The European Commission of Human Rights sitting in private on
1 December 1986, the following members being present:
MM. C.A. NØRGAARD, President
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 February 1985 by
A.K.Z. against the Federal Republic of Germany and
registered on 14 March 1985 under file No. 11445/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The facts of the case as they have been submitted by the applicant may
be summarised as follows:
The applicant, born in 1975, is a German national and resident in
Karlsruhe. She is a schoolgirl and legally represented by her
parents. Before the Commission she is represented by Mr. W. Küchler,
a lawyer practising in Karlsruhe.
In 1975, upon her birth, the applicant fell ill while in hospital,
inter alia, with meningitis. Due to this disease and the necessary
treatment with highly dosed medicaments, the applicant suffered
lasting injuries to her health.
Apparently in 1978, the applicant instituted compensation proceedings
before the Karlsruhe Regional Court (Landgericht) against both the
hospital and Dr. L, the pediatrician in charge at that hospital.
During these and the following proceedings, the applicant was
represented by a lawyer.
On 19 September 1980 the Regional Court held in a partial judgment
that the applicant's claim of compensation for personal suffering was
justified in principle. Moreover, the opponents were obliged to
compensate any future material damages caused by the disease. The
Court found in particular that Dr. L had failed to discover the
symptoms of the disease as well as to order a further careful control
of the applicant. Moreover, the medical organisation and service at
the hospital had been insufficient. The Court thereby relied on the
testimonies of several witnesses and the opinions of the medical
experts Prof. B and Prof. G. It moreover shifted the burden of
proof concerning the causality of negligence and the injuries to the
applicant's health on the ground that the mistakes and insufficiencies
had to be considered as gross negligence.
This decision was quashed by the Karlsruhe Court of Appeal
(Oberlandesgericht) upon the defendants' appeal on 14 December 1983.
The Court dismissed the applicant's claims on the ground that she had
failed to prove gross negligence and, therefore, the burden of proof
could not be shifted. The Court relied in particular on a further
medical opinion of Prof. Sch.
On 23 October 1984 the Federal Court of Justice (Bundesgerichtshof)
decided not to accept the applicant's appeal on points of law
(Revision). While this decision did not mention detailed reasons, it
referred to S. 554 (b) para. 1 of the Code of Civil Procedure
(Zivilprozessordnung) in its interpretation by the Federal
Constitutional Court (Bundesverfassungsgericht) in a decision of
11 June 1980. The Federal Court's decision was taken without an oral
hearing.
S. 554 (b) para. 1 provides that, in litigations concerning pecuniary
claims of more than forty thousand German Marks, the court of appeal
(Revisionsgericht) may refuse to accept the appeal (Revision) if the
case is of no fundamental importance. According to S. 554 (b) para. 3
the decision may be taken without an oral hearing. In its decision of
11 June 1980 the Federal Constitutional Court held that, from a
constitutional point of view, the Federal Court may only reject an
appeal under S. 554 where it finds that it offers no prospect of
success.
On 28 December 1984 the Federal Constitutional Court rejected the
applicant's constitutional complaint as offering no prospect of
success.
COMPLAINTS
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Federal Court of Justice decided not to accept her
appeal without conducting a fair and public hearing. She submits in
particular that the Court's decision was served without detailed
reasons as to the grounds of appeal and the merits of her case. She
was, therefore, not able to verify the impartiality of the Court. The
decision might have been arbitrarily taken in order to reduce the
Court's burden of work.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Federal Court of Justice decided without a fair
and public hearing.
Article 6 para. 1 (Art. 6-1) states that "in the determination of his
civil rights... everyone is entitled to a fair and public hearing...
by an independent and impartial court established by law".
The Commission has first considered the applicant's complaint
concerning the absence of a public hearing before the Federal Court of
Justice. It here recalls that Article 6 para. 1 (Art. 6-1) is in
principle applicable to proceedings before courts of appeal or of
cassation. However, the way in which it applies must clearly depend on
the special features of such proceedings. In particular, account must
be taken of the entirety of the proceedings conducted in the domestic
legal order. Appeal proceedings before the Federal Court of Justice,
which determines solely issues of law, do not require a public
hearing, if only the appeal on points of law is dismissed and a
judgment of the lower court, which becomes final, had been delivered
in accordance with Article 6 para. 1 (Art. 6-1 (Eur. Court H.R., Axen
judgment of 8 December 1983, Series A no. 72 pp. 12, 13).
The Commission notes that, in the instant case, the Federal Court of
Justice refused to accept the applicant's appeal without a hearing
according to S. 554 (b) paras. 1 and 3 of the Code of Civil Procedure
as interpreted by the Federal Constitutional Court. According to that
provision only two issues of law had to be determined, namely the
fundamental importance of the case and the prospect of success. The
Federal Court's decision not to accept the appeal made the judgment of
the Karlsruhe Court of Appeal final, and that judgment had been
delivered after proceedings whose compatibility with the requirements
of Article 6 para. 1 (Art. 6-1) is not contested.
In these circumstances the Commission finds that the absence of a
public hearing before the Federal Court of Justice does not disclose
any appearance of a violation of Article 6 para. 1 (Art. 6-1).
The Commission has next examined the applicant's complaint under
Article 6 para. 1 (Art. 6-1) that the proceedings before the Federal
Court of Justice were unfair in that its decision of 23 October 1984
lacked reasons.
The Commission notes that the absence of reasons in court decisions
might under specific circumstances raise an issue as to the fairness
of the respective proceedings. However, account must be taken of the
special features of the proceedings at issue. If the relevant
domestic law authorises an appeal court to reject an appeal on the
ground that it raises no legal issue of fundamental importance and
offers no prospect of success, it may be sufficient for that court
simply to refer to the provision authorising this procedure
(cf. No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240).
In the instant case, the Federal Court of Justice, in referring to
S. 554 (b) para. 1 of the Code of Civil Procedure and to the Federal
Constitutional Court's decision, sufficiently indicated the reasons of
its decision. The applicant, who was represented by a lawyer, was
thereby given to understand that, in the Federal Court's view the
applicant's appeal on points of law raised no issue of fundamental
importance and offered no prospect of success.
The Commission concludes that there is no appearance of a violation of
the right to a fair hearing guaranteed by Article 6 para. 1 (Art. 6-1).
It follows that the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)