Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25825/94

by Anton and Walter VOGL

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 23 November 1994

by Anton and Walter VOGL against Austria and registered on

1 December 1994 under file No. 25825/94;

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

18 March 1996 and the observations in reply submitted by the

applicant on 20 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens and resident at Eggendorf

and Gallneukirchen, respectively. The second applicant is one of the

first applicant's sons. In the proceedings before the Commission, they

are represented by Mr. H. Blum, a lawyer practising in Linz.

The facts, as submitted by the parties, may be summarised as

follows.

On 31 August 1987 the first applicant and his wife instituted

proceedings before the Linz Regional Court (Landesgericht) against a

banking institution, challenging the validity of two mortgage

agreements (Pfandbestellungsverträge) of 1979 and 1980. They submitted

that, in the context of these agreements, the banking institution had

accepted securities by the first applicant and his wife in respect of

loans given to Mr. A. Vogl jun., their other son, although it had known

about this son's insolvency and failed to inform the first applicant

and his wife accordingly.

The Regional Court held a hearing on 17 December 1987. In

February 1988 the Court inquired of the parties as to hearing

Mr. A. Vogl jun. as a witness. In April and May 1988 documents were

produced by the plaintiffs and the defendant, respectively.

At the next hearing of 4 November 1988, the Court heard witnesses

and appointed an accountant expert who received the files in

January 1989 and delivered his opinion in March 1990.

On 20 June 1990 the Court, upon the plaintiffs' request, ordered

the accountant expert to examine all of the defendant's business papers

as a preservative measure (Beweissicherung) regarding the taking of

evidence on the debts of Mr. A. Vogl jun. The expert's supplementary

opinion was received at the Court, following a query in October 1990,

on 5 December 1990. The plaintiffs subsequently challenged the expert,

by a motion which was later withdrawn, and requested an explanation of

his opinion in court.

By submissions dated 25 February 1991 the plaintiffs filed a

third party notice (Streitverkündung) with the Regional Court

indicating that in December 1990 they had transferred to the second

applicant, by way of gift, part of their real estate affected by the

pledge agreements at issue in the court proceedings.

At the hearing of 26 February 1991 the parties entered into a

provisional agreement from which the plaintiffs withdrew on

14 March 1991. A further hearing was held on 24 September 1991.

On 15 October 1991 the second applicant joined the proceedings

as intervener (Nebenintervenient) on the plaintiffs' side, and

requested the taking of further evidence. Further hearings took place

on 30 October and 11 December 1991 and, inter alia, the expert was

heard.

On 18 December 1991 the Regional Court dismissed the plaintiffs'

action. The Court found that the mortgage agreements were valid, in

particular that the defendant had not been informed, at the relevant

time, of any insolvency of Mr. A. Vogl jun. and had not, therefore,

failed in its obligation to warn about any risks on the occasion of the

agreements in question. The judgment was served on 13 February 1992.

The plaintiffs and the intervener appealed on 12 March 1992.

They further lodged a request with the Regional Court for the reopening

of the first instance proceedings with a view to the taking of new

evidence. Thereupon, the Regional Court, pursuant to S. 545 of the

Code of Civil Procedure (Zivilprozeßordnung), suspended the appeal

proceedings. The request for reopening was dismissed by the Regional

Court in April 1992, as confirmed by the Court of Appeal in August 1992

and the Supreme Court on 15 December 1992. The files were returned to

the Regional Court on 27 January 1993 and on 1 February 1993 the appeal

proceedings were resumed and the files forwarded to the Linz Court of

Appeal (Oberlandesgericht) on 5 February 1993.

On 19 October 1993 the Court of Appeal rejected the plaintiffs'

and the intervener's plea of nullity (Nichtigkeitsberufung).

Furthermore, following a hearing, it dismissed their appeal (Berufung).

The judgment was served on 10 March 1994.

On 26 April 1994 the Supreme Court (Oberster Gerichtshof) refused

the plaintiffs' and the intervener's appeal on points of law (außer-

ordentliche Revision). The Supreme Court observed that the legal

conditions for such a remedy were not complied with, i.e. the decision

of the case did not, as claimed by the appellants, depend upon a

question of substantive or procedural law which was of considerable

importance in view of the uniformity of law, the stability of law or

the development of law. The judgment was served on 24 May 1994.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the Convention

about the length of the above court proceedings and refer in particular

to delays in the proceedings before the Linz Regional Court and the

Linz Court of Appeal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 November 1994 and registered

on 1 December 1994.

On 29 November 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

18 March 1996. The applicant replied on 20 May 1996.

THE LAW

The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of civil proceedings relating to the

validity of mortgage agreements.

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

follows:

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

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

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

The respondent Government maintain that the length of the

proceedings was justified in the circumstances of the present case.

The Government submit in particular that the case was complex and

necessitated inter alia the taking of expert evidence. In their view,

no delays were imputable to the Austrian authorities. The Austrian

courts conducted the proceedings speedily. Some delay occurred in the

course of the preparation of the expert opinion. However, the

competent court urged the expert to submit his opinion in due time.

Moreover, the appeal proceedings were suspended pending the proceedings

concerning the applicants' request for reopening the first instance

proceedings; however, no unreasonable delay was caused thereby.

Rather, the reopening proceedings were, in three instances, terminated,

and the appeal proceedings resumed, within less than one year.

According to the Government, the length of the proceedings is due

to the applicants' own conduct. Furthermore, the applicants failed to

take the necessary procedural steps to urge a speedier handling of

their case. In this respect, they refer to S. 91 of the Courts Act

(Gerichts-Organisationsgesetz), which has been in force since

1 January 1990 and which provides, inter alia, that 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. The Government also observe that the second applicant

only joined the proceedings in 1991.

The applicants dispute the Government's arguments. They point

at a delay of the first instance proceedings between May and

November 1988 as well as between March and September 1991 and refer in

particular to the delayed expert opinion. Moreover, according to them,

the first instance judgment was served belatedly. There was further

no justification for the length of the appeal proceedings.

As regards the time to be taken into consideration, the

Commission notes that the action was filed by the first applicant and

his wife in August 1987. The second applicant joined the proceedings

as intervener in October 1991. The proceedings terminated with the

Supreme Court's decision of 26 April 1994 which was served on

24 May 1994. The proceedings thus lasted altogether six years and nine

months in respect of the first applicant. The second applicant was

involved in these proceedings for a period of two years and

seven months.

The Commission recalls that the reasonableness of the length 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 (cf. Eur. Court HR, Vernillo

v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,

para. 30). In this instance those circumstances call for a global

assessment so that the Commission does not consider it necessary to

consider these questions in detail.

The Commission, having regard to the fact that the case came

before three instances and included proceedings, at three instances,

regarding the applicants' request for reopening the first instance

proceedings, finds that the delays that occurred, in particular before

the Linz Regional Court, do not appear substantial enough for the total

length of the proceedings to have exceeded a "reasonable time"

(cf. Eur. Court HR, Cesarini v. Italy judgment of 12 October 1991,

Series A no. 245-B, p. 26, para. 20; Salerno v. Italy judgment of

12 October 1992, Series A no. 245-D, p. 56, para. 21).

The applicants' submissions do not, therefore, disclose any

appearance of a breach of their right to a hearing within a "reasonable

time", as guaranteed by Article 6 para. 1 (Art. 6-1).

It follows that 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 THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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VOGL v. AUSTRIA

VOGL v. AUSTRIA

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