesgericht) on 3 July 1992. This
court pointed out that the defendant also had to take into account the
interests of the medical doctors. Nevertheless it left the question
open as to whether the defendant had disregarded the applicant's
interest and therefore violated its duties in respect of the applicant,
as in any event the applicant had not shown that he had suffered
material damages. The applicant had only alleged that his damage
consisted in the loss of leisure time but under tort law non-material
damages were irrelevant.
The applicant then lodged an appeal on points of law (Revision)
which was rejected by the Federal Court (Bundesgerichtshof) on 13 July
1993. The court refused to admit the case for a decision on the merits
considering that the case raised no issues of a general character and
furthermore it offered no chances of success. The court confirmed the
appellate court's finding that under tort law non-material damage was
irrelevant. The emergency service had neither deprived the applicant
of the possibility to earn money elsewhere or to save costs.
The applicant then lodged a constitutional complaint which was
rejected by a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 12 October 1993.
Subsequently the applicant brought social court proceedings. His
request for an interim measure was unsuccessful.
On 25 May 1993 the Dortmund Social Court (Sozialgericht)
dismissed the action which he had lodged against his appointment as
emergency service doctor for 1992. The court considered that the
applicant had no legal interest in finding that his appointment as
emergency service doctor was illegal as in any event the civil courts
had denied a claim for damages.
The applicant lodged an appeal and on 15 December 1993 the Social
Court of Appeal of North Rhine Westfalia (Landessozialgericht) gave
judgment in the applicant's favour finding that the defendant orders
of 1991 and 1992 appointing him as emergency service doctor were
illegal.
Contrary to the social court the appellate social court
considered that the applicant had a legal interest in pursuing the
matter although the measures complained of related to the past. The
court found that the applicant was discriminated against in comparison
with his 68 colleagues in the district of Paderborn as in the district
of Altenbeken there were next to him only two further medical doctors
who shared with him the burden of providing emergency services. While
in the Paderborn District a medical practitioner only had to serve
about 7 days per year as emergency doctor the three doctors in the
Altenbeken District had to serve 57 days per year. This was an
unjustified and excessive burden taking into account that the distance
between Altenbeken and Paderborn city was only about 12 km.
COMPLAINTS
The applicant considers that in the light of the social court of
appeal's judgment his duty to perform as emergency service doctor
amounts to a violation of Article 4 of the Convention and Article 1 of
Protocol No. 1. He also invokes these provisions in conjunction with
Article 14 of the Convention. The applicant also alleges a violation
of Article 6 of the Convention.
THE LAW
The applicant had complained of being a victim of an excessive
and discriminatory requisition as an emergency service doctor. The
Commission notes however that the applicant has successfully raised
this complaint before the social court of appeal and the question
therefore arises whether he can still be considered to be a victim of
the alleged violation. According to the jurisprudence of the European
Court of Human Rights a person is in general no longer a victim within
the meaning of Article 25 (Art. 25) when the national authorities have
acknowledged either expressly or in substance and afforded redress for,
the breach of the Convention (see Eur. Court H.R., Eckle judgment of
15 July 1982, Series A No. 51, p. 30, para. 66).
In the present case the appellate social court recognised that
the applicant's emergency service obligation imposed on him an
unjustified and excessive burden. It thus acknowledged in substance
a breach of the Convention rights invoked by the applicant.
The social court as well as the civil courts refused however to
grant the applicant compensation. The question therefore arises whether
the appellate social court's judgment constitutes in itself sufficient
redress.
The Commission notes in this respect that according to the
findings of the German civil courts the applicant has not shown that
he has suffered any material damage. The applicant's claim before the
civil courts was that he had a loss in leisure time which did however
not mean that he was deprived of the possibility to earn money
elsewhere or that he incurred any costs in connection with his
emergency service. In these particular circumstances the Commission
cannot find that the denial of compensation was arbitrary and amounted
to a violation of Convention rights in particular of Article 1 of
Protocol No. 1 (P1-1) or of Article 4 (Art. 4) of the Convention.
The Commission also notes that the applicant had the possibility
to argue his case fully before the civil courts and there is nothing
to show that he was in any way denied a fair hearing (Article 6
(Art. 6) of the Convention).
It follows that there is no appearance of a violation of the
Articles invoked by the applicant and the application therefore has to
be rejected as being manifestly ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy