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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> DEUMELAND v. GERMANY - 9384/81 [1986] ECHR 3 (29 May 1986)
URL: http://www.bailii.org/eu/cases/ECHR/1986/3.html
Cite as: (1986) 8 EHRR 448, [1986] ECHR 3

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In the Deumeland case*,

_______________

* Note by the Registrar: The case is numbered 9/1984/81/128. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, taking its decision in plenary

session in pursuance of Rule 50 of the Rules of Court and composed of

the following judges:

Mr. G. Wiarda, President,

Mr. R. Ryssdal,

Mr. J. Cremona,

Mr. Thór Vilhjálmsson,

Mr. W. Ganshof van der Meersch,

Mrs. D. Bindschedler-Robert,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. J. Pinheiro Farinha,

Mr. L.-E. Pettiti,

Mr. B. Walsh,

Sir Vincent Evans,

Mr. C. Russo,

Mr. R. Bernhardt,

Mr. J. Gersing,

Mr. A. Spielmann,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 31 May 1985, 2 October 1985 and from

21 to 24 April 1986,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The present case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 12 October 1984,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention"). The case

originated in an application (no. 9384/81) against the Federal

Republic of Germany lodged with the Commission on 15 April 1981 under

Article 25 (art. 25) by a German citizen, Mr. Klaus Dieter Deumeland.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the Federal Republic of

Germany recognised the compulsory jurisdiction of the Court

(Article 46) (art. 46). The purpose of the request was to obtain a

decision as to whether or not the facts of the case disclosed a breach

by the respondent State of its obligations under Article 6 para. 1

(art. 6-1).

2. In response to the inquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, Mr. Deumeland stated that he

wished to take part in the proceedings before the Court. The

President of the Court gave him leave to present his case in person

and to use the German language (Rule 30 para. 1, second sentence, and

Rule 27 para. 3).

3. The Chamber of seven judges to be constituted included, as ex

officio members, Mr. R. Bernhardt, the elected judge of German

nationality (Article 43 of the Convention) (art. 43), and Mr. Wiarda,

the President of the Court (Rule 21 para. 3 (b)). On 22 October 1984,

the President of the Court drew by lot, in the presence of the Deputy

Registrar, the names of the five other members, namely Mr. L. Liesch,

Mr. E. García de Enterría, Mr. L.-E. Pettiti, Mr. R. Macdonald and

Mr. J. Gersing (Article 43 in fine of the Convention (art. 43)

and Rule 21 para. 4). Subsequently, Mr. J. Cremona, substitute

judge, replaced Mr. Liesch who was prevented from taking part in the

consideration of the case (Rules 22 para. 1 and 24 para. 1).

4. Having assumed the presidency of the Chamber (Rule 21

para. 5), Mr. Wiarda, acting through the Registrar, consulted the

Agent of the German Government (the "Government"), the Delegate of the

Commission and the applicant with regard to the procedure to be

followed. On 29 November 1984, he decided that the Agent and the

applicant should each have until 29 March 1985 to file a memorial, and

that the Delegate should be entitled to reply in writing within two

months from the date on which the Registrar transmitted to him

whichever of the two memorials should last be filed (Rule 37 para. 1).

On 25 March 1985, he extended the first of these time-limits until

15 April 1985.

5. On 27 February 1985, the Chamber decided to relinquish

jurisdiction forthwith in favour of the plenary Court (Rule 50).

6. The applicant's memorial was received in the registry on

27 March and that of the Government on 18 April. On 24 April, the

Secretary to the Commission informed the Registrar that the Delegate

did not intend to reply in writing.

7. After consulting, through the Registrar, the Agent of the

Government, the Delegate of the Commission and the applicant, the

President directed on 8 March 1985 that the oral proceedings should

open on 29 May 1985 (Rule 38). On 17 April, he gave leave to the

Agent and her advisers to use the German language on that occasion

(Rule 27 para. 2).

8. The hearings were held in public at the Human Rights Building,

Strasbourg, on the appointed day. Immediately prior to their

opening, the Court had held a preparatory meeting.

There appeared before the Court:

- for the Government

Mrs. I. Maier, Ministerialdirigentin,

Federal Ministry of Justice, Agent,

Mr. J. Meyer-Ladewig, Ministerialrat,

Federal Ministry of Justice,

Mr. H. Kreuzberg, Administrative Court Judge,

Federal Ministry of Justice,

Mr. R. Schmitt-Wenkelbach, Director of the Berlin

Industrial Accident Insurance Office, Advisers;

- for the Commission

Mr. B. Kiernan, Delegate;

- for the applicant

Mr. K.D. Deumeland, Rechtsanwalt, Applicant.

The Court heard addresses by Mrs. Maier for the Government, by

Mr. Kiernan for the Commission and by Mr. Deumeland.

9. On various dates between 23 May and 3 June 1985, the Registrar

received from the Commission and the Government several documents

whose production had been requested on behalf of the Court.

AS TO THE FACTS

I. Particular circumstances of the case

10. Mr. Klaus Dieter Deumeland, a German national, was born in

1940 and resides in Berlin.

As heir to his mother, who died on 8 December 1976, he continued the

proceedings she had commenced before the social courts against the

Land, represented by the Berlin Industrial Accident Insurance Office

(Eigenunfallversicherung - "the Berlin Insurance Office").

Mrs. Johanna Deumeland applied for a widow's supplementary pension

(Hinterbliebenenrente), claiming that the death of her husband Gerhard

on 25 March 1970 had been the consequence of an industrial accident.

Coming home on 12 January 1970 from an appointment with an

ear-nose-and-throat specialist whom he had consulted on leaving his

workplace, he had slipped on a snow-covered pavement, breaking his

left thigh-bone. As an employee (Angestellter) of the Berlin City

Authorities, he was compulsorily insured against accidents.

1. Proceedings in the Berlin Social Court

(16 June 1970 - 7 December 1972)

11. Represented by her son, Mrs. Deumeland commenced proceedings

in the Berlin Social Court (Sozialgericht) on 16 June 1970.

On 18 June 1970, the presiding judge of the competent chamber ordered

communication of the originating claim to the defendant, who was given

one month to comment on it. On 9 July, the Berlin Insurance Office

submitted written pleadings, accompanied by a file on the accident, to

which Mr. Klaus Dieter Deumeland replied on 9 September.

Wishing to elucidate certain points, the presiding judge sent a list

of questions on 17 September 1970 to the ear-nose-and-throat

specialist, who replied in writing on 22 October 1970. On

29 September, the applicant had himself produced a photocopy of a

certificate issued by the doctor.

On 8 January 1971, Mr. Deumeland inspected the file on the case but

was not allowed to take it away.

He was asked, on 5 February 1971, whether his father's superiors had

spoken to his father about his hearing problem and had asked him to

seek treatment in the interests of the service; he replied on

22 February. The Social Court also asked the Berlin Barmer

Ersatzkasse to supply certain details; on 24 March, the latter

provided a schedule of the periods of incapacity for work.

12. Two days later, the presiding judge gave instructions to the

registry for re-submission of the case-file in six weeks' time. On

11 May 1971, he declared the case ready for hearing. His successor,

appointed on 1 June 1971, did likewise on 24 June. A third presiding

judge, who was appointed on 1 January 1972, declared the case ready

for hearing on 15 March 1972; the same day, he wrote to

Mr. Deumeland, who had telephoned on 28 January to ask how matters

stood, stating that he could not yet fix a date for the hearing since

the chamber's programme was too full. On 1 April 1972, the case was

transferred to a newly-established chamber. On 26 June 1972, its

presiding judge declared in turn that the case was ready for hearing;

on 21 September 1972, he decided that the oral proceedings should open

on 25 October. In a memorandum dated 16 June and received on 26 June,

the applicant had requested that a date be fixed for the hearing and

that it be held in a court-room sufficiently large to accommodate

members of the public, since he expected students, whom he would be

lecturing in the autumn and winter, to attend.

13. At the close of the hearing, the Social Court rejected

Mrs. Deumeland's claim, holding that the accident in question had been

neither an industrial accident nor an accident on the way to or from

work within the meaning of sections 548 (1), first sentence, and

550 (1) of the Reich Insurance Code (Reichsversicherungsordnung).

On 26 October 1972, the Social Court sent the parties a copy of the

record of the previous day's hearing, including the operative

provision of the judgment. On 7 December 1972, Mr. Deumeland

received the full text of the judgment, which was six pages long.

14. In June 1970, when Mrs. Deumeland brought her action, the

Berlin Social Court had two chambers responsible for dealing with

industrial-accident insurance claims. Three further chambers were

set up in October 1970, January 1971 and April 1972.

According to statistics supplied by the Government, the number of such

claims pending was 713 at the end of 1969, 778 at the end of 1970,

766 at the end of 1971 and 668 at the end of 1972. As far as the

chamber hearing Mrs. Deumeland's action was concerned, there

were 324 cases on its pending list on 1 January 1972.

2. First set of proceedings in the Berlin Social Court of Appeal

(23 November 1972 - 14 September 1973)

15. Mrs. Deumeland appealed against the judgment on

23 November 1972.

On 4 December, the Social Court sent the case-file to the Berlin

Social Court of Appeal (Landessozialgericht), where Mr. Deumeland

inspected it on 10 January 1973.

Having been asked on 21 February 1973 to state his reasons for

appealing, the applicant submitted his arguments on 12 March; the

defendant replied on 19 April 1973. On 24 April, the presiding judge

of the chamber directed that this reply be communicated to

Mr. Deumeland for information and comment.

16. Judge Matuczewski was appointed reporting judge on 25 April

and declared, on 28 May 1973, that the case was ready for hearing;

the presiding judge confirmed this on the following day.

On 13 July 1973, Judge Matuczewski asked the Charlottenburg

District Authority (Bezirksamt) to send him the personal file

on Mr. Deumeland's father, which was received on 6 August.

On 23 July, he set the case down for hearing on 14 August 1973.

On the day before the hearing, the applicant filed further written

pleadings, seeking for his mother a death grant (Sterbegeld) as well

as a widow's pension (see paragraph 10 above).

17. On 14 August 1973, the Appeal Court dismissed the appeal: it

had been unable to establish, on a sufficient balance of probability,

any causal link between Mr. Deumeland Senior's visit to a doctor and

his employment by a public authority.

After telephoning the registry six days later, the applicant was

immediately sent a copy of the record of the hearing and, on

14 September 1973, a copy of the judgment, which was eleven and

a half pages long.

On 17 September, he asked the Appeal Court to rectify the statement

of facts, but the Court refused his request on 15 October 1973. This

decision was communicated to the applicant on 27 October and also

provoked a request for rectification, which the presiding judge of the

third chamber rejected on 29 October 1973.

3. First set of proceedings in the Federal Social Court

(11 October 1973 - 15 May 1975)

18. On 2 October 1973, the applicant's mother entered an appeal on

points of law (Revision) to the Federal Social Court

(Bundessozialgericht) and this was registered on 11 October 1973. She

also asked for extension of the time-limit for submission of

supplementary written pleadings, since the Berlin Social Court of

Appeal had not yet decided on the request for rectification (see

paragraph 17 above).

The file was dispatched on 5 November 1973 and reached the Federal

Social Court on 7 November. The previous day, Mr. Deumeland had

asked for a further extension of the time-limit so that he could

consult the document supplied by the Charlottenburg District Authority

(see paragraph 16 above).

19. The applicant filed written pleadings on 13 November 1973.

The following day's date was affixed to the document by the Court,

which sent it to the defendant with two months to reply.

On 7 December 1973, Mr. Deumeland wrote to ask what action had been

taken on his written pleadings of 13 November and his request of

6 November. Judge Küster replied by letter of 13 December 1973 that

the written pleadings had been received, but a regrettable error in

the registry had delayed examination of the request.

20. In the meantime, the presiding judge of the second chamber

had, amongst other things, ordered the transmission of the case-file

to the Berlin Social Court and asked the Berlin Insurance Office and

the Land Administrative Authority (Verwaltungsamt) to send certain

documents directly to the court, so that Mr. Deumeland could study

them.

When informed that various files were open to him, Mr. Deumeland told

the Social Court, on 17 December 1973, that he would inspect them

after Christmas, since the documents to be furnished by the Berlin

Insurance Office had only been obtained that afternoon. He consulted

the files on 4 January 1974.

21. An order was made on 14 January 1974, giving the defendant

until 20 March to submit its arguments (see paragraph 19 above).

These were filed at the Federal Social Court on 4 February.

On 5 February, the reporting judge decided to transmit them to

Mr. Deumeland. Mr. Deumeland requested, on 1 July 1974, that a date

be fixed for the hearing, preferably 6 December 1974, and the judge

wrote to him on 4 July, stating that the chamber's workload made it

impossible to say when this decision would be taken and that he had

noted the applicant's wish to consult the case-file on 5 or

6 December.

On 4 December 1974, the applicant inspected the file in Kassel, seat

of the Federal Social Court.

22. On 22 January 1975, Mr. Deumeland challenged Judge Küster,

whom he suspected of delaying the proceedings. Judge Küster rejected

the allegation of partiality in a declaration dated 31 January. The

applicant, who was entitled to submit observations on this point up to

21 February 1975, repeated his allegations by letter on 15 February.

In a decision adopted on 20 February and notified on 28 February, the

second chamber of the Federal Social Court dismissed the challenge.

On 25 February 1975, Judge Küster, replacing the presiding judge, set

the case down for hearing on 13 March.

23. As soon as the hearing began, Mr. Deumeland challenged Judge

Küster. The sitting continued with Judge Friedrich presiding.

Having heard Judge Küster and deliberated, the chamber rejected the

application. Under the presidency of Judge Küster and with the same

membership, it proceeded with examination of the case. On the same

day, it set aside the decision of the Berlin Social Court of Appeal

and referred the case back to that Court on the ground that

Mrs. Deumeland's case had not been given a proper legal hearing.

Notice of the record of the hearing, of the decision on the challenge

and of the judgment, which was fourteen and a half pages long, was

given on 15 May 1975.

4. Second set of proceedings in the Berlin Social Court of Appeal

(16 May 1975 - 15 March 1979)

24. On 16 May 1975, the Federal Social Court transmitted to the

Social Court of Appeal authentic copies of the judgment and the

decision of 13 March, as well as the files of the Social Court, the

Social Court of Appeal and the Charlottenburg District Authority. On

6 June 1975, it sent the Social Court of Appeal the documents relating

to the appeal on points of law, specifying 1 May 1977 as the date for

the return of those documents.

25. In written pleadings dated 17 May 1975 and received on 26 May,

Mr. Deumeland challenged Judge Matuczewski for partiality; he held

Judge Matuczewski responsible for the defect found by the Federal

Social Court (see paragraph 23 above), complaining that the judge had

asked for documents without his mother's knowledge and had arranged

for the disappearance of a photocopy produced at the hearing on

14 August 1973 (see paragraph 17 above). He also requested police

intervention, if that proved necessary, and supervision of the

challenged judge's access to the case-file.

On 27 May 1975, the presiding judge of the third chamber of the Berlin

Social Court of Appeal transmitted the pleadings to the President of

the Court, who contacted the Bar Association.

On 29 May 1975, he requested that the case-file be sent to the Berlin

Labour Court (Arbeitsgericht), which had, on 29 March 1971, granted

Gerhard Deumeland entitlement to a special bonus for twenty-five years

of service.

26. By order dated 3 June 1975, the presiding judge directed the

applicant to tell him which documents he had submitted on

14 August 1973 (see paragraph 17 above): if these were photocopies,

he could be presumed to have the originals. The applicant replied on

16 July 1975 that he could supply no further information. The

presiding judge reminded him on 12 August 1975 that he had, according

to his written pleadings of 12 November 1973 to the Federal Court,

supplied a copy of one of the Court's judgments, and asked him to

confirm this. He also invited him to reconsider his applications of

17 May 1975 (see paragraph 25 above) and, if he wished to uphold his

challenge, to state his reasons.

27. In the meantime, the parties had been notified that the

case-file had been received from the Berlin Labour Court and the

defendant had inspected it on 16 July 1975.

28. On 28 August 1975, the public prosecutor's department attached

to the Berlin Court of Appeal (Kammergericht) asked the Social Court

of Appeal to send it the case-file. This was received on

12 September 1975 and returned on 18 September.

29. In written pleadings dated 9 September 1975 and received on

15 September, Mr. Deumeland explained why he challenged

Judge Matuczewski.

30. On 6 January 1976, the presiding judge appointed Judge Brämer

reporting judge and asked him to ascertain whether the case was ready

for hearing.

On 12 January 1976, Judge Brämer wrote to the administrative

authorities of the Land, asking them to transmit to him any documents

in their possession concerning Mr. Deumeland Senior. He forwarded

copies of this letter to the parties for information and asked the

applicant whether he would consent to the case-file's being

communicated to the Barmer Ersatzkasse.

Mr. Deumeland objected to this on 23 January 1976, arguing that the

Barmer Ersatzkasse should be joined as a third party; he also

enquired what measures had been taken to prevent Judge Matuczewski

from having access to the case-file. The judge wrote on 26 January,

asking him why he wished such a joinder and pointing out that

Judge Matuczewski was no longer acting as reporting judge in the case.

In the absence of any reaction from Mr. Deumeland, the judge wrote a

further letter on 22 March 1976. The applicant replied on 21 April

that he refused to comment on this point before the filing of the

defendant's written pleadings. Under an order issued on

28 April 1976, a copy of this letter was sent for information to the

defendant.

In the meantime (26 January 1976), the Land administrative authorities

had indicated that they had no documents relating to Mr. Deumeland's

father, apart from the personal file which they had already produced.

By decision of the judge, taken on 30 January 1976, their letter was

communicated to the parties for information.

31. On 8 June 1976, the applicant's mother personally complained

to the presiding judge of the third chamber, alleging that photocopies

had been made of documents in the case-file for transmission to a

third party. The president denied this by letter on 23 June; he

explained, however, that the case-file had been passed to the public

prosecutor's department in execution of a request for the taking of

evidence on commission (see paragraph 28 above). On 29 June 1976,

Mrs. Deumeland declared that communication of the case-file in this

way was improper. The reporting judge forwarded this second letter to

the presiding judge of the chamber, but since the latter was away on

holiday the case-file came before the deputy presiding judge,

Judge Matuczewski, who, being subject to challenge (see paragraph 25

above), felt unable to deal with the matter. Considering that the

letter required no action, the reporting judge ordered re-submission

of the case-file to the presiding judge on his return from holiday.

In a letter dated 14 July 1976 and received on 26 July, the public

prosecutor's department attached to the Berlin Regional Court

(Landgericht) asked for the case-file. This was dispatched on 29 July

in accordance with an order issued on 27 July, and was returned on

9 December 1976.

32. On 28 July 1976, Mr. Deumeland visited the Social Court of

Appeal, wishing to remove the case-file and study it. The reporting

judge allowed him only to inspect it on the spot.

33. On 4 August 1976, the applicant challenged Judge Brämer.

On 6 August, the presiding judge of the third chamber replied that the

chamber could not take a decision on this matter for the time being,

since the case-file was with the public prosecutor's department

attached to the Regional Court. Judge Brämer was invited on

16 December 1976 to submit observations, and did so on 20 December.

On 20 June 1978, the third chamber rejected the challenge against this

judge, as well as the challenge against the presiding judge,

Judge Arndts (see paragraphs 35, 36 and 37 below).

34. On 4 November 1976, Mr. Deumeland filed written pleadings.

On 8 November, the presiding judge ordered that the case-file be

re-submitted on its return (see paragraph 31 above).

In a letter dated 3 December 1976 and received on 9 December, the

applicant stated, inter alia, that he would continue to appear in the

proceedings, but not as counsel. The president replied on

4 January 1977.

35. Three days later, the Land administrative authorities informed

the Social Court that Mrs. Deumeland had died on the night of 7 to

8 December 1976. The presiding judge of the chamber asked the

applicant, on 18 January 1977, whether he wished to pursue the case;

the applicant replied, on 20 January, that he did so wish. Since he

also challenged the presiding judge, Judge Arndts, the case-file was

passed to Judge Sander, who requested the applicant on 28 January to

produce a certificate of heredity.

On 22 February 1977, Mr. Deumeland pointed out that, as an only son,

he was his mother's sole heir and was thus not obliged, in the absence

of property and a will, to bring proceedings to obtain a certificate.

On 25 April 1977, Judge Sander wrote to inform the applicant that he

could claim succession if he had been living in the same house as his

mother at the time of her death, but that he would have to produce

evidence of this. The applicant confirmed by letter on 21 June 1977

that he had in fact lived with his mother, and referred to an

attestation by a neighbour.

36. On 25 February 1977, Judge Sander asked Mr. Deumeland to give

reasons for his challenge of the presiding judge, Judge Arndts, and

told him that he would take a decision with two members of the

eleventh chamber. The applicant wrote on 8 March - his letter was

received on 14 March - asking the names of these two other judges;

Judge Sander replied that there was no way of knowing their names in

advance. On 24 March 1977, he forwarded the case-file to the

presiding judge of the third chamber, asking him to comment on the

challenge. In a memorandum dated 7 April 1977, the judge rejected the

allegations of partiality made against him. In an order dated

19 August 1977, the third chamber dismissed the challenge.

After receiving the order, Mr. Deumeland telephoned the Social Court

of Appeal on 4 October, demanding correction of the heading, which

referred to his professional status as a lawyer; he renewed his

demand in writing on 28 December 1977 and again on 27 April 1978, on

which date he also asked when the case would be set down for hearing.

On 5 May 1978, the presiding judge of the third chamber replied that

the Berlin Bar Association, which he had consulted on 2 January 1978,

had confirmed on 6 February that the applicant was a member of the

Bar. He requested the applicant to comment on this point.

37. On 31 May 1978, Mr. Deumeland again challenged the presiding

judge, Judge Arndts, complaining that he had contacted the Bar

Association without his knowledge. In a memorandum dated 7 June 1978,

the judge rejected any accusation of partiality. By order dated

20 June 1978, the third chamber dismissed the challenge, as well as the

challenge of Judge Brämer (see paragraph 33 above).

38. On 10 July 1978, the Federal Social Court enquired when

judgment was likely to be given and was told that it might be given in

October 1978.

39. Two weeks later, the reporting judge, considering the case

ready for hearing, forwarded the case-file to the presiding judge.

The case was registered as such on 25 July.

40. On 6 September 1978, the presiding judge fixed 17 October as

the date for the opening of the oral proceedings.

With this in view, Mr. Deumeland submitted written pleadings dated

16 October. At the hearing, he stated that his challenge of

Judge Matuczewski had become devoid of object (see paragraph 25

above). Deliberating immediately after the hearing, the chamber

decided that further information was required (Sachaufklärung).

On 23 October 1978, the court summoned the Barmer Ersatzkasse to

appear; in addition, the reporting judge asked the Charlottenburg

District Authority to comment on four points which concerned the state

of health of Mr. Deumeland Senior at the time of the accident and

which seemed to require elucidation. A reminder was sent on

12 December 1978, and the said authority replied the same day with a

letter, dated 30 November, accompanied by appendices. On

13 December 1978, the presiding judge decided to send a copy of this

to the parties. The reporting judge transmitted the case-file to him:

he considered the case ready for hearing but thought that two

witnesses should be heard as a precaution.

41. On 15 December 1978, the presiding judge set the case down for

hearing on 16 January 1979 and summoned the witnesses to appear on

that date.

The Social Court of Appeal delivered judgment at the close of the

hearing: it declared the appeal inadmissible as regards the death

grant and unfounded as regards the widow's pension. It refused leave

to appeal on points of law.

On 21 February 1979, Mr. Deumeland expressed surprise that he had

still not received the text of the judgment. The reporting judge

replied by letter on 27 February that the text had been drawn up.

The applicant received a copy on 15 March 1979; the text was sixteen

pages long.

5. Second set of proceedings in the Federal Social Court

(25 March 1979 - 17 December 1980)

42. On 16 March 1979, Mr. Deumeland appealed against the decision

refusing him leave to appeal (Nichtzulassungsbeschwerde); his appeal,

posted in East Berlin, reached the Federal Social Court on 25 March.

On 27 March 1979, the Federal Social Court asked the Berlin Social

Court of Appeal to forward it the case-file, which arrived on

11 April.

In a letter dated 21 April, again posted in East Berlin and received

on 25 April, Mr. Deumeland sought a one-month extension of the

time-limit for submission of written pleadings. On 26 April, the

presiding judge extended the time-limit to 15 June 1979.

On 28 May 1979, the applicant visited the registry of the second

chamber of the Federal Social Court, where he inspected the files of

the Federal Court and of the Court of Appeal.

43. On 13 June 1979, he submitted supplementary written pleadings,

which the reporting judge transmitted to the defendant on the same

day. The defendant replied on 4 July, enclosing with its observations

a file on the accident.

On 5 July 1979, the reporting judge directed that the

counter-pleadings and their appendix be communicated to Mr. Deumeland

and to the Barmer Ersatzkasse (see paragraph 40 above).

The following day, the Barmer Ersatzkasse lodged its administrative

file and stated that it did not intend to comment on the appeal.

On 9 July, the reporting judge ordered the communication of this

statement to the two parties. He scheduled a further submission of

the case-file for 1 September.

On 19 November 1979, the Charlottenburg District Authority and the

Berlin Labour Court were asked to submit files. The Charlottenburg

Authority replied on 29 November that, for reasons of competence, it

had passed the request on to the Land Administrative Authority. After

a reminder had been sent to the latter on 21 December 1979, the file

was received at the Federal Social Court on 2 January 1980. The file

requested from the Labour Court had been lodged on 30 November 1979.

In a letter dated 1 April 1980, the reporting judge notified

Mr. Deumeland that the documents requested had been received and that

the chamber expected to give a decision in June-July 1980.

On 11 June 1980, the applicant inspected the case-file in Kassel.

On 3 June, he had written complaining that the personal file on his

father was incomplete.

This letter was received on 10 June and forwarded the following day to

the defendant, who was entitled to submit observations. The court

sent the defendant a reminder on 16 July 1980; on 12 August, it set

the defendant a time-limit until 1 September for the lodging of

observations.

On 19 August 1980, the defendant produced new documents provided by

the Charlottenburg District Authority. It specified that since the

Land authority probably possessed further documents, it had asked for

these and would forward them as soon as they were received. Its

letter was sent to the parties the following day.

On 2 September 1980, the defendant produced certain documents, which

the reporting judge ordered on 9 September to be communicated to the

parties.

On that day, Mr. Deumeland visited the registry of the second chamber

and was given permission to inspect the file on the premises. He did

not, however, do so.

44. The Federal Social Court dismissed Mr. Deumeland's appeal on

11 December 1980. In its judgment, which was nine pages long, it

ruled that his procedural complaints were partly unfounded and partly

inadmissible; and that, furthermore, the case raised no issue of

general interest (grundsätzliche Bedeutung).

In a letter dated 18 December 1980, the applicant unsuccessfully

contested this decision, which had been notified to him the day

before.

6. Proceedings in the Federal Constitutional Court

(23 December 1980 - 9 February 1981)

45. On 23 December 1980, Mr. Deumeland referred the case to the

Federal Constitutional Court (Bundesverfassungsgericht) and, on

3 January 1981, submitted supplementary written pleadings. He

complained that the Federal Social Court had refused him access to the

files; that its decision of 11 December 1980 had taken him by

surprise; that it was aware that the lower court judges lacked the

requisite personal and objective independence; and that it had been

mistaken in holding that the case raised no issue of general interest.

On 9 February 1981, the Federal Constitutional Court decided not to

entertain the complaint, since, even assuming it to be admissible, its

chances of succeeding were insufficient.

7. Application to have the proceedings re-opened

(10 March 1981 - 23 November 1981)

46. On 10 March 1981, the Berlin Social Court of Appeal registered

an application from Mr. Deumeland, dated 25 February, to have the

proceedings re-opened (Wiederaufnahme des Verfahrens). It rejected

this application on 6 August 1981, after a hearing which had also

dealt with challenges of various judges, and fined Mr. Deumeland

800 DM for bringing vexatious proceedings (mutwillige Prozessführung).

47. On 23 November 1981, the Federal Social Court rejected the

appeal on points of law which the applicant had brought against the

latter judgment.

II. Relevant legislation

1. General

48. The German social security system is principally governed by

the Reich Insurance Code (Reichsversicherungsordnung), which covers

sickness, accident and old-age insurance. Dating from 1911, it is

rooted in laws passed between 1883 and 1889. Subsequently, social

protection was extended by legislation to new categories of person and

of risk.

2. Industrial accident insurance scheme

49. In the Federal Republic of Germany, everyone employed on

contract (die auf Grund eines Arbeits-, Dienst- oder Lehrverhältnisses

Beschäftigten) by private firms or a public authority is compulsorily

insured against industrial accidents (section 539(1)(1) of the Reich

Insurance Code). Civil servants (Beamte) are in a different position

and are covered by the Federal, Land or local authority regulations,

depending on their employer.

50. Employees who are not civil servants are very broadly

protected against industrial accidents, and are not obliged to prove

fault, to bring legal proceedings or to suffer the consequences of an

employer's insolvency. The victim - or his beneficiaries (sections

589 and 590 of the Reich Insurance Code) - receive the benefits

specified in section 547 (allowances, pensions, etc.), even when the

victim was partly responsible for the accident. He only loses his

rights if he has caused the accident intentionally.

The notion of industrial accidents, defined in section 548 of the

Code, includes accidents on the way to or from work (section 550).

51. Employees (who are not civil servants) do not contribute to

the accident insurance scheme, which is wholly financed by employers

(section 723 of the Code). The amount of their contributions depends

essentially on the salaries of the persons covered and on the

likelihood of accidents (section 725(1)).

52. For employees of private firms, the bodies (Träger)

responsible for insurance against industrial accidents are the

occupational associations (Berufsgenossenschaften); employees in the

public sector are covered by the Federation, the Länder, the local

authorities or the Federal Labour Office (Bundesanstalt für Arbeit),

as the case may be (sections 646-657 and 767 of the Code). Every

occupational association has a compulsory membership extending to all

undertakings, including those in the craft sector, whose activities

are carried on in the same economic field and whose company or trading

centre is based in the association's catchment area.

53. In Berlin, Land employees are covered by the Industrial

Accident Insurance Office (Eigenunfallversicherung), a public body

directly controlled by the Land authority. Its funds come chiefly

from a sum included annually in the Land budget and otherwise from

contributions paid by certain public concerns.

3. Social Courts

54. Under German law, disputes concerning application of the

social security legislation are decided by specialised courts. There

are three levels of jurisdiction: the Social Courts (Sozialgerichte),

the Social Courts of Appeal (Landessozialgerichte) and the Federal

Social Court (Bundessozialgericht) (Article 96 of the Basic Law;

Social Courts Act 1953 - Sozialgerichtsgesetz). These courts are

empowered to review all decisions taken in this field by the

administrative authorities and contested by those concerned. The

relevant procedure is very similar to that before the administrative

courts.

PROCEEDINGS BEFORE THE COMMISSION

55. In his application of 15 April 1981 (no. 9384/81),

Mr. Deumeland complained that the social courts had not given the case

a fair hearing within a reasonable time, contrary to the requirements

of Article 6 para. 1 (art. 6-1) of the Convention.

56. The Commission declared the application admissible on

15 November 1983. In its report of 9 May 1984 (Article 31)

(art. 31), it came to the conclusion that Article 6 para. 1

(art. 6-1) did not apply to the instant case, that it was not

necessary to determine whether the proceedings in question had

complied with that provision and, by eight votes to six, that there

had been no breach of the provision in question.

The full text of the Commission's opinion and of the two separate

opinions contained in the report is reproduced as an annex to the

present judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

57. At the hearings on 29 May 1985, the Government maintained the

final submissions set out in their memorial, whereby they requested

the Court to find

"that Article 6 para. 1 (art. 6-1) of the Convention is not applicable

to the present case and that the Court cannot deal with the merits of

the case, on the ground of non-compatibility with the provisions of

the Convention;

or, alternatively

that the Federal Republic of Germany has not violated Article 6

(art. 6) of the Convention".

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art 6-1)

58. Article 6 para. 1 (art. 6-1) of the Convention reads as

follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law. ..."

The applicant claimed that the German social courts had not given the

case a fair hearing within a reasonable time.

In view of the submissions made, the first issue to be decided

concerns the applicability of paragraph 1 of Article 6 (art. 6-1),

this being a matter disputed by the majority of the Commission and by

the Government.

A. Applicability of Article 6 para. 1 (art. 6-1)

1. Existence of a "contestation" (dispute) over a right

59. As to the existence of a "contestation" (dispute) over a

right, the Court would refer to the principles enunciated in its

case-law and summarised in its Benthem judgment of 23 October 1985

(Series A no. 97, pp. 14-15, para. 32).

In the present case, it appears clear that a "contestation" (dispute)

arose at the latest on the institution of proceedings before the

Berlin Social Court on 16 June 1970 (see paragraph 11 above). This

"contestation" was genuine and serious, and concerned the actual

existence of the right asserted by Mrs. Deumeland to receive a

widow's supplementary pension. The outcome of the relevant

proceedings was capable of leading - and in the event did lead - to

confirmation of the decision being challenged, namely the refusal of

the Land of Berlin to grant the pension; it was thus directly

decisive for the right in issue.

The competent courts therefore had to determine a contestation

(dispute) concerning a right claimed by Mrs. Deumeland.

2. Whether the right at issue was a civil right

(a) Introduction

60. According to the case-law of the Court, "the notion of 'civil

rights and obligations' cannot be interpreted solely by reference to

the domestic law of the respondent State" (see the König judgment of

28 June 1978, Series A no. 27, pp. 29-30, paras. 88-89).

In addition, Article 6 (art. 6) does not cover only "private-law

disputes in the traditional sense, that is disputes between

individuals or between an individual and the State to the extent that

the latter had been acting as a private person, subject to private

law", and not "in its sovereign capacity" (see the same judgment,

loc. cit., p. 30, para. 90). "The character of the legislation which

governs how the matter is to be determined ... and that of the

authority which is invested with jurisdiction in the matter ... are

... of little consequence": the latter may be an "ordinary court, [an]

administrative body, etc." (see the Ringeisen judgment of

16 July 1971, Series A no. 13, p. 39, para. 94). "Only the character

of the right at issue is relevant" (see the above-mentioned König

judgment, Series A no. 27, p. 30, para. 90).

61. As in previous cases, the Court does not consider that it has

to give on this occasion an abstract definition of the concept of

"civil rights and obligations".

This being the first time that the Court has had to deal with the

field of social security, and more particularly the

industrial-accident insurance scheme in the Land of Berlin, the Court

must identify such relevant factors as are capable of clarifying or

amplifying the principles stated above.

(b) Supplementary factors disclosed by the subject matter of the

litigation

62. Under German legislation, the right in issue is treated as a

public-law right (see paragraphs 49-52 above). This classification,

however, provides only a starting point (see notably, mutatis

mutandis, the Engel and Others judgment of 8 June 1976, Series A

no. 22, p. 35, para. 82); it cannot be conclusive of the matter

unless corroborated by other factors. In its König judgment of

28 June 1978, the Court stated in particular:

"Whether or not a right is to be regarded as civil ... must be

determined by reference to the substantive content and effects of the

right - and not its legal classification - under the domestic law of

the State concerned. In the exercise of its supervisory functions,

the Court must also take account of the object and purpose of the

Convention and of the national legal systems of the other Contracting

States ... ." (Series A no. 27, p. 30, para. 89)

63. There exists great diversity in the legislation and case-law

of the member States of the Council of Europe as regards the juridical

nature of the entitlement to industrial-accident insurance benefits

under social security schemes, that is to say as regards the category

of law to which such entitlement belongs. Some States - including the

Federal Republic of Germany - treat it as a public-law right, whereas

others, on the contrary, treat it as a private-law right; others

still would appear to operate a mixed system. What is more, even

within the same legal order differences of approach can be found in

the case-law. Thus, in some States where the public-law aspect is

predominant, some court decisions have nevertheless held

Article 6 para. 1 (art. 6-1) to be applicable to claims similar to the

one in issue in the present case (for example, the judgment of

11 May 1984 by the Brussels Labour Court of Appeal, Journal des

Tribunaux 1985, pp. 168-169). Accordingly, there exists no common

standard pointing to a uniform European notion in this regard.

64. An analysis of the characteristics of the German system of

industrial-accident social insurance discloses that the claimed

entitlement comprises features of both public law and private law.

(i) Features of public law

65. A number of factors might tend to suggest that the dispute in

question should be considered as one falling within the sphere of

public law.

(1) Character of the legislation

66. The first such factor is the character of the legislation.

The rules governing social security benefits in the context of

industrial-accident insurance differ in many respects from the rules

which apply to insurance in general and which are part of civil law.

The German State has assumed the responsibility of regulating the

framework of the industrial-accident insurance scheme and of

overseeing the operation of that scheme. To this end, it specifies

the categories of beneficiaries, defines the limits of the protection

afforded, lays down the rates of the contributions and the allowances,

etc.

In several cases (see notably König; Le Compte, Van Leuven and

De Meyere; Benthem), State intervention by means of a statute or

delegated legislation has nonetheless not prevented the Court from

finding the right in issue to have a private, and hence civil,

character. In the present case likewise, such intervention cannot

suffice to bring within the sphere of public law the right asserted by

the applicant.

(2) Compulsory nature of the insurance

67. A second factor of relevance is the obligation to be insured

against industrial accidents or, more precisely, the fact of being

covered by insurance in the event of fulfilling the conditions laid

down by the legislation (see paragraph 72 below). In other words,

those concerned cannot opt out of the benefits under the scheme.

Comparable obligations can be found in other fields. Examples are

provided by the rules making insurance cover compulsory for the

performance of certain activities - such as driving a motor vehicle -

or for householders. Yet the entitlement to benefits to which this

kind of insurance contract gives rise cannot be qualified as a

public-law right. The Court does not therefore discern why the

obligation to belong to an industrial-accident insurance scheme

should change the nature of the corresponding right.

(3) Assumption by the State of responsibility for social protection

68. One final aspect to be considered is the assumption, by the

State or by public or semi-public institutions, of full or partial

responsibility for ensuring social protection. There was an

assumption of responsibility of this kind in the present case by the

Berlin Industrial Accident Insurance Office. Whether viewed as the

culmination of or a stage in the development of the role of the State,

such a factor implies, prima facie, an extension of the public-law

domain.

On the other hand - and the Court will revert to the point later (see

paragraph 73 below) -, the present case concerns a matter having

affinities with insurance under the ordinary law, which insurance is

traditionally governed by private law. It thus seems difficult to

draw from the consequences of the extent of State intervention any

firm conclusion as to the nature of the right in issue.

69. In sum, even taken together the three foregoing factors, on

analysis, do not suffice to establish that Article 6 (art. 6)

is inapplicable.

(ii) Features of private law

70. In contrast, various considerations argue in favour of the

opposite conclusion.

(1) Personal and economic nature of the asserted right

71. To begin with, the widow of Mr. Deumeland Senior was not

affected in her relations with the public authorities as such, acting

in the exercise of discretionary powers, but in her personal capacity

as a private individual. She was claiming a right flowing from

specific rules laid down by the legislation in force. The right in

question was a personal, economic and individual right, a factor that

brought it close to the civil sphere.

(2) Connection with the contract of employment

72. Secondly, the position of Mr. Deumeland Senior was closely

linked with the fact of his being a member of the working population,

having been a salaried employee of the Land.

The legal basis of his work was a contract of employment governed by

private law. Whilst it is true that the insurance provisions derived

directly from statute and not from an express clause in the contract,

these provisions were in a way grafted onto the contract. They thus

formed one of the constituents of the relationship between employer

and employee. In addition, the supplementary pension claimed by the

widow of Mr. Deumeland Senior and then by his son was an extension of

the salary payable under the contract, the civil character of this

salary being beyond doubt. This pension shared the same nature as the

contract and hence was also invested with a civil character for the

purposes of the Convention.

(3) Affinities with insurance under the ordinary law

73. Finally, the German industrial-accident insurance is similar

in several respects to insurance under the ordinary law. In general,

under the German industrial-accident insurance scheme, recourse is had

to techniques of risk-covering and to management methods which are

inspired by those current in the private insurance sphere. Salaried

employees of private firms belong to occupational associations (see

paragraph 52 above) which conduct their dealings, notably with those

insured, in the same way as a company providing insurance under the

ordinary law, for example as regards calculation of risks,

verification of fulfilment of the conditions for receipt of benefits,

and payment of allowances. Employees of the Land of Berlin are

admittedly dependent on the Industrial Accident Insurance Office and

are thus subject to a different scheme from that applicable in the

private sector. This fact is not, however, such as to preclude

reference being made to the latter scheme in order to give a legal

qualification to the legislation in issue. In point of fact, whilst

the Land provides the greater part of the funding of the Insurance

Office (see paragraph 53 above), it does so in its capacity as

employer and not as public authority.

Such differences as may exist between private sector insurance and

social security insurance do not affect the essential character of the

link between the insured and the insurer.

(c) Conclusion

74. Having evaluated the relative cogency of the features of

public law and private law present in the instant case, the Court

finds the latter to be predominant. None of these various features of

private law is decisive on its own, but taken together and

cumulatively they confer on the asserted entitlement the character of

a civil right within the meaning of Article 6 para. 1 (art. 6-1) of

the Convention, which was thus applicable.

B. Compliance with Article 6 para. 1 (art. 6-1)

75. The Court must therefore inquire whether the proceedings

brought by Mrs. Deumeland and continued by her son before the German

social courts satisfied the conditions laid down in Article 6 para. 1

(art. 6-1).

1. Reasonable time

76. The applicant complained firstly of the length of these

proceedings.

(a) Period to be taken into consideration

77. The starting point of the period in issue is 16 June 1970, the

date on which the action was instituted before the Berlin Social Court

(see paragraph 11 above).

As far as the close of the period is concerned, the "time" whose

reasonableness is to be reviewed covers in principle the entirety of

the litigation, including the appeal proceedings (see the

above-mentioned König judgment, Series A no. 27, pp. 33-34, para. 98).

The Federal Constitutional Court is to be taken into account in this

respect (see paragraph 45 above), in that, although it had no

jurisdiction to rule on the merits, its decision was capable of

affecting the outcome of the claim. On the other hand, the time spent

by the Berlin Social Court of Appeal in examining the application for

re-opening of the proceedings is not material (see paragraphs 46-47

above), because this application involved a fresh set of proceedings.

Consequently, the close of the period is 9 February 1981, when the

Federal Constitutional Court rejected Mr. Deumeland's constitutional

complaint (see paragraph 45 above).

The period to be considered thus lasted ten years, seven months and

three weeks (16 June 1970 - 9 February 1981).

(b) Relevant criteria

78. The reasonableness of the length of proceedings is to be

assessed in each instance according to the particular circumstances of

the case and having regard to the criteria stated in the case-law of

the Court (see notably the Buchholz judgment of 6 May 1981, Series A

no. 42, pp. 15-16, para. 49, and the Zimmermann and Steiner judgment

of 13 July 1983, Series A no. 66, p. 11, para. 24).

(i) Degree of complexity of the case

79. The main issue raised by the case consisted in determining

whether the fall of Mr. Deumeland's father when returning home from an

appointment with an ear-nose-and-throat specialist whom he had

consulted on leaving his workplace (see paragraph 10 above)

constituted an industrial accident or an accident on the way to or

from work for the purposes of the Reich Insurance Code. The competent

social courts had in particular to satisfy themselves that the work

superiors of the father had spoken to him about his hearing problems

and asked him to seek treatment in the interests of the service (see

paragraph 11 above). This was above all a question of fact to be

elucidated by taking evidence from a few witnesses. Furthermore, no

difficult legal issue was involved. The Government, moreover, did not

contest this.

(ii) Behaviour of the applicant

80. At various stages, Mr. Deumeland Junior took steps that slowed

the progress of the proceedings. Certain of these steps disclosed, if

not a wish to obstruct, at least an attitude of non-cooperation.

This was so, for example, as regards the challenges he made - five in

total - against one judge on the Federal Social Court and three judges

on the Berlin Social Court of Appeal (see paragraphs 22, 25, 33, 35

and 37 above). These challenges were dismissed as unfounded, with the

exception of one which was withdrawn by the complainant. In addition,

several acts or omissions on the part of the applicant were such as to

complicate the task of the courts. The Court need only cite the most

noteworthy, namely the filing of written pleadings the day before

hearings (see paragraphs 16 and 40 above), making requests for

extension of time-limits (see paragraphs 18 and 42 above) or for

rectification of the statement of facts included in a judgment and

subsequently in the decision rejecting the original request (see

paragraph 17 above), being incapable of helping the court to trace a

document lodged by himself and asserted by him to be of importance

(see paragraph 26 above), objecting to the communication of files and

declining to submit comments (see paragraph 30 above), refusal to

produce an inheritance certificate (see paragraph 35 above).

In sum, the applicant did not display the diligence to be expected of

a party to litigation of this kind. He thereby contributed to

prolonging the proceedings (see, mutatis mutandis, the Pretto and

Others judgment of 8 December 1983, Series A no. 71, p. 15, para. 34).

(iii) Conduct of the competent courts

(1) Berlin Social Court

81. The proceedings before the Berlin Social Court began on

16 June 1970 and ended on 7 December 1972, that is two years, five

months and three weeks later. Yet on three occasions the case was

declared to be ready for hearing, on 11 May 1971, then on

15 March 1972 and finally on 26 June 1972 (see paragraph 12 above).

The case was thus dormant for one year, one month and two weeks. The

Government acknowledged the existence of some delay, but attributed

this primarily to the creation of a new chamber as a result of the

increase in the court's workload, and to successive changes of

presiding judge. The Government also stated that the nature of the

case did not warrant its being given priority treatment.

82. According to the Court's established case-law, a temporary

backlog of court business does not engage the international

responsibility of the State concerned, provided that the State takes

effective remedial action with the requisite promptness (see, as the

most recent authority, the Guincho judgment of 10 July 1984, Series A

no. 81, p. 17, para. 40).

The evidence adduced by the Government does not support the conclusion

that in the present case there occurred a sudden and unforeseeable

increase in the number of actions being brought, thereby generating a

temporary backlog of business.

The changes of presiding judge represent a natural part of the life of

a court and may occasion a degree of delay. The frequency of the

changes within a very short period served to aggravate the situation

as it already was in the circumstances.

(2) Berlin Social Court of Appeal (first set of proceedings)

83. The case having been brought before it on 23 November 1972,

the Berlin Social Court of Appeal notified its judgment to

Mr. Deumeland on 14 September 1973, that is after nine months and

three weeks. On the evidence, the procedure before this court was not

subject to any delay.

(3) Federal Social Court (first set of proceedings)

84. The first set of proceedings before the Federal Social Court

ended one year and seven months after it had been commenced (

11 October 1973 - 15 May 1975). There was a period of inactivity from

5 February 1974 (transmission to Mr. Deumeland of the defendant's

pleadings) until 6 December 1974 (hearing). However, the applicant

had expressed the wish on 1 July 1974 that the hearing should be held

on 6 December (see paragraph 21 above). This being so, the interval

in question is only partially attributable to the Federal Social

Court.

(4) Berlin Social Court of Appeal (second set of proceedings)

85. Of the five sets of proceedings brought by the applicant

before the social courts, the second set before the Berlin Social

Court of Appeal is the longest and most complicated. Three years and

ten months elapsed between the notification of the judgment by the

Federal Social Court (16 May 1975) and receipt by Mr. Deumeland of the

judgment by the Social Court of Appeal (15 March 1979).

86. Two requests for communication of the case-file interrupted

the course of the main proceedings; the first came from the public

prosecutor's department attached to the Berlin Court of Appeal, and

the second from the public prosecutor's department attached to the

Berlin Regional Court (see paragraphs 28 and 31 above). The periods

in question nevertheless remained relatively brief, that is to say,

three weeks in one instance (28 August - 18 September 1975) and four

months and two weeks in the other (29 July - 9 December 1976). These

requests did not therefore have an appreciable incidence on the

conduct of the proceedings.

As far as the challenges of judges submitted by Mr. Deumeland to the

Berlin Social Court of Appeal are concerned, the time it took to

reject them was often considerable and, at first sight, surprising;

thus, it took three years, four months and three weeks

(26 May 1975 - 17 October 1978) in the case of Judge Matuczewski, one

year, ten months and two weeks (4 August 1976 - 20 June 1978) in the

case of Judge Brämer, and seven months (20 January - 19 August 1977)

and three weeks (31 May - 20 June 1978) in the case of Judge Arndts

(see paragraphs 25, 33, 35-37 and 40 above). Although these

challenges did not perhaps greatly slow the progress of proceedings,

the time taken to decide them would nonetheless appear to be

excessive.

(5) Federal Social Court (second set of proceedings)

87. The second set of proceedings before the Federal Social Court

was commenced on 25 March 1979 and it terminated on 17 December 1980,

that is to say, one year, eight months and three weeks later. Three

periods of lack of activity merit attention (see paragraphs 43-44

above). The first runs from 9 July 1979 (dispatch to the parties of a

statement by the Barmer Ersatzkasse) until 19 November 1979 (request

to the Charlottenburg District Authority for documents), the second

from 2 January 1980 (receipt of a file from the Land Administrative

Authority) until 1 April 1980 (dispatch to Mr. Deumeland of a letter

informing him of receipt of documents), and the third from

9 September 1980 (transmission of documents to the parties) until

11 December 1980 (hearing). The Government limited their observations

to pointing out that in so far as the Federal Social Court had ordered

communciation of all the various files, this had been done at the

request of the applicant.

88. It suffices to note that the intervals of time in question,

considered on their own, do not seem unreasonable, especially in view

of the fact that the longest interval coincided largely with the

court's vacation.

(6) Federal Constitutional Court

89. The Federal Constitutional Court, for its part, dealt with the

matter with great expedition, since it took only six weeks to deliver

its ruling.

(c) Overall assessment

90. In all, the litigation in issue extended over almost eleven

years. Whatever might have been the value of the benefit being

claimed, an interval of such length is abnormal for the circumstances,

especially having regard to the particular diligence required in

social security cases. It is true that the period under consideration

is divided into six distinct phases, corresponding to six sets of

proceedings, and that responsibility for its duration rests to a large

degree with Mr. Deumeland himself. Nevertheless, a number of delays

are attributable to the competent courts, primarily the Berlin Social

Court and Social Court of Appeal (second set of proceedings). As a

result of these delays, viewed together and cumulatively, the

applicant's case was not heard within a reasonable time, as required

by Article 6 para. 1 (art. 6-1). There has accordingly been a

violation under this head.

2. Fair trial before an impartial tribunal

91. The applicant further complained that the claim had not been

given a "fair hearing" before an "impartial tribunal". In his

submission, the judges on the social courts exhibited a hostile

attitude towards him for political reasons, failed in the duties

incumbent upon them and delivered incorrect decisions in his case.

The Government did not comment on these claims.

92. The Court would merely point out that Mr. Deumeland has not

adduced a shred of evidence capable of supporting his allegations.

II. APPLICATION OF ARTICLE 50 (ART. 50)

93. Article 50 (art. 50) of the Convention provides:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

94. In his memorial of 27 March 1985 (see paragraph 6 above),

Mr. Deumeland alleged "considerable material and non-material damage".

Specifying that he would quantify the prejudice at a later date, he

listed the following items: rejection by the German courts of all his

claims; harmful effect of the conduct of the proceedings on his

mother's health; award made against him of all the court costs

incurred before the different social courts; attempts to hamper the

practice of his profession; time devoted to the proceedings before

the national courts, at the expense of his other activities; injury

to his reputation.

At the hearing, the applicant declared his readiness to deal in

writing with the question of the possible application of Article 50

(art. 50) and to reach "an inexpensive settlement". In response to a

request by the President, he stated that he would subsequently file

written submissions; he has not done so, however.

Neither the Agent of the Government nor the Delegate of the Commission

commented on his claims.

95. The breach of Article 6 para. 1 (art. 6-1) found by the Court

relates essentially to a period of time when Mrs. Deumeland was still

alive and had entrusted the defence of her case to her son (see

paragraph 90 above). The latter, although he was living under the

same roof as his mother (see paragraph 35 above), did not at that

stage have the status of an "injured party" for the purposes of

Article 50 (art. 50). He did, however, acquire that status on

8 December 1976 on the death of his mother, whose sole heir he

is (see paragraph 35 above).

96. In respect of the material damage alleged, the applicant has

not provided sufficient information. Accordingly, the Court rejects

the claim under this head.

97. As far as the alleged non-material damage is concerned, it

cannot be excluded that Mr. Deumeland's mother suffered some

psychological distress during the period when the reasonable time had

been exceeded. However, even supposing that she might have obtained

financial compensation on this score, the Court sees no reason to

grant any to the applicant himself since the present judgment affords

him adequate just satisfaction.

98. The applicant made no other claim, in particular no claim for

legal costs incurred in the proceedings before the Convention

institutions. In the context of Article 50 (art. 50), the Court looks

only to the items actually claimed; since no question of public

policy is involved, the Court will not of its own motion inquire

whether the applicant has been otherwise prejudiced (see the Sunday

Times judgment of 6 November 1980, Series A no. 38, p. 9, para. 14).

There is thus no call to award reimbursement of costs.

FOR THESE REASONS, THE COURT

1. Holds, by nine votes to eight, that Article 6 para. 1 (art. 6-1)

was applicable to the circumstances of the present case;

2. Holds, by nine votes to eight, that there has been a breach of

Article 6 para. 1 (art. 6-1) as regards compliance with the

requirement of trial within a reasonable time;

3. Holds, unanimously, that the foregoing finding in itself

constitutes adequate just satisfaction for the purposes of Article 50

(art. 50).

Done in English and in French, and delivered at a public hearing at

the Human Rights Building, Strasbourg, on 29 May 1986.

Signed: Gérard WIARDA

President

Signed: Marc-André EISSEN

Registrar

The separate opinions of the following judges are annexed to the

present judgment in accordance with Article 51 para. 2 (art. 51-2)

of the Convention and Rule 52 para. 2 of the Rules of Court :

- joint dissenting opinion of Mr. Ryssdal, Mrs. Bindschedler-Robert,

Mr. Lagergren, Mr. Matscher, Sir Vincent Evans, Mr. Bernhardt and

Mr. Gersing;

- dissenting opinion of Mr. Pinheiro Farinha;

- concurring opinion of Mr. Pettiti and Mr. Russo.

Initialled: G.W.

Initialled: M.-A.E.

JOINT DISSENTING OPINION OF JUDGES RYSSDAL, BINDSCHEDLER-ROBERT,

LAGERGREN, MATSCHER, SIR VINCENT EVANS, BERNHARDT AND GERSING

1. We agree with the view of the majority of the Court as to the

existence in the present case of a "contestation" (dispute) over a

right claimed by the applicant's mother, Mrs. Deumeland. In our

opinion, however, the dispute did not involve the determination of her

"civil rights and obligations" ("droits et obligations de caractère

civil"), within the meaning of Article 6 para. 1 (art. 6-1) of the

Convention. Our conclusion, therefore, is that Article 6 para. 1

(art. 6-1) is not applicable in the present case.

2. The majority finds that various "features of private law"

comprised in the particular social security benefit claimed by

Mrs. Deumeland so outweighed the "features of public law" as to confer

on her claimed entitlement the character of a "civil right" for the

purposes of Article 6 para. 1 (art. 6-1) (see paragraph 74 of the

judgment). The relevant "features of private law" identified by the

majority are, firstly, the personal and economic nature of the

asserted right; secondly, the connection with the contract of

employment; and, thirdly, the affinities with insurance under the

ordinary law. In our view, the weakness in this reasoning is that the

majority is taking as determining factors matters which may vary as

between different social security systems and even from one category

of benefit to another under the same system. We fear that this will

give rise to uncertainty as to the obligations undertaken by the

Contracting States in the field of social security by virtue of

Article 6 para. 1 (art. 6-1) of the Convention.

3. Our reasons for finding Article 6 para. 1 (art. 6-1) to be

inapplicable to the kind of right asserted by Mrs. Deumeland are as

follows.

1. "Civil rights and obligations" - a limitative concept

4. Article 6 para. 1 (art. 6-1) lays down a procedural guarantee

for the adjudication of certain disputes. The use of the expression

"civil rights and obligations" must have been intended by the drafters

of the Convention to set some limit on the application of

Article 6 para. 1 (art. 6-1). The expression cannot be read as

applying to disputes over the whole range of "rights and obligations"

recognised by domestic law: the right or obligation in issue must be

one that can be qualified as "civil". This adjective, however, is

capable of bearing several meanings. The text of the Article (art. 6)

is not sufficiently clear for it to be said, without more, which

meaning was intended.

2. The Court's case-law

5. The Court's existing case-law gives some guidance as to where

the line is to be drawn.

6. The starting point must in each case be the character

attributed to the rights and obligations in question under the legal

system of the respondent State. This, however, provides no more than

an initial indication, as the notion of "civil rights and obligations"

is an "autonomous" one within the meaning of the Convention and

"cannot be interpreted solely by reference to the domestic law of the

respondent State": "whether or not a right is to be regarded as civil

within the meaning of this expression in the Convention must be

determined by reference to the substantive content and effects of the

right - and not its legal classification - under the domestic law of

the State concerned" (see the König judgment of 28 June 1978, Series A

no. 27, pp. 29-30, paras. 88-89).

For this purpose, account should also be taken of the legal systems of

the other Contracting States, notably to see whether there exists any

uniform concept of "civil rights and obligations" such as would either

embrace or exclude the facts of the present case (see the

above-mentioned König judgment, Series A no. 27, p. 30, para. 89).

7. The Court has held that the phrase "contestations" (disputes)

over "civil rights and obligations" covers all proceedings the result

of which is decisive for private rights and obligations, even if the

proceedings concern a dispute between an individual and a public

authority acting in its sovereign capacity and irrespective of whether

under the domestic legal system of the respondent State they fall

within the sphere of private law or of public law or indeed are of a

mixed character (see the Ringeisen judgment of 16 July 1971, Series A

no. 13, p. 39, para. 94; the above-mentioned König judgment, Series A

no. 27, pp. 30 and 32, paras. 90 and 94). Moreover, it is not enough

for the dispute or the proceedings to have a tenuous connection with

or remote consequences affecting civil rights or obligations: "civil

rights and obligations must be the object - or one of the objects - of

the 'contestation' (dispute); the result of the proceedings must be

directly decisive for such a right" (see the Le Compte, Van Leuven and

De Meyere judgment of 23 June 1981, Series A no. 43, p. 21, para. 47).

Beyond this, the Court has expressly reserved for future consideration

the question whether the concept of "civil rights and obligations",

within the meaning of Article 6 para. 1 (art. 6-1), extends beyond

those rights which have a private nature (see the above-mentioned

König judgment, Series A no. 27, p. 32, para. 95; and the

above-mentioned Le Compte, Van Leuven and De Meyere judgment, Series A

no. 43, p. 22, para. 48 in fine).

8. The Court's existing case-law has thus identified certain

areas to which Article 6 para. 1 (art. 6-1) is applicable, whilst

leaving open whether or not there might be other such areas.

3. Application of the Court's existing case-law to the particular

facts

9. Under German law, the entitlement to a widow's supplementary

pension asserted by Mrs. Deumeland is not private in character but is

classified as a public-law right.

Undoubtedly, under the statutory insurance scheme to which

Mr. Deumeland Senior was subject, certain connections exist between

the entitlement to industrial-accident allowances and the insured's

current or former contract of employment, which contract does clearly

fall within the domain of private law. Nonetheless, the provisions

governing industrial-accident allowances do not constitute clauses

incorporated by law in, or deriving from, the contract of employment;

the claim is enforceable against a third party not privy to the

contract; and the outcome of the claim does not directly affect the

private legal relationship between the employer and employee created

by the contract of employment, although it may have a certain

incidence on performance of that contract.

Hence it cannot be said that the proceedings brought by

Mrs. Deumeland to enforce her claim to a widow's supplementary pension

concerned, or entailed a result directly decisive for, a private right

recognised by German law. Such consequences as there were for private

rights were, in our view, too remote and tenuous to attract the

application of Article 6 para. 1 (art. 6-1) on that ground alone.

10. We agree with the majority that the classification under

German law, whilst it provides an initial indication, cannot be

decisive, especially if it is out of line with the legal systems of

the other Contracting States. However, as the majority concluded in

paragraph 63 of the judgment, there exists no common European standard

as regards the juridical nature of entitlement to industrial-accident

allowances under statutory social security schemes. In particular,

such entitlement is not generally recognised as being private in

character.

11. Accordingly, the facts of the present case fall outside the

private-right criteria for the application of Article 6 para. 1

(art. 6-1) as established under the Court's existing case-law. What

remains to be determined is whether those facts nonetheless do come

within the scope of Article 6 para. 1 (art. 6-1) on other grounds.

4. Relevant principles of interpretation

12. In order to ascertain the meaning of the "autonomous" notion

of "civil rights and obligations" in Article 6 para. 1 (art. 6-1),

regard must be had to the object and purpose of the Convention (see

the above-mentioned König judgment, Series A no. 27, p. 30, para. 89).

As a matter of general approach, in the interpretation of the

Convention, which is an international treaty, it is appropriate for

the Court to be guided by the 1969 Vienna Convention on the Law of

Treaties (see the Golder judgment of 21 February 1975, Series A

no. 18, p. 14, para. 29). The "general rule of interpretation", as

set out in Article 31 para. 1 of the Vienna Convention, reads:

"A treaty shall be interpreted in good faith in accordance with the

ordinary meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose."

Article 32 of the Vienna Convention further specifies that

"recourse may be had to supplementary means of interpretation,

including the preparatory work of the treaty and the circumstances of

its conclusion, in order to confirm the meaning resulting from the

application of Article 31 ...".

The Court has also recognised the need to construe the European

Convention on Human Rights in the light of modern-day conditions

obtaining in the democratic societies of the Contracting States and

not solely according to what might be presumed to have been in the

minds of the drafters of the Convention (see, inter alia, the

Marckx judgment of 13 June 1979, Series A no. 31, p. 19, para. 41).

5. Characteristics of the asserted right

13. The pension right claimed by Mrs. Deumeland was an economic

right deriving, not from the private contract between her husband and

his employer, but from a collective scheme of protection of the

working population set up by the legislature. An allocation of

society's resources as generated within the employment context has

been decided upon by the domestic legislature; and Mr. Deumeland

Senior, as a member of the section of society concerned, was compelled

to participate in that scheme. Such schemes represent performance of

society's duty to protect the health and welfare of its members; they

are not merely examples of the State taking on or regulating an

insurance activity equally capable of being carried on by the private

sector.

Admittedly, concerning as it does the employment sphere, the German

statutory scheme of industrial-accident insurance is bound to have

some repercussions on, connections with or features in common with

"civil rights and obligations" existing under the ordinary law in that

sphere. Thus, the availability of industrial-accident allowances

under the relevant provisions of the Reich Insurance Code is dependent

upon there having been a contract of employment; the pension itself

may be analysed as a kind of extension of the salary payable by the

employer under the contract of employment; the statutory scheme of

industrial-accident insurance could be said to have some affinity with

classic insurance in the private sector. In our opinion, however, none

of these factors alters the essential public character of the

relationship between the individual and the collectivity which lies at

the heart of the claimed statutory entitlement.

6. Context, object and purpose

14. It must therefore be determined, in the context of the

provision and in the light of the object and purpose of the

Convention, whether this kind of entitlement, despite its essential

public character, is included within the notion of "civil rights and

obligations", within the meaning of Article 6 para. 1 (art. 6-1).

15. The object and purpose of the Convention as pursued in

Article 6 para. 1 (art. 6-1) are, to some extent, discernible from the

nature of the safeguards provided.

The judicialisation of dispute procedures, as guaranteed by Article 6

para. 1 (art. 6-1), is eminently appropriate in the realm of relations

between individuals but not necessarily so in the administrative

sphere, where organisational, social and economic considerations may

legitimately warrant dispute procedures of a less judicial and formal

kind. The present case is concerned with the operation of a

collective statutory scheme for the allocation of public welfare. As

examples of the special characteristics of such schemes, material to

the issue of procedural safeguards, one might cite the large numbers

of decisions to be taken, the medical aspects, the lack of resources

or expertise of the persons affected, the need to balance the public

interest for efficient administration against the private interest.

Judicialisation of procedures for allocation of public welfare

benefits would in many cases necessitate recourse by claimants to

lawyers and medical experts and hence lead to an increase in expenses

and the length of the proceedings.

The nature of the safeguards afforded thus tends to show that the

object and purpose of Article 6 para. 1 (art. 6-1) do not go so far as

to guarantee judicial control of the administration of statutory

collective schemes for the distribution of public welfare.

16. We have not overlooked the fact that the overall object of the

Convention is the humanitarian one of the protection of the individual

and that, for the man or woman in the street, entitlement to social

security benefits is of extreme importance for his or her daily life.

However, as the Delegate of the Commission submitted, the economic

importance for Mrs. Deumeland's livelihood of the allowance claimed is

insufficient, on its own, to bring into play the applicability of

Article 6 para. 1 (art. 6-1) and its specific judicial guarantees. Of

course, it is equally essential that in the administrative field

justice should be done and the individual's claims should be

investigated in a responsible and objective manner in accordance with

the rules laid down, but that is not to say that all the various

requirements of Article 6 para. 1 (art. 6-1) of the Convention are

therefore applicable. Indeed, as pointed out above in the present

opinion (at paragraph 15), there exist underlying considerations

justifying special procedures in social welfare cases.

17. This being so, the juxtaposition of "civil" and "criminal" in

the context of Article 6 para. 1 (art. 6-1) cannot reasonably be taken

to be a comprehensive reference to all systems of adjudicative

proceedings under domestic law. On this construction, the use of the

adjective "civil" would not therefore imply the applicability of

Article 6 para. 1 (art. 6-1) to disputes over all matters other than

"criminal" even where, as in social security disputes, the outcome is

crucial for the personal life of the individual concerned.

18. These considerations point to the conclusion that, in

principle, the collective and public features of the statutory

insurance scheme giving entitlement are so predominant as to take the

rights and obligations in issue outside the "civil" domain, within the

meaning of Article 6 para. 1 (art. 6-1).

7. Supplementary means of interpretation

19. The foregoing analysis is corroborated by the fact that the

relevant legislation predates the elaboration of the Convention by

some decades, and there existed similar legislation predating the

Convention in many other of the Contracting States. It is therefore

reasonable to assume that the intention of the drafters of

Article 6 para. 1 (art. 6-1) was not to include such statutory schemes

of collective social protection within its ambit. On examination, the

drafting history confirms this reading of the text.

20. The adjective "civil" was added to the English version of

Article 6 para. 1 (art. 6-1) in November 1950 on the day before the

Convention was opened for signature, when a committee of experts

examined the text of the Convention for the last time and "made a

certain number of formal corrections and corrections of translations"

(Collected Edition of the Travaux préparatoires of the European

Convention on Human Rights, vol. VII, p. 12, para. 6). Whilst no

specific explanation was given for the last-minute change to

Article 6 para. 1 (art. 6-1), it is a fair inference that the reason

was merely to align the English text more closely with the language of

the French text: prior to the change, although the French version had

spoken, as now, of "droits et obligations de caractère civil", the

English version had read "rights and obligations in a suit of law"

(ibid., vol. V, p. 148).

These two expressions had first been introduced at a meeting

(March 1950) of the Committee of Experts on Human Rights of the

Council of Europe and were evidently taken directly from the

equivalent Article of the then existing draft of the International

Covenant on Civil and Political Rights of the United Nations

(ibid., vol. II, p. 296; vol. III, pp. 30, 160, 284, 290, 316;

vol. IV, p. 60). It is therefore relevant to trace their history in

the travaux préparatoires of the International Covenant.

21. The crucial discussion on the draft International Covenant

took place on 1 June 1949 during the fifth session of the United

Nations Commission on Human Rights. The French and Egyptian

delegations had presented an amendment that referred to "droits et

obligations"/"rights and obligations", without qualification. The

reaction of the Danish representative (Mr. Sørensen) to this amendment

was reported as follows:

"The representatives of France and Egypt proposed that everyone should

have the right to have a tribunal determine his rights and

obligations. Mr. Sørensen considered that that provision was much too

broad in scope; it would tend to submit to judicial decision any

action taken by administrative organs exercising discretionary power

conferred on them by law. He appreciated that the individual should

be ensured protection against any abuse of power by administrative

organs but the question was extremely delicate and it was doubtful

whether the Commission could settle it there and then. The study of

the division of power between administrative and judicial organs could

be undertaken later. ... Mr. Sørensen asked the representatives of

France and Egypt whether the scope of the provision in question might

be limited to indicate that only cases between individuals and not

those between individuals and the State were intended." (summary

record of the 109th meeting, doc. E/CN.4/SR.109, pp. 3-4)

The French representative (Mr. Cassin), speaking in French, replied

that "the Danish representative's statement had convinced him that it

was very difficult to settle in that article all questions concerning

the exercise of justice in the relationships between individuals and

governments" (ibid., p. 9). He was therefore prepared to let the

words "soit de ses droits et obligations" in the first sentence of the

Franco-Egyptian amendment be replaced by the expression "soit des

contestations sur ses droits et obligations de caractère civil"

(rendered in the English version of the summary record as "or of his

rights and obligations in a suit of law"). He agreed that the problem

"had not been fully thrashed out and should be examined more

thoroughly".

Later the same day, a drafting committee produced a text which

contained the expressions "in a suit of law" in English and "de

caractère civil" in French (doc. E/CN.4/286). The formula employed

in this text is the one that was ultimately adopted for Article 14 of

the International Covenant in 1966.

22. It thus seems reasonably clear that the intended effect of the

insertion of the qualifying term "de caractère civil" in the French

text of the draft International Covenant was to exclude from the scope

of the provision certain categories of disputes in the field of

administration "concerning the exercise of justice in the

relationships between individuals and governments".

8. State practice and evolutive interpretation

23. It is not the case that, since the entry into force of the

Convention, State practice has developed to the point where the

Contracting States can be said to treat entitlement to

industrial-accident allowances under statutory social security schemes

as giving rise to "civil rights and obligations" for the purposes of

Article 6 para. 1 (art. 6-1). Indeed, as noted above (see

paragraph 10), no common ground can be identified in the legal systems

of the Contracting States as to the "civil" or other character of such

entitlement. In sum, there is no uniform European approach in this

regard such as to run counter to the interpretation we have reached on

the basis of the other foregoing considerations. On the contrary, the

diversity of approach existing even today tends to show that whether

judicial protection of the kind guaranteed by Article 6 para. 1

(art. 6-1) should be afforded to claims, such as Mrs. Deumeland's,

for industrial-accident allowances is a policy decision for the

Contracting States to take in the light of the various merits and

disadvantages involved, but it is not as such required by

Article 6 para. 1 (art. 6-1) itself.

24. Neither does an evolutive interpretation of Article 6 para. 1

(art. 6-1) lead to a different conclusion. The Convention is

selective in the protection it affords, as is shown by the recital in

the Preamble wherein the signatory Governments expressed their

underlying resolve to be "to take the first steps for the collective

enforcement of certain of the rights stated in the [United Nations]

Universal Declaration" of Human Rights (see the above-mentioned Golder

judgment, Series A no. 18, p. 16, para. 34). An evolutive

interpretation allows variable and changing concepts already contained

in the Convention to be construed in the light of modern-day

conditions (see, for example, the Tyrer judgment of 25 April 1978,

Series A no. 26, pp. 15-16, para. 31; the above-mentioned Marckx

judgment, Series A no. 31, pp. 19-20, para. 41; the Dudgeon judgment

of 22 October 1981, Series A no. 45, pp. 23-24, para. 60), but it does

not allow entirely new concepts or spheres of application to be

introduced into the Convention: that is a legislative function that

belongs to the member States of the Council of Europe. The

desirability of affording proper safeguards for the adjudication of

claims in the ever-increasing field of social security is evident.

There are, however, limits to evolutive interpretation and the facts

of the present case go beyond those limits as far as Article 6 para. 1

(art. 6-1) is concerned.

We do not find the considerable developments witnessed in the social

welfare field since the elaboration of the Convention to be such as to

alter the essential character of the rights and obligations in issue

in the action instituted by Mrs. Deumeland.

9. Conclusion

25. Having regard to the text of Article 6 para. 1 (art. 6-1), to

its object and purpose and to its drafting history, the conclusion of

principle which we draw is that there exist areas within the field of

public administration subject to special institutional regimes, such

as that relating to social security, under which the rights and

obligations of the individual not of a private nature may justifiably,

for various reasons (see paragraph 15 above), be determined by special

procedures of adjustment rather than by tribunals complying with all

the requirements of Article 6 para. 1 (art. 6-1). In our view, the

guarantees of Article 6 para. 1 (art. 6-1) attaching to

"contestations" (disputes) over "civil rights and obligations" do not

apply to disputes within such areas unless, as stated in the Court's

case-law (see paragraph 7 above), the outcome of the dispute is

directly decisive for private rights.

In the light of all the various considerations set out above, we

accordingly conclude that the proceedings brought by Mrs. Deumeland

and subsequently continued by her son before the German social courts

did not involve determination of "civil rights and obligations",

within the meaning of Article 6 para. 1 (art. 6-1); and that the

judicial guarantees of this provision were therefore not applicable to

the circumstances of the instant case.

DISSENTING OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1. Article 6 para. 1 (art. 6-1) of the Convention guarantees a

fair trial in the determination of a person's "civil rights and

obligations" and of "any criminal charge against him".

2. No question of a "criminal charge" arises in the present case.

Did the facts involve the determination of civil rights and

obligations?

3. Mr. Deumeland Senior was an employee (Angestellter) of the

Berlin City Authorities and he was compulsorily insured against

industrial accidents (see paragraph 10 of the judgment).

For employees of private firms, the bodies responsible for insurance

against industrial accidents are the occupational associations

(Berufsgenossenschaften) (see paragraph 52 of the judgment), whose

funds are provided by the employers by means of private contributions

which depend essentially on the salaries of the persons covered and on

the likelihood of accidents (see paragraph 51).

In Berlin, Land employees are covered by the Industrial Accident

Insurance Office (Eigenunfallversicherung), a public body directly

controlled by the Land authority and financed chiefly by a sum

included annually in the Land budget, that is by public monies, and

for the rest by contributions paid by certain public concerns (see

paragraph 53). The contract of employment constituted a mere

condition of entitlement and Mr. Deumeland Senior had not paid any

contributions towards the insurance.

4. I conclude - by reason of the lack of dependence on the

occupational associations, the connection with a public body under the

direct control of the Land, and the funding of this

industrial-accident insurance which was chiefly provided from the

budget of the Land - that one cannot speak of a determination of a

"civil right" and that Article 6 (art. 6) was not applicable and hence

not breached.

CONCURRING OPINION OF JUDGES PETTITI AND RUSSO

(Translation)

We have voted with the majority in favour of the applicability and

violation of Article 6 (art. 6). What was crucial for our vote was the

predominance of the features of civil law in the succession of very

different proceedings brought by the members of the Deumeland family.

1. At the origin of the affair was a street accident suffered by

Mr. Deumeland Senior. The fact of his being granted or not being

granted benefits as the victim of an industrial accident on the way to

or from work does not alter the nature of the right at issue. The

damage sustained as a result of the accident could raise an issue of

civil liability or criminal liability entailing civil consequences on

the part of the owner of the building in front of which the

snow-covered pavement caused the fall of Mr. Deumeland Senior.

2. The principal litigation was concerned with the possible

causal link between the accident on the way home from work (in so far

as treated as an industrial accident) and the death of Mr. Deumeland

Senior. This, if established, would have entailed the attribution of

additional years of service between the date of the accident and the

date of the death, which would in turn have increased to a certain

extent the old-age pension received by Mrs. Deumeland. What was at

stake was not a supplementary insurance, but the basis of calculation

of a pension.

3. A further feature of civil law is to be found in the

procedural incident concerning the proof of Mr. Deumeland Junior's

status as heir.

4. The action for recovery of damages that could have been

brought against the owner of the building as a result of the

Industrial Accident Insurance Office being subrogated to the rights of

Mr. Deumeland Senior related to a civil liability claim. It was for

those concerned to reserve their right of action against the building

owner. The final refusal of responsibility by the Insurance Office

could have raised another issue of liability. All these features

- subrogation, surrender of rights, exercise of the right to sue - are

features of civil law.

The Court has situated the unreasonable length of the proceedings

mainly in the period relating to the litigation concerning the causal

link and to the subsequent procedural incidents, and not in the first

stage of the social insurance dispute which dealt with whether the

accident on the way home from work should be classified as an

industrial accident.

The Deumeland case does not, in our view, involve putting in issue the

German system for settlement of social insurance disputes concerning

industrial accidents. The extremely interesting controversy - which

is remarkably expounded in the separate opinion of the minority -

surrounding the interpretation of the travaux préparatoires of the

United Nations and the Council of Europe in connection with the

expression "civil rights and obligations" does not necessarily furnish

a crucial element of appraisal, having regard to the particular

circumstances of the present case and to the predominant features of

private law described above.



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