Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15245/89

by Adolf HOLZINGER

against Austria

The European Commission of Human Rights sitting in private on

18 February 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. H.C. KRÜGER, Secretary to the Commission

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 March 1989 by

Adolf Holzinger against Austria and registered on 20 July 1989 under

file No. 15245/89;

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 particular facts of the case

The applicant is an Austrian citizen, born in 1934. He lives in

Hallein.

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 19 September 1984 proceedings were instituted against the

applicant by his former lawyer for recovery of costs in connection with

various proceedings in which the applicant had instructed the lawyer.

A guardian (Sachwalter) for all purposes was appointed on 28 November

1984. The applicant had had a guardian ad litem since 8 August 1984.

On 7 May 1985 the Salzburg Regional Court (Landesgericht) found

for the applicant's former lawyer. The applicant's appeal of 4 July

1985 was heard by the Linz Court of Appeal (Oberlandesgericht) on 10

December 1985. The appeal was successful in that the judgment of 7 May

1985 was set aside and the case was returned to the first instance

court.

On 14 March 1986 the applicant, through his guardian and

representative, requested that further evidence be taken. On 21 April

1986 the Regional Court, pursuant to Article 258 of the Code of Civil

Procedure (Zivilprozessordnung), found that both the application of 10

April 1986, and a further application the applicant had made and two

applications by the plaintiff, were inadmissible. The proceedings were

adjourned. At the resumed hearing on 14 July 1986, the Court's attempt

to reach a settlement was unsuccessful. The Court declined to accept

any further evidence from the applicant personally without the

agreement of the guardianship judge. The proceedings were again

adjourned.

On 3 September 1986 a new guardian was appointed as the former

guardian had retired. On 22 May 1987 the applicant requested

postponement of the hearing in the case until after 15 July 1987, as

his guardianship was about to end. The Court granted the request on

26 May 1987, adjourning the case to 9 September 1987. The applicant

was informed on 20 August 1987 that the oral hearing in the case had

been fixed for 9 September 1987, and that he was required to be

represented. At the hearing on 9 September 1987, the applicant's

representative attempted, unsuccessfully, to read from the submissions

the applicant had made which had already been found inadmissible.

After an altercation with the judge, the applicant left the court room.

The judge refused the applicant's lawyer's request for the applicant

to be heard because it was irrelevant or, in the alternative, because

the case was ready for decision. The applicant made a complaint to the

President of the Salzburg Regional Court about the judge. The

application was rejected on 9 December 1987 after the Court, on 30

September 1987, had required the applicant to submit his complaint in

due form.

The Salzburg Regional Court gave its second judgment on the case

on 14 January 1988. The applicant was ordered to pay the sum now

claimed by the former lawyer with costs. The applicant's appeal of

15 February 1988 was rejected, after an oral hearing, by the Linz Court

of Appeal on 15 November 1988, received by the applicant's lawyer on

6 December 1988. The appeal decision largely confirmed the substantive

decision of 14 January 1988, and amended the costs position. The

decision provided that no further appeal (Revision) was possible. The

applicant's extraordinary further appeal (außerordentliche Revision)

of 12 January 1989 was rejected by the Supreme Court (Oberster

Gerichtshof) on 31 January 1989. The applicant's lawyer received the

decision on 1 March 1989.

Relevant Domestic Law

The Code of Civil Procedure (Zivilprozeßordnung) provided at the

relevant time as follows:

(German)

"§414. (1) Das Urteil ist auf Grund der mündlichen

Verhandlung, und zwar wenn möglich, sogleich nach Schluß

derselben zu fällen und zu verkünden. Mit dem Urteile sind

die Entscheidungsgründe zu verkünden. Die Verkündung des

Urteiles ist von der Anwesenheit beider Parteien

unabhängig.

...

§415. Wenn das Urteil nicht sofort nach Schluß der

mündlichen Verhandlung gefällt werden kann, ist es binnen

acht Tagen nach Schluß der Verhandlung, ... zu fällen.

Verkündet wird das Urteil in diesen Fällen nicht.

...

§502. (1) Gegen die Urteile der Berufungsgerichte findet die

Revision statt.

...

(4) Ist die Revision nicht schon nach den Abs. 2 und 3

unzulässig, so ist sie überdies nur zulässig, wenn

1. die Entscheidung von der Lösung einer

Rechtsfrage des materiellen Rechts oder des

Verfahrensrechts abhängt, der zur Wahrung der

Rechtseinheit, Rechtssicherheit oder

Rechtsentwicklung erhebliche Bedeutung zukommt,

etwa weil das Berufungsgericht von der

Rechtsprechung des Obersten Gerichtshofs

abweicht oder eine solche Rechtsprechung fehlt

oder uneinheitlich ist, oder ...

§503. (2) ...die Revision [kann] überdies nur begehrt werden,

weil das Urteil des Berufungsgerichts auf der unrichtigen Lösung

einer Rechtsfrage des materiellen Rechts oder des

Verfahrensrechts beruht, der erhebliche Bedeutung im Sinn des

§502 Abs. 4 Z. 1 zukommt."

(Translation)

"Article 414 (1). The judgment shall be based on the oral

hearing and, whenever possible, shall be delivered and

pronounced immediately after the close of the hearing.

Reasons are to be given when the judgment is pronounced.

Pronouncement of the judgment does not depend on the parties

being present.

Article 415. If it is not possible for the judgment to be

delivered immediately after the close of the oral hearing,

it shall be delivered ... within eight days after the close

of the hearing. In such cases the judgment shall not be

pronounced.

Article 502 (1). A further appeal may be made against the

judgments of the appeal courts.

...

(4) If a further appeal is not inadmissible for the

grounds set out in paras. 2 and 3 above, it is in any

event only admissible where

1. the decision turns on a question of

substantive or procedural law which is of

particular importance for the preservation

of legal consistency, legal certainty or

the development of the law, for example

because the appeal court diverges from the

case-law of the Supreme Court or because

such case-law does not exist or is not

uniform ...

Article 503 (2). ... moreover, a further appeal [may] only be

requested on the ground that the judgment of the appeal court is

based on an incorrect assessment of a question of substantive or

procedural law which is of particular importance within the

meaning of Article 502 para. 4(1)."

COMPLAINTS

1. The applicant considers that the proceedings were not determined

within a reasonable time and that judgment was not "pronounced

publicly", as required by Article 6 para. 1 of the Convention. These

complaints were first raised by the applicant in his application form

dated 22 June 1989, submitted to the Commission on 28 June 1989.

2. The applicant also considers, inter alia, that the courts were

partial, that the further appeal was not allowed where it should have

been, that he was not allowed to defend himself properly and that his

various challenges of the judge were unsuccessful. He refers to

Articles 6 paras. 1 and 3, and also to Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applicant first wrote to the Commission on 21 March 1989.

This application was registered on 20 July 1989. On 3 September 1991

the Commission decided, pursuant to Rule 42 para. 2 (b) of the Rules

of Procedure, to bring the application to the notice of the respondent

Government and to invite them to submit observations on the

admissibility and merits of the complaints concerning the publicity

accorded to the judgments in the case and the length of the

proceedings.

The Government's observations were submitted on 13 December 1991,

and the applicant's observations in reply were submitted on 22 February

1992.THE LAW

1. In his initial correspondence of 21 March 1989 with the

Commission the applicant made various complaints about the proceedings,

referring to the fairness of the proceedings, alleged bias on the part

of the judge and the outcome of the proceedings. He refers to Articles

6 and 13 (Art. 6, 13) of the Convention in this respect.

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 of a

violation of Articles 6 and 13 (Art. 6, 13) of the Convention.

However, to the extent that these complaints are compatible with the

provisions of the Convention, the Commission finds that they do not

disclose any appearance of a violation of the Articles referred to.

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. In his application form of 22 June 1989, submitted to the

Commission on 28 June 1989, the applicant also, and for the first time,

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

reason of the length of the proceedings and the absence of public

pronouncement of the judgments in his case. 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 and public hearing within a

reasonable time ... Judgment shall be pronounced publicly ..."

The Government consider that the Austrian reservation to Article

6 (Art. 6) of the Convention applies to the complaint concerning

publicity of pronouncement of judgments, or that the applicant has not

exhausted domestic remedies in this respect. In particular they point

out that the applicant could have raised his complaint concerning

Article 415 of the Code of Civil Procedure as a ground of nullity in

his appeal to the Linz Court of Appeal. They also refer to Article 140

para. 1 of the Federal Constitution, which enables courts of second

instance to apply to the Constitutional Court for determination of

whether a law is constitutional. In any event they submit that both

the complaint on the publicity of judgments and that relating to the

length of the proceedings are manifestly ill-founded.

The Commission is not required to decide whether or not the facts

alleged by the applicant in this respect disclose any appearance of a

violation of Article 6 para. 1 (Art. 6-1) of the Convention, nor is it

required to decide on the questions relating to the Austrian

reservation to Article 6 (Art. 6) of the Convention, as Article 26

(Art. 26) of the Convention provides that it "may only deal with the

matter ... within a period of six months from the date on which the

final decision was taken".

In the present case the final decision to be considered is the

decision of the Linz Court of Appeal of 15 November 1988 on the

applicant's ordinary appeal, served on the parties on 6 December 1988.

The applicant's complaints concerning the length of the proceedings and

the absence of public pronouncement of the judgments, however, were

first submitted to the Commission on 28 June 1989 in the application

form of 22 June 1989, that is, more than six months after the applicant

received this decision (cf. Nos. 8603/79 et al., Dec. 18.12.80, D.R.

22 p. 147, at p. 189/190). Furthermore, examination of the case does

not disclose the existence of any special circumstances which might

have interrupted or suspended the running of that period. In

particular, in connection with the complaint concerning the length of

the proceedings, there is no indication - and the Government do not so

submit - that it would have been open to the applicant to contend that

the length of the proceedings amounted to a legal question of

particular importance.

In connection with the complaint concerning the publicity of

judgments, the Commission notes that the provisions relating to

pronouncement are set out in Articles 415 and 416 of the Code of Civil

Procedure. The Government do not allege non-exhaustion of domestic

remedies in this respect as they consider that the final decision in

the case is the decision of the Linz Court of Appeal of 15 November

1988, served on the parties on 6 December 1988. However, even if it

were possible that an extraordinary further appeal could, in certain

circumstances, amount to an effective remedy within the meaning of

Article 26 (Art. 26) of the Convention, the Commission notes that the

applicant did not attempt to raise this matter in his extraordinary

further appeal, and that he failed to comply with the formalities for

such an appeal.

As a result, the Commission finds that the decision of the

Supreme Court of 31 January 1989 may not be taken into account in

determining the final decision for the purposes of Article 26 (Art. 26)

of the Convention.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President to the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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HOLZINGER v. AUSTRIA

HOLZINGER v. AUSTRIA