CASE OF DEUMELAND v. GERMANY
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
C. Russo
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.