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VRNAK v. AUSTRIA

Doc ref: 21518/93 • ECHR ID: 001-1670

Document date: September 7, 1993

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VRNAK v. AUSTRIA

Doc ref: 21518/93 • ECHR ID: 001-1670

Document date: September 7, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 21518/93

by August VRNAK

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 7 September 1993, 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

G.B. REFFI

B. CONFORTI

N. BRATZA

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 31 January 1992

by August VRNAK against Austria and registered on 11 March 1993 under

file No. 21518/93;

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 1920 and living in

Perg. He is represented by Mr. H. Blum, a lawyer practising in Linz.

The applicant complains about the length of civil court

proceedings.

On 16 December 1985 the applicant brought an action against his

ex-wife claiming re-payment of AS 55,000.

By judgment of the District Court (Bezirksgericht) in Perg of 27

December 1984 the applicant had been ordered to pay maintenance to his

ex-wife.

On the basis of the judgment of 27 December 1984 the applicant's

wife instituted execution proceedings and claimed payment of arrears

of maintenance in the amount of AS 70,000 as well as costs of the

proceedings in the amount of AS 60,000.

With his action of 16 December 1985 the applicant claimed that

in the execution proceedings his wife had obtained higher payments than

were due to her.

On 13 March 1989 the District Court (Bezirksgericht) in Wels gave

a judgement finding that the applicant had a claim in the amount of

AS 13,000 while the defendant had a counter-claim in the amount of

AS 8,500 and consequently as of 28 July 1988 the defendant party had

to pay the applicant AS 4,500 plus interest. The court stated that at

the oral hearing of 14 July 1986 the plaintiff claimed the amount

originally requested for in his action of 16 December 1985. At an oral

hearing of 14 December 1987 he reduced his claim to the costs of the

proceedings. In a brief of 15 March 1988 the applicant again amended

his claim and in an oral hearing of 28 July 1988 he added a claim in

the amount of AS 13,000. It is further stated in the judgment that at

an oral hearing of 5 December 1988 the plaintiff had alleged that the

defendant had accepted a friendly settlement in other proceedings on

30 September 1987 recognising her obligation to pay back AS 30,000.

The judgment of 13 March 1989 comprises 31 pages.

On 27 September 1989, following appeal of both parties, the

Regional Court (Kreisgericht) in Wels admitted a further claim which

had been raised by the applicant on 14 March 1988. To this extent the

judgment appealed from had declared the action to be inadmissible. The

Appellate Court quashed the judgment appealed from and sent the case

back for a new decision.

On 7 January 1991 the District Court in Wels again gave judgment

according to which the applicant had a claim of AS 5,500 while an

exceeding claim in the amount of AS 20,000 was unfounded. The

defendant had a counter-claim in the amount of AS 4,000 so that the

defendant owed AS 1,500 to the plaintiff. The plaintiff was ordered

to pay the defendant party the costs of the proceedings in the amount

of AS 26,000.

On 5 June 1991 the Regional Court in Wels rejected the

applicant's appeal against this judgment.

COMPLAINTS

The applicant complains of the length of the above proceedings

and submits that these proceedings had only become necessary because

the District Court in Perg unlawfully allowed the defendant party to

execute a judgment against him. He invokes Article 6 of the

Convention.

THE LAW

The applicant has complained about the length of civil

proceedings which he brought on 16 December 1985 claiming back certain

amounts of money which he had allegedly overpaid his wife who had

previously instituted execution proceedings against him claiming

payment of arrears of maintenance.

The question of whether or not the reasonable time requirement

was respected depends on an examination of the circumstances of each

given case taking in particular into account the complexity of the

matter, the handling of the case by the competent domestic courts and

the attitude of the applicant in the domestic proceedings.

The proceedings here in question have been of a certain

complexity as both parties alleged various claims raising issues as to

the legal foundation and to the manner of calculation necessitating a

rather voluminous judgment of 31 pages.

Insofar as the handling of the case by the domestic courts is

concerned, the Commission notes that the first instance judgment was

on appeal partly quashed and the case to this extent sent back to the

first instance for a new trial. The second first instance decision of

7 January 1991 was again appealed against which means that the matter

was examined twice in first instance and twice in second instance.

The only period that appears to be open to criticism is that from

16 December 1985 when the action was lodged until 13 March 1989. Thus

the first trial proceedings had lasted approximately 3 years and 3

months.

However, not only was the matter of some complexity but in

addition it has to be noted that the applicant repeatedly changed his

submissions as is stated in the judgment of the District Court.

Assessing the proceedings globally the Commission cannot find in

these particular circumstances that there is an appearance of a

violation of the reasonable time requirement and the application is

therefore 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.

Secretary to the First Chamber President of the First Chamber

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

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