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AS TO THE ADMISSIBILITY OF

Application No. 18823/91

by B.E.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 8 January 1993 , the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

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 3 May 1991 by B.E.

against Austria and registered on 19 September 1991 under file No.

18823/91;

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 applicant is an Austrian citizen, born in 1940 and living in

Linz. She is represented by Mr. Helmut Blum, a lawyer practising in

Linz.

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

summarised as follows.

On 17 March 1980 the applicant underwent surgical treatment by

a dentist and was accidentally injured as a consequence of the

loosening of a part of a dental drill in action. The blast of the

drill caused the applicant an aero-embolism (Luftemphysem).

On 16 March 1983 the applicant brought an action for damages

against the dentist, the efforts to reach a friendly settlement with

the dentist's insurance company having failed.

On 5 April 1983 the competent Regional Court (Landesgericht) in

Linz held a first hearing before Judge Z. The defendant requested to

reject the action and was ordered to submit his observations before 29

April 1983.

On 13 April 1983 the defendant submitted his memorial and on 1

June 1983 another hearing took place and the Court decided to take

evidence. Subsequently the applicant submitted various documents

relating to her treatment after the incident of 17 March 1980 and

requested to hear Drs. H. and E.

The Court obtained expert opinions which were communicated to the

parties.

On 3 September 1984 the applicant requested that the expert

opinions submitted by Drs. St. and Sch. be discussed.

Meanwhile another judge, Mrs. A.H., had taken over the case.

On 6 February 1985 the applicant requested to hear witnesses

S.E., Dr. H. M.-Sch., Dr. F.W., and Dr. H.M.

The Court requested another expert opinion which was submitted

on 4 November 1985 by an engineer, Mr. K.

On 25 March 1986 another hearing took place before Judge H. The

expert opinions were not discussed, nor were any witnesses heard. Only

documentary evidence was discussed and questions put to the applicant.

Subsequently the Regional Court made a rogatory request to the

District Court (Bezirksgericht) Innere Stadt Wien for the hearing of

the experts Dr. St. and Dr. Sch.

The two experts were heard by the District Court on 9 July 1986

(Dr. St.) and 18 December 1986 (Dr. Sch.) respectively.

On 9 October 1987 the applicant extended her claim

(Klageerweiterung).

On 30 December 1987 the applicant's counsel requested that

another oral hearing be fixed and on 27 January 1988 he requested that

the expert opinions be further discussed.

On 4 February 1988 the Regional Court in Linz heard witness S. E.

and the parties. Meanwhile Judge M.H. had taken over the case.

Judgment was given on 8 July 1988 but not communicated to the

applicant before 9 November 1988.

Both parties appealed.

The Court of Appeal granted the applicant's appeal and referred

the case back to the first instance for the taking of further evidence.

The appellate court's judgment was rendered on 14 June 1989 and served

on the applicant on 2 August 1989.

On 18 January 1990 the case was again heard in first instance.

Subsequently Judge K.P. took over the case.

On 9 October 1990 evidence was taken as requested by the

applicant and the expert opinions were discussed.

On 14 December 1990 the Regional Court dismissed the applicant's

remaining claims. This judgment was served on 28 December 1990.

The applicant appealed.

On 8 May 1991 the appeal was rejected by the Court of Appeal

(Oberlandesgericht) in Linz. The decision of the Court of Appeal was

served on the applicant on 31 May 1991.

The applicant then lodged an appeal on points of law to the

Supreme Court (Oberster Gerichtshof). This extraordinary appeal was

rejected by a decision of 18 September 1991, served on the applicant

on 10 October 1991.

COMPLAINTS

In her application, the applicant has complained of the length

of the proceedings, pointing out that in first instance eight different

judges dealt with her case. Subsequently, she has also alleged a

violation of her right to a fair hearing. She invokes Article 6

para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION AND FURTHER DEVELOPMENT

The application was lodged on 3 May 1991 and registered on

19 September 1991. On 13 January 1992 the Commission decided to

communicate the application to the respondent Government for

observations on admissibility and merits. The Government submitted

their observations on 22 April 1992 and the applicant replied on

10 June 1992.

By letter of 9 April 1992 the applicant submitted the Supreme

Court's (Oberster Gerichtshof) decision, dated 18 September 1991

(served on the applicant's counsel on 10 October 1991), by which her

extraordinary appeal on points of law (außerordentliche Revision) was

rejected in accordance with Section 508a (2) of the Code on Civil

Procedure (ZPO) for not complying with the conditions set out in

Section 502 (1) of the Code on Civil Procedure.

Considering this decision to be the final one in her case, the

applicant raised a further complaint alleging a violation of her right

to a fair hearing (Article 6 para. 1) inter alia for the following

reasons:

- that not all available evidence, in particular certain documents

concerning her case history (Krankengeschichte) was considered

by the courts;

- that the Austrian courts based their judgments on expert opinions

which she had shown to be contradictory;

- that certain witnesses were not heard, such as the assistant of

the defendant dentist and the applicant's husband, and that other

witnesses were heard only a long time after the events;

- that the files relating to the criminal proceedings instituted

in the matter were not submitted to the Supreme Court;

- that the first instance court had already in 1986 elaborated a

file note with a summary of the facts and a prognosis of the

outcome of the case;

- that the first instance judgment contains remarks which she

considers to contain offensive personal attacks (persönliche

Kränkung), e.g. that she pursued the matter with a certain

passion and that she seemed to be more interested in sweeping

and expensive rather than target-oriented (zielgerichtete)

proceedings;

- that, although evidence was manipulated, no result had yet been

obtained with regard to the criminal charges she had laid in this

respect.

THE LAW

1. The applicant mainly complains of the length of the civil

proceedings instituted by her and alleges a violation of Article 6

para. 1 (Art. 6-1) of the Convention, which provides that:

"In the determination of his civil rights and obligations

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

reasonable time by ... [a] tribunal."

The proceedings in question were instituted by the applicant on

16 March 1983.

It can be left undecided whether they were ended by the Appeal

Court's decision of 31 May 1991 or by the Supreme Court's decision of

18 September 1991 rejecting the applicant's extraordinary appeal on

points of law. In any case the proceedings lasted more than eight

years.

The applicant contends that the length of time in question cannot

be regarded as reasonable within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. The Government disagrees, arguing that

the length of the proceedings is largely attributable to the conduct

of the applicant.

Under the established case-law of the Conventin organs, the

reasonableness of the length of proceedings under Article 6 para. 1

(Art. 6-1) of the Convention has to be assessed in each case according

to the particular circumstances and by applying the following criteria:

the complexity of the facts and the law, the applicant's conduct and

the conduct of the authorities dealing with the case.

Applying those criteria and having regard to the particular

circumstances of the case as they have been submitted by the parties,

the Commission takes the view that the complaint relating to the length

of the proceedings raises complex issues of fact and law which require

an examination of the merits. It accordingly cannot declare this part

of the application manifestly ill-founded. No other grounds for

declaring the application inadmissible have been established.

2. The Commission has examined the applicant's complaint relating

to the alleged unfairness of the proceedings, raised in her letter of

9 April 1992, but cannot find that it discloses any appearance of a

violation of the Convention. The Commission observes in particular

that the appreciation of the relevance of evidence is a matter for the

domestic judge, and the applicant has not shown that vital evidence was

arbitrarily disregarded or misinterpreted in her case.

It follows that this part of the application has to be rejected

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as

being manifestly ill-founded.

For these reasons, the Commission unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the complaint

concerning the length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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