Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27783/95

by R. T.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 May 1995 by

R. T. against Austria and registered on 4 July 1995 under file

No. 27783/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

11 July 1997 and the observations in reply submitted by the

applicant on 28 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1929, is an Austrian national residing in

Vienna.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. The particular circumstances of the case

On 27 June 1988 the C-Bank filed an action for payment of

AS 8,497 against the applicant on the ground that, following

termination of their contractual relationship, the applicant's current

account showed a debit balance in the above amount.

On 18 July 1988 the Hietzing District Court (Bezirksgericht), in

summary proceedings, issued an order for payment of the above debt

(Zahlungsbefehl) against the applicant. The applicant, represented by

Mr K., filed an objection (Einspruch) which the District Court received

on 5 August 1988.

On 15 November 1988 judge D. at the District Court held a

hearing.

On 30 November 1988 the District Court received notice that Mr K.

no longer represented the applicant. On 2 February 1989 a hearing which

had been scheduled for 9 February 1989 was cancelled. The Government

submit that this was due to the fact that the applicant's

representative had withdrawn from the case, while the applicant submits

that the court was prevented from holding the hearing. Subsequently,

22 December 1989 was set as a date for the next hearing.

On 13 December 1989 the applicant, represented by Mrs O., filed

a counterclaim (Widerklage) requesting compensation of a total amount

of AS 89,543 for loss of interest which had allegedly been caused by

negligent conduct of the bank. He submitted in particular that he had

acted as representative for a certain E., who had taken a loan with the

C-Bank, for which he had mortgaged his property. To avoid the forced

sale of the said property he, the applicant, had taken a loan with the

S-Bank, part of which he used to cover E.'s debt. The C-Bank, however,

had informed him that a permit of the Austrian National Bank

(Nationalbank) was necessary for the transfer. The sum had meanwhile

been deposited in a fiduciary account of a lawyer, who had assigned his

rights as regards interest to the applicant. The applicant alleged that

the C-Bank had failed to request the permit speedily thereby causing

the interest on E.'s debt to increase, which then had to be covered by

the interest accrued on the fiduciary account. Further, he requested

a declaratory decision to the effect that a guarantee he had given to

the C-Bank in relation to E.'s debt was null and void.

On 21 December 1989, the bank filed preparatory submissions

(vorbereitender Schriftsatz) in reply. It denied in particular that

there was a link between the two claims at issue.

On 22 December 1989 judge G. at the District Court held a

hearing.

On 30 March, 24 April and 25 June 1990 judge P. at the District

Court held hearings. The parties presented documentary evidence and the

court heard N. and W., two employees of the C-Bank and K., the lawyer

involved in the case, as witnesses. At the last of these hearings the

Court decided to join the proceedings concerning the bank's claim and

the applicant's counterclaim. It also noted that the C-Bank had

extended their claim, requesting additional payment of AS 14,180 for

which the applicant was allegedly liable on account of his guarantee

for the debt of E.

On 29 June 1990 the District Court decided to adjourn the

proceedings until the judgment in another set of proceedings between

the applicant and E., which was pending before the Vienna Regional

Civil Court (Landesgericht), became final. The applicant filed a

request for reinstatement and an appeal against the above decision.

His request for reinstatement was granted.

On 16 October 1990 the Vienna Regional Civil Court, upon the

applicant's appeal, quashed the decision to adjourn on the ground that,

according to the relevant procedural rules, it had to be taken in the

course of an oral hearing.

On 16 January 1991 Mrs O. informed the District Court that she

no longer represented the applicant. The applicant was subsequently

represented by Mr R.

On 11 April 1991 and 10 October 1991 judge Ed. at the District

Court held further hearings. The applicant was heard as a party and W.

was again heard as a witness. At the latter hearing the Court again

decided to adjourn the proceedings until the judgment of the Vienna

Regional Civil Court in the proceedings between the applicant and E.

became final.

On 4 February 1992 the Vienna Regional Civil Court, upon the

applicant's appeal, quashed the decision and ordered the District Court

to continue the proceedings. It found that the District Court had

wrongly assumed that the proceedings between the applicant and E. would

resolve an incidental question (Vorfrage). The District Court received

the Regional Court's decision on 10 March 1992.

On 1 September 1992 the applicant extended his counterclaim to

a total amount of AS 213,440.

On 6 October 1992 judge Ed. at the District Court, upon the

claimant's request, adjourned a hearing which had been scheduled for

15 October 1992 to 26 January 1993.

On 2 November 1992 the applicant informed the District Court that

he had revoked Mr R.'s power of attorney.

On 18 January 1993 judge Ed. made a request to be replaced as she

considered herself to be biased on account of accusations which the

applicant had made against her. On the same day the President of the

District Court granted her request and assigned the case to judge A.

A hearing which had been scheduled for 26 January 1993 was cancelled.

The applicant was at that time represented by Mrs W.

On 23 February 1993 the District Court received notice that

Mrs W. no longer represented the applicant.

The next hearing was scheduled for 21 June 1993 but had to

postponed to 12 July 1993 upon the claimant's request.

On 17 June 1993 the applicant requested legal aid. Upon the

District Court's request he supplemented it on 1 July 1993.

On 5 July 1993 the District Court dismissed the applicant's

request for legal aid.

On 9 July 1993 Mr H., who had been appointed as the applicant's

representative by the Lawyer's Chamber under S. 10 para. 3 of the

Lawyer's Act (Rechtsanwaltsordnung), (applicable in a case where a

litigant who is not indigent is unable to find a lawyer willing to

represent him), requested that the hearing scheduled for 12 July 1993

be postponed. The applicant claims that he had only requested the

appointment of counsel for this specific request, while the Lawyer's

Chamber appointed Mr H. to represent him in the further proceedings.

On 16 November 1993 the District Court upon the request of Mr H.

postponed the next hearing which had been scheduled for 3 December 1993

to 21 January 1994.

On 18 January 1994 the Mr H requested that the hearing again be

postponed as he had been unable to obtain the necessary information

from the applicant. The District Court dismissed the request. The

applicant submits that he was unaware that Mr H. acted as his counsel

and that the latter had tried to contact him at a wrong address. He

further claims that the summons to appear personally at the hearing of

21 January 1994 was not correctly served on him.

On 21 January 1994 judge A. at the District Court held a further

hearing and admitted the extension of the applicant's counterclaim.

On 25 February 1994 the District Court received notice that Mr H.

no longer represented the applicant.

On 8 April 1994 the applicant requested legal aid. He submitted

a declaration of means (Vermögensbekenntnis). In Section II "Housing

conditions", (Wohnverhältnisse) he stated that he had to pay a monthly

rent of AS 1,234 for his apartment. In Section III "Income"

(Einkommen), he stated that he had no income. According to Section IV

"Assets" (Vermögen) he had no property, no business, AS 347 in cash,

no savings accounts, a current account with a debit balance, and no

other assets. According to Section V "Debts" (Schulden) he had debts

with the S-Bank of AS 850,000 and AS 495,000 with the Sch. limited

company. Finally, under Section VI "Maintenance" he declared that he

did not have any maintenance obligations or claims. The standard form

for this declaration contained a warning that, in case legal aid was

obtained improperly by making false or incomplete statements, a fine

for abuse of process (Mutwillensstrafe) could be imposed.

In his accompanying submissions the applicant stated inter alia

that until September 1993 he had received AS 15,000 per month from the

Sch. limited company. As of 1 October 1993 he was without income and

was moreover obliged to pay back any payments he had received from the

said company. His old-age pension was only due as of 1 September 1994.

Further the applicant stated that he had no relatives and received

support from a few acquaintances.

On 11 April 1994 judge Er. at the District Court ordered the

applicant to provide further information. He was requested, inter alia,

to submit the names and addresses of the persons supporting him, and

to specify the amounts, intervals and means of their payments. Further,

the applicant was requested to submit a number of supporting documents.

On 15 April 1994 the applicant submitted inter alia that he

received AS 200 per week from a certain Mrs F. He also submitted a

number of documents.

On 18 April 1994 the District Court cancelled the date for the

next hearing which had been set for 22 April 1994. It noted that, in

the proceedings at issue, the parties were obliged to be represented

by a lawyer (Anwaltszwang). As the applicant had requested legal aid

and was currently not represented the hearing could not take place.

On 5 May 1994 the District Court dismissed the applicant's

request for legal aid and imposed a fine of AS 30,000 for abuse of

process on him. Referring to the applicant's declaration of means and

his further submissions, it found that the applicant had made

incomplete or false statements. In particular he had declared that he

was without income since 1 October 1993 and only received AS 200 per

week. However, the documents submitted by him showed that he had paid

his rent of AS 1,234 from October 1993 to January 1994. As the payments

received per month did not amount to this sum, it did not follow from

his submissions how he had been able to pay his rent. Finally, the

Court noted that it had fixed the fine in a relatively modest amount

as the applicant had only attempted to improperly obtain legal aid.

On 8 May 1994 the applicant appealed against this decision.

On 28 February 1995 the Vienna Regional Civil Court dismissed the

applicant's appeal. It referred to S. 63 para. 1 of the Code of Civil

Procedure (Zivilprozeßordnung), according to which legal aid had to be

granted to a party whose necessary means of livelihood would be

endangered if he or she had to bear the costs of the proceedings.

According to S. 66 para. 2 of the said Code the party's declaration of

means formed the basis for the court's decision. In case of doubt the

court had to examine the said declaration for instance by requesting

the party for further information and supporting documents.

In the present case, the District Court had rightly rejected the

applicant's request for legal aid. The applicant's submissions that he

had savings which allowed him to pay his rent from October 1993

onwards, constituted new facts, which were inadmissible in the appeal

proceedings. In his request for legal aid he had stated that he had

received no income since 1 October 1993 and depended on the support of

acquaintances. Upon the Court's request to supplement his submissions,

the applicant had specified that he received AS 200 per week as

support. He had not however, stated that he had any savings to cover

his maintenance. The District Court had rightly concluded that he had

made incomplete or false statements and had, thus, failed to show that

the costs of the proceedings would endanger his means of livelihood.

It had also correctly imposed a fine for abuse of process in accordance

with S. 69 of the Code of Civil Procedure.

On 28 March 1995 the District Court issued an order for payment

of the fine for abuse of process.

On 16 August 1995 the District Court, referring to S. 220

para. 3 of the Code of Civil Procedure, noted that an attempt to

collect the fine had been futile and converted the fine into ten days

of imprisonment. The applicant was informed that he could lodge an

appeal against this decision. It appears that the applicant did not

appeal.

On 11 October 1996 judge Z. at the District Court set

30 October 1996 as a date for the next hearing. In the summons the

applicant was informed that he had to be represented by counsel at the

hearing. Should he not be represented he would be considered as being

in default. Upon the claimant's request the hearing was postponed to

2 December 1996.

On 2 December 1996 neither of the parties appeared at the

hearing. Consequently, the proceedings were stayed (Ruhen des

Verfahrens). So far, none of the parties has requested their

continuation.

B. Relevant domestic law

S. 220 of the Code of Civil Procedure (Zivilprozeßordnung)

provides inter alia that a fine for abuse of process may not exceed

AS 40,000 (paragraph 1). In the event of inability to pay, a fine shall

be converted into imprisonment. The length of imprisonment shall be

determined by the court, but may not exceed ten days (paragraph 3).

S. 69 of the Code of Civil Procedure provides that a court shall

impose a fine for abuse of process of up to ten times the amount

provided for in S. 220 para. 1 of the same Code (namely AS 400,000) on

a litigant who obtains legal aid improperly by making false or

incomplete statements.

According to S. 514 of the Code of Civil Procedure an appeal

(Rekurs) lies against any decision of a court, unless it is explicitly

excluded.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings between him and the C-Bank.

2. The applicant complains under Article 6 para. 3 (a) and (b) of

the Convention that the District Court, before imposing the fine for

abuse of process on him, did not inform him of its suspicion that he

had made false or incomplete statements in his request for legal aid

and that he could, therefore, not duly defend himself.

3. The applicant further complains under Article 6 para. 1 of the

Convention that the District Court denied him legal aid and imposed a

fine for abuse of process on him. He alleges that he is, thus,

prevented from pursuing his claim, as he is required to be represented

by counsel in the proceedings at issue. The applicant also complains

under Article 14 of the Convention that he has been discriminated

against on account of his lack of funds.

4. Finally, the applicant complains under Article 1 of Protocol

No. 1 that the imposition of a fine for abuse of process violated his

right to property.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 May 1995 and registered on

4 July 1995.

On 10 April 1997 the Commission decided to communicate the

applicant's complaint concerning the length of civil proceedings

between him and a bank, his complaint concerning the issue of access

to court in these proceedings and his complaint about a lack of defence

rights in the proceedings leading to the imposition of a fine for abuse

of process to the respondent Government.

The Government's written observations were submitted on

11 July 1997 after an extension of the time-limit fixed for that

purpose. The applicant replied on 28 September 1997.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the proceedings between him and the C-

Bank.

Article 6 para. 1 (Art. 6-1), so far as relevant, reads as

follows:

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

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

time by [a] ... tribunal ... "

The Government submit that the duration of the proceedings, which

lasted from 27 June 1988 until 2 December 1996, has to be regarded as

reasonable in the circumstances of the case. They argue that the

proceedings were complex, as they involved the bank's claim and the

applicant's counterclaim, relating to events which had taken place a

long time ago and necessitating extensive taking of evidence. Moreover,

the Government submit that the applicant did not take any steps to

expedite the proceedings but, on the contrary, caused substantial

delays in particular in that he frequently changed his representative,

and in the case of Mr H. also failed to inform him of the background

of the case, requested several times that hearings be postponed,

extended his counterclaim and submitted evidence belatedly. Finally,

the applicant displayed a lack of interest in the proceedings in that

he failed to appear at the hearing of 2 December 1996. As the claimant

equally failed to appear, the proceedings were stayed.

The applicant contests the Government's view. He submits in

particular that the change of his representatives did not cause any

substantial delays. Further, he claims that Mr H.'s lack of information

was due to the latter's failure to contact him. Finally, the applicant

argues that the court failed to set a date for a hearing between

22 April 1994 and 30 October 1996.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint is

required.

2. The applicant complains under Article 6 para. 3 (a) and (b)

(Art. 6-3-a, 6-3-b) of the Convention that the District Court, before

imposing the fine for abuse of process on him, did not inform him of

its suspicion that he had made false or incomplete statements in his

request for legal aid and that he could, therefore, not duly defend

himself.

Article 6 (Art. 6), so far as relevant, reads as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by [a] ...

tribunal ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

b. to have adequate time and facilities for the

preparation of his defence;"

The Government submit that the proceedings relating to the

imposition of a fine for abuse of process do not involve the

determination of a "criminal charge" within the meaning of Article 6

(Art. 6). Referring to the case-law of the Convention organs, they

argue that the offence laid down in S. 69 of the Code of Civil

Procedure does not belong to the criminal sphere under Austrian law.

Moreover, it only applies to a limited circle of people. As to the

nature and severity of the sanction at stake, the Government argue that

although the maximum penalty provided for in S. 69 in conjunction with

S. 220 para. 1 of the Code of Civil Procedure may be up to a maximum

of AS 400,000, only a penalty of AS 30,000 was imposed and the prison

sentence in case of default may, in any event, not exceed ten days.

Moreover, the applicant could have lodged an appeal against the

conversion of the fine into a term of imprisonment. Further, the

Government argue that, even assuming that Article 6 (Art. 6) applies,

the applicant's defence rights were not unduly curtailed.

The applicant has not made any submissions on these issues.

The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and fact under the Convention, including the question of the

applicability of Article 6 (Art. 6) of the Convention, the

determination of which should depend on an examination of the merits

of the application. The Commission concludes, therefore, that this

part of the application is not manifestly ill-founded, within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for declaring it inadmissible have been established.

3. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that the District Court denied him legal

aid and imposed a fine for abuse of process on him. He alleges that he

is, thus, prevented from pursuing his claim, as he is required to be

represented by counsel in the proceedings at issue. The applicant also

complains under Article 14 (Art. 14) of the Convention that he has been

discriminated against on account of his lack of funds.

a. The Commission will first examine the applicant's complaint under

Article 6 para. 1 (Art. 6-1), concerning the alleged lack of access to

court.

The Government, referring to the case-law of the Convention

organs, submit that the very essence of the applicant's right to access

to court has not been curtailed by the refusal to grant him legal aid.

They point out in particular that legal aid is only to be awarded to

litigants who are economically unable to cover the costs of the

proceedings. The applicant, however, tried to obtain legal aid in an

illicit manner in that he made false or incomplete statements in the

legal aid application form. Thus, the refusal of his request for legal

aid was in the interest of proper administration of justice.

The applicant contests the Government's view. He submits that

living on social security benefits since June 1994 and on a minimum

pension since December 1996 he is unable to bear the costs of the

proceedings.

The Commission notes that the proceedings are not yet terminated,

but have been stayed as both parties failed to appear at the hearing

of 2 December 1996. Thus, the question may arise whether the

applicant's complaint is not premature. However, the Commission does

not have to resolve this question, as the applicant's complaint is, in

any event, inadmissible for the following reasons.

The Commission recalls that Article 6 para. 1 (Art. 6-1) secures

to everyone the right of access to court. This right may be subject to

limitations in the form of regulation by the State. In this respect the

State enjoys a certain margin of appreciation. However, the limitations

applied must not restrict or reduce the access left to the individual

in such a way or to such an extent that the very essence of the right

is impaired. Secondly, a restriction must pursue a legitimate aim and

there must be a reasonable relationship of proportionality between the

means employed and the aims sought to be achieved (see Eur. Court HR,

Fayed v. the United Kingdom judgment of 21 September 1994, Series A

no. 294-B, pp. 49-50, para. 65 with further references).

The present case concerns civil proceedings in which the parties

were obliged to be legally represented, while legal aid was available

to indigent litigants. The applicant was first represented by various

counsel of his own choosing, but applied for legal aid in the course

of the proceedings. Following a first unsuccessful request, the

applicant made a new request in April 1994. However, after having

ordered him to supplement his declaration of means in order to clarify

some inconsistencies, the District Court refused his request and

imposed a fine of AS 30,000 for abuse of process on him. The Regional

Court, upon the applicant's appeal, confirmed this decision, finding

that the applicant had made false or incomplete statements and had

failed to show that he was unable to bear the costs of the proceedings.

The Commission will examine whether the refusal of legal aid

combined with the imposition of a fine for abuse of process unduly

restricted the applicant's right of access to court. The Commission

notes that the competent courts found that the applicant's statements

were false or incomplete and that he had failed to show that he was

unable to bear the costs of the proceedings. There is nothing to

indicate that the refusal of legal aid was arbitrary. As regards the

fine imposed, the Commission finds that it was not of an amount which

would as such impair the applicant's access to court. Moreover, it

served a legitimate aim, namely to ensure that limited legal aid funds

are only given to litigants who have submitted their declaration of

means accurately and completely and have shown that they are indigent.

Moreover, the fine was only imposed after thorough examination of the

case and was subject to review by a higher court. Thus, it does not

appear to be disproportionate to the legitimate aim pursued.

In these circumstances, the Commission finds that the applicant's

right of access to court was not limited in a way which was

incompatible with the requirements of Article 6 para. 1

(Art. 6-1) of the Convention.

b. The Commission has further examined the applicant's complaint

under Article 14 taken together with Article 6 (Art. 14+6). Having

regard to its above considerations, the Commission finds that there is

no indication that the applicant was denied legal aid without any

objective or reasonable justification (cf. No. 23419/94, Dec. 6.9.95,

D.R. 82, p. 41). Therefore, there is no appearance of a violation of

Article 14 in combination with Article 6 (Art. 14+6) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. Finally, the applicant complains under Article 1 of Protocol

No. 1 (P1-1) that the imposition of a fine for abuse of process

violated his right to property.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission finds that the measure complained of constituted

an interference with the applicant's right to the peaceful enjoyment

of his possessions. However, the fine at issue is a "penalty" within

the meaning of the second paragraph of this Article which can

reasonably be regarded as necessary.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint about the length of the proceedings between

him and a bank and his complaint that the District Court, before

imposing the fine for abuse of process on him, did not inform him

of its suspicion that he had made false or incomplete statements

in his request for legal aid and that he could not duly defend

himself;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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R.T. v. AUSTRIA

R.T. v. AUSTRIA

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