PROCEDURE

The case originated in an application (no. 75204/01) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Theodor Klasen (“the applicant”), on 28 September 2001.

The applicant was represented by Mr R. Battenstein, a lawyer practising in Düsseldorf. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.

On 27 October 2004 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

The applicant died on 21 April 2005. On 11 May 2005 his lawyer informed the Registrar that his wife from a second marriage, Mrs Pauline Klasen, wished to continue with the case. By letter of 12 July 2005, the Government objected to her being allowed to do so.

On 1 April 2006 this case was assigned to the newly composed Fifth Section (Rule 25 § 1 and Rule 52 § 1).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant, Mr Theodor Klasen, was born in 1933 and lived in Mülheim.

He worked between 1964 and the beginning of 1974 with asbestos insulators for the T Company in Mülheim. During this period, the workers of this company who were exposed to asbestos dust while working had to clean their clothes themselves. This was done by the applicant's first wife Mrs Gisela Klasen. On 1 April 1974, after the applicant had stopped working for the T Company, an accident prevention regulation (Unfallverhütungsvorschrift) entered into force pursuant to which the company was put in charge of cleaning the working clothes.

Having contracted a mesothelioma, an asbestosis related disease, Mrs Gisela Klasen applied on 6 March 1991 to the Düsseldorf Health Insurance Association for compensation payments, claiming that her illness was the consequence of the daily cleaning of her husband's work clothes. On 6 August 1991 the Health Insurance Association dismissed her request holding that her activity was not covered by the industrial health insurance, since she had acted on a strictly private basis and not as an employee.

On 5 September 1991 Mrs Gisela Klasen filed an objection against this decision which was rejected on 13 December 1991 by the Appeals Board of the Health Insurance Association.

In January 1992 Mrs Gisela Klasen commenced proceedings before the Duisburg Social Court. After her death on 13 September 1992, her husband Theodor Klasen, the applicant, continued the proceedings as legal successor of the deceased. The Social Court decided to await the decision in the precedent which was pending from April 1992 until February 1993 before the Social Court of Appeal and from March 1993 until December 1993 before the Federal Social Court. From March 1993 until October 1993 the proceedings were formally suspended.

On 17 May 1994 the Duisburg Social Court dismissed the action on the ground that, pursuant to Section 539 §§ 1 and 2 of the Social Security Act (Reichsversicherungsordnung), Mrs Gisela Klasen was not insured against accidents at work. The court found that she had not been an employee herself, nor had she acted like an employee. She had cleaned her husband's clothes on ground of their living together, but not with a view to acting for her husband's employer.

On 25 January 1995 the Social Court of Appeal rejected the applicant's appeal.

On 19 March 1996 the Federal Social Court rejected his appeal on points of law. It considered in particular that Mrs Gisela Klasen's death was not the consequence of an occupational disease as the cleaning of her husband's work clothes mainly served the interests of the couple's household and not the employer's interests.

On 20 June 1996 the applicant lodged a constitutional complaint alleging that the social courts' interpretation of Section 539 of the Social Security Act was discriminatory. Invoking Article 6 of the Convention, the applicant further submitted that the proceedings had lasted too long.

In December 1997 the Federal Constitutional Court invited the Federal Parliament, the Federal Council (Bundesrat), the Federal Government, the Federal Social Court, the Governing Association of the worker's Health Insurances (Hauptverband der gewerblichen Berufsgenossenschaften) and the parties of the proceedings before the lower courts to submit their written observations on the constitutional complaint. The latest observations were submitted to the Federal Constitutional Court on 17 September 1998.

On 13 March 2001 a panel of three judges of the Federal Constitutional Court refused to admit the complaint because it lacked reasonable prospects of success. The court held that the contested interpretation of Section 539 of the Social Security Act did not violate the applicant's constitutional rights and mainly argued that it was incumbent on the legislator to determine to which extent the industrial health insurance should cover third persons. It further pointed out that a constitutional complaint could not be based on an alleged violation of the European Convention on Human Rights. This decision was notified to the applicant's lawyer on 28 March 2001.