Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

APPLICATION No. 13715/88

Friedrich Wilhelm KREMZOW

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 8 January 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7 - 25) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 26 - 45). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaints declared admissible

(para. 26) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Points at issue

(para. 27) . . . . . . . . . . . . . . . . . . . . . . . 4

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

(paras. 28 - 39) . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 6

D. Article 13 of the Convention

(paras. 41 - 42) . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 6

E. RECAPITULATION

(para. 44 - 45). . . . . . . . . . . . . . . . . . . . . 6

CONCURRING OPINION of Mr. H.G. SCHERMERS. . . . . . . . . . . 7

APPENDIX : Decision on the admissibility of the application . . . . 8

I. INTRODUCTION

1. The present Report concerns Application No. 13715/88 by

Friedrich Wilhelm Kremzow against Austria, introduced on 7 March 1988

and registered on 29 March 1988.

2. The applicant, born in 1938, is an Austrian national. At present

he is serving a life sentence for murder at the prison of

Vienna-Mittersteig. The applicant was first represented by

Mr. G. Neufeldt-Schoeller, a lawyer practising in Vienna. Since

24 February 1989 he has been represented by Mr. W.L. Weh, a lawyer

practising in Bregenz. On 31 May 1992 Mr. H. Mühlgassner, a lawyer

practising in Vienna, also presented himself as applicant's counsel.

The Austrian Government are represented by their Agent,

Ambassador H. Türk, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

3. The application was communicated to the Government on

12 June 1989. On 2 September 1991 the application was referred to a

Chamber. Following an exchange of memorials, the applicant's

complaints under Article 6 para. 1 and Article 13 of the Convention

relating to the length of civil proceedings were declared admissible

on 10 September 1991. The decision on admissibility is appended to

this Report.

The applicant submitted further observations on 31 May 1992.

With a view to securing a friendly settlement of the case,

consultations took place with the parties between 13 September 1991 and

22 October 1992.

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 (Second Chamber), after

deliberating, adopted this Report in accordance with Article 31 para. 1

of the Convention, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

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

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

6. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with

Article 31 para. 1 of the Convention.

II. ESTABLISHMENT OF THE FACTS

7. On 28 September 1979 an Austrian banking institute brought an

action against the applicant in the Vienna Regional Court

(Landesgericht), claiming repayment of a credit of AS 231,113 plus

13.5% interest as from 1 January 1979.

8. On 31 October 1979 the Regional Court, by a judgment in default

(Versäumungsurteil), allowed the claim.

9. On 9 November 1979 the judgment was served upon the applicant by

deposit at the local post office of his place of residence on the

ground that he could not be reached at home. On 26 November 1979 the

Vienna Regional Court proclaimed the binding force and enforceability

of the judgment concerned. The deposited judgment was returned by the

post office as not claimed.

10. Subsequently, in November or December 1984, in the context of

criminal proceedings instituted against him in 1982 on a charge of

murder, the applicant heard about the above judgment.

11. On 20 May 1985 the applicant requested the Vienna Regional Court

to send him a copy of the above judgment. The judgment was served upon

the applicant in prison on 31 May 1985.

12. On 17 June 1985 the applicant filed an objection (Widerspruch)

and an appeal (Berufung) against the judgment of 31 October 1979. He

submitted in particular that the initial notification of the judgment

was ineffective as he had been absent from his domicile. Furthermore,

the judgment was tainted with nullity as he had suffered from mental

illness at the relevant time and had not been represented in the

proceedings.

13. In the course of these appeal proceedings, following reminders,

the applicant was granted legal aid. He was represented successively

by three counsel.

14. On 18 March 1986 the Regional Court, having made inquiries

concerning the applicant's absence from his domicile in 1979,

transmitted his remedies to the competent Vienna Court of Appeal

(Oberlandesgericht).

15. On 30 March 1987 the Vienna Court of Appeal returned the files

to the Regional Court with a request to clarify the question of the

applicant's capacity to take part in court proceedings in 1979.

16. Relevant documents on this issue were obtained from other files

in April and May 1987.

17. Proceedings instituted by the applicant in July 1987 in which he

claimed compensation under the Official Liability Act

(Amtshaftungsgesetz) for misconduct and delay of the appeal

proceedings, remained unsuccessful.

18. In January 1988, a psychiatric expert was appointed to deliver

an opinion on the question of the applicant's state of mental health

in 1979. The applicant's appeals as regards the appointment of this

expert and the conduct of the inquiries by the Regional Court were

rejected by the Vienna Court of Appeal on 29 July and 5 August 1988,

respectively. His further appeal against the Court of Appeal's

judgment of 29 July was dismissed by the Supreme Court (Oberster

Gerichtshof) on 24 December 1988. A renewed request to have the

supplementary investigations conducted by the Court of Appeal was

finally dismissed by the Supreme Court on 18 May 1989. On

6 September 1989 the expert submitted his opinion according to which

the applicant had been capable of participating in court proceedings

in October and November 1979.

19. In December 1988 and January 1989 the President of the Vienna

Court of Appeal, upon the applicant's inquiries, informed him that,

having regard to the work-load of the Court of Appeal, no disciplinary

action had been taken as regards the delay in the proceedings, and that

only one additional post for a judge had been created since 1986.

20. In April 1989, following several requests and reminders of the

applicant since the beginning of 1988, the Regional Court ordered that

a copy of the files be prepared. The files were transferred to the

Vienna Court of Appeal in October 1989.

21. On 7 November 1989 the Vienna Court of Appeal, in camera,

dismissed the applicant's appeal of 17 June 1985, insofar as it

concerned reasons of nullity. The Court of Appeal considered that the

applicant's appeal had been lodged in time. On 9 November 1979 the

applicant had not been at his place of residence where he had only

returned at the end of the month. The service of the judgment

concerned by way of depositing it at the local post office had

contravened S. 104 of the Code of Civil Procedure in the version in

force at that time. Thus the time-limit for lodging an appeal had not

started to run.

22. On 19 December 1989 the Court of Appeal, at a hearing on the

applicant's appeal, informed the parties of its decision of

7 November 1989. The applicant complained about the composition of the

Vienna Court of Appeal. Following the hearing, the Court of Appeal

confirmed the judgment in default of 1979. In its decision, the Court

of Appeal found in particular that the plaintiff's submissions on its

claims, although short, had been sufficient.

23. On 28 June 1990 the Supreme Court declared the applicant's appeal

against the Court of Appeal's decision of 7 November 1989 inadmissible.

Upon the applicant's appeal on points of law (Revision), the Supreme

Court quashed the judgment of 19 December 1989. The Supreme Court

considered in particular that the composition of the Chamber at the

Court of Appeal, which had dealt with the applicant's case, did not

clearly follow from the Court of Appeal's rules on the distribution of

cases (Geschäftsverteilung). The case was sent back to the Vienna

Court of Appeal.

24. On 12 September 1990 the plaintiff institute withdrew its action,

thereby waiving its claim against the applicant.

25. On 18 October 1990 the Vienna Court of Appeal declared the

judgment of 1979 without effect. The decision was served upon the

applicant on 3 December 1990.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

26. The Commission has declared admissible

- the applicant's complaint that his case was not heard within

a reasonable time;

- the applicant's complaint that he had no effective remedy to

complain about the delay in the civil proceedings.

B. Points at issue

27. The points at issue are

- whether there has been a violation of the Article 6 para. 1

(Art. 6-1) of the Convention in that the length of the

proceedings complained of exceeded a "reasonable time" ;

- whether there has been a violation of Article 13 (Art. 13) of

the Convention in that the applicant could not effectively

complain about the delay in the proceedings concerned.

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

28. 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 ..."

29. The proceedings in question concerned an action brought against

the applicant for repayment of a credit. The purpose of the

proceedings was to obtain a decision in a dispute over "civil rights

and obligations", and they accordingly fell within the scope of

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

30. The Government submit that the starting point for the relevant

period to be considered under Article 6 para. 1 (Art. 6-1) is

17 June 1985 when the applicant lodged his appeal against the default

judgment of 31 October 1979. They consider that the Vienna Regional

Court could assume that the proceedings had terminated in

November 1979.

31. The Commission notes that the civil proceedings were brought

against the applicant on 28 September 1979. The applicant learnt about

the judgment of 31 October 1979 in 1984 and lodged an appeal in June

1985. The Vienna Court of Appeal, in its decision of 7 November 1989,

found that the service of the default judgment by way of depositing in

1979 had not been properly effected, and the time for lodging an appeal

had thus not begun to run.

32. In these circumstances, the Commission finds that in June 1985

the applicant did not start new and separate proceedings, but continued

the civil proceedings which had started at first instance in 1979.

Consequently, the period to be considered started on 28 September 1979.

33. These proceedings terminated on 3 December 1990, when the Vienna

Court of Appeal's judgment of 18 October 1990 was served upon the

applicant. The proceedings thus lasted more than eleven years.

34. 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; Salerno judgment

of 12 October 1992, Series A no. 245-D, para. 19).

35. According to the Government, the length of the proceedings was

due to the applicant's conduct, namely his numerous appeals, requests,

and other motions. Thereby the files had to be transferred to other

courts, and the appeal proceedings could not be furthered. Moreover,

following the service of the statements of claims and summons for a

hearing in September 1979, the applicant failed to ask for further

information about the outcome of the proceedings. He asked for a copy

of the judgment only in May 1985, although he had learnt about it in

November or December 1984.

36. The Commission considers that the main subject of the civil

proceedings, i.e. the claim of a banking institute for repayment of a

credit, was not complex. In the course of the appeal proceedings, the

issues of the applicant's capacity to take part in court proceedings

in 1979, and his absence from home in November 1979 appear to have been

of some complexity.

37. As regards the conduct of the parties to the civil proceedings

concerned, particularly the applicant, the Commission finds that the

applicant, as defendant, cannot be held responsible for the delay

caused by the improper service of the default judgment in

November 1979. In the course of the appeal proceedings, the applicant

had resort to numerous remedies, which were partly related to his

complaints about the delay in the proceedings and which do not, on the

whole, appear excessive or abusive. The applicant's conduct thus is

not in itself sufficient to explain the overall length of the

proceedings.

38. As regards the conduct of the Austrian judicial authorities, the

Commission notes in particular that the first important delay of about

five and a half years was caused by the improper service of the default

judgment of 31 October 1979. After the lodging of the applicant's

appeal in June 1985, it took the Vienna Regional Court until

October 1989 to transfer the files to the Court of Appeal after

inquiries concerning the applicant's absence from home in November 1979

and his capacity to take part in court proceedings at that time.

Notwithstanding the applicant's requests, a copy of the court files was

not prepared until April 1989, and the original files were sent to

other courts or authorities on numerous occasions. The conduct of the

Austrian judicial authorities thus caused substantial delays in the

proceedings.

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

regard to all the information in its possession, the Commission

therefore finds that the length of the proceedings complained of

exceeded the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

CONCLUSION

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

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

D. Article 13 (Art. 13) of the Convention

41. The applicant also invokes Article 13 (Art. 13) of the Convention

in relation to his complaint about the length of the proceedings, more

particularly the absence of an effective remedy in this respect.

42. The Commission finds that the essence of the applicant's case has

been dealt with under Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission is therefore not required to make a separate finding

under Article 13 (Art. 13) of the Convention.

CONCLUSION

43. The Commission concludes, unanimously, that no separate issue

arises under Article 13 (Art. 13) of the Convention.

E. Recapitulation

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

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 40);

45. The Commission concludes, unanimously, that no separate issue

arises under Article 13 (Art. 13) of the Convention (para. 43).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

CONCURRING OPINION BY MR. H.G. SCHERMERS

The proceedings against which the present application was brought

can be separated in two parts. (1) The proceedings started on

28 September 1979 and terminated by a judgment in default of

31 October 1979 and (2) the proceedings started by the applicant on

17 June 1985, when he had become aware of the judgment in default, and

terminated on 3 December 1990.

I agree with the majority of the Commission - and with the

Austrian courts - that the two parts which concerned the same issue,

are parts of one and the same case in as far as it concerns the subject

matter. For the sake of length of procedure, however, we must separate

the two parts and treat them as separate proceedings because for that

sake they are not interrelated. The opening date of the second part

of the proceedings solely depends on the factual circumstance when the

judgment in default comes to the attention of its addressee. It has

nothing to do with the proceedings themselves. This re-opening of the

case may be any time after the judgment in default. To include this

time in the length of the proceedings introduces an element of

arbitrariness, which, in my opinion, cannot be justified. In the

Commission's opinion (para. 33) this case took more than eleven years.

Had the applicant been informed about the judgment in default five

years earlier, then the time could have been six years, had he been

informed ten years later, the time would probably have been 21 years.

These different times have no relationship at all to the proceedings.

In my opinion, the time involved is just over one month for the

judgment in default and 5 years and 5½ months for the proceedings after

the applicant's objection, which means more than 5½ years in total.

Finding this too long I agree with the Commission's final conclusion

that Article 6 (1) has been violated, but I do not agree with the

Commission's finding that the case took more than eleven years.

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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA