R.W. v. Germany



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)