CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 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. 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)