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K. GmbH v. AUSTRIA

Doc ref: 17887/91 • ECHR ID: 001-1531

Document date: April 6, 1993

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Cited paragraphs: 0
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K. GmbH v. AUSTRIA

Doc ref: 17887/91 • ECHR ID: 001-1531

Document date: April 6, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 17887/91

by K.GmbH

against Austria

The European Commission of Human Rights sitting in private on

6 April 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 21 December 1990

by K.GmbH against Austria and registered on 11 March 1991 under file

No. 17887/91;

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 submitted by the applicant, may be

summarised as follows.

The applicant is a limited company domiciled at Wolfurt, Austria.

Before the Commission it is represented by Dr. Paul Grossmann, a lawyer

practising at Innsbruck.

In 1986 certain problems arose between the applicant and another

company domiciled in Germany, concerning the acceptance of a bill of

exchange (Wechsel). On 16 July 1986 the other company instituted

proceedings against the applicant in the Regional Court (Landesgericht)

of Feldkirch claiming payment of 723,606.27 ÖS.

Questions concerning evidence in the case were discussed during

a court session held on 29 August 1986. Evidence was subsequently

obtained, inter alia through commissions rogatory, in the District

Courts (Amtsgericht) of Munich, Aichach and Hanover and further court

sessions in Austria were held on 10 June and 4 November 1987, as well

as on 29 January and 23 and 28 February 1988 when the proceedings in

court were concluded.

On 30 August 1988 the District Court pronounced judgment in the

case. On the basis of the evidence produced, which included the

statements of the parties, the hearing of nine witnesses as well as

documentary evidence, the Regional Court found against the applicant

which was ordered to pay the sum mentioned above, plus interest and

costs. The judgment was received by the applicant on 20 September 1988.

On 17 October 1988 the applicant appealed against the judgment

(berufung) to the Court of Appeal (Oberlandesgericht) of Innsbruck

which, however, upheld the judgment on 14 December 1988. The applicant

received the judgment on 19 January 1989. On 10 February 1989 the

applicant lodged an appeal (revision) against this judgment.

On 31 May 1990 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's appeal as it had no prospects of success. The applicant

submits that this decision was received on 26 July 1990.

COMPLAINTS

The applicant invokes Article 6 para. 1 of the Convention

complaining that the proceedings were not fair in that the facts

established were incomplete and wrong, that the evaluation of the

evidence was wrong and that, therefore, the courts applied the law

incorrectly. It furthermore complains that the case was not determined

within a reasonable time.

THE LAW

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 established

case-law (see e.g. 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 that

the case was not determined within a reasonable time. In this

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

(Art. 6-1) of the Convention which reads in its relevant parts as

follows :

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

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

time ...".

In the present case the Commission recalls that the case

commenced on 16 July 1986 when proceedings were instituted against the

applicant in the Regional Court of Feldkirch. They came to an end on

26 July 1990 when the applicant received the decision of the Supreme

Court, accordingly lasting a total of four years and ten days.

The Commission further recalls that the reasonableness of the

length of the proceedings must be assessed in the light of the

particular circumstances of the case and with reference to the

following criteria: the complexity of the case, the conduct of the

parties and the conduct of the authorities dealing with the case (see

Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no.

198, p. 12, para. 30).

As regards these elements the Commission notes that the

proceedings, in the Regional Court lasted approximately two years.

During this period several court sessions were held and it became

necessary to obtain evidence, inter alia through commissions rogatory,

in the District Courts of Munich, Aichach and Hanover in Germany, an

element which by its very nature was time-consuming. Furthermore, the

Commission notes that the proceedings in the Court of Appeal lasted

only three months. Finally, although it has not overlooked that the

proceedings in the Supreme Court lasted approximately one and a half

years, the Commission recalls that the proceedings comprised a total

of three court levels. Having regard to these circumstances, the

Commission finds that the total period of time was not so long as to

warrant the conclusion that it was excessive.

It follows that the application must be rejected as being

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) (J.A. FROWEIN)

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