Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18606/91

by E. & Co.

against Austria

The European Commission of Human Rights sitting in private

on 8 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

M. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 25 February 1991

by E. & Co. against Austria and registered on 26 July 1991 under

file No. 18606/91;

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 a forwarding company and has its seat in

Haan/Rheinland, Germany. It is represented by Mr. G. Wagner, a lawyer

in Linz, Austria.

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

summarised as follows.

In February 1978 the applicant company was requested by the

E.-E. company to transport products of that company to Turkey. The

applicant company subsequently charged the Austrian company S. & E. to

carry out this transport. The S. & E. company took the goods,

allegedly in violation of the contractual agreements, to a customs-free

area in Linz with the intention to retain them, invoking a right of

pledge.

1. Proceedings instituted to have the goods returned

The applicant company thereupon instituted proceedings against

the S. & E. company, requesting the return of the goods. The action

was granted by the District Court (Kreisgericht) in Steyr on 12 July 1979.

According to the findings of the Court the S. & E. company had no

right of retention.

The defendant company lodged an appeal which was rejected by

the Court of Appeal (Oberlandesgericht) in Linz on 30 October 1979. On

20 January 1981 the Supreme Court (Oberster Gerichtshof), on appeal on

points of law (Revision), quashed the preceding decisions and sent the

case back to the first instance court for a new trial.

On 20 June 1984 the Steyr District Court again granted the

action. This judgment was confirmed by the Court of Appeal in Linz

on 28 November 1984. An appeal on points of law was rejected by the

Supreme Court on 16 September 1986.

2. Proceedings relating to compensation

Further to the proceedings instituted to have the goods

returned the applicant company, on 2 February 1979, brought another

action for damages against the S. & E. company alleging that the

defendant had unlawfully retained goods which belonged to the E.-E.

company. These proceedings were suspended on 30 March 1979 pending

the outcome of the above proceedings concerning the request for the

return of the goods.

After termination of the latter proceedings on 16 September

1986, the applicant company requested on 23 October 1986 to continue

the proceedings concerning its request for damages. On 23 July 1987

the District Court in Steyr granted the action. On 20 April 1988

this judgment was confirmed by the Court of Appeal in Linz. On

15 November 1988 the Supreme Court quashed the preceding judgment and

sent the case back to the first instance court for a new trial.

On 24 August 1990 the Steyr District Court again gave judgment

for the applicant company ordering the defendant to pay damages in the

amount of DM 56,272. On 4 September 1990 the written judgment was

served on the parties. The judgment became final.

Subsequently the applicant tried to enforce the judgment but

it turned out that the defendant company had fallen bankrupt in the

meantime.

COMPLAINTS

The applicant company considers that the two sets of

proceedings formed a whole as they concerned the same facts. It

considers that the length of the two proceedings taken together

exceeded a reasonable time and therefore violated Article 6 para. 1

of the Convention.

THE LAW

The applicant complains of the length of civil proceedings

relating to an action for damages instituted on 2 February 1979 and

ended on 4 September 1990 when the judgment, which became final, was

served on the parties. The proceedings thus lasted about eleven years

and seven months.

Article 6 para. 1 (Art. 6-1) of the Convention guarantees a

right to have a civil claim determined within a reasonable time.

The reasonableness of the length of proceedings must be

assessed in the light of the particular circumstances of the case and

having regard, inter alia, to the complexity of the case and to the

conduct of the parties and the competent authorities (see, in

particular, Eur. Court H.R., Zimmermann and Steiner judgment of

13 July 1983, Series A no. 66, p. 11, para. 24).

The Commission notes that the proceedings in question were

suspended, apparently with the parties' consent, on 30 March 1979 and

not taken up again until 23 October 1986, when the applicant company

made a corresponding request. This had become necessary in view of

parallel proceedings between the same parties relating to the same

facts but another claim, namely the applicant company's request for

the return of goods withheld by the defendant. The applicant company

does not contest the necessity or practicality of the adjournment. It

only argues that the two sets of proceedings formed a whole and their

length had to be judged accordingly.

The Commission cannot share this opinion. It is true that the

parties and facts were identical in the two proceedings. They

concerned, however, different claims which had to be determined under

different statutory provisions. Consequently the subject-matter in

each case was different and the proceedings relating to the request

for the return of the goods were therefore a separate entity. However,

the reasonableness of the duration of these proceedings has not been

challenged within the six-month time-limit prescribed by Article 26

(Art. 26) of the Convention.

The Commission is therefore prevented from examining the

question whether these proceedings have been terminated within a

reasonable time.

It follows that the Commission can only examine whether the

periods from 2 February 1979 (lodging of action) to 30 March 1979

(suspension) and subsequently from 23 October 1986 to 4 September 1990

disclose any objectionable delays for which the judicial authorities

can be held responsible. In this respect it has to be noted, however,

that the case was first dealt with in three instances and eventually

returned to the first instance court for a retrial.

In these circumstances the Commission finds that the matter

does not disclose any appearance of a violation of the right to speedy

proceedings and 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 by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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