Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22189/93

by A.L.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 3 May 1993 by A.L.

against Austria and registered on 12 July 1993 under file No. 22189/93;

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 applicant is an Austrian citizen born in 1926. He lives in

Graz and is represented before the Commission by Mr. M. Drexler,

lawyer, of Vienna.

On 26 April 1988 the applicant introduced with the Graz Regional

Court (Landesgericht) a document entitled a "writ" (Klage). He

requested that the defendant's title to a parcel of land should be

deleted, and that the defendant should be required to put the land in

its former state. It also included an application for legal aid. The

"writ" was not signed by a lawyer, as required by the relevant rules,

and was treated as an application for legal aid. On 11 May 1988 the

Regional Court considered the history of the disputes between the

applicant and the defendant, and considered that, if the claim was not

to be regarded as vexatious (mutwillig), it had no prospects of

success. The decision is dated 19 May 1988. The application for legal

aid was refused.

The applicant appealed against the refusal of legal aid to the

Graz Court of Appeal (Oberlandesgericht) which, on 6 July 1988, refused

it. The Court of Appeal pointed out that the property had once

belonged to the applicant, but had been sold at auction to the

defendant's father, and was now lawfully owned by the defendant. It

also recalled that, according to Article 63 para. 1 of the Code of

Civil Procedure (Zivilprozessordnung), legal aid was not to be granted

for proceedings which appeared to have no prospects of success. The

Court of Appeal also pointed out that the fact that the "writ" should

have been signed was a procedural error which could be rectified, and

of which the first instance court would have to inform the applicant.

On 1 August 1988 the Graz Regional Court gave the applicant a

time-limit of three weeks to have a lawyer sign the "writ" if he wished

the proceedings to continue.

On 1 September 1988 the Regional Court rejected the applicant's

"appeal" (Rekurs) which he had made on 30 August 1988, and which again

had not been signed by a lawyer, as it could not be regarded as a writ

and the question of legal aid had already been decided. The

applicant's appeal to the Graz Court of Appeal in this respect was

rejected on 3 November 1988.

On 8 March and 6 April 1989 the Regional Court granted extensions

of three weeks for the signature of the writ by a lawyer. The

applicant's appeal to the Graz Court of Appeal was dismissed on

30 May 1989.

On 20 November 1989 and 15 January 1990 the applicant's

representative requested extensions of time for signing the "writ".

The Regional Court on 18 January 1990 granted the extension and refused

other applications the lawyer had made. The writ was eventually duly

served on 3 April 1990. The Court made a note of the proceedings in

the Land Register on 11 June 1990.

On 30 July 1990 the Regional Court rejected the application for

legal aid on the ground that the position had not changed merely

because the applicant now had a lawyer. The applicant's appeal of

6 August 1990 was rejected on 12 October 1990. The Court of Appeal

added that a further appeal was not admissible (der Revisionsrekurs ...

[ist] jedenfalls unzulässig). On 20 November 1990 the judge, who had

been responsible for the case since 26 October 1990, was replaced as

he had informed the court that he was not impartial.

On the merits of the case, the Regional Court found against the

applicant on 8 February 1991. The Court declined to take any evidence

beyond looking at the court files relating to the history of the case

and referring to the Court of Appeal's decision of 12 October 1990, and

found it unnecessary to make further comments as to the facts. The

Court did not make an order penalising the applicant for a vexatious

action as only the Supreme Court (Oberster Gerichtshof) had that power.

The Court of Appeal rejected the applicant's appeal on 10 June 1991.

It added that as no important questions of law within the meaning of

Article 502 para. 1 of the Code of Civil Procedure were involved, a

further appeal (ordentliche Revision) did not lie. The applicant's

extraordinary further appeal (ausserordentliche Revision) of

6 March 1992 was rejected by the Supreme Court on 1 September 1992 on

the ground that the requirements of Article 502 para. 1 of the Code of

Civil Procedure had not been complied with.

COMPLAINTS

The applicant alleges a violation of Article 6 para. 1 of the

Convention in two respects.

First, he alleges that the refusal to hear witnesses, but rather

to rely on the Court records and the outcome of the legal aid

application was not "fair" within the meaning of Article 6 of the

Convention.

Secondly, he alleges that the proceedings exceeded the

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

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in that the court which decided the merits of his case did

not call any witnesses, but relied on earlier court files and the

outcome of a legal aid application in the case itself. 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 ... hearing within a reasonable

time..."

The Commission first notes that it is unclear whether, given the

statement of the Graz Court of Appeal that a further appeal was not

possible because the conditions of Article 502 para. 1 were not met,

and the Supreme Court's rejection of the applicant's extraordinary

further appeal for the same reason, the applicant has complied with the

six months time limit set out in Article 26 (Art. 26) of the

Convention. However, the Commission is not required to determine this

question, as even if the applicant has compiled with the time-limit,

the application is in any event inadmissible for the following reasons.

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

case-law (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

To the extent that the fairness of the proceedings is at issue,

the Commission recalls that it is for domestic courts in the first

place to determine the quality and quantity of evidence they need to

decide a case (cf. Eur. Court H.R., H. v. France judgment of

24 October 1989, Series A no. 162, p. 23, para. 61). Moreover, States

are permitted to regulate the access to court of persons suffering from

a disability provided the essence of the right of access to court is

respected, and this reasoning applies mutatis mutandis to other

limitations on access to court (cf. Fayed et al. v. the United Kingdom,

Comm. Rep. 7.4.93, pending before the European Court of Human Rights,

para. 66 et seq.).

The Commission notes that the applicant was refused legal aid on

19 May 1988 on the ground that he had no prospect of success, given

that he was in fact trying to upset an judgment against him. The court

which eventually decided the merits of the case agreed with this

finding, and also consulted the case-file of the earlier proceedings.

In these circumstances, the Commission finds no indication that the

refusal to call further witnesses was in any way unreasonable or

unfair.

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.

2. The applicant also alleges that the proceedings exceeded the

"reasonable time" requirement of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission notes that the applicant first introduced his

"writ" in person on 26 April 1988, but that his representative only

signed it - a requirement of Austrian law - 3 April 1990. The final

decision, assuming the application to comply with the six months rule

in Article 26 (Art. 26) of the Convention, is the decision of the

Supreme Court of 1 September 1992. The proceedings thus lasted, at the

very longest, almost four and half years.

Having regard to the criteria established by the Convention

organs in determining the reasonableness of the length of proceedings

(complexity of the case, behaviour of the applicant and his lawyer, and

the conduct of the judicial bodies), the Commission finds that the

judicial bodies dealt with the applicant's case patiently and with

expedition, that there are no unseemly gaps in the proceedings, and

that the length of the proceedings was almost entirely due to the

applicant's own behaviour. Whilst the case as presented by the

applicant was particularly complex, as it was an attempt by the

applicant to have re-determined old actions, the judicial authorities

concentrated properly on the relevant matters.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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