THE ASBESTOS, TO JUDGMENT
The approach to the problem of asbestos, in the European Court of Human Rights
Author: Francisco Báez Baquet
Asbestos products were exported, banned, and asbestos products were labeled, with the warning: “asbestos-free product”.
Dr. Engineer Barry Castleman
“The asbestos epidemic kills one person every two hours in the United States, one every four hours in the United Kingdom, three every day in Italy and Germany, two every day in France, Japan and Australia, and one a day in Holland “: Boggio (2013).
The true face of the asbestos industry, beyond disquisitions about whether or not there was a generalized knowledge about the lethal effects of asbestos on such date or another, is perfectly reflected in a paragraph of the article published on November 25. of 2014 in the international edition of the newspaper “El País” (“The country”), written by Eliane Brum, and entitled: “Romana and the billionaire of asbestos: the pain that does not prescribe”.
Says the following: “The victims of asbestosis die slowly and painfully from suffocation.” In Brazil, it was at that moment when companies like Eternit sent their representatives to the hospitals so that the workers, in full agony, signed a document accepting a derisory compensation in exchange for the life that ended, thus preventing their families from taking legal action after his death.”
The announcement, by the Government of Spain, of introducing certain changes in the legislation concerning to the Justice, has highlighted a real situation that has been occurring: the fact that some of the resolutions of the aforementioned European Court were resulting In the end, it is merely a “wet paper”, because a specific procedural channel is not foreseen, through which the Spanish justice could effectively enforce such resolutions, in which the Spanish State has been condemned, against the claim made by a private individual.
Whether for this circumstance, or for any other of various kinds, the truth and authentic is that, up to the present, has not come to formulate, by any Spanish, any claim concerning the compensation for damage caused by exposure to asbestos, before the mentioned court, and this has not been, evidently, because there have not been repeated reasons to have done so, as we will have ample opportunity to be appreciate at the time.
It is not, either, that, in general, and by citizens or companies from other European nations, such demands have been greatly lavished, in relation to asbestos.
In automatic search in the corresponding website, there are about 36, but, once the appropriate debugging has been done, eliminating repetitions in the registry of certain litigious situations, and also deleting those others, in which the mention of the term “asbestos” turned out to be merely anecdotal, marginal, its number is reduced to only 10, on some of which we are going to concern ourselves, because of the undoubted didactic value that its revision and commentary can assume.
In effect: in general terms, we will have the opportunity to see, how the judicial apparatus of states that claim to be democratic and respectful of human rights; with the appropriate procedural guarantees; with the appropriate mechanisms of recourse before higher instances; with a level of factual knowledge of the subject, noticeably comparable to the generality of the same, etc., etc., however, may fall into judicial decisions, whose manifest injustice is evident with the mere help of pure common sense.
Can it be risky to suppose that these judgments of the European Court of Human Rights do not exhaust, perhaps, all the cases in which, potentially, the same type of extra-national lawsuit, in the hypothesis that they have come to occur, would not they have also reached an equally restorative resolution of the injustice committed in their respective nations? …
Can it be risky, concretely, to suppose it with respect to some possible demands, raised by Spanish victims of asbestos?
Resolve yourself to the reader, after having had occasion to ponder the various examples that here, in turn, we will show you.
That is why we put the emphasis on the didactic value of examining such judgments of the ECHR, and that is why we will address your comment below.
CASE OF KABA v. Turkey (Application No. 1236-05) – STRASBOURG JUDGMENT March 1, 2011. FINAL 06/01/2011
The case originated in a claim (No. 1236/05) against the Republic of Turkey, brought before the Court by three Turkish citizens, Ms. Havva Kaba, and the Misses Edanur Kaba and Elif Kaba, on November 30, 2004. The applicants were born in 1978, 2001 and 1997, respectively, and live in Istanbul.
The first plaintiff is the wife and the second and third plaintiffs are the daughters of Mr. Yusuf Kaba, who was an officer of the Turkish Navy and who died of cancer in 2003. According to the applicants, Mr Kaba’s exposure to asbestos during his work at Hasköy Pier had caused it. They were also concerned about the allegedly inadequate treatment received at the GATA military hospital.
After the death of Mr. Kaba, on August 22, 2003, the plaintiffs initiated compensation proceedings before the Supreme Military Administrative Court against the Ministry of Defense. They requested a total of about 400,000 € for damages, both pecuniary and non-pecuniary.
In their appeal, the plaintiffs complained that Mr. Kaba’s death was the result of asbestos levels in the Hasköy Pier and declared that he had not received adequate medical treatment at the GATA military hospital.
In the applicants’ submissions, they invoked the medical records of the applicant’s husband, a report on asbestos levels at the Hasköy wharf, and an expert report. They also requested that legal assistance include the exoneration in the payment of court fees.
In their demand for legal assistance, they presented documents certifying their bad financial situation. The official documents testified that the claimants had no income.
On November 19, 2003, the Supreme Administrative Military Tribunal, without giving any reason, decided that the plaintiffs did not meet the requirements for free legal assistance.
The plaintiffs were notified that they had to pay approximately 5,000 € of court fees, within a month, for the process to continue, and that failure to do so would result in the suspension of the proceeding. In January 2004, the plaintiffs again requested legal aid to pay the court fees.
On January 21, 2004, the Military Supreme Administrative Court refused to grant the applicants the exemption from fees for legal assistance, once again, without giving reasons.
The plaintiffs were asked to pay the corresponding fees, within a month, in order to be able to continue with the procedure and they were warned that failure to do so could lead to the suspension of the procedure.
On April 22, 2004, the plaintiffs requested a rectification of the decision dated January 21, 2004. Subsequently, on April 26, 2004, the plaintiffs’ lawyer also filed an application with the Supreme Military Administrative Court and requested a clarification of the decision dated January 21, 2004.
In his petition, the plaintiffs’ counsel referred to the relevant statements, from means provided by the national authorities. In addition, he stated that the relevant medical reports on Mr. Yusuf Kaba, a report on asbestos levels at the Hasköy wharf and an expert report had been presented, had the blocking of the procedure not prevented it, and that these tests should of being enough to prove that they had a well-founded case.
On May 12, 2004, the Supreme Administrative Military Court examined both applications and decided that, since the decision dated January 21, 2004 was not a final decision on the merits of the case, a rectification or a request for clarification was not possible, in accordance with the provisions in this regard, in national legislation.
The court also decided to suspend the compensation process, because the plaintiffs had not paid the necessary court fees. This decision was notified to the plaintiffs on June 4, 2004.
The Article 56 of Turkish Law no. 1602 of the Supreme Military Administrative Courts, establishes that when a Supreme Military Administrative Court determines a request for legal assistance, it must apply the relevant provisions of the Code of Civil Procedure (CCP). The Article 465 of said CCP, establishes that the request for free legal assistance can only be granted, if the applicant presents evidence in support of his case.
According to Article 468 of the aforementioned CCP, in order to determine whether or not the person requesting free legal assistance, one who has sufficient means, will have the obligation to present a statement of their means, plus another certificate that will indicate if the individual owns any property and a certification regarding the amount, if any, of the tax that would have been paid for it.
These certificates must be obtained from the corresponding national authorities. The Article 469 of the CCP provides that decisions regarding legal assistance are binding.
In November 2003, the current minimum wage was approximately 153 € per month.
The complainants complained that the refusal to grant them legal assistance, in relation to their compensation case, had violated their right to a fair trial, guaranteed by Article 6 § 1 of the European Convention on Human Rights.
The plaintiffs alleged that, by refusing their request for legal aid, the Supreme Administrative Military Court had violated their right of access to the courts. In his opinion, sufficient evidence had been presented that certified their bad financial situation and established that they had a well-founded case.
The Government stated that there were two types of court fees in national legislation. The first type was a fixed amount, established by the Ministry of Finance at the end of each year, and published in the Official Gazette. The second type was calculated on the basis of the value of the litigation, and varied in each case.
The Government also indicated that judicial fees are required in order to guarantee the correct administration of justice and to prevent the exploitation of vexatious applications. In its observations, the Government had not denied that in the present case, the claimants had submitted a statement of means.
According to his observations, the refusal to apply for legal aid was not due to the financial situation of the applicants. They maintained that the claimants had not benefited from legal aid, because they had not provided evidence to indicate that they had a well-founded case.
In this regard, the Government indicated that, in presenting its case of compensation before the Supreme Administrative Military Court, the plaintiffs had not presented the pertinent medical and expert reports in support of their arguments.
The Government also argued that in the present case the court’s commission had been calculated in terms of the amount of compensation requested by the plaintiffs and that there was no indication of violation of the right of access to a court.
The European Court reiterated that the Convention aims to guarantee practical and effective rights. This is particularly true with regard to the right of access to the courts, in view of the prominent place that in a democratic society assumes the right to a fair trial.
It is fundamental, for the concept of the right to a fair trial, both in civil matters and in criminal proceedings, that a litigant not be denied the opportunity to present his case effectively before the court and that he is able to enjoy Equality of arms with the opposing party.
The European Court considered that the right of access to the courts is not, however, absolute and that it may be subject to restrictions, provided that they pursue a legitimate purpose, and that such restrictions are proportionate.
The Article 6 § 1 of the Convention leaves the State free choice of the means to be used for this purpose, but, while the Contracting States enjoy a certain margin of appreciation in this respect, the final decision, regarding the compliance with the requirements of the Convention, falls to the European Court. The institution of a legal aid system is one of those means.
Accordingly, its authority to impose conditions on the granting of free legal aid may be acceptable on the basis, inter alia, of the consideration of the financial situation of the litigant, or of its prospects of success in the process.
The question of whether a fair hearing is necessary for the provision of free legal assistance will be determined on the basis of the facts and the particular circumstances of each case and will depend, among other things, on the importance of what is at stake for the claimant, in the procedure, as well as the complexity of the law and the relevant procedure, and the ability of the applicant to be represented effectively.
In the present case, therefore, the European Court had to determine whether the requirement of payment of the court fees imposed on the applicants constituted a restriction in violation of their right of access to the courts.
The European Court noted that the first applicant was the wife, and that the two remaining candidates were the daughters of Mr. Yusuf Kaba, who died of cancer in 2003, and that he was a Turkish naval officer.
Well, of the certificates issued by the national authorities, it appeared that the claimants had no income and that they were in a bad financial situation. This was not questioned by the Turkish Government.
Convinced that the cancer had been caused by Mr. Kaba’s exposure to asbestos, during his working life at the Hasköy Pier, the plaintiffs initiated compensation proceedings against the Ministry of Defense before the Supreme Administrative Military Court.
In presenting their case, they established a relationship of evidence, and asked for legal help to pay the relevant court fees, which amounted to approximately 5,000 € at the time.
The request for legal aid was rejected, because the Supreme Administrative Military Court, without examining the merits of the case, decided that the plaintiffs did not have a well-founded case.
The European court noted, second, that the court fees, which the claimants were obliged to pay, amounted to about 5,000 €, while the monthly minimum wage, at that time, was 153 € per month.
The aforementioned Court also noted that it had already examined similar complaints in the past and that a violation of Article 6 § 1 of the Convention had been found in its application on the spot, inter alia, because the legal aid system in Turkey does not offer substantial guarantees to individuals, to protect them from arbitrariness (citing, in particular, Bakan v. Turkey, No. 50939/99, § § 74-78, June 12, 2007, Mehmet and Suna Yiğit, precedent that had previously cited in the judgment, § § 31-39 and Eyüp Kaya v. Turkey, No. 17582/04, § § 22-26, September 23, 2008).
He also stated that he had examined the present case and that no particular circumstances were found, which required departing from his conclusions in the aforementioned cases.
In this regard, the Court again recalled that, in accordance with Article 469 of the CCP, decisions regarding legal assistance are binding and are delivered on the basis of the file, without listening to the applicants (Bakan, cited above). , § 76).
The European Court observed, in addition, that the refusal to request the legal assistance of the plaintiffs, deprived them of the possibility of presenting their case before a court.Lastly, it also noted that, for the reasons stated above, the case of compensation filed following the death of Mr. Kaba was significant for the personal situation and well-being of the plaintiffs.
In light of the above, the European Court concluded that in the present case there had been a disproportionate restriction of the claimants’ right to access a court. It considered, however, that it had not been the consequence of a violation of Article 6 § 1, in the sense alleged by the applicants.
The Article 41 of the Convention establishes that “… the Court shall grant, if appropriate, equitable satisfaction to the injured party”.
The plaintiffs requested a total of 150,000 € for material damage and 300,000 € for non-pecuniary damage. The Turkish Government, taking into account the quantities requested, considered that they were excessive, challenging the assertions on which they were based.
With respect to pecuniary damage, the Court pointed out that one can not speculate about what the outcome of the procedures compatible with Article 6 § 1 would have been granted. Consequently, it considered that no compensation could be made to the applicants, under that premise.
With respect to non-pecuniary damage, it decided that, on an equitable basis, the Tribunal granted the applicants a total of 3,000 €, for that concept.
The Court also recalled that the most appropriate form of reparation for the violation of Article 6 § 1 would be to ensure that the plaintiffs, insofar as possible, were put in the position in which they had been, if that provision did not it would have been omitted from complying (see Mehmet and Suna Yiğit, cited above, § 47).
The Court considered that this principle should apply in this case as well. Consequently, it considered that the most appropriate form of reparation would be to annul, or not annul, the decision of the Supreme Administrative Military Court of May 12, 2004 (paragraph 8) and to restart the procedure, in accordance with the requirements of Article 6 § 1 of the Convention, so they should request it from applicants.
The plaintiffs requested 200,000 € for costs and expenses generated before the Court, without presenting any document. The Turkish Government was discussing the claim.
With regard to costs and expenses, in accordance with the Court’s case law, the applicant is entitled to reimbursement of costs and expenses, only to the extent that it has been demonstrated that these were actually and necessarily incurred, and that it was reasonable its amount.
In the present case, the claimants had not proved their assertion that, in fact, they incurred the expenses claimed. As a result, no compensation for this concept would be given.
With regard to interest for late payment, the Court considered it appropriate that it should be based on the marginal rate of credit of the European Central Bank, to which it would be necessary to add three percentage points. For all these reasons, the court, unanimously, declared the request admissible, declared that there had been a violation of Article 6 § 1 of the Convention, and held that:
(a) the respondent State had to pay, within three months from the date on which the judgment was final, in accordance with Article 44 § 2 of the Convention, a total of 3,000 € to the applicants, with respect to the damage intangible, to become Turkish liras, at the rate applicable on the settlement date, and free of taxes or charges that may be due;
(b) that from the expiration of the three aforementioned months until the simple interest settlement, it would be settled on the previous amount, at a rate equal to the marginal rate of credit of the European Central Bank during the predetermined period, increased by three percentage points;
(c) Dismissing the other claims of the claimants for compensation.
In our exposition of the substantial content of the sentence, we have tried to stick as closely as possible to an almost literal transcription of it, with the mere omission of some technical-legal details, whose inclusion would have forced us, by pure coherence, to descend to explanations that would overflow the self-imposed limits to our gloss, which are the ones that mark the exclusive recourse to mere common sense, and all this for two imperative reasons: because our own limitations demand it, and because similarly it can be attributed a similar impediment to another something different, to a certain proportion of our reading public potential.
COMMENTS
FIRST – It is worth highlighting, in the first place, the stark cynicism with which the Turkish authorities try to justify, appearing an ominous serenity, which in practice is nothing more than a firm fence against the equality of its citizens in the access to justice, by conditioning – in an unappealable way in its national scope – the possibility that those who lack sufficient economic means to be able to attend previously to meet the very high cost set for judicial fees (and conditioned, in each case, by the economic scope of the compensation requested), all being necessary so that they could continue with the procedure attempted.
From a Spanish perspective, in which our government has imposed judicial fees that many eminent jurists have described as abusive, in which proportionality also applies with respect to the amount of compensation requested, and in which the prior nature of the his satisfaction, the parallelism is evident, and consequently, so is the approximation of our country to the situation of democratic deficit that all this implies, due to the de facto violation, that the principle of equality before the law takes place.
SECOND – The partial transfer of national sovereignty, which involves submitting to the rulings of the European Court of Human Rights, is limited to the purely punctual scope of compliance with the ruling, and its mere immediate remediation to the individual case raised, without, in principle, it must have extra-procedural significance, for example automatically determining the conformity of the institutional and legislative framework, which is at the origin of the legal wrong remedied, that is, without obliging any legislative change.
This is how it can be observed, and the sentence itself commented thus to point out, how the Turkish State had to be repeatedly recriminated, for the same or similar reasons, without this being sufficient reason for it, coherently, had already proceeded to the opportune modification of its legislative and institutional baggage, to accommodate them to what has been repeatedly demanded, in spirit, by those preceding convictions, of the European Court of Human Rights.
It is evident, therefore, the limited scope of the protective efficacy of the aforementioned European court; even worse, obviously, it would be the inexistence of that possibility of recourse before it.
In any case, the contumacy, both of the Turkish courts and of the country’s political authority, is notorious in the repeated violation of the most elementary effective judicial protection, in a nation that prides itself on democracy, to the point of have maintained aspirations to have integrated as a member of the European Union.
THIRD – It is highlighted on our part, the previous character that had the dismissive resolution reached by the Turkish court that would have had to accept the claim filed, by ruling before the plaintiffs could have had occasion to expose the grounds thereof, allowing them the contribution of the pertinent elements of evidence, and therefore without getting to the bottom of their arguments.
Consequently, the court did not act as such, but proceeded as a mere administrative entity of the State’s institutional apparatus, without actually exercising, in fact, an authentic legal function, which in practice was denied.
It also highlights the contumacy with which the denial of protection took place, given the reiteration by the plaintiffs and / or their legal representative of their request for justice. Contumacy that links, in turn, with that evidenced by the existence of precedents of similar cases, as we have commented before.
Nobody is hidden the highest probability, practically bordering on certainty, that for each claimant who came to raise their claim to the European court, have been legion who, being participants in equal or similar motives and circumstances, however , and for any of the reasons that have been able to determine it, they have not proceeded to make effective that last resource, theoretically to its damaged scope.
FOURTH – It is also worth noting, the pharisaical turmoil of the Turkish State for attending to the alleged legal rights protected by the institution of judicial fees, with simultaneous contempt for the portentous legal aberrations that its implementation – and, above all, its way of manage their effective application-, they are generating in the suffering citizens who are discriminated against, something so basic to the essence of the rule of law, as is the universality of effective protection in access to justice, when the economic resources of these citizens they do not manage to attend to the very high cost of the fees, with an undeniable dissuasive effect, that their implementers have not been able to ignore, at the time of establishing them, and that therefore, it seems reasonable to infer, that this has been so, by the deliberate purpose that this dissuasive effect fulfilled its purpose barely concealed, as evident.
FIFTH – Presumably, both for the plaintiffs and for their own legal representative, this ruling came to represent the judicial equivalent of the legendary “birth of the mountains”, which gave birth to a mouse, because, after having been waiting for eight years, they were with which the “solution” that was offered to their deficit of judicial protection, was to return to the square of exit, being put in queue before the window of admission, to invoke again the beginning of the whole process, in the Turkish national scope (without it being clear that the same itinerary would not be repeated without modification, until the same thing would happen again, given that the State was not constrained to have to modify its legislation on this issue), and, finally, with the recognition of his right to compensation, whose squalid amount did not even reach to match that of the court fees that had been demanded, as an indispensable prerequisite, for the mere beginning of the procedural steps.
Gisela KNAUF against Germany – Application No. 24184/94
The European Commission of Human Rights (First Chamber), having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; having regard to the request presented on May 6, 1994 by Gisela KNAUF v. Germany, registered on May 25, 1994 under file No. 24184/94; Having seen the report provided for in article 47 of the Rules of Procedure of the Commission, and after having deliberated, it made a decision, based on the facts that we are going to explain. The applicant was a German citizen, born in 1933 and resident in Eschenburg.
It was clear from his statements and documents submitted that on April 13, 1989, the Social Court of Giessen rejected an appeal lodged by the plaintiff against a professional association for precision mechanics and electricians.
The appeal concerned a dispute between the parties, as to whether the deceased husband of the applicant had died as a result of occupational diseases caused by asbestos. The plaintiff claimed a widow’s pension for reasons of this alleged “occupational disease”.
According to the court’s findings, the applicant’s husband, born in 1929, had been working from 1945 to 1950 as an apprentice electrician. According to the statements of former colleagues, asbestos was used for the production of goods manufactured by the company that had been its employer.
On the other hand, at the end of her husband’s working life, she had been working from 1950 to 1955 with another company, where he had to install electric motors. It was possible that during that period he was also exposed to asbestos.
In September of 1983, he began to suffer from pulmonary diseases, and died on April 22, 1984 as a consequence of lung cancer with metastasis. The medical superintendent of the specialized clinic in which the late husband of the applicant had been treated had testified, in a letter of April 25, 1984, that the cancer had been caused by asbestos, to which the applicant’s husband he had been exposed during his professional life.
Post-mortem examinations, carried out by other medical experts, however, did not confirm that opinion. Prof. W. had made an analysis of the concentration of asbestos fibers in the lungs of the deceased patient and had come to the conclusion that the figures obtained were located in the lowest possible range, of measurable concentration, and therefore he considered that from a medical point of view, there were no indications that the patient, in his professional career, had been over-exposed to asbestos dust.
In a broader opinion of experts, dated December 13, 1984, Prof. Kr. And Sch., Had stated that, as a result of a microscopic examination of lung tissue, it was still evident that a diagnosis of concurrent asbestosis could be ruled out. Therefore, there was no causal relationship between lung cancer and the patient’s alleged exposure to asbestos.
On January 28, 1985, a public health officer, Dr. F., had also testified, in accordance with the expert opinion presented by Prof. Kr., That the death had not been caused by an occupational disease.
In view of all these expert opinions, on March 13, 1985, the accused public body refused to grant social security coverage due to the contraction of an occupational disease.
The objections against this decision had been rejected by the authority, on September 30, 1985, after having obtained an additional medical expert opinion, which was presented by Prof. L on July 31, 1985, and which confirmed that it was not likely that the cancer of the plaintiff’s husband would have been caused by asbestos.
The Social Court, ordered ex officio that another opinion of an expert should be prepared by Prof. W., taking into account a new decree on occupational diseases.
In his expert opinion of October 20, 1988, Prof. W. stated that the existence of a causal relationship could not be proven with the necessary probability, while, on the other hand, that could not be excluded either.
The Social Court declared that he was convinced, in the opinion of the expert, Prof. W., dated October 20, 1988, that he confirmed the experts’ opinions, presented by Prof. L. on July 31. of 1985 and by Prof. Kr. on December 13, 1984, requested in administrative proceedings prior to the trial.
Contrary to the opinion of the plaintiff, it had to be concluded, from these expert opinions, that the deceased did not suffer a mesothelioma, but suffered from a bronchial carcinoma. It was true that Prof. M. had diagnosed a mesothelioma in the course of treatment, but this diagnosis had been denied by the autopsy performed by Prof. Kr.
That autopsy had allowed extensive examination under a microscope. On the basis of the result of the autopsy, the experts, Prof. L. and Prof. W., had reached that conclusion, for which reason the Court of Justice pointed out that a causal relationship between the alleged exposure to asbestos and the mortal disease, could not be established with sufficient probability, although it could also not be completely excluded.
The court also considered that the available expert evidence was sufficient, and that there was no need to grant the plaintiff’s request, in order to obtain another expert opinion, from a New York doctor. The applicant’s appeal was rejected by the Social Appellate Court of Hesse on December 16, 1992.
Following a request from the plaintiff, this court also obtained an additional opinion from the experts Prof. N. and Dr. P., who also came to the conclusion that the existence of a causal link could not be proven with enough probability. The appeal court also relied on the opinions of Prof. Kr. And Prof. W.
He noted that, according to the findings of Prof. W., in the examination under a microscope of the lung of the deceased, the remains examined had shown that the lung contained a concentration of asbestos fibers, which was negligible in comparison with three groups, know, normal lungs, lungs that had received a low exposure to asbestos and those that had received a high exposure. The results found in the present case were slightly higher than normal.
The court noted that, consequently, by all medical experts, namely, Profs. Kr., L., and N. as Dr. F., had unanimously denied the existence of a causal relationship between the disease and the patient’s previous exposure to asbestos. The court of appeal considered that these expert opinions were conclusive and convincing.
The appellate court also took into account that, according to a recent recommendation of a medical expert council, that a lung cancer should be considered to have been caused by asbestos dust if the cancer patient had been exposed to asbestos during less 25 years old, at your place of work. The court considered, however, that there was no evidence that the deceased husband of the plaintiff had been exposed to asbestos for such a long period.
There was only one proof, that during his apprenticeship, from July 1945 to May 1950, the deceased had been exposed to asbestos, but that his density in the working atmosphere could no longer be evaluated, given that the company had gone to the bankruptcy, in the 1950s, and that information about the concrete working conditions could no longer be obtained.
Accordingly, the Court of Appeal also relied on the conclusions of the experts, Prof. W. and N., in which unanimously the likelihood of a causal link had been excluded, in view of the low amount of concentration of asbestos fiber that was found, through an examination under the microscope, of the diseased lung.
The court also rejected the plaintiff’s request, to obtain a new report from the expert, indicating that the opinion of an expert was not necessary, since the expert opinion of Prof. Kr. Was exhaustive and had been confirmed by several other medical experts.
The court also noted that the issues that had been raised to the medical expert had been determined in collaboration with the plaintiff, and this also excluded the need to obtain an opinion from more experts.
On August 5, 1993, the Federal Social Court denied the plaintiff’s permission to appeal the issues of law (its review), which was reaffirmed in the decision that the analysis of the judgment appealed did not make them reveal any violation of procedural rights, specifying it in findings such as:
– That in view of the ample evidence available, the appeals court was justified, by refusing to obtain an expert opinion, of free hiring;
-The appellate court had taken into account the recent recommendations of a board of medical experts and had stated the reasons why they were irrelevant in the given case.
The applicant, for its part, had not demonstrated that, in view of a previous assumption, there were reasons to decide otherwise.
To the extent that other test proposals had been ignored by the appellate court, there was sufficient reason why the evidence in question was deemed irrelevant.
In addition, the Federal Social Court denied that the matter raised constituted any question of a general nature.
Subsequently, the plaintiff filed an appeal for constitutional protection, which was rejected by a group of three judges of the Federal Constitutional Court on November 3, 1993.
The applicant considered that, contrary to the opinion of the medical experts consulted in her case, and to the opinion of the courts of the social, the concentration of asbestos dust that was in the lungs of her deceased husband, was not only of importance, but it was very high, and therefore, corresponded to the group of people who have been largely exposed to asbestos.
In these circumstances, the applicant considered that it was a violation of the right to a fair trial, guaranteed by Article 6 of the Convention, the fact that the Social Court of Appeals had rejected her request for an additional opinion from other experts.
The plaintiff considered that the opinion of the social court, that even in normal lungs traces of asbestos dust could be found, was not based on any evidence, but was merely speculation, and therefore, an expert opinion It must have been obtained, in order to have a reliable answer to the corresponding question.
The petitioner complained about the decisions handed down against her in the social judicial proceedings, and considered that her right to a fair trial had been violated, because her request to seek an expert opinion more, had been rejected by the national courts.
With respect to the judicial decisions of which the petitioner complained, the Commission noted, first, that, in accordance with Article 19 of the Convention, its sole task is to ensure compliance with the obligations assumed by the Parties, in the Convention.
In particular, it is not competent to deal with an application in which errors of law or fact are alleged to have been committed by national courts, unless it considers that such errors may involve a possible violation of any of the rights and freedoms. proclaimed in the Convention.
The Commission referred, in this point, to its constant jurisprudence. It is true that in the present case, the applicant alleged a violation of her right to a fair trial. She considered that further expert evidence should have been obtained by the domestic courts. However, the Commission noted that the Social Court, as well as the Social Appellate Court, had sufficient expert evidence before it.
The Court of Social Appeals, even got to obtain, at the request of the applicant, an additional opinion of the experts, Professor N. and Dr. P, who, like the previous experts, also came to the conclusion that the existence of a causal link between the death of the applicant’s late husband and his alleged professional exposure prior to asbestos could not be demonstrated with sufficient probability.
The Commission pointed out that this is a matter for the national judge to be the one who could appreciate the relevance of the proposed tests. The Commission noted that the Court of Appeal based its judgment on several opinions of the experts, who had unanimously found that no causal link had been established between the illness of the plaintiff’s late husband and his previous exposure to asbestos.
From this it was deduced that the request had to be rejected, as it was manifestly unfounded, within the meaning of article 27, paragraph 2 (Art. 27 – 2) of the Convention. For these reasons, the Commission unanimously declared the application for protection, inadmissible before the European court.
COMMENTS
FIRST – The method of quantifying asbestos in tissues is not detailed, nor are figures given.
Only slightly different assessments are made about the load of asbestos found in the tissues. It seems that it was a load somewhat higher than expected in the absence of occupational exposure, but far from that admitted as sufficient guarantee of occupational exposure.
The range of values for this situation is broad, and the concentration found should be interpreted, in the context of analyzes performed on the population resident in the area; usually, this information is missing, and that is why the controversy in the interpretation of the figures is favored. There is a great variability in the findings, from one country to another.
Therefore, there is no basic reference, of universal application, with which to make the comparison of the results found, in order to discriminate a supposed occupational exposure, enough to have been able to trigger the outbreak pathology.
This methodological lack, which is not attributable to the plaintiff, nevertheless, is part of the determining factors that determined the meaning of the resolution.
If the exposure, certain or probable, stopped in 1950, and the post-mortem examination of the lung tissues was carried out in 1984, as a result of the death, that supposes a time lag of 34 years, and if we only consider it after the cessation from the merely possible exposure, in 1955, we would have to have the interval be about 28 years anyway.
They are many years of rinsing (*clearance*), and this would suffice to refute the relevance relative to the low content of ferruginous bodies, or asbestos fibers, properly so.
If, in addition, the main contingent of type of fibers was that of a serpentine, because even more accelerated would be the rinsing.
It is a fact that chrysotile is disappearing from the tissues, over the years, and leaves no trace of ferruginous bodies, when it is not contaminated by origin, by the presence of traces of metallic elements, suitable for its generation.
Certainly, high levels of asbestos in the lung tissues, guarantee the reality of a previous occupational exposure, but the absence of them, never exclude it.
That the clarification process has actually been present does not exclude the fact that, at the same time, asbestos has been, as an etiological factor of lung cancer, acting as such, simultaneously.
In fact, it could even be argued that the clarification process is conducive to it, given that the action of asbestos must necessarily be biochemical in nature, which implies that, in order to be exercised, this interaction type must have been acting, includes clarification as one of the emerging results, which may be at the origin of the carcinogenic power of the same. All this is speculative, but it is not ruled out a priori.
SECOND – Even some of the experts who formulated opinions unfavorable to the plaintiff’s thesis, prudently, in their conclusion, do not rule out the possibility of an etiology due to asbestos, consequent to occupational exposure. It is evident, therefore, that the aphorism in dubio pro operario has not been applied, nor has it been contemplated by the European court. Nor in relation to what is indicated in our comment first.
THIRD – Among the circumstances that formed the decision of the national authorities, was that there were no records of measurements of concentrations of asbestos in the atmosphere of the workplace, as it is a company that has already disappeared, whose eventual records, they existed, they were no longer accessible, and the concrete working conditions could not be evaluated.
It was, therefore, an element of uncertainty, on which the plaintiff never had any control, nor any remediation procedure at its disposal.
Despite this, and to his detriment, the aforementioned aphorism was not applied for this reason either, nor was the European court collecting it, nor, therefore, did it act accordingly.
FOURTH – The argument of the non-existence of a concurrent asbestosis (which, if it had been produced, would reinforce the hypothesis of an asbestos etiology of concurrent lung cancer), but, nevertheless, such an argument is not admissible as an element of contextualization, to deduce the opposite from that absence, taking into account that this concurrence is not essential, mere exposure is enough.
See, for example: Abraham (1994), Browne (1986), Davies (1983), Egilman & Reinert (1996), Finkelstein (1997) & (2010), Hillerdal & Henderson (1997), Nelson et al. (1999), Roggli et al. (1994).
FIFTH – Various proposals for evidence, requested by the plaintiff, were rejected and, in addition, the incorporation of the report of an expert, free of hiring, was also rejected, also at the proposal of the aforementioned party.
It is a practice, which unfortunately has been lavished in courts of various countries, and in this respect, the case of the United States is worthy of mention, in whose courts the expert statement of recognized solvency has been rejected on multiple occasions, scientific, accredited at international level, through a professional practice, of many years of consolidated prestige. Sometimes, in addition, without explaining the reasons that supposedly would endorse this exclusion.
It is obviously an intellectual and dialectical cowardice, and a manifest injustice, by depriving those who demand, of a potential means of defense, for which the possibility of reasonably refuting them, if their data or deductions, would have always been available, they offered an opportunity to do so honestly, and without having to resort to procedural chicanery.
The European court, by not rejecting such practices, implicitly came to validate them.
- E. MACRITCHIE v. The United Kingdom – Application no. 19298/08
The European Court of Human Rights (Fourth Section), on November 2, 2010, in view of the request presented on February 12, 2008 by the plaintiff, deliberated on the facts, adopting the appropriate resolution. The applicant, Ms. M.E. Macritchie, was a British citizen, born in London and living in Gosport.
The facts of the case, as presented by the applicant, can be summarized as follows: the former husband of the applicant, served in the Royal Navy for 22 years, between 1953 and 1976.
During that time, he was involved in re-equipping the ships, and was exposed to asbestos. He died on September 21, 2006. The cause of death was recorded on his death certificate, such as malignant mesothelioma.
Although the applicant was not legally married to the deceased, at the time of her death, she claimed that they had met as a result of their respective divorces, and that although they had never remarried, they had nevertheless been together, forty-seven years, and that she depended economically on him.
The applicant instructed her lawyers to file a lawsuit against the Government, in connection with the death of her deceased husband, on the grounds that it had been caused by exposure to asbestos, aboard ships of the Royal Navy.
However, she was informed by her lawyers that the Government had immunity from the proposed declaration.
In a letter dated December 12, 2007, his lawyers stated that “the military can not claim for diseases related to asbestos, before 1987 … the law was made for reasons of public policy and … there is little that you or I can do to change the situation.”
The applicant also tried to seek a pension that is granted to war widows. However, on February 7, 2008, the lawsuit was rejected, on the grounds that she was not legally married to her deceased husband at the time of his death.
The plaintiff complained to the European court that the death of her ex-husband was caused by the acts or omissions of the Government, and that she could not claim compensation for his death.
Although the European Court did not identify any of the articles of the Convention, specific in its application to this case, the essence of its complaint raised issues related to Articles 2, 6 and 13 of the Convention.
By letter of August 24, 2010, the Government informed the complainant that the circumstances of her case had been examined by the technical service personnel and by the Veterans Agency of the Ministry of Defense and that the benefit provided for in the Plan of Pensions of the Armed Forces.
It was accepted that the death of the applicant’s ex-husband was attributable to his service in the Royal Navy, and that although the applicant would be assessed a solution on the basis that she was the de facto couple at the time of death, the benefits to her were the same as those she would have been entitled to as a wife.
By letter of September 8, 2010, the plaintiff informed the European Court that she no longer wanted to pursue her claim.
COMMENTARY
The application for protection before the European Court of Human Rights was presented five days after the British Government had denied the plaintiff the concession of the widow’s pension.
Without any factual modification or in the contribution of documentation or other evidence, between February 7, 2008, date in which the application had been rejected, and August 24, 2010, date in which the It was finally taken care of, however, there had been such a change of approach on the part of the British authorities, about two months before the European court was going to address the issue.
It does not seem risky to conjecture, that the demand before the European Court, in spite of not having gotten to substantiate in a sentence that approached the litigious question raised, was not useless.
On the contrary, it was a decisive element, which weighed in the minds of the British authorities, when it came to rectifying, in view of the fact that the process before the European Court was proceeding, its culmination being already near, that presumably It could be considered as favorable to the applicant, with a high probability.
The speed of the applicant, at the time of reacting to the decision denying her government, having already confirmed the same, for having already occurred, presumably also had its influence on the extra-judicial resolution of the matter, in a time reasonable, especially if we compare it with the usual, regarding a favorable conclusion of other litigation.
The maneuver of the British government could possibly have as its purpose, among other things, to avoid a more than probable judicial defeat, and, above all, to allow the European Court of Human Rights to review the legality of the British legislation that limited the compensation rights. of its military, before the affectation by pathologies originated by the presence of asbestos in their places of work.
STRASBOURG JUDGMENT – December 20, 2001 – Janssen v Germany – European Court of Human Rights (First Section)
The case was referred to the Court, in accordance with the applicable provisions, before the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by three German citizens. , Margit Jakobs, born Janssen, and Roswitha and Melanie Janssen (“the applicants”), on July 21, 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).
The case originated in an application (No. 23959/94) against the Federal Republic of Germany, before the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention.
The plaintiffs alleged, in particular, that the proceedings before the courts of the social had been excessively long, in violation of Article 6 § 1 of the Convention. The Commission admitted the claim, as partially admissible, on September 9, 1998.
In its report of May 31, 1999 (former Article 31 of the Convention), the view was expressed unanimously that there had been a violation of Article 6 § 1 of the Convention with regard to the duration of the procedure.
On September 20, 1999, the Panel of the Grand Chamber determined that the case should be decided by the Chamber (Article 100 § 1 of the Rules of the Court). The claim was assigned to the Fourth Section of the Court (Article 52 § 1 of the Rules of the Court).
Within that Section, the Chamber that would consider the matter (Article 27 § 1 of the Convention) was constituted in accordance with the provisions of Rule 26 § 1 of the Rules of Procedure of the Court.
Mr. G. Ress, the judge elected on behalf of Germany, who participated in the Commission’s examination of the case, withdrew from sitting in the Chamber (Article 28). The German Government, therefore, was invited to indicate whether it wished to appoint an ad hoc judge (article 27 § 2 of the Convention and article 29 § 1).
Since the German Government had not responded within thirty days, it was presumed that it had waived its right of appointment (Article 29 § 2). Both the applicants and the German Government submitted observations on the merits (Article 59 § 1). After consulting the agent of the German Government, and the plaintiffs’ counsel, the Chamber decided that no hearing on the merits was required (Rule 59 § 2 in fine).
After the general restructuring of the Sections of the Court, as of November 1, 2001 (Rule 25 § 1 of the Rules of the Court), the application was assigned to the First Section (Article 52 § 1).
The applicants were German citizens, who lived, respectively, in Oberhausen and Mülheim / Ruhr. The request concerned the proceedings initiated by Mrs. Gretel Janssen, who died on July 27, 1986. After his death, his son Heinz-Jürgen Janssen and his daughter Margit Jakobs, born Janssen, continued the performances.
Heinz-Jürgen Janssen died on November 19, 1992. His widow Roswitha Janssen and her daughter Melanie Janssen acted in their place, in the processing of the case.
The husband of the original plaintiff, Ms. Gretel Janssen, worked with asbestos between October 1950 and December 1959, in an area where asbestos mattresses were manufactured. During this period, workers who were exposed to asbestos dust during work, and had to clean the clothes themselves.
This was done by the original plaintiff, Ms. Gretel Janssen, for her husband. The husband contracted a lung disease, related to asbestos dust (asbestosis), which was recognized as an occupational disease by the Health Insurance Association of Düsseldorf.
The Health Insurance Association paid the husband a pension, until his death on February 21, 1973, and subsequently, an orphan’s pension to the surviving members of the widow’s family.
After contracting a mesothelioma, an asbestos-related disease, Mrs Gretel Janssen went on 23 December 1985 to the Health Insurance Association of Düsseldorf, to request compensation payments, alleging that her illness was the consequence of the daily cleaning of her husband’s work clothes.
On February 28, 1986, the Health Insurance Association dismissed her request, considering that her activity was not covered by industrial health insurance, since she had acted strictly on a private basis and not as an employee.
On March 20, 1986, Mrs. Gretel Janssen filed an objection against this decision, which was rejected on April 23, 1986, by the Board of Appeals of the Health Insurance Association. On May 26, 1986, Mrs. Gretel Janssen sued before the Social Court of Duisburg. On May 27, 1986, the Social Court invited the accused Health Insurance Association to comment on the complaint and to send it to the archive.
On July 9, 1986, Ms. Janssen’s attorney telephoned the court, and requested that a date be set for a hearing, as soon as possible. He expressed fear that the plaintiff would not live to be able to attend a hearing in July or August of 1986.
On July 18, 1986, the Health Insurance Association sent its written observations, and the administrative file, to the Social Court. Ms. Gretel Janssen died on July 27, 1986.
The “Observations” written in his name were presented on August 18, 1986.
On October 13, 1987, the court received a power of attorney, in favor of the plaintiffs, as heirs of Ms. Gretel Janssen, without any other explanation.
On November 9, 1987, the parties were summoned to appear at a hearing on November 26, 1987. This hearing was canceled on November 23, 1987.
On November 24, 1987, the plaintiff’s lawyer informed the court, about the death of Mrs. Gretel Janssen.
On March 17, 1988, the Social Court asked the plaintiff’s attorney to confirm the identity of the successors in title. A reminder was sent to him, on July 8, 1988. The court received the information requested on July 25, 1988.
The procedure was resumed on July 28, 1988. On November 22, 1988, the parties were summoned to appear at a hearing on December 8, 1988. On November 28, 1988, the plaintiff’s lawyer requested to anticipate the time of the hearing.
On December 5, 1988, the Social Court canceled the hearing. On February 14, 1989, the court set the hearing for March 2, 1989.
On March 2, 1989, the Social Court of Duisburg dismissed the appeal on the grounds that, pursuant to Section 539 § § 1 and 2 of the Social Security Act, the plaintiff was not insured against accidents at work.
The court found that Ms. Gretel Janssen had not been a self-employed person, nor had she acted as an employee. She had cleaned the clothes of her late husband, in the context of their life together, but not in order to act for her husband’s employer.
On May 10, 1989, the legal successors of the deceased appealed against the ruling, before the Social Appellate Court of North Rhine-Westphalia. The appeal was admitted by the court on May 12, 1989.
At a hearing held on October 30, 1989, the Social Appellate Court summoned the employer to take part in the proceeding and asked him to present information on the type of work performed by his former operator, between 1950 and 1959, and also inform about the protection requirements that should be met.
The employer provided the information on December 7, 1989. The defendant submitted written arguments on December 22, 1989. On August 24, 1990, the Social Appeals Court instructed the doctors who had treated Mrs. Gretel Janssen to submit reports.
The court obtained medical reports from a general practitioner, Dr. P., on September 2, 1990 and from a hospital doctor, Dr. H., on September 10, 1990. On September 21, 1990, the court requested additional information, which was filed on October 4, 1990.
On October 30, 1990, the Social Appellate Court had also instructed a medical expert, Prof. W., who presented a report on the conscience, at that time, of the health risks associated with exposure to asbestos, and about the existence of protective measures.
On August 24, 1990, the Social Appellate Court had invited Prof. W. to answer in detail other questions. The Report of Prof. W., dated November 29, 1990, was received by the court on December 6, 1990.
On February 12, 1991, the court convened the Community Accident Insurance Association of the Rhineland, as a third party.
He also asked Prof. W., who presented an expert opinion, about the causes of the disease, mesothelioma, of Mrs. Gretel Janssen. On July 17, 1991, Prof. W. requested an audience with the court, to give certain information.
On November 4, 1991, the court called the German Meteorological Service, and a witness, for more information. On December 23, 1991, the Court requested additional advice from Prof. W., and to provide the information requested on July 17, 1991.
On January 30, 1992, the court reminded the expert to present his report. The opinion of the experts, dated June 26, 1992, was received by the court on July 13, 1992.
By resolution of October 14, 1992, the Court of Appeal of the Social modified the judgment rendered on March 2, 1989, by the Court of the Social Duisburg. The Social Appeals Court considered that the death of Mrs. Gretel Janssen was the consequence of an occupational disease.
The court admitted the appeal, that the issues of law that were upheld, in the case that arose, were matters of general interest.
The Health Insurance Association of Düsseldorf filed an appeal (review).
On November 19, 1992, the son of Mrs. Gretel Janssen died. His widow and daughter would continue the procedure, as his legal successors.
By resolution of October 13, 1993, the Federal Social Court established its judgment as an appellate court, rejecting the plaintiffs’ appeal. The Federal Social Court considered, in particular, that the death of Mrs. Gretel Janss was not the consequence of an occupational disease, since the cleanliness of her husband’s work clothes mainly served the family interests of the couple, and not to the interests of the employer.
On December 2, 1993, the plaintiffs filed an appeal for unconstitutionality, in which it was alleged that the interpretation of Article 539 of the Social Security Law, by the social security courts of first and last instance, violated the principle of equality before the law, and the right to a fair trial.
Invoking Article 6 of the Convention, the plaintiffs also submitted the allegation that the procedures relating to occupational diseases allegedly caused by asbestos, in general, lasted too long.
On January 12, 1994, a panel of three judges of the Federal Constitutional Court refused to accept the case for adjudication, considering that the constitutional appeal was inadmissible, for lack of foundation.
The court also noted that an appeal for unconstitutionality could not be based on an alleged violation of the European Convention on Human Rights. This decision was notified to the plaintiffs’ lawyer, on January 25, 1994. The plaintiffs complained that their case was not seen in a reasonable amount of time by the German courts.
They alleged a violation of Article 6 § 1 of the Convention, the relevant part of which states the following: “In the determination of their rights and obligations of a civil nature … everyone has the right to an audition … within a certain reasonable for … the court …”
On the applicability of Article 6 § 1, the Court noted that the proceedings in question related to the plaintiffs’ claim to the compensation provided for in the Social Security Insurance Plan.
It is satisfied, and this was not contested by the parties, that the proceedings refer to the determination of “rights and obligations of a civil nature” of the plaintiff, within the meaning of Article 6 § 1.
Therefore, this provision was applicable. In their arguments before the Court, on compliance with Article 6 § 1, the plaintiffs argued that the total duration of the proceedings before the courts of the social, was in breach of the requirement of “reasonable time”, provided in Article 6 § 1 of the Convention.
According to the applicants, there was no doubt that Mrs. Gretel Janssen acted as an employee who cleaned her husband’s work clothes. As a result, it was covered by the employer’s insurance.
There was clearly a causal relationship between exposure to asbestos and Mrs. Gretel Janssen’s illness. On the other hand, the amount of the compensation that was made was already determined by law. So, the case was not very complex.
The Duisburg Social Court had quickly set a date for a hearing, and the compensation could have been easily granted to Ms. Gretel Janssen in 1986, when she was still alive.
In 1987, the Federal Social Court, however, had developed erroneous jurisprudence, in which the Social Court had based its judgment in 1989.
The German Government maintained that the facts prosecuted did not reveal any violation of Article 6 § 1 of the Convention.
The opinion of the Commission was disputed that the period to be taken into consideration began on December 23, 1985, when Mrs. Gretel Janssen presented a claim for compensation to the Health Insurance Association for the death of her deceased husband and that the procedure ended on January 12, 1994, with the decision of the Federal Constitutional Court.
According to the German Government, the period in question began to run on 20 March 1986, when Mrs. Gretel Janssen challenged the decision of the Health Insurance Association, for which she was denied compensation, and ended on 13 February October 1993, the date of the judgment of the Federal Court of Social Affairs.
The German Government argued that the decision of the Federal Constitutional Court was not capable of affecting the procedure before the ordinary courts, because the constitutional remedy had been declared inadmissible, for lack of foundation.
The total length of the proceedings, thus amounted to seven years, six months and 23 days, and not about eight years and one month, as found by the Commission. The German Government argued that the case was particularly complex.
Detailed investigations had to be done, and difficult and controversial legal issues had to be decided, on social security issues, in relation to asbestos exposure and to the cause of mesothelioma by Mrs. Gretel Janssen. The courts had to rely on experts and witnesses.
The fact that the Social Appeals Court authorized the appeal, on issues of law, against the ruling, attested to the legal difficulty of the issues raised.
The German Government further argued that it would have been unrealistic to expect that the procedure in the first instance could be terminated, before the death of Mrs. Gretel Janssen, that is to say, within six months after the introduction of her action.
The court first had to have at its disposal the written observations of the defendant and the administrative file, which was received on July 18, 1986.
As in the proceedings before the Social Court of Appeal, the German Government argued that, in the interest of the claimants to the court, it had to carefully evaluate the relevant facts and take into consideration numerous evidence.
The presentation of the two opinions of the experts, took some time. However, this was due to the difficulty of the matter, and not to the lack of supervision by the German court.
On the other hand, the Social Appeals Court had to carry out new investigations, namely: request medical and information reports from the German Meteorological Service, and from a witness.
The parties had to have the opportunity to comment on these points, the interests of third parties participated, and were invited to participate in the procedure, namely: the former employer of Mrs. Gretel Janssen’s husband, and an accident insurance association .
The German Government, for its part, also argued that the applicants had contributed significantly to the duration of the proceedings.
After the death of Mrs. Gretel Janssen, on July 27, 1986, the procedure was suspended by application of the law, and resumed by the court on July 28, 1988, after receiving the writings of the legal heirs of the deceased. The plaintiffs were responsible for this period of inactivity.
On the other hand, a hearing, to be held on December 8, 1988, was postponed at the request of the plaintiffs’ counsel. Thus, the applicants had also contributed to the longer duration of the procedure.
The proceedings before the Social Court of Duisburg ended approximately two years and nine months after it began (from May 26, 1986, to March 2, 1989).
According to the German Government, two years and three months of this period were attributable to the applicants.
The German Government admitted that a large part of what was at stake, for Mrs. Gretel Janssen, in the proceedings before the social jurisdiction, was the main purpose of ensuring the payment of her pension. However, they denied that the same could be said of their successors.
In the European Court’s assessment of the period to be taken into account, the Court agreed with the German Government that the period in question started on 20 March 1986, when Mrs Gretel Janssen appealed against the decision of the Health Insurance Association, for which compensation was denied.
At that time, only one “dispute” arose, within the meaning of Article 6 § 1 of the Convention.
As regards the closing of the year, the German Government questioned whether the period in question ended on January 12, 1994, when the Federal Constitutional Court refused to accept the case for prosecution.
They argued that, in the present case, the outcome of the proceedings before the Federal Constitutional Court was not capable of affecting the outcome of the dispute before the ordinary courts, since the constitutional protection remedy had been declared inadmissible.
The European Court considered that the question of whether these proceedings fell within the scope of Article 6 § 1, did not have to be resolved, in order to decide the main case, taking into account all the circumstances of the case, and the total length of the proceedings before the courts of the social.
Therefore, the European Court would limit itself in its examination, to the period from March 20, 1986 to October 13, 1993, which was the date of the judgment of the Federal Court of Social Affairs. The period thus considered lasted seven years and 23 days.
It considered that the reasonableness of the duration of this process should be evaluated in light of the particular circumstances of the case, and taking into account its complexity, the conduct of the parties and that of the competent authorities.
On this last point, it also considered that what was at stake for the plaintiff in the litigation had to be taken into account in certain cases.
The European Court, like the Commission, considered that the case referred to elements of fact and law of certain complexity.
The social courts faced new problems that arose in relation to exposure to asbestos dust and had to do extensive research, and to obtain expert opinion.
The discrepancy between the trials at first instance and on appeal was proof of this. However, as the duration of the procedure can not be explained in terms of the complexity of the issues at stake, the European Court would proceed to examine the case, in light of the conduct of the applicants, and that of the national authorities.
The European Court observed that the applicants had contributed to some extent to the duration of the proceedings, in particular, so that the proceedings before the Social Court of Duisburg concerned.
In this regard, the European Court noted that it was one year, four months and thirteen days, the time before the legal successors of Mrs. Gretel Janssen informed the Social Court, on November 24, 1987, when the applicant had died on July 27, 1986.
On the other hand, in response to the request of the Social Court of March 17, 1988 and a reminder of July 8, 1988, they did not provide evidence to show that they had stopped, to continue the procedure afterwards, until the 25th. July 1988.
They were also responsible for delaying until March 2, 1989, the hearing that had been scheduled for December 8, 1988.
Thus, they had delayed the procedure followed before the Social Court, another seven months, and therefore were responsible for the delay of almost two years of the proceedings before the Social Court.
The Court recalled that the conduct of the claimants constituted an objective fact that could not be attributed to the respondent State, and that it had to be taken into account, in order to determine whether it was true, or not, that the aforementioned reasonable period had been met. in article 6 § 1.
As regards the conduct of the national authorities, the European Court noted that the proceedings before the Social Court of Duisburg began on 26 May 1986, when Mrs. Gretel Janssen presented her action.
The Social Court handed down judgment on March 2, 1989, that is, after almost three years of trial. The European Court considered that what was at stake in the contested procedure was of crucial importance in the time elapsed, for Mrs. Gretel Janssen, in view of the incurable illness she was suffering from, and her reduced life expectancy.
Accordingly, the competent judicial authorities were under the obligation, according to Article 6 § 1, to act with the exceptional diligence required by the jurisprudence of the European Court in disputes of this nature.
Although the European Court agreed with the German Government, that the trial could hardly have been terminated, before the death of Mrs Gretel Janssen on 27 July 1986, which was six months after the In the introduction of his appeal, the Court considered that the Social Court was little concerned to promote the process.
After the written observations, received in the name of Mrs. Gretel Janssen, on August 18, 1986, the Social Court, without taking the investigative measures, waited more than one year and two months, before fixing the a hearing for November 9, 1987.
It should be noted that at that time, the Social Court had not yet been informed of the death of Mrs. Gretel Janssen.
The Court considered that, in these circumstances, the requirement of a reasonable period of time, within the meaning of Article 6 § 1, was exceeded by the Court de lo Social de Duisburg.
Regarding the processing of the procedure by the Court of Social Appeals, the Court noted that these proceedings began on May 12, 1989, when the court received the appeal filed against the judgment of first instance, and that ended in three years, and about five months later, on October 14, 1992, when the Social Appellate Court handed down its ruling.
The European Court noted that the preparation of the rulings presented by Prof. W. was the main cause of the delay in the proceedings.
The expert took a period of one year, one month and six days, to present his first report (from October 30, 1989, until December 6, 1990) and one year and approximately four and a half months, to present his second report (from February 12, 1991, until June 26, 1992).
The European Court recalled that an expert works in the context of a judicial procedure, under the supervision of a judge, who remains responsible for the preparation and rapid completion of the test.
It was true that the Social Appellate Court on January 30 of 1992, required the experts to present their report. However, in the judgment of the European Court, the Social Appellate Court had helped to prolong the procedure, requesting the expert, twice, that is, on August 24, 1990 and December 23, 1991, new information, to include in their reports the advice of the experts and a supplementary report, to provide more information, before December 23, 1991, that the expert had already issued, on July 17, 1991.
Therefore, the European Court considered that the main reason for the duration of these proceedings, was in the development of the proceedings, by the Court of Appeal of the Social.
Although the death of Mrs. Gretel Janssen reduced the importance of what was at stake in the dispute, the European Court considered that the period of three years and five months, to obtain a ruling from the Court of Appeal, exceeded what could be considered as a reasonable time.
The following phases of the process before the Federal Social Court were not subject to any particular delay.
In assessing the circumstances of the case as a whole, the European Court concluded, as the Commission did, that the duration of the proceedings before the Social Court of Duisburg and before the Social Appeals Court, It could not be considered reasonable. It had not, however, been the result of a violation of Article 6 § 1 of the Convention.
The Article 41 of the Convention establishes: “If the Court declares that there has been a violation of the Convention or its Protocols and if the domestic law of the High Contracting Party so permits, the reparation of only the consequences of said violation, the Court shall grant , if applicable, an equitable satisfaction of the injured party”.
The applicants claimed compensation for material damage in the amount of DM 31,337, which would correspond to the amount of the pension that, according to them, the Social Court of Duisburg would have granted Mrs. Gretel Janssen, according to what was issued in his sentence, before the Federal Court of the Social, when he established his jurisprudence, supposedly erroneous, relative to the exposure to asbestos.
The European Court recalled that one could not speculate about what the outcome of the proceedings in question could have been, had the Convention not been violated.
In particular, no causal link could be discerned between the facts in respect of which a violation had been found, and the material damage for which the claimants sought compensation. Therefore, it was appropriate not to proceed with the claim regarding material damages. The plaintiffs did not mention any specific sum for non-pecuniary damages. However, they referred to the tragic circumstances in which their family members died, and, in this regard, also to the duration of the proceedings.
In these circumstances, the European Court considered that the finding of a violation was not sufficient to constitute justice of fair satisfaction, in relation to non-pecuniary damage.
As there was to be an evaluation, on an equitable basis, as required by article 41, the aforementioned Court granted the applicants compensation of DM 10,000.
The applicants also claimed their right to receive 7,201.86 German marks, for expenses and costs before the German courts.
If the European Court declared that there had been a violation of the Convention, the plaintiff could be awarded the costs and expenses generated before the national jurisdictions, for the prevention or repair of the violation.
The applicants did not distinguish between the costs and expenses incurred in the German courts, and those attributable to the proceedings before the Convention bodies, according to whether they had been carried out in an attempt to expedite the process, or for others purposes.
In the present case, on the basis of the information that was in its possession, and of the aforementioned criteria, the European Court observed that there was no element in the file related to this matter, which suggested that the applicants had incurred , before the national courts, in the additional costs and expenses, because that would have been determined by the duration of the procedure.
Regarding the costs of proceedings before the Convention, the European Court observed that the plaintiffs did not have the benefit of legal aid.
Given its jurisprudence in cases of prolonged prosecution, the European Court awarded compensation of 4,000 German marks, for this concept.
For default interest, according to the information available to the European Court, the legal interest rate applicable in Germany, at the date of adoption of the judgment, was 8.62% per annum. The European Court, unanimously, declared that there had been a violation of Article 6 § 1 of the Convention.
He also argued that the respondent State should pay the claimants, within three months, the following amounts, together with any added value tax, that may be required:
(I) ten thousand German marks, for moral damages;
(II) four thousand German marks, as costs and expenses.
In addition, a simple interest would have to be paid, with an annual rate of 8.62%, which would be payable from the expiration of the aforementioned three months, until the liquidation, rejecting the other claim for compensation of the claimants.
COMMENTS
FIRST – The washing of work clothes is a necessary activity for the successful completion of the production goal sought by the employer.
Not perform this task, in the long run would mean, in addition to a clear hygienic deficit for the operator and for those who would coexist with him, both at home and at work, also end up as a disturbance, which would end up negatively affect to the manufacturing objective that gave meaning to the employment of the operator.
The periodic washing of those work clothes allowed to return to normality a situation of dirt, also by asbestos, whose cumulative effect would end up supposing, if not periodically remedied, an obstacle to production, if that periodic normalization did not occur.
The employer, by disregarding those negative consequences derived from the working conditions of his industry, delegating his periodic remediation to the operator himself, and indirectly unloading in the home environment of his employee the solution of the problem generated, de facto was proceeding the same as If it had proceeded to hire people subject to the risk of household contamination by asbestos carried to the home of the operator, to take care of the necessary washing of work clothes, being able to consider that in the salary contributed by the operator for the sustenance of the members of that household – with special property, in the case of the wife – implicitly implied the indirect remuneration of this essential task for the normal development of the productive process.
The recognition of this obvious fact, of pure common sense, would have largely avoided the pilgrimage of the plaintiffs, in search of a justice that everywhere was still denied, and prolonging, out of all measure, the time necessary for the resolution of the litigation.
SECOND – The European Court, when enumerating the concurrent factors in the determination of such a long time for resolution of the litigation, omitted, in our opinion, a factor that was not only decisive, but also, according to our criterion, was undoubtedly the one that most influenced that prolongation of the lawsuit, and that is none other than the stubbornness of judicial authorities and the insurer, in getting excuses for exemption, to deny the compensation for mesothelioma, and its fatal outcome, lavishing the demands of expert reports, and even extending them to a meteorological service.
The “complexity” of the case, adduced by the German authorities, was determined to a large extent by his own will so that the litigation would run, in the spirit of seeking, with zeal, the evident marked objective, of being able to base, badly, a refusal resolution.
Only from this point of view can some of the reasoning put forward be explained, as when it is alleged that “she had acted with a strictly private character and not as an employee”, as if she had had real freedom, to have been able to act differently from how she had to do it, due to the circumstances arising from the condition of her husband’s employee, in an industry that used asbestos, and in a job in which the performance of her usual job necessarily presupposed the contamination of a workwear, which he was not in a position to avoid, and whose washed newspaper was left to the discretion of his own private resources, with disdain, on the part of the employer, of the consequences that could derive – whatever they were – from that situation.
THIRD – The European Court of Human Rights, granted his protection only in the alternative, leaving unresolved the remediation of the essential, which would have been the full recognition of the compensation right derived from the acquisition of a deadly mesothelioma, through the precise circumstances in those that the proven facts developed. There was only a partial restitution of justice.
CONCLUSIONS
It is clear that the appeal, in litigation by asbestos, to the European Court of Human Rights, is not the universal panacea of all the legal evils that have been and have been.
However, it is no less obvious, that such a remedy has come to supplement, even partially, the manifestly imperfect judicial protection of the states under the European Convention, which are usually granted to the victims of asbestos.
Consequently, and in particular with regard to Spain, where such a remedy of appeal, for litigation by pathologies arising from exposure to asbestos, to date, as we know, has not come to substantiate any claim on this question, we believe that, (with all the inherent difficulties, both economic and pure boredom of the potential claimants, that this procedural step entails), however, is an interesting way to try to mitigate minimally the situation of cash judicial helplessness, in which the victims of asbestos are, in fact, immersed.
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