Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23957/94

by Johann BREITENEDER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 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

M. VILA AMIGÓ

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 17 March 1994 by

Johann BREITENEDER against Austria and registered on 25 April 1994

under file No. 23957/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 2 August 1996 and the observations in reply submitted by

the applicant on 21 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen and a business man by

profession. He is living in Vienna. In the proceedings before the

Commission he is represented by Mr. D. Böhmdorfer, a lawyer practising

in Vienna.

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

summarised as follows.

On 2 April 1986 the applicant brought an action in the Vienna

Regional Civil Court (Landesgericht) claiming payment of AS 843,850

from the defendant who had bought an apartment from him. The claim in

question concerned the last instalment which was due within fourteen

days "after the contractually agreed conditions as described in the

equipment list are fulfilled." On 7 April 1986 the Court ordered the

defendant to submit his observations on the claim.

On 17 July 1986 the defendant submitted his observations which

also contained a list of alleged defects found in the apartment at

issue. On 29 August and on 19 September 1986 further submissions were

filed by the applicant and by the defendant, respectively.

On 19 September 1986 the Regional Court held the first oral

hearing. It made an order for the taking of evidence (Beweisbeschluß),

stating that it would hear the architects Ha. and G. involved in the

case and two further witnesses as regards the contents of the

contractual agreement between the parties and the question whether the

construction works as carried out by the applicant were defective.

On 2 October 1986 the applicant made further observations and

extended his claim (Klagsausdehnung). Furthermore, he objected to a

private expert opinion submitted by the defendant.

On 10 December 1986 the Regional Court held a second hearing and

at which it supplemented the order to take evidence and decided to

inspect the apartment at issue and to appoint an expert in the field

of construction.

On 26 February 1987 the Regional Court carried out a visit on the

site (Ortsaugenschein) together with the expert R., whom it instructed

to draft a proposal for a friendly settlement, to submit it to the

parties and to inform the court before 10 April whether they had

accepted his proposal.

On 19 May 1987 the expert R. reported to the Regional Court that

friendly settlement discussions had been taken up and had been

adjourned pending submission of further documents by the applicant,

concerning the main issue, namely the alleged defects of the thermal

insulation of the glass construction in the roof of the apartment.

According to the defendant the costs to eliminate this defect allegedly

amounted to some 325,000 AS.

On 16 September 1987 the expert R. held a hearing with the

parties in his office, proposing a friendly settlement on the basis of

a payment of AS 700,000 including AS 100,000 interest, to the

applicant. On 28 September 1987 the defendant declared that he would

accept the friendly settlement, whereas the applicant submitted, on

30 September 1987, that he could not envisage a friendly settlement on

the above basis.

On 6 October 1987 the expert R. informed the court that a

friendly settlement could not be reached and that the appointment of

a further expert in construction physics appeared to be necessary in

view of the defendant's allegation of insufficient thermal insulation.

On the same day the expert R. requested the applicant to submit further

documentary evidence.

On 6 November 1987 the Regional Court ordered to obtaining of the

opinion of an expert in construction physics and ordered the defendant

to advance costs of AS 30,000 for this purpose.

On 26 November 1987 the applicant submitted further documents in

order to show that the thermal insulation had been carried out

correctly.

On 16 September 1988 the Regional Court invited the parties to

state on the basis of the opinion established by the expert R. whether

further settlement talks might be held or whether another hearing was

necessary.

On 15 February 1989 the applicant informed the Regional Court

that negotiations to reach an out-of-court settlement had failed.

On 27 April 1989 the Regional Court held the fourth hearing. The

defendant claimed that the expert opinions had shown defects as regards

the thermal insulation of the apartment and that it was, therefore, not

possible to obtain an official certificate of compliance with the

building standards stating that the apartment was ready for use

(Benützungsbewilligung). The applicant contested this view. The Court

decided to hear Mr. He., and the architects Ha. and G. who were

involved in the case.

On 13 June 1989 the applicant filed further requests for the

taking of evidence.

On 18 July 1989 the Regional Court informed the parties that the

next hearing was postponed from 4 September to 12 October 1989.

On 12 October 1989 the Regional Court held the fifth hearing. It

turned out that the Vienna Municipality still had not issued a

certificate of compliance with the building standards stating that the

apartment was ready for use. H., a civil servant in the competent

department of the Vienna Municipality, stated on an informal basis

that he would meanwhile conduct the administrative proceedings

necessary for issuing the said certificate, and it was agreed with the

parties that the hearing would be postponed to 18 January 1990 to await

the outcome of these proceedings.

On 18 January 1990 the Regional Court held the sixth hearing. The

parties stated that no progress had been achieved in the above

administrative proceedings. The applicant named two further witnesses

and it was agreed with the parties that the architects, Ha. and G.,

would jointly discuss the problem and take new measurements. Then, the

hearing was adjourned until 30 March 1990. On 30 January 1990 the

defendant submitted further requests for the taking of evidence.

On 30 March 1990 the Regional Court held the seventh oral

hearing. The parties stated that the proceedings for obtaining the

certificate of compliance with the building standards had not

progressed. The Court heard two witnesses, namely the lawyer and the

real estate manager involved in the sales contract of the apartment at

issue and decided to hear to two further witnesses proposed by the

parties.

On 15 June 1990 the Regional Court informed the parties that the

next hearing was postponed from 19 June to 30 August 1990. According

to the file the adjournment was necessary at the defendant's request.

On 30 August 1990 the Regional Court held the eighth hearing. It

heard the two architects who had been involved in the case on the

respective parties' sides and one further witness. The Court decided

to inspect the site once more, this time together with a building

expert. Further it requested the parties to inform it before

15 November 1990 of any possible results of the administrative

proceedings concerning the certificate that the apartment was ready for

use.

On 5 September 1990 the defendant made a proposal for further

taking of evidence which the Regional Court rejected on 2 October 1990.

On 16 November 1990 the applicant informed the Court that

proceedings to obtain a certificate that the apartment was ready for

use had commenced. By decision of the same day, the Court expressed the

opinion that the issuance of such a certificate appeared to be

essential for the proceedings. It also indicated that, if either of the

parties wished to continue the court proceedings before the said

certificate had been issued, they should inform the judge of their

intention to do so.

On 12 December 1990 the Regional Court requested the applicant

to report on the progress of the aforementioned proceedings.

On 31 May 1991 the applicant requested that the proceedings be

continued.

On 30 September 1991 the Regional Court held the ninth oral

hearing. The parties reported that the Vienna Municipality had not yet

issued a certificate that the apartment was ready for use. Discussing

the matter with the parties, the Court noted that the main issue was

still the question of the alleged defects of the glass construction in

the roof of the apartment. Thus, the Court decided to hold another

hearing on the site on 16 December 1991.

On 9 December 1991 the Regional Court informed the parties that

expert R. was not available on 16 December 1991 and that the hearing

had to be postponed to 3 February 1992.

On 3 February 1992 the Regional Court held the tenth oral hearing

on the site. It heard He. and P., another civil servant of the Vienna

Municipality, as witnesses. Subsequently the matter was adjourned sine

die. As to the further procedure it was agreed that the applicant would

see to it that certain defects were repaired and that the court would

not take any further procedural steps until notice by one of the

parties. As no further requests were made by either party the file was

taken off the list on 31 December 1992.

On 3 July 1993 the applicant requested that the proceedings be

resumed and informed the court that a partial certificate that the flat

was ready for use had meanwhile been issued.

On 27 August 1993 the Regional Court held the eleventh oral

hearing. It was again discussed whether a friendly settlement could be

reached and the parties agreed to conduct out-of-court settlement

negotiations and to inform the court before 1 October 1993 whether such

a settlement had been reached. The proceedings were again adjourned

sine die.

On 10 November 1993 the applicant requested a continuation of the

proceedings and a hearing was scheduled for 18 March 1994.

On 18 March 1994 the Regional Court held the twelfth hearing

during which settlement negotiations were conducted and a witness was

excused on the ground of illness. In this hearing the parties again

requested the court not to take any further evidence as they were still

trying to reach an out-of-court settlement and stated that they would

inform the court by 10 April 1994 at the latest whether or not they

wished to carry on with the proceedings. In case the continuation of

the proceedings was actually desired a possible date for another

hearing was reserved by the Court on 14 June 1994.

On 14 June 1994 the Regional Court held the fourteenth hearing,

after having been informed that the parties' negotiations had failed

and it was decided to conduct another inspection on site visit to the

apartment.

On 7 September 1994 the Court carried out another visit to the

site. After three and a half hours of negotiations a friendly

settlement was reached and the proceedings were terminated.

COMPLAINTS

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

that the proceedings before the Vienna Regional Civil Court concerning

his claim for payment relating to the sale of an apartment lasted

unreasonably long.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 March 1994 and registered

on 25 April 1994.

On 12 April 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

2 August 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 21 October 1996.

THE LAW

The applicant complains about the length of the proceedings

concerning his claim for payment relating to the sale of an apartment.

He invokes Article 6 para. 1 (Art. 6-1) of the Convention, which so far

as relevant, reads as follows:

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

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

... ."

The Government submit in particular that the proceedings were

highly complex in both legal and factual terms and necessitated the

taking of expert opinions in different fields of building and

construction matters. As regards the conduct of the Regional Court and

the conduct of the applicant, the Government point out that the Court

with the agreement of the parties tried to reach a friendly settlement

throughout the proceedings. Some periods of inactivity, namely from

19 May to 16 September 1987, from 16 September 1988 to 15 February

1989, from 27 August to 10 November 1993 and from 18 March to 10 April

1994, were due to out-of-court settlement negotiations between the

parties. As regards two further periods, namely from 16 November 1990

to 31 May 1991 and from 3 February 1992 to 3 July 1993, it had been

agreed between the Court and the parties that the proceedings would

only be resumed at the request of one of the parties. Moreover, the

Government point out that the parties never complained that the

proceedings were protracted or lasted too long.

The applicant maintains that the overall duration of the

proceedings was excessive and was mainly due to the Regional Court's

conduct, which acted without any concept and had no intention to decide

on the merits of the case. For instance, the Court first did not order

the expert R. to submit an opinion, but only instructed him to make a

friendly settlement proposal and to discuss it with the parties, thus

leaving it to the expert to conduct the proceedings. The Court again

and again tried to achieve a friendly settlement but failed to take the

necessary evidence to enable it to give judgement. Thus, the parties

were almost forced to conclude a friendly settlement in the end.

Further, the applicant points out that according to the relevant case-

law of the Austrian courts the full price for an apartment, or

construction works in general, is only due once they are free from any

defects. That carries the risk that the purchaser, who is already using

the apartment, delays payment by alleging some defects. Such

proceedings should, therefore, be conducted expeditiously, all the more

so, if a considerable amount of money is at stake as in the present

case.

The Commission considers, in the light of the criteria

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

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the authorities), and having regard to all the

information in its possession, that a thorough examination of the

applicant's complaint is required, both as to the law and as to the

facts.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BREITENEDER v. AUSTRIA

BREITENEDER v. AUSTRIA

LEXI