Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 19743/92

Herbert Hrdlicka

against

Austria

REPORT OF THE COMMISSION

(adopted on 10 September 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-20) 2

III. OPINION OF THE COMMISSION

(paras. 21-33) 4

A. Complaint declared admissible

(para. 21) 4

B. Point at issue

(para. 22) 4

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

(paras. 23-32) 4

CONCLUSION

(para. 33) 5

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 6

I. INTRODUCTION

1. The present Report concerns Application No. 19743/92 introduced on 25

November 1991 and registered on 23 March 1992.

The applicant is an Austrian national, born in 1939 and resident in

Vienna. He is represented before the Commission by Mr. A. Laimer, a lawyer

practising in Vienna.

The Government of Austria are represented by their Agent, Ambassador F.

Cede, head of the International Law Department at the Federal Ministry for

Foreign Affairs.

2. The application was communicated to the Government on 11 January 1994.

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 16 October 1996. The decision on admissibility is appended to

this Report.

3. 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 10

September 1997 in accordance with Article 31 para. 1 of the Convention, the

following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

4. In this Report the Commission states its opinion as to whether the facts

found disclose a violation of the Convention by Austria.

5. 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

6. On 21 July 1976 the applicant was seriously injured in a road traffic

accident. On 16 July 1979 he lodged an action with the Vienna Regional Court

(Landesgericht). He claimed compensation from the car driver involved in the

accident (who had been earlier found criminally responsible for the injuries the

applicant had suffered) and from her insurance company.

7. On 16 October 1979 the applicant extended his claim. The Vienna Regional

Court held hearings on 19 October 1979, on 7 November 1979, on 18 March and on

23 May 1980 in the course of which it inspected the place of the accident, heard

witnesses and took expert evidence.

8. On 2 June 1980 the applicant extended his claim. Further hearings were

held on 10 September and on 4 November 1980. After a supplementary opinion by a

photogrammetric expert had been submitted, the next hearing was scheduled for 12

November 1981. However, the proceedings had to be suspended due to the parties'

failure to appear.

9. The applicant requested twice that the proceedings be resumed. On 3 May

1982 a further technical expert opinion was submitted and the court granted the

defendants' request for medical expert evidence. It was submitted on 13 July

1982.10. On 11 October 1982 the Vienna Regional Court decided to obtain

supplementary medical expert evidence. A further hearing was held on 27 May

1983.11. On 18 May 1984, after supplementary medical expert evidence had been

submitted, the applicant extended his claim. The court requested a neurological

expert opinion. After three experts had refused to prepare the opinion, it was

finally submitted on 14 May 1985.

12. On 7 October 1985 a hearing was adjourned at the applicant's request.

13. On 13 January 1986 the applicant extended his claim. As the case had been

taken over by another judge, it was decided to start the trial anew pursuant to

Section 412 of the Code of Civil Procedure. Consequently, the contents of the

file were read out. A medical expert was requested to submit a supplementary

opinion on the question of the necessity of certain treatments undergone by the

applicant.

14. Further hearings were held on 17 April, on 30 July and on 24 November

1986. At each of these hearings the applicant extended his claim. An expert

was ordered to prepare an opinion on various medical costs. It was submitted on

20 August 1987.

15. On 8 January 1988 a new judge took over the case. Another technical

expert opinion was requested. On 5 February 1988 the applicant requested that

the time-limit for submitting his pleading should be extended. He submitted the

pleading on 16 March 1988.

16. On 19 April 1988 the court decided to take evidence by inspection on the

spot.

17. On 19 July 1988 the parties reached a friendly settlement. It was

denounced by the applicant on 20 October 1988.

18. On 29 June 1989 a hearing was held on the spot. Further hearings in court

were held on 10 and on 31 October 1989. In the course of the latter hearing a

technical expert submitted his opinion and the court decided to obtain further

evidence.

19. On 5 December 1991, after a change of judges, the trial was started anew.

The court heard a witness and adjourned the case as a further witness had failed

to appear. The Vienna Regional Court held further hearings on 17 January and on

11 February 1992. On 26 June 1992 it delivered a judgment by which it dismissed

the applicant's claim. It found that the claim had become statute-barred due to

a mistake made by the lawyer by whom the applicant was then represented.

20. On 16 September 1992 the applicant lodged an appeal. It was dismissed by

the Vienna Court of Appeal (Oberlandesgericht) on 13 May 1993.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The Commission has declared admissible the applicant's complaint that his

case has not been heard within a reasonable time.

B. Point at issue

22. The only point at issue is whether the length of the proceedings

complained of has exceeded the "reasonable time" requirement referred to in

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

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

23. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention

provides as follows:

"In the determination of his civil rights and obligations ..., everyone is

entitled to a fair and public hearing within a reasonable time by (a) ...

tribunal ..."

24. The proceedings in question concerned the applicant's claim for

compensation for injuries which the applicant had suffered in a traffic

accident. 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 (Art. 6-1) of the Convention.

25. The proceedings, which started on 16 July 1979 and ended on 13 May 1993,

lasted 13 years and almost 10 months.

26. 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).

27. The respondent Government admit that there were delays in the proceedings

which amounted to some three years and were mainly due to changes of judges and

the necessity to start the proceedings anew. They contend, however, that the

principal reason for the length of the proceedings was their complexity and, in

particular, the applicant's conduct.

28. The Commission notes that the case concerned a claim for damages following

a road traffic accident. The claim was based on a criminal court's finding that

the defendant was responsible for the injuries the applicant had suffered. The

Commission considers that the case was of some complexity due to the necessity

to quantify the damages. However, the Commission is of the opinion that the

complexity of the case cannot be regarded as the principal reason for the length

of the proceedings.

29. The Commission finds that the applicant contributed to the length of the

proceedings by modifying his claim on several occasions, by his failure to

appear at the hearing scheduled for 12 November 1981, by his request for

adjournment of the proceedings and for an extension of the time-limit set by the

Vienna Regional Court, and also by his decision to denounce the friendly

settlement which was reached on 19 July 1988. However, in the Commission's

view, the applicant's conduct alone cannot explain the overall length of the

proceedings.

30. In respect of the conduct of the Austrian authorities, the Commission

notes that the expert opinion which the Vienna Regional Court had ordered

following the hearing of 18 May 1984 was submitted, due to the refusal of three

experts to prepare it, on 14 May 1985 (i.e. after almost a year) and the next

hearing was scheduled for 7 October 1985 (i.e. with a lapse of more than four

months after the expert evidence had been submitted). After the applicant had

denounced the friendly settlement on 20 October 1988, the court remained

inactive until 29 June 1989, i.e. for more than eight months. The Commission

further notes a period of inactivity between 31 October 1989 and 5 December

1991, i.e. two years and more than a month, which occurred after the case had

been pending before the first instance court for ten years. Finally, the

Commission notes that due to the change of judges the proceedings were started

anew in 1986 and in 1991.

31. The Commission reaffirms that it is for Contracting States to organise

their legal system 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 (see Eur. Court HR, Vocaturo v. Italy

judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

32. In the light of the criteria established by the case-law and having regard

to all the circumstances and the overall length of the proceedings, the

Commission considers that the applicant's claim was not determined within "a

reasonable time" as required by Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

33. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HRDLICKA v. AUSTRIA

HRDLICKA v. AUSTRIA

LEXI