EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23459/94

Adolf Holzinger

v.

Austria

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-7) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 8-18) 2

III. OPINION OF THE COMMISSION

(paras. 19-32)              4

A. Complaint declared admissible

(para. 19) 4

B. Point at issue

(para. 20) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 21-31)              4

CONCLUSION

(para. 32) 5

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 6

I. INTRODUCTION

1. The applicant is an Austrian national born in 1934 and resident in Hallein .  He is unrepresented before the Commission.

1. The respondent Government are represented by Franz Cede, Agent of the Austrian Government.

1. The application was communicated to the Government on 19 May 1995.  Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 10 September 1997.  The decision on admissibility is appended to this Report.  The parties have submitted observations on the merits of the case, the Government on 27 July 1995 and the applicant on 8 September 1995.

1. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 21 October 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

1. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.

1. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

1. On 16 May 1988 the applicant introduced proceedings in the Salzburg District Court ( Bezirksgericht ) against a former lawyer for the sum of AS 30,000.  The District Court rejected the claim on 20 May 1988 because it did not have jurisdiction.  On 1 June 1988 it quashed the decision of 20 May 1988 as that court did have jurisdiction, and remitted the case to the Regional Court ( Landesgericht ).  On 8 August 1988 the Regional Court instructed the applicant to submit his claim through a lawyer, which he did on 13 September 1988.

1. On 23 November 1988 the Regional Court found that the judge who had been in charge of the case was not impartial, and quashed all procedural steps since 7 July 1988.

1. A defence was served on 21 December 1988, and on 22 February 1989, at the applicant's request, the Regional Court adjourned the proceedings pending the outcome of a different action, the proceedings only to be resumed on application by the parties.  On 30 June 1989 the applicant's lawyer requested that the proceedings be resumed and extended the claim to the sum of AS 449,417.23.  The Regional Court returned the request on 4 August 1989 with the instruction to formulate it properly.

1. A hearing which had been set down for 20 December 1989 was adjourned when the judge in charge of the case changed.

1. On 31 March 1990 the defendant gave up his professional functions, and the proceedings had to be adjourned for a lawyer to be appointed.  On 6 June 1990 the applicant requested the court to order the defendant to appoint a lawyer, and on 13 June it did so.  The defendant failed to appoint a lawyer within the time-limit.  On 9 November 1990 the court announced that, in view of the defendant's failure to appoint a lawyer, the proceedings were resumed.  A hearing was fixed for 11 December.

1. At the hearing on 11 December 1990 the proceedings had to be commenced again because of a change of judge.  The defendant was neither present nor represented, and the applicant's representative asked for judgment to be entered in default.  The court adjourned the proceedings in order to allow for consideration of additional papers submitted by the applicant's representative.  On 23 January 1991 the Regional Court permitted the defendant, who had produced a medical certificate in respect of 11 December 1990, to remain in the proceedings.

1. On 16 October 1991 the applicant wrote to the court requesting that the proceedings be processed.  On 18 October the parties were summoned to a hearing to take place on 26 November 1991.  That hearing was postponed as the applicant had informed the court that he would be absent from 18 November 1991 to 28 January 1992.  On 12 March 1992 the applicant again asked for the proceedings to be pursued.  On 23 March the parties were summoned to a hearing which was to take place on 7 May 1992.  At the end of the hearing on 7 May 1992 the proceedings were adjourned, and on 18 May 1992 the applicant asked for them to be resumed soon as he was to be away from 9 September to 20 November 1992.  On 25 May 1992 the Court set the next hearing for 7 July 1992, when the applicant replied to questions, his representative submitted a series of documents, and the proceedings were again adjourned.

1. The next hearing took place on 26 November 1992.  At the end, the judge declared the trial closed.  The written judgment of 18 February 1993 was received by the applicant's representative on 4 March 1993.  The court found that the applicant's action was statute-barred.  The applicant's own appeal of 18 March 1993 was returned by the court on 1 April 1993 as it had not been properly signed by a lawyer.  The appeal was re-submitted on 28 April.  The defendant's reply is dated 26 May 1993 and by a judgment dated 29 September 1993 the Linz Court of Appeal rejected the applicant's appeal, confirming the Regional Court's judgment.  The judgment states that no further appeal (Revision) is possible.  The applicant's representative received the decision on 4 November 1993.

1. An application by the applicant for legal aid for an extraordinary appeal dated 9 November 1993 was rejected on 11 November 1993 as the proceedings had ended.

1. On 6 May 1994 the Linz Court of Appeal rejected a challenge made by the applicant to a decision of the Regional Court of 11 November 1993 by which the defendant had been permitted to execute costs in the proceedings.

B. Relevant domestic law

1. Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedience by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed.  This decision is not subject to appeal."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

1. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

1. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

1. The relevant part of Article 6 para. 1 of the Convention provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

2. The Commission notes that the proceedings in question concerned the determination of a claim brought by the applicant against a former lawyer, initially for the sum of AS 30,000.  The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

3. According to the applicant, the length of the proceedings is in breach of the "reasonable time" requirement of Article 6 para. 1 of the Convention.  The Government take the opposite view.  In particular, they consider that he could have made an application pursuant to Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ) on two occasions: the first in May 1990, after the proceedings had been adjourned for the defendant to appoint a lawyer, and the second in May 1991, after the proceedings had been adjourned in December 1990.  They consider that the first application could, and probably would, have reduced the length of the proceedings by three months, as the application would have been dealt with before the summer recess.  They consider that the second application could have resulted in the hearing of 7 May 1992 being held some nine months earlier.

4. The applicant does not make any comments on the effectiveness of an application under Section 91 of the Courts Act, but points out that he requested the courts to proceed with the case on no fewer than five occasions, and that at his request his lawyer asked the judge for the case to be expedited on several occasions.  He also points out that if he had made, through his lawyer, an application under Section 91 of the Courts Act every time there was delay in the proceedings, he would have been required to make 11 such applications.

1. The Commission notes that the proceedings began on 16 May 1988 when the applicant brought short-form proceedings against his former representative.  The first instance proceedings ended on 4 March 1993, a period of almost 4 years and 10 months. The principal proceedings lasted until 4 November 1993 when the Linz Court of Appeal's judgment was received by the applicant's representative, a period of five and a half years.  Subsequent to the appeal decision, there were two further decisions, one on 11 November 1993 in respect of legal aid, and a second on 6 May 1994 in respect of costs.

1. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

2. The Commission considers that the case was ultimately a simple debt claim.  There was no particular complexity in the case.

3. As to the applicant's conduct, the Commission considers that it cannot be held against the applicant that he did not apply under Section 91 of the Courts Act in May 1990.  He did ask the court to order the defendant to appoint a lawyer on 6 June 1990, and the court then made appointments for after the summer holidays.  It is not apparent how an application in May - just one month earlier - would have given rise to a hearing any sooner.  It is, however, true that from the adjournment of the proceedings in December 1990 until October 1991, the applicant made no requests to the Court for the proceedings to be resumed.  The Commission accepts that the applicant could have made some form of application or request to the courts in or about May 1991 and that he may therefore be responsible for up to five months of delay between then and October.

4. As to the authorities' conduct, the Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (cf. Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

5. Overall, the Commission considers that the period of four years and 10 months the proceedings lasted at first instance was unreasonably long.  The fact that the subsequent proceedings were over in a further eight months, does not justify a finding that the proceedings, taken as a whole, were not excessively long.

1. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

1. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber