Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19743/92

by Herbert HRDLICKA

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 1991

by Herbert HRDLICKA against Austria and registered on 23 March 1992

under file No. 19743/92;

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

1 July 1994 and the observations in reply submitted by the

applicant on 22 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1939, resides in

Vienna. Before the Commission the applicant is represented by

Mr. A. Laimer, a lawyer practising in Vienna. The facts of the case,

as they have been submitted by the parties, may be summarised as

follows.

On 21 July 1976 the applicant was seriously injured in a traffic

accident. On 16 July 1979 he lodged an action with the Vienna Regional

Court (Landesgericht). He claimed compensation from the car driver

involved in the accident (who had been earlier found criminally

responsible for the injuries the applicant had suffered) and from her

insurance company.

On 16 October 1979 the applicant extended his claim. The Vienna

Regional Court held hearings on 19 October 1979, on 7 November 1979,

on 18 March and on 23 May 1980 in the course of which it inspected the

place of the accident, heard witnesses and took expert evidence.

On 2 June 1980 the applicant extended his claim. Further

hearings were held on 10 September and on 4 November 1980. After a

supplementary opinion by a photogrammetric expert had been submitted,

the next hearing was scheduled for 12 November 1981. However, the

proceedings had to be suspended due to the parties' failure to appear.

The applicant requested twice that the proceedings be resumed.

On 3 May 1982 a further technical expert opinion was submitted and the

court granted the defendants' request for medical expert evidence. It

was submitted on 13 July 1982.

On 11 October 1982 the Vienna Regional Court decided to obtain

supplementary medical expert evidence. A further hearing was held on

27 May 1983.

On 18 May 1984, after supplementary medical expert evidence had

been submitted, the applicant extended his claim. The court requested

a neurological expert opinion. After three experts had refused to

prepare the opinion, it was finally submitted on 14 May 1985.

On 7 October 1985 a hearing was adjourned at the applicant's

request.

On 13 January 1986 the applicant extended his claim. As the case

had been taken over by another judge, it was decided to start the trial

anew pursuant to Section 412 of the Code of Civil Procedure.

Consequently, the contents of the file were read out. A medical expert

was requested to submit a supplementary opinion on the question of the

necessity of certain treatments undergone by the applicant.

Further hearings were held on 17 April, on 30 July and on

24 November 1986. At each of these hearings the applicant extended his

claim. An expert was ordered to prepare an opinion on various medical

costs. It was submitted on 20 August 1987.

On 8 January 1988 a new judge took over the case. Another

technical expert opinion was requested. On 5 February 1988 the

applicant requested that the time limit for submitting his pleading

should be extended. He submitted the pleading on 16 March 1988.

On 19 April 1988 the court decided to take evidence by inspection

on the spot.

On 19 July 1988 the parties reached a friendly settlement. It

was denounced by the applicant on 20 October 1988.

On 29 June 1989 a hearing was held on the spot. Further hearings

in court were held on 10 and on 31 October 1989. In the course of the

latter hearing a technical expert submitted his opinion and the court

decided to obtain further evidence.

On 5 December 1991, after a change of judges, the court heard a

witness and adjourned the case as a further witness had failed to

appear. The Vienna Regional Court held further hearings on 17 January

and on 11 February 1992, and on 26 June 1992 it delivered a judgment

by which it dismissed the applicant's claim. It found that the claim

had become statute-barred due to a mistake made by the lawyer by whom

the applicant was then represented.

On 16 September 1992 the applicant lodged an appeal. It was

dismissed by the Vienna Court of Appeal (Oberlandesgericht) on

13 May 1993.

COMPLAINT

The applicant complains of the length of the proceedings

concerning his claim for damages and alleges a violation of Article 6

para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 November 1991 and registered

on 23 March 1992.

On 11 January 1994 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

1 July 1994, after two extensions of the time-limit fixed for that

purpose. The applicant replied on 22 August 1994.

THE LAW

The applicant complains about the length of the proceedings

concerning his claim for damages. He alleges a violation of Article 6

para. 1 (Art. 6-1) of the Convention which reads, 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 by an independent and impartial tribunal

established by law.

..."

The Government submit that the case at issue was complex because

of difficulties in both establishing the basis of the applicant's claim

and its assessment which required obtaining a number of expert

opinions. They admit that after the applicant had denounced a friendly

settlement, there were delays in the proceedings which amounted to some

3 years and were due, in particular, to changes of judges.

The Government contend, however, that the length of the

proceedings is due mainly to the applicant's conduct. In particular,

they point out that as the applicant modified his claim repeatedly, it

was necessary to obtain additional expert opinions. Further delays

were caused, in the Government's view, by suspension of the proceedings

following the parties' failure to appear, by the applicant's requests

for adjournment of the proceedings, for extension of time limits and

by his decision to denounce a friendly settlement.

The applicant submits that the case cannot be regarded as complex

as his claim was based on a criminal court's finding that one of the

defendants was criminally responsible for the accident in which he had

been injured. He contends that the first instance court could have

envisaged that opinions of different experts would be necessary in

order to assess his claim, and that it could have requested such

opinions at the very beginning of the proceedings.

The applicant further submits that the proceedings before the

first instance court could have ended at the hearing which was

scheduled for 24 November 1987. In his view, the changes of judges and

starting the proceedings anew resulted in undue delays.

The applicant points out, in particular, that the Vienna Regional

Court held a hearing only eight months after he had denounced a

friendly settlement, and that it remained inactive for two years

following the hearing of 31 October 1989. He concludes that the delays

in determining his claim are imputable preponderantly to insufficient

organisation of the courts and to the way in which the proceedings were

conducted.

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 competent authorities), and having regard to

the parties' observations, that the issue to be decided raises

questions of fact and law which can only by determined after an

examination of the merits. It follows that the application cannot,

therefore, be declared manifestly ill-founded within the meaning of

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

inadmissibility have been established.

For these reasons, the Commission, unanimously,

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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HRDLICKA v. AUSTRIA

HRDLICKA v. AUSTRIA

LEXI