AS TO THE ADMISSIBILITY OF
Application No. 18170/91
by R. W.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 11 January 1994, the following members being present:
MM. A. WEITZEL, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 2 October 1990 by
R. W. against Germany and registered on 6 May 1991 under file No.
18170/91;
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 1943 and living in
Solingen. He is represented by Mr. H. Schmitz, a lawyer practising in
Düsseldorf.
It follows from his statements and the documents submitted that
on 11 November 1979 the applicant had an accident with his bicycle due
to an icy street in the city of Solingen. He brought an action for
damages against the city in the spring of 1981. On 21 December 1982
the Wuppertal Regional Court (Landgericht) ordered the defendant city
to pay moral damages in the amount of DM 45,000. The court further
held that the city also had to pay for incurred and future pecuniary
damages, insofar as these were not covered by social security payments.
The judgement became final.
Subsequently the applicant brought several actions between 1983
and 1985 claiming specific amounts of pecuniary damages which allegedly
resulted from his incapacity to work as a consequence of the accident.
In particular proceedings he claimed that as a representative
(Pharmaberater) for a company producing pharmaceutical products he
could have earned DM 280,000. In support of his claim he submitted a
private expert opinion and the Regional Court also obtained an official
expert opinion. By judgment of 23 December 1985 the action was
partially granted and the defendant city ordered to pay DM 166,893.13
to the applicant with 11 per cent interest as of 11 July 1983.
Both parties appealed.
By partial judgment of 5 June 1986 the Düsseldorf Court of Appeal
(Oberlandesgericht) awarded the applicant DM 142,704.63 and sent the
case back to the Regional Court for a new trial insofar as the
applicant's claim was at issue that he would have earned more than the
average income based on collective agreement (übertarifliche
Bezahlung). Having taken evidence on this issue the Regional Court
ordered the defendant city on 27 July 1988 to pay the applicant a
further amount of DM 1,005.48. The applicant's exceeding claim was
dismissed.
The applicant again appealed claiming further payment of
DM 386,119.98.
On 16 March 1989 the Düsseldorf Court of Appeal dismissed the
applicant's appeal. The Appellate Court stated that the applicant had
taken up work as a representative of a pharmaceutical firm in 1978.
Consequently he had only 2 years of professional experience at the time
of the accident, therefore the applicant's allegation that he could
have reached a top level income was considered to be unproven and
unlikely. Also the applicant's allegation that contrary to the average
number of visits of 8 - 9 per day he could have visited 16 medical
doctors per day was considered to be unproven and unlikely. The court
then proceeded to an estimate of the applicant's net income and came
to the result that it would not have exceeded the amount already
attributed to the applicant in the prior partial judgment of
5 June 1986.
The defendant city had likewise appealed, its appeal was granted
and the action was dismissed insofar as it had not yet been decided by
partial judgment of 5 June 1986.
The applicant then lodged an appeal on points of law (Revision).
On 23 January 1990, the Federal Court (Bundesgerichtshof) refused
to admit the appeal in accordance with Section 554 b of the Code of
Civil Procedure (Zivilprozeßordnung) which provides that admissibility
depends on the value of claim exceeding DM 60,000 or the matter raising
an issue of general importance.
Subsequently the applicant lodged a constitutional complaint
which was rejected on 30 March 1990 by a group of three judges of the
Federal Constitutional Court (Bundesverfassungsgericht) as offering no
chance of success. It is stated in the decision that insofar as the
Appellate Court had refused to obtain an expert opinion although both
parties had made a request for such an opinion the Constitutional Court
considered that the Appellate Court had not been obliged to take these
requests into consideration as it considered them to be of no
relevance. Furthermore the Constitutional Court stated that the
judgment complained of did not disclose any arbitrariness.
COMPLAINTS
The applicant submits that in 1968 he was treated by a
neurologist who wrongly diagnosed schizophrenia. This medical
certificate became known to the authorities and tribunals which treated
him accordingly, although he is mentally sane. He submits that
consequently his action for damages was in part rejected arbitrarily
although contrary to the civil courts findings he had substantiated his
claims. He further submits that the Appellate Court based its judgment
on the opinion of an unqualified and incompetent expert and argues that
he was denied access to a court and that the Federal Court refused to
admit his appeal on points of law.
Finally he complains about the length of the civil proceedings
which, so he points out, only relate to claims for pecuniary damages
occurred in the period up until 31 December 1983.
THE LAW
1. The applicant has first complained about the alleged unfairness
of the civil court proceedings which he instituted in order to claim
damages.
The Commission notes that the applicant's claim was partially
granted while the civil courts considered that it had not been shown
with certainty that the applicant could have earned more than had been
awarded to him. The courts inter alia relied on expert evidence and
considered that in the absence of convincing evidence it was unlikely
that the applicant's income would have been above average as alleged
by him. The Commission cannot find that these findings are
incompatible with the parties' submissions or unduly influenced by the
alleged erroneous medical certificate of 1968.
It follows that there is no appearance of a violation of the
principle of a fair hearing and this complaint therefore 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 applicant has furthermore complained about the length of the
civil proceedings. He has however not shown to have raised this
particular complaint before the Federal Constitutional Court and it
would therefore have to be rejected for non-exhaustion of domestic
remedies (Articles 26 and 27 para. 3 (Art. 26, 27-3) of the
Convention). But even assuming that domestic remedies were exhausted
this part of the application also has to be rejected for the following
reasons:
a) The Commission first notes that according to the applicant's
submissions his action for damages was introduced in the spring of
1981. On 21 December 1982 a final judgment was given by the Wuppertal
Regional Court (Landgericht) recognising that the city of Solingen was
obliged to compensate the applicant in respect of all damages resulting
from his accident which occurred on 11 November 1979. Furthermore the
applicant was awarded moral damages in the amount of DM 45,000.
The applicant has not shown that any important delays which could
be attributed to the competent authorities occurred in these
proceedings and the Commission cannot find that a period of roughly two
years in the circumstances of the present case is unacceptable and
excessive.
b) Subsequently the applicant brought another action in 1983
claiming specific damages for the period from 1980 to 1983. The
proceedings relating to this action were eventually terminated by the
Federal Court which on 23 January 1990 refused to admit the applicant's
appeal on points of law.
The proceedings consequently lasted about seven years.
While the reasonableness of the length of proceedings has to be
assessed mainly in the light of the complexity of the matter, the
handling of the case by the competent tribunal and authorities and the
attitude of the applicant as a party in the proceedings (see, in alia,
Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A No.
198, p. 12, para. 30) it has to be noted that the matter was rather
complex as expert evidence had to be obtained on the question of
possible earnings.
Insofar as the handling of the matter by the courts is concerned
it has to be noted that the first judgment was given in December 1985
and on 5 June 1986 the Court of Appeal referred part of the matter back
to the first instance court while the applicant was awarded by the
Appellate Court damages in the amount of DM 142,704.63. To this extent
the Appellate Court's decision became final.
The new proceedings before the Regional Court lasted until
27 July 1988 and a further appeal was rejected on 16 March 1989 while
an appeal on points of law was eventually rejected on 23 January 1990.
Finally, a constitutional complaint was rejected on
30 March 1990.
The Commission cannot find that these different stages of the
proceedings were excessively long and the applicant has not shown that
considerable periods of time were lost due to inactivity of the courts
dealing with this matter.
While it can furthermore not be found that the applicant himself
contributed to the length of the proceedings the Commission considers
in light of all circumstances of the case that it does not disclose any
appearance of a violation of the reasonable time requirement of Article
6 (Art. 6) of the Convention. This part of the application likewise
has to be rejected as being manifestly ill-founded within the meaning
of Article 27 (Art. 27) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy