EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 23957/94

Johann Breiteneder

against

Austria

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-6) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7-40) 2

III. OPINION OF THE COMMISSION

(paras. 41-53)              6

A. Complaint declared admissible

(para. 41) 6

B. Point at issue

(para. 42) 6

C. Article 6 para. 1 of the Convention

(paras. 43-52)              6

CONCLUSION

(para. 53 ) 7

DISSENTING OPINION OF Mr K. HERNDL

JOINED BY MM M.P. PELLONPÄÄ, B. MARXER,

B. CONFORTI AND C. BÃŽRSAN 8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              11

I. INTRODUCTION

1. The present report concerns application No. 23957/94 by Johannes Breiteneder against Austria, introduced on 17 March 1994 and registered on 25 April 1994.

2. The applicant is an Austrian citizen, resident in Vienna. He was represented before the Commission by Mr D. Böhmdorfer , a lawyer practising in Vienna.

The Government of Austria were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

3. On 12 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. Following an exchange of memorials, the application was declared admissible on 27 February 1997. The decision on admissibility is appended to this report.

4. 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 14 January 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

B. MARXER

B. CONFORTI

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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

6. The text of this 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

7. On 2 April 1986 the applicant brought an action in the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen ) claiming payment of AS 843,850 from the defendant who had bought an apartment from him. The claim in question concerned the last instalment which was due within fourteen days "after the contractually agreed conditions as described in the equipment list are fulfilled". On 7 April 1986 the Court ordered the defendant to submit his observations on the claim.

8. On 17 July 1986 the defendant submitted his observations which also contained a list of alleged defects found in the apartment at issue. On 29 August and on 19 September 1986 further submissions were filed by the applicant and by the defendant, respectively.

9. On 19 September 1986 the Regional Court held the first oral hearing. It made an order for the taking of evidence ( Beweisbeschluß ), stating that it would hear the architects Ha. and G. involved in the case and two further witnesses as regards the contents of the contractual agreement between the parties and the question whether the construction works as carried out by the applicant were defective.

10. On 2 October 1986 the applicant made further observations and extended his claim ( Klagsausdehnung ). Furthermore, he objected to a private expert opinion submitted by the defendant.

11. On 10 December 1986 the Regional Court held a second hearing at which it supplemented the order to take evidence and decided to inspect the apartment at issue and to appoint an expert in the field of construction.

12. On 26 February 1987 the Regional Court carried out a visit on the site ( Ortsaugenschein ) together with the expert R., whom it instructed to draft a proposal for a friendly settlement, to submit it to the parties and to inform the court before 10 April whether they had accepted his proposal.

13. On 19 May 1987 the expert R. reported to the Regional Court that friendly settlement discussions had been taken up and had been adjourned pending submission of further documents by the applicant, concerning the main issue, namely the alleged defects of the thermal insulation of the glass construction in the roof of the apartment. According to the defendant the costs to eliminate this defect allegedly amounted to some 325,000 AS.

14. On 16 September 1987 the expert R. held a hearing with the parties in his office, proposing a friendly settlement on the basis of a payment of AS 700,000 including AS 100,000 interest, to the applicant. On 28 September 1987 the defendant declared that he would accept the friendly settlement, whereas the applicant submitted, on 30 September 1987, that he could not envisage a friendly settlement on the above basis.

15. On 6 October 1987 the expert R. informed the court that a friendly settlement could not be reached and that the appointment of a further expert in construction physics appeared to be necessary in view of the defendant's allegation of insufficient thermal insulation. On the same day the expert R. requested the applicant to submit further documentary evidence.

16. On 6 November 1987 the Regional Court ordered the obtaining of the opinion of an expert in construction physics and ordered the defendant to advance costs of AS 30,000 for this purpose.

17. On 26 November 1987 the applicant submitted further documents in order to show that the thermal insulation had been carried out correctly.

18. On 16 September 1988 the Regional Court invited the parties to state on the basis of the opinion established by the expert R. whether further settlement talks might be held or whether another hearing was necessary.

19. On 15 February 1989 the applicant informed the Regional Court that negotiations to reach an out-of-court settlement had failed.

20. On 27 April 1989 the Regional Court held the fourth hearing. The defendant claimed that the expert opinions had shown defects as regards the thermal insulation of the apartment and that it was, therefore, not possible to obtain an official certificate of compliance with the building standards stating that the apartment was ready for use ( Benützungsbewilligung ). The applicant contested this view. The Court decided to hear Mr He., and the architects Ha. and G. who were involved in the case.

21. On 13 June 1989 the applicant filed further requests for the taking of evidence.

22. On 18 July 1989 the Regional Court informed the parties that the next hearing was postponed from 4 September to 12 October 1989.

23. On 12 October 1989 the Regional Court held the fifth hearing. It turned out that the Vienna Municipality still had not issued a certificate of compliance with the building standards stating that the apartment was ready for use. H., a civil servant in the competent department of the Vienna Municipality, stated on an informal basis that he would meanwhile conduct the administrative proceedings necessary for issuing the said certificate, and it was agreed with the parties that the hearing would be postponed to 18 January 1990 to await the outcome of these proceedings.

24. On 18 January 1990 the Regional Court held the sixth hearing. The parties stated that no progress had been achieved in the above administrative proceedings. The applicant named two further witnesses and it was agreed with the parties that the architects, Ha. and G., would jointly discuss the problem and take new measurements. Then, the hearing was adjourned until 30 March 1990. On 30 January 1990 the defendant submitted further requests for the taking of evidence.

25. On 30 March 1990 the Regional Court held the seventh oral hearing. The parties stated that the proceedings for obtaining the certificate of compliance with the building standards had not progressed. The Court heard two witnesses, namely the lawyer and the real estate manager involved in the sales contract of the apartment at issue and decided to hear to two further witnesses proposed by the parties.

26. On 15 June 1990 the Regional Court informed the parties that the next hearing was postponed from 19 June to 30 August 1990. According to the file the adjournment was necessary at the defendant's request.

27. On 30 August 1990 the Regional Court held the eighth hearing. It heard the two architects who had been involved in the case on the respective parties' sides and one further witness. The Court decided to inspect the site once more, this time together with a building expert. Further it requested the parties to inform it before 15 November 1990 of any possible results of the administrative proceedings concerning the certificate that the apartment was ready for use.

28. On 5 September 1990 the defendant made a proposal for further taking of evidence which the Regional Court rejected on 2 October 1990.

29. On 16 November 1990 the applicant informed the Court that proceedings to obtain a certificate that the apartment was ready for use had commenced. By decision of the same day, the Court expressed the opinion that the issuance of such a certificate appeared to be essential for the proceedings. It also indicated that, if either of the parties wished to continue the court proceedings before the said certificate had been issued, they should inform the judge of their intention to do so.

30. On 12 December 1990 the Regional Court requested the applicant to report on the progress of the aforementioned proceedings.

31. On 31 May 1991 the applicant requested that the proceedings be continued.

32. On 30 September 1991 the Regional Court held the ninth oral hearing. The parties reported that the Vienna Municipality had not yet issued a certificate that the apartment was ready for use. Discussing the matter with the parties, the Court noted that the main issue was still the question of the alleged defects of the glass construction in the roof of the apartment. Thus, the Court decided to hold another hearing on the site on 16 December 1991.

33. On 9 December 1991 the Regional Court informed the parties that expert R. was not available on 16 December 1991 and that the hearing had to be postponed to 3 February 1992.

34. On 3 February 1992 the Regional Court held the tenth oral hearing on the site. It heard He. and P., another civil servant of the Vienna Municipality, as witnesses. Subsequently, the matter was adjourned sine die. As to the further procedure it was agreed that the applicant would see to it that certain defects were repaired and that the court would not take any further procedural steps until notice by one of the parties. As no further requests were made by either party the file was taken off the list on 31 December 1992.

35. On 3 July 1993 the applicant requested that the proceedings be resumed and informed the court that a partial certificate that the flat was ready for use had meanwhile been issued.

36. On 27 August 1993 the Regional Court held the eleventh oral hearing. It was again discussed whether a friendly settlement could be reached and the parties agreed to conduct out-of-court settlement negotiations and to inform the court before 1 October 1993 whether such a settlement had been reached. The proceedings were again adjourned sine die.

37. On 10 November 1993 the applicant requested a continuation of the proceedings and a hearing was scheduled for 18 March 1994.

38. On 18 March 1994 the Regional Court held the twelfth hearing during which settlement negotiations were conducted and a witness was excused on the ground of illness. In this hearing the parties again requested the court not to take any further evidence as they were still trying to reach an out-of-court settlement and stated that they would inform the court by 10 April 1994 at the latest whether or not they wished to carry on with the proceedings. In case the continuation of the proceedings was actually desired a possible date for another hearing was reserved by the Court on 14 June 1994.

39. On 14 June 1994 the Regional Court held the fourteenth hearing, after having been informed that the parties' negotiations had failed and it was decided to conduct another inspection on site visit to the apartment.

40. On 7 September 1994 the Court carried out another visit to the site. After three and a half hours of negotiations a friendly settlement was reached and the proceedings were terminated.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

41. The Commission has declared admissible the applicant's complaint about the length of proceedings concerning his claim for payment relating to the sale of an apartment.

B. Point at issue

42. The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

43. The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of civil proceedings.

44. Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:

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

45. The applicant submits that the overall duration of the proceedings was excessive and was mainly due to the Regional Court's conduct, which acted without any concept and had no intention to decide on the merits of the case. For instance, the Court first did not order the expert R. to submit an opinion, but only instructed him to make a friendly settlement proposal and to discuss it with the parties, thus leaving it to the expert to conduct the proceedings. The Court again and again tried to achieve a friendly settlement but failed to take the necessary evidence to enable it to give judgement. Thus, the parties were almost forced to conclude a friendly settlement in the end. Further, the applicant points out that according to the relevant case-law of the Austrian courts the full price for an apartment, or construction works in general, is only due once they are free from any defects. That carries the risk that the purchaser, who is already using the apartment, delays payment by alleging some defects. Such proceedings should, therefore, be conducted expeditiously, all the more so, if a considerable amount of money is at stake as in the present case.

46. The Government submit in particular that the proceedings were highly complex in both legal and factual terms and necessitated the taking of expert opinions in different fields of building and construction matters. As regards the conduct of the Regional Court and the conduct of the applicant, the Government point out that the Court with the agreement of the parties tried to reach a friendly settlement throughout the proceedings. Some periods of inactivity, namely from 19 May to 16 September 1987, from 16 September 1988 to 15 February 1989, from 27 August to 10 November 1993 and from 18 March to 10 April 1994, were due to out-of-court settlement negotiations between the parties. As regards two further periods, namely from 16 November 1990 to 31 May 1991 and from 3 February 1992 to 3 July 1993, it had been agreed between the Court and the parties that the proceedings would only be resumed at the request of one of the parties. Moreover, the Government point out that the parties never complained that the proceedings were protracted or lasted too long.

47. The Commission recalls that the reasonableness of the length of proceedings is to be determined with reference to the criteria established in the Court's case law and in the light of the circumstances of the case, which in this instance call for an overall assessment (Eur. Court HR, Cesarini v. Italy judgment of 12 October 1992, Series A no. 245-B, p. 26, para. 17).

48. The proceedings at issue started on 2 April 1986, when the applicant submitted his claim. They were pending before the Vienna Regional Civil Court until 7 September 1994, when the applicant and the defendant concluded a friendly settlement. Thus, the proceedings lasted eight years and five months at one level of jurisdiction.

49. The Commission finds that the case was of a certain complexity, as it necessitated the taking of two expert opinions relating to the question whether the construction works carried out in the apartment which the applicant had sold, were defective or not. On the other hand, the Regional Court did not have to hear a large number of witnesses.

50. As to the conduct of the Vienna Regional Civil Court, the Commission notes that, even accepting the Government's argument that the above periods of inactivity were due to an agreement between the Court and the parties and served inter alia the purpose of reaching an out-of-court settlement, these periods only account for about three years. There are other periods of inactivity of altogether one and a half years, namely from 26 November 1987 to 16 September 1988, from 31 May 1991 to 30 September 1991 and from 10 November 1993 to 18 March 1994, which are solely imputable to the Regional Court.

51. Further, the Commission notes that there are some similarities with the above-mentioned Cesarini case, in particular the termination of the proceedings by way of friendly settlement. However, there are also important differences: In the Cesarini case, two courts had given judgment and a friendly settlement was reached after an overall duration of six years and eight months, when the proceedings were pending at the third instance, whereas the present proceedings lasted eight years and five months before just one instance. Moreover, in the present case, there are no particular delays imputable to the applicant.

52. Having regard to all the circumstances of the case, the Commission finds that an overall duration of eight years and five months before one level of jurisdiction cannot be regarded as "reasonable" for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

53. The Commission concludes, by 11 votes to 5, that in the present case 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

(Or. English)

DISSENTING OPINION OF Mr K. HERNDL

JOINED BY MM M.P. PELLONPÄÄ, B. MARXER,

B. CONFORTI AND C. BÃŽRSAN

Much to our regret we cannot agree with the majority's conclusion that in the present case there has been a violation of Article 6 para. 1 of the Convention as a consequence of the overall duration of the proceedings before the Vienna Regional Civil Court.

While it is true that on surface a length of more than eight years before one level of jurisdiction might appear as excessive, a careful analysis of the individual elements of the case shows that it is indeed difficult, if not impossible, to put the blame for the overall length of the proceedings squarely on the authorities of the respondent State as is doing the majority.

1. Point of Departure

The majority take as their point of departure the Court's statement in the Cesarini case (see para. 47 of the Report) to the effect that the reasonableness of the length of proceedings is to be determined with reference to the criteria established in the Court's case law and in the light of the circumstances of the relevant case which in the current instance called for an overall assessment. In the framework of such an overall assessment however the majority would seem to draw wrong conclusions as far as the complexity of the case, the conduct of the applicant, and the conduct of the Vienna Regional Civil Court are concerned.

2. Complexity of the case

The majority admit that the case was of a "certain" complexity. This would appear to be an understatement indeed. As the case concerned certain defects in the technical construction of an apartment, the fact that two experts had to be commissioned to determine the nature and extent of the defects is but one element demonstrating the inherent complexity of the technical, and consequently the pecuniary, issues involved. What would seem to be a more important consideration in this context is the fact that the official certificate of compliance with the building standards and the consequential statement that the apartment was ready for use (henceforth the "user certificate") was not issued by the municipal building authorities before mid 1993. It was only on 3 July 1993 (see para. 35 of the Report), hence more than seven years after his initial court action, that the applicant informed the court "that a partial certificate that the flat was ready for use had been issued". The considerable delay in issuing this certificate which it was the applicant's task to obtain, not only points to the difficulties of properly assessing the technical problems involved, but is also an element to be considered when looking at the applicant's own conduct. In any event the problems of a technical nature, which the court would eventually have to determine, were of such a nature, that it took the building authorities several years to arrive at final conclusions and issue the user certificate.

3. The conduct of the applicant

It was obviously in the applicant's own interest to go along with the court's attempts at obtaining a friendly settlement instead of seeing his claim rejected outright in view of the non- obtention of an official user certificate. In fact, settlement negotiations (between the applicant as plaintiff and the defendant in the case) took place in several stages, for a total of some twelve months, in the presence and with the active assistance of experts/architects. Similarly for some twenty-four months it was agreed between the applicant-plaintiff and the defendant that court proceedings would only be continued if requested by either. At certain dates - after further time had elapsed - the applicant requested continuation (see paras. 31, 35 of the Report).

These periods, lengthy as they are, can surely not be imputed to the judiciary of the respondent State. One must add that on many occasions the applicant himself put forward new observations, submitted additional documentary evidence and requested the taking of more evidence. Such conduct by itself unavoidably contributed to extending the proceedings in time.

Finally it cannot be overlooked that there is nothing on the file which would show that the applicant ever complained to the court alleging that the proceedings were protracted or conducted too slowly. Since 1 January 1990 the applicant would even have had at his disposal a new procedural means to obtain, generally speaking, a factual acceleration of the court procedure. If dissatisfied with the intervals between the various court actions, including orders fixing dates, the applicant could have filed a request for new (and shorter) time limits under Section 91 of the Court Organisation Act. As he did not do so the conclusion must be drawn that he in fact did not view the proceedings as too slow, given the parameters of his own claim.

4. The conduct of the Vienna Regional Civil Court

In view of the foregoing and based on the actual sequence of events one is obliged to recognize that the court handled the case with the necessary speed. Within the contested overall period of eight years the court held fourteen hearings accompanied by a number of visits to the site. There are no unduly lengthy intervals between the various court actions and orders (taking into account also the conduct of the applicant as explained above).

The majority, for their part, while accepting that a good portion of the time lost may have been attributable to the applicant, point to three specific periods of "inactivity" of the court (see para. 50 of the Report). These periods of "inactivity" total only eighteen months. The first of these periods (November 1987 to September 1988) is admittedly long and no specific reason was given for it. The second period (May to September 1991) followed new submissions by the applicant and can therefore not really be regarded as "inactivity" proper. The third period (November 1993 to March 1994) saw at the outset a change in the applicant's legal representation.

The situation being as described above, it can in our view not be maintained that the "periods of inactivity" were in any way excessive as those periods, taken together and irrespective of the reasons responsible for them, amounted to no more than eighteen months, hence to less than one-fifth of the overall length of the proceedings.

Incidentally, as far as those periods of "inactivity" of the court are concerned, many of the reflections contained in Mr F. Martinez's dissenting opinion in the Cesarini case (see Commission Report No. 11892/85) would seem to be of particular relevance to the present case.

5. Conclusion

With reference to para. 52 of the report we are bound to come to the conclusion that an overall duration of eight years and five months in the present case, admittedly before one level of jurisdiction only, ought still to be regarded as "reasonable" for the purposes of Article 6 para. 1 of the Convention, given the special circumstances of this case.

One final reflection may be permitted. The Vienna Regional Civil Court seems to have continuously tried to have the case terminated by friendly settlement. In the final analysis a friendly settlement was actually accepted by the applicant. As such settlement procedure was basically in the applicant's own interest and given the fact that he voluntarily co-operated and agreed to the settlement it is legitimate to raise the question of the extent to which the applicant can actually be regarded as a victim in the sense of the Convention. Was he indeed such a victim?