AS TO THE ADMISSIBILITY OF
Application No. 22770/93
by Adolf STIFTER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 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
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 9 May 1990 by
Adolf STIFTER against Austria and registered on 14 October 1993 under
file No. 22770/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
18 October 1994 and the observations in reply submitted by the
applicant on 12 January 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is an Austrian citizen born in 1938. He lives in
Wolfurt, and is represented before the Commission by Mr. W.L. Weh, a
lawyer practising in Bregenz.
The applicant was involved in a car accident in March 1971. A
request for an invalidity pension (Versehrtenrente) was refused by the
Accident Insurance Office (Allgemeine Unfallversicherungsanstalt) on
18 December 1973, and the applicant's action before the Social
Insurance Arbitration Court (Schiedsgericht der Sozialversicherung) was
dismissed on 23 July 1976.
On 23 September 1983 the applicant made a second application for
an invalidity pension to the Accident Insurance Office because of
further consequences allegedly arising from the accident. The
application was refused by the Office on 25 October 1983 on the ground
that the applicant's ailments were not attributable to the accident.
On 26 January 1984 the applicant brought an action before the
Feldkirch Regional Court (Landesgericht) in its capacity as Labour and
Social Court.
The Regional Court heard the parties and took evidence from two
experts and also considered the court file from the earlier proceedings
before the Social Insurance Arbitration Court. A hearing was held.
The Regional Court dismissed the action on 18 August 1988, finding that
there was no reason to call further evidence as the injuries alleged
by the applicant could not be causally linked to the accident in 1971.
The applicant appealed.
On 18 October 1989 the Innsbruck Court of Appeal
(Oberlandesgericht) rejected the applicant's appeal, in which he had
alleged, inter alia, that the Regional Court had not dealt adequately
with the private experts' reports he had submitted. It noted that the
applicant's own expert report had been sent to the team of doctors who
had examined the applicant over a period of five days from 2 to 7 March
1987, and that the head of the team had confirmed that his team had
considered the matter raised (the question of whether the functioning
of the applicant's brain stem had been examined). The Court of Appeal
commented that this report had been prepared after the applicant had
stayed in hospital for several days, that it was comprehensive and
coherent, and that it could not be the function of an expert report to
keep examining a person until a conclusion was reached which was in the
plaintiff's favour.
The Supreme Court (Oberster Gerichtshof) rejected the applicant's
further appeal (Revision) on 23 January 1990. It noted that
allegations of procedural errors at first instance which had been
refuted by the appeal court could not be raised in a further appeal,
and it also noted that a further appeal could not be used to challenge
the assessment of the evidence by the courts of fact.
COMPLAINTS
The applicant complains of the length and alleged unfairness of
the proceedings. He considers that the period of seven years from his
application for a pension until the decision of the Supreme Court of
23 January 1990 does not comply with the 'reasonable time' requirement
of Article 6. In particular, he complains of the length of the first
instance proceedings.
As to the fairness of the proceedings, the applicant considers
that the Regional Court gave too much weight to the official court
experts and insufficient weight to the expert opinions he presented.
He refers to the case of Bönisch (Eur. Court H.R., judgment of
6 May 1985, Series A no. 92).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 May 1990 and registered on
14 October 1993.
On 5 July 1994 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
18 October 1994. The applicant replied on 12 January 1995, after an
extension of the time-limit.
THE LAW
1. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention in several respects. Article 6 para. 1
of the Convention provides, so far as relevant, as follows:
"1. In the determination of his civil rights and obligations,
... everyone is entitled to a fair and public hearing within a
reasonable time ..."
The applicant considers that the proceedings lasted unreasonably
long.
The Government consider that the case was complex because of the
complex medical issues which required the courts to consider numerous
and in part contradictory medical reports, and to call for a detailed
medical examination of the applicant. They accept that there were
certain delays, in particular concerning the preparation of experts'
reports (nine months in one case, six months in another, and some 10
months when the file could not be found), but consider that the
domestic courts dealt with the case expeditiously and without undue
procedural delays. They point to the applicant's conduct as
contributing to the length of the proceedings, in particular in
connection with medical examinations and the unclear submissions he
made. They conclude that the proceedings did not exceed the
"reasonable time" requirement of Article 6 (Art. 6).
The applicant rejects the Government's conclusions. He points
out that social insurance proceedings are particularly important for
individuals and must be dealt with particularly speedily. He also
points out that the courts in the present proceedings had the benefit
of the initial proceedings, which should have enabled them to deal with
the present case quicker. The proceedings concerned only the state of
the applicant's health, and lasted five years at first instance. The
applicant underlines that the Government accept that there was delay
of 25 months, but considers that there was also no justification for
the court's inactivity between 14 April and 11 July 1985, that there
need not have been a five month gap between his request of 27 September
1987 for a report to be discussed and the next hearing on 24 February
1988. He notes that it took the first instance court almost three
months to deliver its judgment after the oral hearing, notwithstanding
Article 415 of the Civil Code which requires judgment to be delivered
within four weeks.
The Commission notes that the proceedings in the present case,
which determined the applicant's second request for an invalidity
pension, began on 26 January 1984, when he brought proceedings before
the Feldkirch Regional Court, and ended on 8 March 1990, when he
received the Supreme Court's judgment of 23 January 1990. It
considers, in the light of the criteria established by the case-law of
the Convention institutions on the question of "reasonable time" (the
complexity of the case, the applicant's conduct and that of the
competent authorities), and having regard to all the information in its
possession, that a thorough examination of this complaint is required,
both as to the law and as to the facts.
2. The applicant also alleges a violation of Article 6
(Art. 6) of the Convention in connection with the fairness of the
proceedings. He alleges that the Regional Court gave too much weight
to the official court experts and insufficient weight to the expert
opinions he presented.
The Commission recalls that, under Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In particular,
it is not competent to deal with an application alleging that errors
of law or fact have been committed by domestic courts, except where it
considers that such errors might have involved a possible violation of
any of the rights and freedoms set out in the Convention (see, in a
civil case, No. 8315/79, Dec. 15.7.81, D.R. 25 p. 203) In particular,
the Commission is not called upon to decide whether or not the domestic
courts have correctly assessed the evidence before them, but only
whether the proceedings in general have been conducted in such a way
that he has had a fair trial.
The applicant alleges that the Regional Court lent undue weight
to the opinions of the court expert, and paid too little attention to
his own expert. He refers to the case of Bönisch (Eur. Court H.R.,
judgment of 6 May 1985, Series A no. 92).
The Commission recalls that in the case of Bönisch, to which the
applicant refers, the expert in question had certain links with the
party which was responsible for the prosecution of the applicant. In
the present case, the applicant makes no complaint of a structural link
between the court appointed expert and the other party: he complains
rather that the courts followed the evidence of the court-appointed
expert rather than his own.
The practice of experts being appointed by the courts does not
in itself give rise to unfairness or inequality of arms unless the
circumstances of such appointment give doubts raised by the appearances
of the case which can be held to be objectively justified (see, in the
context of criminal proceedings, Eur. Court H.R., Brandstetter judgment
of 28 August 1991, Series A no. 211, p. 21, para. 44). The applicant
expresses no such doubts.
Further, the applicant was in the event permitted to bring the
evidence of his own expert. Whilst it is true that the court preferred
the evidence of the court experts to that of the applicant, there is
no indication in the case that that preference was based on any
different procedural position of the two experts. Moreover, as the
Court of Appeal noted, there are no apparent lacunae in the
neurological report which was before the court, and that report was
prepared on the basis of an extensive examination of the applicant as
an in-patient.
The Commission finds no indication in the present case that the
way in which the domestic courts dealt with the various experts'
reports was unfair or in conflict with the principle of equality of
arms. It follows that this part of the application must be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint concerning the length of the proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the President of the
First Chamber First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy