Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23459/94

by Adolf HOLZINGER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 25 November 1993

by Adolf HOLZINGER against Austria and registered on 14 February 1994

under file No. 23459/94;

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

27 July 1995 and the observations in reply submitted by the

applicant on 8 September 1995;

- the further observations submitted by the applicant on 31 March

1997 and the respondent Government on 30 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1934. He lives in

Hallein. The facts of the application, as submitted by the parties,

may be summarised as follows.

A. The particular circumstances of the case

On 16 May 1988 the applicant introduced proceedings in the

Salzburg District Court (Bezirksgericht) against a former lawyer for

the sum of AS 30,000. The District Court rejected the claim on 20 May

1988 because it did not have jurisdiction. On 1 June 1988 it quashed

the decision of 20 May as that court did have jurisdiction, and

remitted the case to the Regional Court (Landesgericht). On 8 August

the Regional Court instructed the applicant to submit his claim through

a lawyer, which he did on 13 September.

On 23 November 1988 the Regional Court found that the judge who

had been in charge of the case was not impartial, and quashed all

procedural steps since 7 July.

A defence was served on 21 December 1988, and on 22 February

1989, at the applicant's request, the Regional Court adjourned the

proceedings pending the outcome of a different action, the proceedings

only to be resumed on application by the parties. On 30 June 1989 the

applicant's lawyer requested that the proceedings be resumed and

extended the claim to the sum of AS 449,417.23. The Regional Court

returned the request on 4 August 1989 with the instruction to formulate

it properly.

A hearing which had been set down for 20 December 1989 was

adjourned when the judge in charge of the case changed.

On 31 March 1990 the defendant gave up his professional

functions, and the proceedings had to be adjourned for a lawyer to be

appointed. On 6 June 1990 the applicant requested the court to order

the defendant to appoint a lawyer, and on 13 June it did so. The

defendant failed to appoint a lawyer within the time-limit. On

9 November 1990 the court announced that, in view of the defendant's

failure to appoint a lawyer, the proceedings were resumed. A hearing

was fixed for 11 December.

At the hearing on 11 December 1990 the proceedings had to be

commenced again because of a change of judge. The defendant was

neither present nor represented, and the applicant's representative

asked for judgment to be entered in default. The court adjourned the

proceedings in order to allow for consideration of additional papers

submitted by the applicant's representative. On 23 January 1991 the

Regional Court permitted the defendant, who had produced a medical

certificate in respect of 11 December 1990, to remain in the

proceedings.

On 16 October 1991 the applicant wrote to the court requesting

that the proceedings be processed. On 18 October the parties were

summoned to a hearing to take place on 26 November 1991. That hearing

was postponed as the applicant had informed the court that he would be

absent from 18 November 1991 to 28 January 1992. On 12 March 1992 the

applicant again asked for the proceedings to be pursued. On 23 March

the parties were summoned to a hearing which was to take place on 7 May

1992. At the end of the hearing on 7 May the proceedings were

adjourned, and on 18 May the applicant asked for them to be resumed

soon as he was to be away from 9 September to 20 November. On 25 May

the Court set the next hearing for 7 July, when the applicant replied

to questions, his representative submitted a series of documents, and

the proceedings were again adjourned.

The next hearing took place on 26 November 1992. At the end, the

judge declared the trial closed. The written judgment of 18 February

1993 was received by the applicant's representative on 4 March 1993.

The court found that the applicant's action was statute-barred. The

applicant's own appeal of 18 March 1993 was returned by the court on

1 April 1993 as it had not been properly signed by a lawyer. The

appeal was re-submitted on 28 April. The defendant's reply is dated

26 May 1993 and by a judgment dated 29 September 1993 the Linz Court

of Appeal rejected the applicant's appeal, confirming the Regional

Court's judgment. The judgment states that no further appeal

(Revision) is possible. The applicant's representative received the

decision on 4 November 1993.

An application by the applicant for legal aid for an

extraordinary appeal dated 9 November 1993 was rejected on 11 November

1993 as the proceedings had ended.

On 6 May 1994 the Linz Court of Appeal rejected a challenge made

by the applicant to a decision of the Regional Court of 11 November

1993 by which the defendant had been permitted to execute costs in the

proceedings.

B. Relevant domestic law

Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which

has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such

as announcing or holding a hearing, obtaining an expert's report,

or preparing a decision, any party may submit a request to this

court for the superior court to impose an appropriate time-limit

for the taking of the particular procedural step; unless sub-

section (2) of this section applies, the court is required to

submit the request to the superior court, together with its

comments, forthwith.

(2) If the court takes all the procedural steps specified in

the request within four weeks after receipt, and so informs the

party concerned, the request is deemed withdrawn unless the party

declares within two weeks after service of the notification that

it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be

determined with special expedience by a chamber of the superior

court consisting of three professional judges, one of whom shall

preside; if the court has not been dilatory, the request shall

be dismissed. This decision is not subject to appeal."COMPLAINTS

The applicant complains of the length of the proceedings. He

alleges a violation of Article 6 of the Convention. He also alleges

a violation of Articles 6 and 13 of the Convention in connection with

the alleged unfairness of the proceedings, alleging, inter alia,loss

because of the decision 23 November 1988, delay in service of the

summons for the hearing on 26 November 1992, an error in the

calculation of costs on 18 February 1993, failure by the Court of

Appeal to consider some of his contentions, and its error in concurring

with the first instance court, and a refusal of 11 November 1993 to

grant legal aid for a further appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 November 1993 and registered

on 14 February 1994.

On 17 May 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 27 July

1995. The applicant replied on 8 September 1995.

On 4 March 1997 the Commission decided to put further questions

to the parties. The applicant submitted his further observations on

31 March 1997, and the Government submitted theirs on 30 April 1997.

THE LAW

1. The applicant complains of the length of the proceedings,

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

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as

relevant, as follows.

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

everyone is entitled to a fair and public hearing within a

reasonable time ..."

The Commission notes that the proceedings began on 16 May 1988

when the applicant brought short-form proceedings against his former

representative, and ended with the decision of 6 May 1994 of the Linz

Court of Appeal on the applicant's challenge to the defendant's

execution title.

The Government submit that the applicant has not exhausted

domestic remedies in that he failed to make any applications to the

courts pursuant to Section 91 of the Courts Act

(Gerichtsorganisationsgesetz). They consider that he could have made

such an application on two occasions: the first in May 1990, after the

proceedings had been adjourned for the defendant to appoint a lawyer,

and the second in May 1991, after the proceedings had been adjourned

in December 1990. They consider that the first application could, and

probably would, have reduced the length of the proceedings by three

months, as the application would have been dealt with before the summer

recess. They consider that the second application could have resulted

in the hearing of 7 May 1992 being held some nine months earlier. The

applicant does not make any comments on the effectiveness of an

application under Section 91 of the Courts Act, but points out that he

requested the courts to proceed with the case on no fewer than five

occasions, and that at his request his lawyer asked the judge for the

case to be expedited on several occasions. He also points out that if

he had made, through his lawyer, an application under Section 91 every

time there was delay in the proceedings, he would have been required

to make 11 such applications.

The Commission recalls that Article 26 (Art. 26) of the

Convention requires the exhaustion of remedies which relate to the

breaches of the Convention alleged and at the same time can provide

effective and sufficient redress. The burden of proving the existence

of available and sufficient domestic remedies lies upon the State

invoking the rule (see generally in connection with the exhaustion of

domestic remedies, Eur. Court HR, Akdivar and others v. Turkey judgment

of 16 September 1996, Reports 1996-IV, No. 15, paras. 65-69, in

particular paras. 66 & 67, with further references).

An application under Section 91 is an interlocutory application

to a court whereby the higher court is requested to fix an adequate

time limit for taking a procedural measure which the court below has

failed to take. It cannot give rise to any finding as to the length

of the proceedings as a whole, nor can it give rise to redress, for

example compensation, for any unreasonable delay to that point.

Accordingly, an application under Section 91 of the Courts act

cannot be regarded as an effective remedy for the purposes of

Article 26 (Art. 26) of the Convention.

The Commission recalls that it has held in previous cases

concerning the length of proceedings that measures which are available

to an individual which might speed up proceedings are matters which

fall to be considered in the context of the merits of the application

(see, for example, No. 11296/84, Dec. 14.4.88, D.R. 56, pp. 115, 126,

with further references). The same applies in the present case: the

question whether the applicant could and should have made an

application or applications under Section 91 of the Courts Act relates

to the issue of whether, in all the circumstances of the case, the

proceedings took an unreasonably long time, rather than to exhaustion

of domestic remedies.

According to the applicant, the length of the proceedings is in

breach of the "reasonable time" requirement of Article 6 para. 1

(Art. 6-1) of the Convention. The Government take the opposite view.

The Commission considers, in the light of the criteria

established by the case-law of the Convention institutions of the

question of "reasonable time" (the complexity of the case, the

applicant's conduct and that of the competent authorities), and having

regard to all the information in its possession, that an examination

of the merits of the complaint is required. No other ground for

declaring the complaint inadmissible has been established.

2. The applicant makes a series of other complaints about the

proceedings, referring to Articles 6 para. 1 and 13 (Art. 6-1, 13) of

the Convention.

The Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

case-law (see eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43

pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31,

45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74,

p. 234).

The Commission has examined these complaints as they have been

submitted. However, insofar as the matters complained of have been

substantiated and fall within its competence, the Commission finds that

they do not disclose any appearance of a violation of the provisions

referred to.

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 concerning the length of the proceedings,

and

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HOLZINGER v. AUSTRIA

HOLZINGER v. AUSTRIA

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