Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 19740/92

Luise Basta

against

Austria

REPORT OF THE COMMISSION

(adopted on 15 January 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-14) 2

III. OPINION OF THE COMMISSION

(paras. 15-26) 3

A. Complaint declared admissible

(para. 15) 3

B. Point at issue

(para. 16) 3

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

(paras. 17-25) 3

CONCLUSION

(para. 26) 4

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 5

I. INTRODUCTION

1. The present Report concerns Application No. 19740/92 introduced on 5

August 1991 against Austria and registered on 13 March 1992.

The applicant is an Austrian and Hungarian national born in 1955 and

resident in Vienna.

The applicant is represented before the Commission by Mr. W. Mayerhofer, a

lawyer practising in Vienna.

The respondent 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 8 January 1993.

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 26 June 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 15

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

following members being present:

Mrs. J. LIDDY, President

MM. L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 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

6. On 22 August 1979 the applicant brought an action before the Vienna Labour

Court (Arbeitsgericht) against the Republic of Austria submitting that she had

been an employee of the Austrian Embassy in Budapest and had been unlawfully

dismissed. She claimed a finding that her employment contract was still valid

and that the defendant owed her some AS 300.000. The action was dismissed on 7

July 1981.

7. On 18 February 1982 the Vienna Regional Court (Landesgericht) acting as

court of appeal dismissed the applicant's appeal. However, on 9 November 1982

the Supreme Court (Oberster Gerichtshof), upon the applicant's appeal on points

of law, quashed the Regional Court's judgment and sent the case back to it.

8. On 21 February 1983 the parties reached a friendly settlement before the

Regional Court which was, however, revoked by the applicant on 29 March 1983.

9. On 16 December 1983 the Federal Ministry of Justice replied to a request

by the Regional Court concerning the law applicable in the present case under

Hungarian international private law. On 22 November 1984 the Regional Court

requested information about Hungarian law by way of a letters rogatory addressed

to the Hungarian authorities. Despite reminders by the Regional Court no answer

was received to this request over the following two years.

10. On 23 January 1987 the files were transmitted to the Vienna Court of

Appeal (Oberlandesgericht) which had in the mean-time acquired jurisdiction in

the matter according to changes in the law.

11. On 18 May 1987 the Court of Appeal again addressed letters rogatory to the

Hungarian authorities. On 27 January 1988 an answer to the rogatory request was

eventually received following several reminders. On 4 May 1988 the Court of

Appeal addressed further letters rogatory to the Hungarian authorities. A reply

was received on 30 April 1990 and a second reply on 9 August 1990, following the

Court of Appeal's repeated insistence.

12. On 12 April 1991 the Court of Appeal quashed the judgment of 9 June 1981

and referred the case back to the first instance court.

13. On 16 September 1993 the Vienna Labour and Social Court (Arbeits-und

Sozialgericht) dismissed the applicant's action.

14. On 28 November 1994 the Vienna Court of Appeal dismissed the applicant's

appeal and on 22 November 1995 the Supreme Court dismissed the applicant's

appeal on points of law.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

case has not been heard within a reasonable time.

B. Point at issue

16. 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

17. 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 ... hearing within a reasonable time by (a) ... tribunal ..."

18. The proceedings in question concerned the applicant's dismissal as

employee under a private law contract by the Austrian Embassy in Hungary and her

claim for compensation. 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.

19. These proceedings, which began on 22 August 1979 and ended on 22 November

1995, have lasted sixteen years and three months.

20. The Commission recalls that the reasonableness 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

H.R., Vernillo v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,

para. 30). In this instance the circumstances call for an overall assessment

(see Eur. Court HR, Boddaert v. Belgium judgment of 12 October 1992, Series A

no. 235-D, p. 82, para. 36).

21. The Government submit that the case had been particularly complex as it

involved difficult questions of Hungarian law which was applicable in the

present case and which the Austrian courts could only resolve after having

obtained the necessary information from the Hungarian authorities. The Austrian

courts have dealt with the applicant's case without undue delay. Delays which

occurred in the proceedings were not attributable to the Austrian courts as the

Hungarian authorities had acted on letters rogatory only after considerable time

had passed and after they had been repeatedly urged to do so by the Austrian

courts. Also the applicant's conduct had prolonged the proceedings as she had

failed four times to participate in court hearings so that the proceedings

consequently had become dormant for some time.

22. The Commission finds that the case was relatively complex as it involved

questions of Hungarian law and in order to resolve these issues the Austrian

courts had to rely on information from Hungarian authorities. The Commission

also finds that the Austrian courts were not responsible for delays caused in

the proceedings by belated replies to letters rogatory addressed to the

Hungarian authorities and by the applicant's conduct. Though these

circumstances contributed to the length of the proceedings they cannot explain

the overall length of more than sixteen years.

23. The Commission observes in particular that after the Supreme Court, on 9

November 1982, had quashed the judgment given in the first set of proceedings it

took the Regional Court and then the Court of Appeal more than eight years

before, on 12 April 1991, the Court of Appeal decided again on the applicant's

appeal against the judgment of 9 June 1981. Even then the applicant's claim was

not determined but her case was referred back to the court of first instance and

a new set of proceedings, involving three levels of jurisdiction, commenced,

which again lasted for more than four and half a year.

24. The Commission reaffirms that special diligence is necessary in employment

disputes and 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 H.R., Vocaturo v. Italy judgment of 24 May 1991,

Series A no. 206-C, p. 32, para. 17).

25. 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

26. The Commission concludes, unanimously, that 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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BASTA v. AUSTRIA

BASTA v. AUSTRIA

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