Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 18823/91

B. E.

against

Austria

REPORT OF THE COMMISSION

(adopted on 6 April 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 15) . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5 - 10) . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11 - 15) . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 66) . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 67 - 84) . . . . . . . . . . . . . . . . . . .7

A. Complaint declared admissible

(para. 67) . . . . . . . . . . . . . . . . . . . .7

B. Point at issue

(para 68) . . . . . . . . . . . . . . . . . . . . .7

C. Compliance with Article 6 para. 1 of the Convention

(paras. 69 - 83). . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 84) . . . . . . . . . . . . . . . . . . . . . . .9

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . 10

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . 11

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Austrian citizen born in 1940 and resident

in Linz. She is represented before the Commission by Mr. Helmut Blum

a lawyer practising in Linz.

3. The application is directed against Austria. The respondent

Government were represented by its Agent, Ambassador Helmut Türk,

Deputy Secretary General and Legal Counsel of the Federal Ministry of

Foreign Affairs.

4. The case concerns a complaint of the length of civil proceedings

relating to an action for damages against a dentist. The applicant

invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 3 May 1991 and registered on

19 September 1991.

6. On 13 January 1992 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.

7. The Government's observations were submitted on 22 April 1992.

The applicant replied on 10 June 1992.

8. On 8 January 1993 the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention. It

declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 25 January 1993 and they were invited to submit such

further information or observations on the merits as they wished. No

further observations on the merits of the complaint concerning the

length of the civil proceedings were submitted subsequent to the

decision declaring this complaint admissible.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C. The present report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

12. The text of this Report was adopted on 6 April 1994 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under the

Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. On 17 March 1980 the applicant underwent surgical treatment by

a dentist and was accidentally injured as a consequence of the

loosening of a part of a dental drill in action. The blast of the

drill caused the applicant an aero-embolism (Luftemphysem).

17. On 16 March 1983 the applicant brought an action for damages

against the dentist, the efforts to reach a friendly settlement with

the dentist's insurance company having failed.

18. On 5 April 1983 the competent Regional Court (Landesgericht) in

Linz held a first hearing before Judge Z. The defendant applied to

dismiss the action and was ordered to submit his observations before

29 April 1983.

19. On 18 April 1983 the defendant submitted his memorial and on

1 June 1983 another hearing took place and the Court decided to take

expert evidence. The applicant requested that no doctor from the Linz

area be chosen as an expert. Subsequently the applicant submitted

various documents relating to her treatment after the incident of

17 March 1980 and requested to hear Drs. H. and E.

20. On 29 July 1983 the court requested several expert opinions to

be submitted, namely by Dr. R. St., oral surgeon, Vienna, Dr. H. Sch.,

ophthalmologist, Vienna, and Dr. P. St. expert in medical equipment,

Vienna. Previously, on 16 June 1983 the court had issued orders for

the procurement of the applicant's case history and x-rays from two

hospitals.

21. On 7 September 1983 the court requested the hospitals in which

the applicant was treated to submit further documents.

22. On 28 September 1983 the applicant submitted supplementary

observations and requested the court to obtain further evidence.

23. On the same day the court issued an order for the procurement of

further medical documents.

24. On 2 January 1984 the applicant requested that two doctors be

heard as witnesses.

25. On 4 April 1984 another judge who had taken over the case

decided to appoint Dr. T., Salzburg, expert in oral surgery.

26. On 24 April 1984 the applicant objected to the appointment of

Dr. T.

27. On 25 April 1984 another expert, Professor St., Vienna, oral

surgery, was appointed and the file submitted to him.

28. On 13 July 1984 Professor St. submitted his expert opinion

according to which the defending dentist could not be blamed for the

incidents which caused the applicant's injury which in any event,

according to the expert opinion, had not caused any long-lasting after-

effects.

29. On 16 July 1984 Professor Dr. Sch., ophthalmologist, was

appointed and the file submitted to him.

30. On 7 August 1984 Professor Sch. submitted his expert opinion

according to which the applicant's optic nerves were not impaired by

the incidents in question.

31. Meanwhile a new judge had taken over the case.

32. On 5 September 1984 the applicant requested that the expert

opinions be discussed and certain documents be obtained by the court

as evidence.

33. On 7 February 1985 the applicant suggested that four witnesses

should be heard, namely S.E., Dr. H. M.-Sch., Dr. F.W., and Dr. H.M..

34. On 12 April 1985 a technical expert in electrical engineering,

Dr. St., was appointed by the court.

35. On 25 April 1985 expert Dr. St. declared that he was not

competent to answer questions relating to precision mechanics.

36. On 29 April 1985 an expert in electrical engineering, Mr. H. was

appointed.

37. On 5 June 1985 this expert returned the file declining to take

on the matter due to overwork.

38. On 14 June 1985 another technical expert, Mr. K., Salzburg, was

appointed and the file sent to him on 5 July 1985.

39. On 4 November 1985 expert K. submitted his expert opinion

according to which the defendant had acted carelessly when treating the

applicant on 17 March 1980.

40. On 11 November 1985 the court ordered the expert opinion to be

served on the parties with the invitation to submit observations.

41. On 8 January 1986 an oral hearing was fixed for 25 March 1986.

42. On 25 March 1986 another hearing took place before Judge H. The

expert opinions were not discussed, nor were any witnesses heard. Only

documentary evidence was discussed and questions put to the applicant.

43. On 23 May 1986 the Regional Court made a rogatory request to the

District Court (Bezirksgericht) Innere Stadt Wien for the hearing of

the experts Dr. St. and Dr. Sch.

44. The two experts were heard by the District Court on 9 July 1986

(Dr. St.) and 18 December 1986 (Dr. Sch.) respectively.

45. On 11 March 1987 the Vienna District Court returned the file to

the Linz Regional Court where meanwhile a new judge had taken over the

case.

46. On 29 April 1987 an oral hearing was fixed for 7 July 1987.

47. On 15 June 1987 the oral hearing had to be postponed until

7 October 1987 due to the judge's workload.

48. By 30 September 1987 a new judge took over the case and postponed

the oral hearing sine die.

49. On 9 October 1987 the applicant extended her claim

(Klageerweiterung).

50. On 30 December 1987 the applicant's counsel requested that

another oral hearing be fixed and on 27 January 1988 he requested that

the expert opinions be further discussed.

51. On 11 January 1988 an oral hearing was fixed by the new judge for

February 1988 and the applicant was requested to submit an income

certificate concerning her husband.

52. On 4 February 1988 an oral hearing took place and a witness S.E.

and the parties were heard. The court decided to withdraw legal

aid.

53. On 16 February 1988 the applicant submitted further documents.

54. Judgment was given on 8 July 1988 but not communicated to the

applicant before 9 November 1988.

55. Both parties appealed.

56. The Court of Appeal granted the applicant's appeal and referred

the case back to the first instance for the taking of further evidence.

The appellate court's judgment was rendered on 14 June 1989 and served

on the applicant on 2 August 1989.

57. On 5 October 1989 the applicant extended her claim.

58. On 18 January 1990 the case was again heard at first instance.

Subsequently a new judge took over the case. Dr. K.J. was appointed

expert. The oral hearing was adjourned until 20 February 1990 as some

witnesses could not attend the hearing.

59. On 26 January and 12 February 1990 respectively two doctors

informed the court that they were not available on 20 February 1990.

60. On 14 February 1990 the oral hearing was postponed.

61. On 22 March 1990 an oral hearing was fixed for 9 October 1990.

62. On 9 October 1990 at an oral hearing the defendant was heard as

well as four witnesses and the expert opinions were discussed and

supplemented by three experts.

63. On 14 December 1990 the Regional Court dismissed the applicant's

remaining claims. This judgment was served on 28 December 1990.

64. The applicant appealed.

65. On 8 May 1991 the appeal was rejected by the Court of Appeal

(Oberlandesgericht) in Linz. The decision of the Court of Appeal was

served on the applicant on 31 May 1991.

66. The applicant then lodged an extraordinary appeal on points of

law to the Supreme Court (Oberster Gerichtshof). This appeal was

rejected by a decision of 18 September 1991, served on the applicant

on 10 October 1991.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

67. The Commission declared admissible the applicant's complaint

about the length of the civil proceedings relating to her action for

damages against a dentist.

B. Point at issue

68. The only point at issue is whether the length of the civil

proceedings complained of exceeded "reasonable time" referred to in

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

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

69. Article 6 para. 1 (Art. 6-1) of the Convention provides that:

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

everyone is entitled to a .... hearing within a reasonable time

by (a)... tribunal ... "

70. The applicability of Article 6 para. 1 (Art. 6-1) is not in

dispute.

71. The proceedings in question were started on 16 March 1983 and

ended, as was not contested by the respondent Government, with the

Supreme Court's decision rejecting the applicant's extraordinary

appeal. This decision was served on the applicant on 10 October 1991.

The proceedings thus lasted 8 years and almost 7 months.

72. The reasonableness of the length of proceedings is to be

determined principally on the basis of the following criteria: the

complexity of the case, the attitude of the parties and the manner in

which the competent authorities dealt with the case (see Eur. Court

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

para. 30).

73. The respondent Government argue that the proceedings in question

concerned a complex matter as the causes of the applicant's injuries

and their consequences could only be determined with the help of

various medical experts. As the applicant had objected to the

appointment of experts working in the district of Linz, experts had to

be chosen in Vienna and the files had to be sent to them.

74. The Government consider the length of the proceedings as being

due mainly to the applicant's own behaviour as she repeatedly requested

the taking of new evidence or repeatedly submitted new documents. It

is pointed out in this context that the medical experts had come to the

conclusion that the defendant dentist caused the applicant's injury by

negligence but on the other hand they denied a causal link between the

applicant's subsequent complaints and the incident of 17 March 1980.

Consequently, so it is argued, a decision could have been taken after

the hearing of 25 March 1986, had the applicant not herself again

requested the taking of further evidence.

75. As to the handling of the matter by the courts it is admitted

that in first instance five different judges dealt with the matter

consecutively and that each of them of necessity needed some time to

familiarise himself with the complex matter. The frequent change of

judges is explained by the fact that the first judge retired whilst the

others were allocated new responsibilities which did not allow them to

continue dealing with the applicant's matter. In 1988 the judge had

to be replaced in order to expedite the proceedings. The delay between

the pronouncement of the first instance judgment and its communication

to the parties is explained partly by the workload of the judge and the

secretariat and partly by an inadvertence on the part of the court's

registry.

76. The fact that between March 1987 and 4 February 1988 no hearing

took place is also mainly explained by the judge's workload. Delays

in 1990 are mainly explained by the necessity to hear four experts at

the same time. Therefore the date of the hearing had to be fixed a

long time in advance.

77. In view of all the circumstances the Government conclude that the

matter was decided within a reasonable time.

78. The applicant first denies that the proceedings concerned a

complex matter. She blames the court's manner of dealing with the

matter for the delays, pointing out that the court of appeal referred

the matter back to the first instance court as it considered that not

all relevant evidence had been collected.

79. The applicant denies having delayed the proceedings by filing new

requests for the taking of evidence. She alleges that all relevant

applications for the taking of evidence were submitted right at the

beginning of the proceedings but that she had to repeat them again and

again as the court did not deal with them. She maintains that if the

proceedings had been conducted properly and the judge dealing with the

matter had not been replaced so often a first instance decision could

have been given on 25 March 1986.

80. Agreeing with the respondent Government the Commission considers

that in view of the necessity of obtaining various expert opinions the

case was of a certain complexity.

81. As to the handling of the case by the parties, it is true that

the conduct of civil litigation is largely dependent on their

collaboration. Nevertheless, the judicial authorities remain

responsible for ensuring that the matter is dealt with expeditiously

(c.f. Eur. Court H.R., Martins Moreira judgment of 26 October 1988,

Series A No. 143, p. 17, para. 46). In any event the Commission cannot

find that the applicant's repeated requests for the obtaining of

additional evidence were prompted by other reasons than the justified

interests of defending her case in the best possible manner.

82. As to the handling of the matter by the judicial authorities, the

Government admit that certain delays were due to the frequent changes

of judges. Convincing reasons for some of these changes have not been

given by the respondent Government. To the extent that the judges in

question were needed to deal with other cases, it has to be pointed out

that Article 6 para. 1 (Art. 6-1) imposes on the Contracting States the

duty to organise their legal systems in such a way that their courts

can meet each of its requirements (cf, inter alia, Eur. Court H.R.,

Barbagallo judgement of 27 February 1992, Series A no. 230, p. 92,

para. 18).

83. Noting that there were periods of inactivity, such as from

March 1987 until 4 February 1988 and from 18 January 1990 until

9 October 1990, which are not convincingly explained by the respondent

Government, the Commission considers that, judged globally in the light

of the above-mentioned criteria and the particular circumstances of the

present case, the length of the proceedings in question exceeded the

"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the

Convention.

CONCLUSION

84. 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

3 May 1991 Introduction of the application

19 September 1991 Registration of the application

Examination of Admissibility

13 January 1992 Decision of the Commission to

invite the Government to submit

observations on the admissibility

and merits of the application

22 April 1992 Government's observations

10 June 1992 Applicant's observations in reply

8 January 1993 Commission's decision declaring

complaint on length of proceedings

admissible

Examination of the merits

25 January 1993 Decision on admissibility

transmitted to the parties

11 May 1993 Commission's consideration of

application with a view to a

3 September 1993 friendly settlement

6 April 1994 Commission's deliberations on the

merits, final vote and adoption of

the Report

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B.E. v. AUSTRIA

B.E. v. AUSTRIA

LEXI