CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)