Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25383/94

by Wilhelm PUTZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 27 September 1994

by Wilhelm PUTZ against Austria and registered on 6 October 1994 under

file No. 25383/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1936, is an Austrian national and resident

in Bad Goisern. He is a civil engineer and businessman by profession.

He also lodges the application on behalf of two construction firms

owned by him. In the proceedings before the Commission he is

represented by Mr. C. Schwab, a lawyer practising in Wels.

The applicant's previous Application No. 18892/91 concerns his

complaints that he did not have a fair hearing by an impartial tribunal

in respect of two Austrian court decisions imposing penalties upon him

for "offences against the order in court", and that he had no effective

remedy in respect of these court decisions. These complaints were

declared admissible by the Commission on 3 December 1993. This case

is presently pending before the Court.

Application No. 23189/94 related to criminal proceedings against

him which had started in 1985.

On 17 July 1985 bankruptcy proceedings were opened against the

applicant and his firms.

In September 1985 preliminary investigations were instituted

before the Wels Regional Court (Landesgericht) against him and others

on the suspicion of inter alia bankruptcy offences. In 1991 the Wels

Regional Court convicted the applicant of ordinary bankruptcy

(fahrlässige Krida), of fraudulent conversion, of defamation, of having

defrauded social security contributions and of tax evasion. He was

sentenced to eighteen months' imprisonment on probation, and, as

regards the tax offences, a fine amounting to AS 59 million and a

further sentence of six months' imprisonment were imposed. On 27 May

1993 the Austrian Supreme Court (Oberster Gerichtshof), upon the

applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed the Wels

Regional Court's judgment regarding his conviction of ordinary

bankruptcy, of having defrauded social security contributions and of

tax evasion. To this extent, the Supreme Court referred the case to

the Innsbruck Regional Court. The remainder of the applicant's plea

of nullity was dismissed. The criminal proceedings before the

Innsbruck Regional Court have not yet terminated.

In 1988 the applicant, on behalf of one of his companies, filed

an action against the Republic of Austria claiming about AS 910 million

as compensation for an allegedly unlawful opening of the bankruptcy

proceedings against this company.

On 16 December 1988 the Innsbruck Regional Court dismissed the

official liability claims on the ground that at the relevant time the

plaintiff had failed to lodge an appeal against the opening of the

bankruptcy proceedings. In such an appeal, the question of an alleged

lack of impartiality could also have been raised. The plaintiff could

thereby have avoided the alleged damages, as the decision on the

opening of the bankruptcy proceedings had in itself not yet caused any

damages.

On 11 May 1989 the Innsbruck Court of Appeal (Oberlandesgericht),

upon the plaintiff's appeal, quashed the judgment and sent the case

back to the Regional Court for further proceedings. The Court of

Appeal rejected the argument that when deciding to open the bankruptcy

proceedings the competent judge had been biased. However, the Regional

Court had failed to examine the plaintiff's submissions that damages

had already been caused by the opening decision as such.

On 15 November 1989 the Supreme Court dismissed both parties'

appeals.

On 22 March 1991, in the second set of proceedings, the Innsbruck

Regional Court granted the applicant's request of November 1990 for an

amendment of the cause of action as to part of his claims, i.e. that

damages of about AS 212 million had been caused by unlawful conduct of

the bankruptcy proceedings. In this respect, the Regional Court noted

that the defendant had not objected thereto. The Regional Court

refused the plaintiff's request of November 1990 for an amendment of

the cause of action as to the remainder of claims on the grounds that

the defendant had objected thereto and that the amendment would

considerably delay the proceedings. Moreover, the Regional Court

dismissed the action again. The Regional Court considered that the

plaintiff had failed to show that the judge's decision to open the

bankruptcy proceedings had been unlawful. Moreover, all the legal

conditions for opening the bankruptcy proceedings having been met, the

question of whether the competent judge had been biased when taking the

decision in question was irrelevant.

On 12 September 1991 the Innsbruck Court of Appeal dismissed the

plaintiff's appeal against the refusal of the request of November 1990.

Upon the plaintiff's appeal against the Regional Court's judgment

dismissing the remainder of claims, it quashed the judgment concerned

and sent the case back for amendment of the proceedings. The Court of

Appeal considered that the Regional Court had failed to hear witnesses,

as requested by the plaintiff, on the question of the sequence of

events on the occasion of the opening of the bankruptcy proceedings.

On 18 December 1991 the Supreme Court rejected the plaintiff's

appeal on points of law.

On 22 October 1992 the Regional Court again refused the

plaintiff's request of November 1990, and also dismissed the

compensation claims. The Regional Court, having heard several

witnesses on questions relating to the course of events on the morning

of the opening of the bankruptcy proceedings in question, found that

the plaintiff had failed to proof any unlawful conduct on the occasion

of the opening of the bankruptcy proceedings. Furthermore the Regional

Court considered that, as the conditions for opening the bankruptcy

proceedings had been met at the relevant time, the question of an

alleged bias of the competent judge was irrelevant.

On 13 May 1993 the Innsbruck Court of Appeal, upon the

plaintiff's appeal, quashed the Regional Court judgment to the extent

that the claim of about AS 212 million was concerned. The remainder

of the plaintiff's appeal was dismissed. The Court of Appeal found

that, with regard to the amount of AS 212 million, the Regional Court

had failed to decide on the amended cause of action. As for the

remainder of the appeal, the Court of Appeal confirmed the Regional

Court's taking and assessment of evidence. It also considered that the

plaintiff had failed to provide any substantiation for the allegation

of bias on the part of the competent judge in the bankruptcy

proceedings.

On 16 February 1994 the Supreme Court rejected the plaintiff's

appeal on points of law. The decision was served on 28 March 1994.

COMPLAINTS

The applicant, also on behalf of his companies, complains under

Article 6 para. 1 of the Convention about the Austrian court decisions

refusing the compensation claims for an allegedly unlawful opening of

the bankruptcy proceedings. He considers that the court proceedings

were unfair on the ground that the courts failed duly to consider the

allegation that the competent judge had been biased upon the opening

of the bankruptcy proceedings.

THE LAW

The applicant complains about the Austrian court decisions

refusing the official liability action brought by one of his

construction firms, and also about the proceedings concerned.

The Commission has examined the complaints lodged by the

applicant on behalf of the construction firm owned by him, i.e. the

plaintiff in the domestic court proceedings concerned. These

submissions relate to the court decisions and the proceedings to the

extent that the compensation claims for an alleged unlawful opening of

the bankruptcy proceedings were finally determined by the Innsbruck

Regional Court, as confirmed by the Innsbruck Court of Appeal.

With regard to the judicial decisions of which the applicant

complains, 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 (No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

It is true that in this case the applicant also complains under

Article 6 para. 1 (Art. 6-1) of the Convention that the Austrian courts

did not duly consider the question as to the alleged lack of

impartiality of the judge competent in the bankruptcy proceedings.

Article 6 para. 1 (Art. 6-1) obliges the courts to give reasons

for their judgments, but cannot be understood a detailed answer to

every argument. The extent to which this duty to give reasons applies

may vary according to the nature of the decision. It is moreover

necessary to take into account, inter alia, the diversity of the

submissions that a litigant may bring before the courts and the

differences existing in the Contracting States with regard to statutory

provisions, customary rules, legal opinion and the presentation and

drafting of judgments (Eur. Court H.R., Ruiz Torija and Hiro Balani

judgments of 9 December 1994, para. 29/27, Series A nos. 303 A/B,

respectively). However, the Convention organs are not called upon to

examine whether arguments are adequately met (see above and Eur. Court

H.R., Van De Hurk judgment of 19 April 1994, Series A no. 288, p. 20,

para. 61).

In the present case, the applicant company, as plaintiff, had

argued that damage had been caused due to an unlawful opening of

bankruptcy proceedings as, inter alia, the competent judge had lacked

impartiality. The Innsbruck Regional Court, in its respective

judgments of 16 December 1988, 22 March 1991 and 22 October 1992, had

regard to this argument. Likewise, the Innsbruck Court of Appeal, in

its judgments of 11 May 1989 and 13 May 1993, addressed the plaintiff's

submissions regarding the alleged lack of impartiality. The Court of

Appeal rejected the argument that when deciding to open the bankruptcy

proceedings the competent judge had been biased. The Regional Court

considered in particular that, all the legal conditions for opening the

bankruptcy proceedings having been met, the question of whether the

competent judge had been biased when taking the decision in question

was irrelevant. The Court of Appeal further found that the plaintiff

had failed to provide any substantiation for the allegation of bias on

the part of the competent judge in the bankruptcy proceedings.

In these circumstances, there is no indication that the Austrian

courts failed to fulfil their obligation to state reasons.

Consequently, the applicant's submissions do not disclose any

appearance of a violation of the right to a fair hearing, as guaranteed

by Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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