Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

APPLICATION No. 15198/89

Johann BUCHINGER

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 1 July 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 18) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 19 - 30). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 19) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Point at issue

(para. 20) . . . . . . . . . . . . . . . . . . . . . . . 4

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

(paras. 21 - 29) . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 30). . . . . . . . . . . . . . . . . . . . . . . . . . 5

APPENDIX Decision on the admissibility of the application . . . . 6

I. INTRODUCTION

1. The present report concerns Application No. 15198/89 by

Johann Buchinger against Austria, introduced on 7 April 1989 and

registered on 4 July 1989.

The applicant, born in 1950, is an Austrian national and resident in

Vienna. Since 20 September 1990 he has been represented by

Mrs. I. Preclik, a lawyer practising in Vienna.

The Austrian Government are represented by their Agent,

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

Federal Ministry of Foreign Affairs.

2. The application was communicated to the Government on

9 November 1989. On 16 March 1990 the Commission decided to grant the

applicant free legal aid. On 8 January 1991 the application was

referred to a Chamber. Following an exchange of memorials, the

complaint relating to the length of labour court proceedings

(Article 6 para. 1 of the Convention) was declared admissible on

13 January 1992. The decision on admissibility is appended to this

Report.

The Government have made further submissions on 26 February and

8 May 1992; the applicant submitted further observations on 28 February

and 8 May 1992.

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 in accordance with Article 31 para. 1

of the Convention, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

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. 1 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. On 17 March 1981 the applicant lodged an action with the

St. Pölten Labour Court (Arbeitsgericht) against his parents, claiming

AS 1.203.703 with interest. He submitted that from July 1964 until

August 1979 he had gratuitously worked on his parents' farm as

agriculturist. He had been promised that he would later take over the

farm. However, in August 1979 his parents had stated that they were

passing the farm on to his sister and her family.

7. In June 1981 the applicant was granted legal aid, and counsel was

appointed. The applicant increased his claim to AS 3,942,829. From

June 1982 until January 1983, the proceedings were suspended in view

of private settlement negotiations between the parties. At a later

stage, the applicant's sister and her husband joined the proceedings

as co-defendants.

8. On 23 January 1984 the St. Pölten Labour Court ordered the

defendants to pay the applicant AS 166.659 with interest, and dismissed

the remainder of the action. The applicant was ordered to pay the

defendants' legal expenses of AS 69,993 and the co-defendants' legal

expenses of AS 180,656. The Labour Court, having heard the parties and

taken evidence, found that the applicant had worked on his parents'

farm from 1964 until 1979. He had had free board and lodging, and

clothing, several cars and other goods of daily living had been

financed by his parents. He had also received proceeds after the sale

of cattle on several occasions, but no regular payment for his work.

The Court assessed the applicant's claims for payment with regard to

scales of minimum wages in the years concerned, and calculated a total

claim of AS 184,659. It deducted the defendants' counterclaim of

AS 18,000. The written judgment was served on 6 July 1984.

9. On 30 July 1984 the applicant lodged an appeal (Berufung).

10. On 2 October 1984, following information by the applicant's

counsel about doubts as regards the applicant's capacity to sue, the

St. Pölten Regional Court postponed the hearing sine die and submitted

the files to the Hietzing District Court (Bezirksgericht) for opening

of guardianship proceedings. On 23 April 1985 the District Court

informed the St. Pölten Regional Court that the guardianship

proceedings had been discontinued on 1 April 1985. On 4 June 1985 the

files were received at the Regional Court.

11. The appeal proceedings were suspended in view of private

settlement negotiations from 2 July until 10 October 1985.

12. As from October 1985 the Regional Court proceeded to the taking

of evidence. In particular, on 27 May 1986 the Regional Court decided

to take expert evidence on the questions of how many working hours per

year in the period from 1964 until 1979 had been necessary to manage

the defendants' and co-defendants' farm, whether initiatives taken by

the applicant during that period had resulted in higher production, and

as regards the profitability of the farm in the period concerned.

13. On 10 September 1986 the applicant reduced his claims to

AS 1,700,415.

14. On 12 December 1986 the expert opinion as well as a supplement

were received by the Regional Court.

15. On 30 December 1986 the files were transmitted to the Vienna

Court of Appeal (Oberlandesgericht), which had become competent under

a 1985 amendment of the Labour- and Social Courts Act (Arbeits- und

Sozialgerichtsgesetz).

16. On 29 September 1987 the Vienna Court of Appeal held an oral

hearing and heard in particular the expert B. The applicant's requests

to take further evidence were dismissed. In its written judgment of

the same date, the Court of Appeal, upon the applicant's appeal,

amended the Labour Court's judgment to the effect that the defendants

were ordered to pay the applicant AS 400.000 with interest. The

remainder of the appeal was dismissed. The Court of Appeal, having

heard the parties and again established the facts, found that the

applicant should be compensated for his gratuitous work and reassessed

the amounts due with regard to collective agreements on wages for

agricultural workers, the profitability of the farm and the payments

in kind which the applicant had obtained. The judgment was served on

10 February 1988.

17. In March 1988 both parties lodged appeals on points of law

(Revisionen) against the judgment of 29 September 1987.

18. On 13 July 1988 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's appeal on points of law. Upon the

defendants' appeal on points of law, the previous judgments were

amended to the effect that the defendants were ordered to pay the

applicant AS 283,530 with interest; that the remainder of the

applicant's claim was dismissed and that the applicant had to

compensate the defendants' procedural costs of about AS 500,000. The

remainder of their appeal on points of law was dismissed. The Supreme

Court found that the Court of Appeal had incorrectly assessed the

amount of payments due in taking overtime into account, which did not

follow from the needs of the farm in question. The decision was served

on 14 October 1988.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

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

complained of exceeded the "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

21. 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 ..."

22. The proceedings in question concerned the applicant's

compensation claims against his parents in respect of gratuitous work.

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.

23. These proceedings, which began on 17 March 1981 and ended on

14 October 1988, lasted seven and a half years.

24. 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, para. 30).

25. The respondent Government consider that the applicant, by

conducting friendly settlement negotiations in 1985 showed that he was

not interested in receiving a judgment speedily. They maintain that

the Commission could not, therefore, find a violation based on earlier

periods of inactivity. The subsequent periods could not be regarded

as unreasonably long. In any event, the length of the period in

question was due to the complexity of the case and the applicant's

conduct.

26. The Commission recalls that the proceedings concerned the

applicant's action against his parents to have his gratuitous work on

their farm in the period from 1964 until August 1979 compensated. The

Austrian courts had to establish factual issues such as the applicant's

performance and allocations given to him during that period as well as

the development of wages in the agricultural sector, which required the

taking of expert evidence. The case was thus of some complexity.

27. The Commission considers that the applicant's conduct is not in

itself sufficient to explain the length of the proceedings.

It notes that, in the course of the proceedings at first and second

instance, the parties conducted friendly settlement negotiations, and,

for this purpose, twice asked for a suspension of the proceedings,

which lasted about seven months (June 1982 until January 1983) and

three months and one week (July until October 1985), respectively. In

the particular circumstances of the present case, which concerned a

dispute between family members, and given the short duration of the

suspension in the course of the appeal proceedings, the conduct of the

parties and especially the applicant do not disclose any lack of

interest in a termination of the proceedings within a reasonable time.

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

Commission notes in particular that the proceedings before the

St. Pölten Labour Court lasted from 17 March 1981 until 6 July 1984,

i.e. more than three years and three months. The appeal proceedings

before the St. Pölten Regional Court and, subsequently, the Vienna

Court of Appeal were terminated on 10 February 1988, i.e. about three

years and six months later. The proceedings concerning the parties'

appeals on points of law lasted about seven months. The Commission

considers that no convincing explanation of the length of the

proceedings at first and second instance has been advanced by the

respondent Government.

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

regard to all the information in its possession, the Commission 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

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

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

Secretary to Acting President of

the First Chamber the First Chamber

(M. de SALVIA) (E. BUSUTTIL)

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BUCHINGER v. AUSTRIA

BUCHINGER v. AUSTRIA

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