Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

APPLICATION No. 15207/89

S.

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 1 April 1992)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 9) . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 10 - 17) . . . . . . . . . . . . . . . . 3

A. Complaint declared admissible

(para. 10) . . . . . . . . . . . . . . . . 3

B. Point at issue

(para. 11) . . . . . . . . . . . . . . . . 3

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

(paras. 12 - 17) . . . . . . . . . . . . . 3

CONCLUSION. . . . . . . . . . . . . . . . . . . . 4

APPENDIX : Decision on the admissibility of the application 5

I. INTRODUCTION

1. The present report concerns Application No. 15207/89 by

S. against Austria, introduced on 7 May 1987 and registered on

10 July 1989.

The applicant, born in 1920, is an Austrian national and

resident 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 8 January 1991 the application was referred to

the Second Chamber. Following an exchange of memorials, the

complaint relating to the length of proceedings (Article 6 para. 1

of the Convention) was declared admissible on 14 October 1991. The

decision on admissibility is appended to this Report.

The Government have made further submissions on

18 November 1991; the applicant submitted further observations on

27 November 1991.

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 (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

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

4. In this report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the

Austrian Government.

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 26 September 1977 the applicant instituted proceedings

before the Vienna Labour Court (Arbeitsgericht) against his former

employer claiming outstanding salary and compensation in various

respects. He later amended his claims with regard to commissions

due for several periods of time.

7. On 25 April 1984 the Vienna Labour Court, having held several

hearings and taken in particular expert evidence, ordered the

defendant to pay the applicant about AS 276,856 (gross) as well as

AS 1,460 (net) with interest, and dismissed the remainder of the

action.

8. In appeal proceedings before the Vienna Regional Court

(Landesgericht), the judgment was quashed and the case sent back to

the Labour Court in April 1985. The second set of proceedings

before the Labour Court terminated on 3 March 1986. In further

appeal proceedings before the Vienna Court of Appeal

(Oberlandesgericht), the case was sent back to the Vienna Labour

Court as regards parts of the applicant's claims, while the

dismissal of the remainder of the claims was confirmed.

9. On 21 October 1987 the Austrian Supreme Court (Oberster

Gerichtshof), upon the applicant's appeal, held in a final judgment

(Endurteil) that the defendant had to pay the applicant about

AS 240,739 (gross) and AS 445,797 (net), both amounts with interest.

It dismissed the remainder of the claims and counter-claims. The

Supreme Court considered in particular that, on the basis of

proceedings of eight years and four expert opinions, only low

amounts of the applicant's commission claims had been clearly

established by the lower courts. Proceedings to clarify the exact

amounts would entail an expenditure which could not be justified.

The Supreme Court therefore assessed the applicant's commission

claims as it saw fit (nach freier Ãœberzeugung), in accordance with

S. 273 of the Austrian Code of Civil Procedure (Zivilprozeßordnung).

The judgment was served upon the applicant on 19 November 1987.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

10. The Commission has declared admissible the applicant's

complaint that his case was not heard within a reasonable time.

B. Point at issue

11. 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

12. 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 ..."

13. The proceedings in question concerned the applicant's claims

of outstanding salary, commissions and other compensation matters

against his former employer. 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.

14. These proceedings, which began on 26 September 1977 and ended

on 19 November 1987, lasted ten years.

15. 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).

16. According to the Government, the length of the period in

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

conduct.

17. The Commission finds that the labour court proceedings at

issue concerned various commission and compensation claims and were

of some complexity as regards the establishment of the relevant

facts. The applicant's conduct is not in itself sufficient to

explain the length of the proceedings. As regards the conduct of

the Austrian judicial authorities, the Commission notes in

particular that the first set of proceedings before the Vienna

Labour Court lasted almost seven years, a considerable time being

consumed in taking expert evidence. In this respect, the Commission

refers to the reasoning of the Austrian Supreme Court in its

judgment of 21 October 1987, assessing the remaining claims as it

saw fit, in accordance with the Austrian Code of Civil Procedure.

The Commission considers that no convincing explanation of the delay

has been advanced by the respondent Government.

18. 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

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

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

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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