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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22770/93

Adolf Stifter

against

Austria

REPORT OF THE COMMISSION

(adopted on 26 June 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-8). . . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 9-14).. . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 15-24). . . . . . . . . . . . . . . . . . . . . . . . . . .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. 17-23). . . . . . . . . . . . . . . . . . . . . . . .3

CONCLUSION

(para. 24). . . . . . . . . . . . . . . . . . . . . . . . . .4

APPENDIX: DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION. . . . . . . . . . . . . . . . . . . . . .5

I. INTRODUCTION

1. The present Report concerns Application No. 22770/93 introduced

on 9 May 1990 against Austria and registered on 14 October 1993.

2. The applicant is an Austrian national born in 1938 and resident

in Wolfurt.

3. The applicant is represented before the Commission by Mr. W. L.

Weh, a lawyer practising in Bregenz.

4. The respondent Government, Austria, are represented by their

Agent, Ambassador F. Cede, head of the International Law Department at

the Federal Ministry for Foreign Affairs.

5. The application was communicated to the Government on

5 July 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 29 November 1995. The

remainder of the application was declared inadmissible. The decision

on admissibility is appended to this Report.

6. 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 26 June 1996 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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

the facts found disclose a violation of the Convention by Austria.

8. 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

9. The applicant was involved in a car accident in March 1971. A

request for an invalidity pension (Versehrtenrente) was refused by the

Accident Insurance Office (Allgemeine Unfallversicherungsanstalt) on

18 December 1973, and the applicant's action before the Social

Insurance Arbitration Court (Schiedsgericht der Sozialversicherung) was

dismissed on 23 July 1976.

10. On 23 September 1983 the applicant made a second application for

an invalidity pension to the Accident Insurance Office because of

further consequences allegedly arising from the accident. The

application was refused by the Office on 25 October 1983 on the ground

that the applicant's ailments were not attributable to the accident.

11. On 26 January 1984 the applicant brought an action before the

Feldkirch Regional Court (Landesgericht) in its capacity as Labour and

Social Court.

12. The Regional Court heard the parties and took evidence from two

experts and also considered the court file from the earlier proceedings

before the Social Insurance Arbitration Court. A hearing was held.

The Regional Court dismissed the action on 18 August 1988, finding that

there was no reason to call further evidence as the injuries alleged

by the applicant could not be causally linked to the accident in 1971.

The applicant appealed.

13. On 18 October 1989 the Innsbruck Court of Appeal

(Oberlandesgericht) rejected the applicant's appeal, in which he had

alleged, inter alia, that the Regional Court had not dealt adequately

with the private experts' reports he had submitted. It noted that the

applicant's own expert report had been sent to the team of doctors who

had examined the applicant over a period of five days from 2 to 7 March

1987, and that the head of the team had confirmed that his team had

considered the matter raised (the question of whether the functioning

of the applicant's brain stem had been examined). The Court of Appeal

commented that this report had been prepared after the applicant had

stayed in hospital for several days, that it was comprehensive and

coherent, and that it could not be the function of an expert report to

keep examining a person until a conclusion was reached which was in the

plaintiff's favour.

14. The Supreme Court (Oberster Gerichtshof) rejected the applicant's

further appeal (Revision) on 23 January 1990. It noted that

allegations of procedural errors at first instance which had been

refuted by the appeal court could not be raised in a further appeal,

and it also noted that a further appeal could not be used to challenge

the assessment of the evidence by the courts of fact. The applicant

received the judgment on 8 March 1990.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

16. 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 (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 an action brought by the

applicant to determine his second application for an invalidity

pension. It has not been suggested that proceedings were not "civil"

in character (and see, in any event, Eur. Court H.R., Salesi judgment

of 26 February 1993, Series A no. 257-E, p. 59, para. 19). 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 26 January 1984 and ended on

8 March 1990, lasted over six years.

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 judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

21. According to the Government, the length of the period in question

was due to the complexity of the case because of the complex medical

issues which required the courts to consider numerous and in part

contradictory medical reports, and because of the need for a detailed

medical examination of the applicant. They also pointed to the

applicant's conduct, in particular in connection with medical

examinations and the unclear submissions he made.

22. The Commission notes that the case ultimately concerned only the

state of the applicant's health, and cannot be considered as

particularly complex. The applicant's conduct is not in itself

sufficient to explain the length of the proceedings. The Commission

notes that the applicant made his second request for an invalidity

pension to the Feldkirch Regional Court on 26 January 1984 and received

the Supreme Court's judgment of 23 January 1990 on 8 March 1990.

23. 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

24. The Commission concludes, unanimously, that there has been a

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

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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STIFTER v. AUSTRIA

STIFTER v. AUSTRIA

LEXI