CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.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. 20335/92                        by Uta, Anke and Carsten ELLIES                        against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 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                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              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 6 August 1981 by Uta, Anke and Carsten ELLIES against Germany and registered on 21 July 1992 under file No. 20335/92;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 7 September 1993 to communicate the      application;   -     the observations submitted by the respondent Government on      20 December 1993 and the observations in reply submitted by the      applicant on 14 March 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are German citizens living in Mainz.   Mrs. Ellies was born in 1937 and has two children, Anke born in 1963 and Carsten in 1965.         They are represented by Mr. R. Battenstein, a lawyer practising in Düsseldorf.        The applicants complain about the fairness and length of Social Court (Sozialgericht) proceedings.        The facts as undisputed between the parties may be summarised as follows.        The first applicant's husband, father of the two other applicants, died in 1980 as a consequence of cancer.        On 8 July 1980 the applicants requested insurance cover from the competent employers liability insurance (Berufsgenossenschaft) claiming that Mr. Ellies had been the victim of a professional disease as during his professional career he had been exposed to asbestos dust and consequently his lung cancer had been caused thereby.        On 12 May 1981 the insurance refused to grant insurance cover denying that the cancer was a professional disease.   This decision was based on a pathological report of Professor O./Dr. H. who had examined the lung of the deceased and found no evidence of asbestosis.        The applicants' objections (Widerspruch) were rejected on 20 October 1983, on the basis of a supplementary expert opinion by Professor V./Dr. H. who confirmed the prior medical report and considered that the cancer had been caused by smoking.   The objection proceedings had repeatedly been stayed at the request of the applicants' counsel.   On 3 March 1983 supplementary grounds of objection had been submitted on behalf of the applicants.        On 14 November 1983 the applicants lodged an action before the Social Court.        On 22 May 1985, after an exchange of written observations by the parties and having obtained information from the defendant about similar proceedings as well as information from the deceased's family physician the Social Court ordered that an expert opinion be prepared.        On 12 August 1985 an expert opinion from Professor W./ Dr. B.-A. of the Institute for Labour and Social Medicine at the University of Giessen was submitted.   The experts first denied a causal link stating that Mr. Ellies had only for a short time been exposed to asbestos. In a supplementary expert opinion submitted on 4 August 1986 they corrected however their prior analysis as according to another expert, Professor M., Mr. Ellies had been exposed to asbestos longer than they had initially thought.   They therefore considered that there was a certain probability of a causal link.   The defendant however submitted an expert opinion of Professor O. who had shown that the slide preparation of Mr. Ellies' lung which Professor W/Dr.B.-A. had examined had been kept together with other specimens and thereby had been de- natured.   Subsequently the Social Court made a request for the submission for information of files relating to a similar matter and for information from the Ministry of Labour and Social Affairs.        On 14 April 1987 the Social Court (Sozialgericht) in Mainz dismissed the action.   The court considered that Mr. Ellies' cancer was not a professional disease within the meaning of Section 551 (1) of the Insurance Code (Reichsversicherungsordnung-RVO) as lung cancer was recognised as a professional disease only if there existed at the same time an asbestosis.   The requirements of Section 551 (2) of the RVO were likewise not met as it was not established in medical science that people exposed to asbestos ran an increased risk of cancer even if asbestosis was not present at the same time.        On 18 May 1987 the applicants lodged an appeal and in June 1987 the defendant submitted replies.   On 24 November 1987 the defendant informed the appellate court that it was intended to amend the Decree on Professional Diseases (Berufskrankheitenverordnung) but that the new regulations would not affect the pending case, i.e. the applicants' claim would not thereby become well-founded.        On 3 April 1989 the appellate court informed the applicants that there existed doubts as to the admissibility of part of their appeal. It also stated that it did not intend to obtain ex officio, further expert evidence.   The applicants replied that they considered it necessary to obtain an expert opinion from an expert of a foreign country.        On 25 April 1989 the court requested the expert Professor W. to provide additional explanations.   It also requested the Ministry for Labour and Social Affairs to state whether there existed new scientific findings to the effect that in the case at issue the fatal disease of the insured person could be recognised as having been caused in relation with his professional activity.   The Ministry replied on 16 June 1989 that so far there existed no research results justifying the affirmation of a causal link but the question was still under consideration.        Subsequently another expert opinion was obtained on the question whether or not the deceased's lung tissue samples had in fact been de-natured and could therefore no longer be used for the purpose of obtaining evidence.        On 15 August 1989 the appellate court received at its request information from the International Labour Organisation.        At the applicants' insistence the appellate court eventually, i.e. on 21 November 1989, requested Dr. St. for another expert opinion which was submitted on 20 February 1990.        On 5 July 1990 Professor R., a member of the Institute for Labour Medicine at the University of Bochum, was ordered by the appellate court to establish an expert opinion (Obergutachten).   He submitted it on 10 September 1990.   It was negative for the applicants' case.        The applicants challenged this expert on the grounds that he worked in an institution which was linked to the defendant insurance. The challenge was rejected on 23 January 1991.        The applicant's appeal was partly rejected as being inadmissible and partly rejected as being unfounded by the Regional Social Court of Rhineland-Palatinate (Landessozialgericht) on 23 January 1991.   The Appellate Court likewise considered that there was no sufficient proof that Mr. Ellies' death had been caused by a professional disease.        The court stated that, inter alia, it also based its findings on the expert opinion submitted by Professor R. who had been challenged by the plaintiffs.   It underlined that the fact that Professor R. worked in a professional organisation which was linked to the defendant insurance did not put in question the validity of his expert opinion.        The applicant's complaint to the Federal Social Court (Bundessozialgericht) about the denial of leave to appeal on points of law was rejected on 19 August 1991 as being inadmissible.   It was stated in the decision that the applicants had not shown that any evidence which they had named or offered had been disregarded by the Lower Social Court in an arbitrary manner.   Rather the Social Court had given sufficient reasons for the refusal of taking further expert evidence.        The applicant then lodged a constitutional complaint against the Federal Social Court's decision of 19 August 1991.   This complaint was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 25 November 1991.        On 18 December 1992 an amendment to the Decree on Professional Diseases came into force.   According to the new regulations, applicable to cases that occurred after 31 March 1988, lung cancer is now recognised as a professional disease, inter alia, if the person concerned has been at his/her workplace exposed to asbestos for at least 25 years.   On 28 January 1993 the competent liability insurance refused to re-open the applicants' case, stating that its decision of 12 May 1981 was not unlawful and it was furthermore not affected by the new regulations as they applied only to cases that occurred after 31 March 1988 while Mr. Ellies had died already in 1980.   COMPLAINTS        The applicants complain that they were denied a fair hearing before the Social Court in particular in view of the fact that the Appellate Social Court based its decision, inter alia, on the expert opinion of Professor R. who could not be considered as being unbiased and impartial given that he worked for an institution which is related to the defendant party in the social insurance proceedings.   The applicants also complain that the fairness of the proceedings was affected by the alleged fact that the defendant was represented by a subordinate agent and not its statutory representatives.   They also invoke Article 6 of the Convention in relation to the proceedings before the Federal Constitutional Court.   Lastly they complain about the length of the proceedings.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 August 1981 and registered on 21 July 1992.        On 7 September 1993 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 20 December 1993, after an extension of the time-limit fixed for that purpose.   The applicants replied on 14 March 1994.   THE LAW   1.    The applicants first complain of the decisions given against them in the domestic proceedings and consider that their right to a fair trial as guaranteed under Article 6 (Art. 6) of the Convention has been violated, inter alia, because of the participation of an expert, Professor R., whom they unsuccessfully challenged, the defendant not being represented in the proceedings by its statutory agent, the Federal Social and Federal Constitutional Court refusing to deal with the merits of their complaints.        The applicability of Article 6 (Art. 6) of the Convention to Social Court proceedings relating to alleged claims for insurance cover has repeatedly been confirmed by the European Court of Human Rights (see Feldbrugge and Deumeland judgments of 29 May 1986, Series A nos. 99 and 100) and is not disputed by the parties.        The Commission first notes that the applicants unsuccessfully challenged the expert Professor R., which means that the competent domestic court saw no reason to question the expert's impartiality. It is true that the European Court of Human Rights found in the Bönisch judgment of 6 May 1985 (Series A, no. 92) that the neutrality of an expert in criminal proceedings was questionable as that expert had also drafted the report which had set in motion the proceedings in question and during these proceedings he acted more like a witness against the accused (loc. cit, p. 15, paras. 30-33).        The present case relates to civil proceedings in which various experts were heard and the applicants had ample opportunity to comment on and criticise the reports submitted by these experts.   It is in various respects distinguishable from the Bönisch case and the Commission does not find that the participation of an expert in the domestic proceedings before the appellate court amounted to an impairment of the applicants' claim to a fair hearing for the only reason that the expert in question is allegedly working for an institution which is related to the defendant civil party (cf. Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 58).        Insofar as the applicants complain that the defendant party was represented by a subordinate agent and not its statutory agent, the Commission notes that it is principally for the domestic courts to verify whether or not the parties to civil proceedings are correctly represented.   The applicants have not shown that the Social Courts arbitrarily failed to see to it that the defendant party was represented by a competent person.   In any event there is nothing to show that the fairness of the proceedings could in any way have been affected by the status of the defendant party's representative within the organisation of that party.        The Commission further points out that it is a matter for the domestic judge to appreciate the relevance of all available evidence (see Eur. Court H.R., Barbèra, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31 para. 68).   In the present case the Social Court of Appeal had several expert opinions before it.        The expert Professor R. was not the only expert who denied a causal link between the first applicant's late husband's disease and his prior exposure to asbestos.   In these circumstances it cannot be found that the taking of evidence and the appreciation of the available evidence by the Social Court and the Social Court of Appeal discloses any arbitrariness.        Finally, and insofar as the applicants complain of the proceedings before the Federal Social and the Federal Constitutional Court, the Commission refers to its constant jurisprudence according to which it is compatible with the Convention that superior courts refuse to deal with the merits of appeals which they consider do not comply with the requirements of admissibility set up in domestic procedural law (see No. 8769/79, Dec. 16.7.81, D.R. 25 p. 240 and No. 11445/85, Dec. 1.12.86, unpublished).        For the above reasons it follows that this part of the application 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 applicants have also complained about the length of the domestic proceedings.        The Government question the applicants' status as victim but do not raise an express plea of non-exhaustion of domestic remedies.   They consider that the complaint is in any event unfounded.        The applicants mainly point out that the appeal proceedings disclose an important period of inactivity.        The Commission notes that the Government have themselves expressed doubts as to the effectiveness of a constitutional complaint. As no other remedies have been shown to exist, the Commission considers that the present complaint cannot be rejected for non-exhaustion of domestic remedies.   It further considers that, particularly as far as the proceedings before the Social Court of Appeal are concerned, the case raises complex questions of law and fact which necessitate an examination on the merits.        No other reasons to declare this part of the application inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE the applicants' complaint about the      fairness of domestic proceedings;        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicants' complaint about the length of the domestic      proceedings.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                     (C.L. ROZAKIS)