Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13715/88

by K.

against Austria

The European Commission of Human Rights (Second Chamber)

sitting in private on 10 September 1991, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs. G. H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second 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 7 March 1988

by K. against Austria and registered

on 29 March 1988 under file No. 13715/88;

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 they have been submitted by the

parties, may be summarised as follows:

The applicant, born in 1938, is an Austrian national. At

present he is serving a life sentence for murder at the prison of

M. In the present case the applicant was first represented by Mr. G.

Neufeldt-Schoeller, a lawyer practising in Vienna. Since 24 February

1989 he has been represented by Mr. W.L. Weh, a lawyer practising in

Bregenz.

The applicant has lodged further applications with the

Commission, which concern criminal proceedings leading to his

conviction of murder (No. 12350/86) and criminal proceedings under the

Austrian Code of Financial Offences (No. 15883/89) and are still

pending before the Commission.

On 28 September 1979 an Austrian banking institute brought

an action against the applicant in the Vienna Regional Court

(Landesgericht), claiming repayment of a credit of AS 231,113 plus

13.5% interest as from 1 January 1979. The statement of claim and the

summons for the hearing fixed for 31 October 1979 were served upon the

applicant personally on 9 October 1979.

On 31 October 1979 the Regional Court, by a judgment in default

(Versäumungsurteil), allowed the claim.

On 9 November 1979 the judgment was served upon the applicant

by deposit at the local post office of his place of residence on the

ground that he could not be reached at home. On 26 November 1979 the

Vienna Regional Court stated the binding force and enforceability of

the judgment concerned. The deposited judgment was returned by the

post office as not claimed on 28 November 1979.

Subsequently, in November or December 1984 in the context of

criminal proceedings against him, the applicant heard about the above

judgment.

On 20 May 1985 the applicant requested the Vienna Regional

Court to send him a copy of the above judgment.

On 28 May 1985 the Regional Court ordered that the judgment be

served upon the applicant in prison. The applicant received the

judgment on 31 May 1985.

On 17 June 1985 the applicant filed an objection (Widerspruch)

and an appeal (Berufung) against the Regional Court's judgment of 31

October 1979. He requested free legal aid for the appeal proceedings.

He claimed in particular that the initial notification of the

judgment, deposited with the post office on 9 November 1979, was

ineffective as he had been absent from his domicile. Furthermore, he

submitted that the judgment was tainted with nullity as he had

suffered from mental illness at the relevant time and not been

represented in the proceedings. In this respect he referred to

psychiatric expert opinions obtained in disciplinary proceedings in

1978 and in the above criminal proceedings. He also requested that

the enforceability of the judgment be set aside.

Before transmitting the applicant's remedies to the competent

Court of Appeal (Oberlandesgericht), the Regional Court made

inquiries concerning the applicant's absence from his domicile in

1979. It heard the applicant on 23 July 1985. Following an

unsuccessful attempt to summon the applicant's wife in October 1985,

she was heard on 26 November 1985. Further the Regional Court, in

order to find out the applicant's whereabouts on 9 November 1979,

unsuccessfully requested transmission of the applicant's criminal

files and asked the Vienna Federal Police Department (Bundespolizei-

direktion) for copies of the applicant's passport. The applicant was

heard again on 10 March 1986.

On 18 March 1986 the Vienna Regional Court transmitted the

file to the Vienna Court of Appeal.

On 9 July 1986 the applicant repeated his request for free

legal aid. On 30 December 1986 he asked about the state of

proceedings as regards this request.

On 12 February 1987 the applicant asked about the state of his

appeal proceedings.

On 30 March 1987 the Vienna Court of Appeal returned the files

to the Regional Court with a request to clarify the question of the

applicant's alleged incapacity to conduct proceedings in October and

November 1979.

On 10 April 1987 the Regional Court requested the Vienna Court

of Appeal for transmission of the files concerning the disciplinary

proceedings against the applicant. The relevant psychiatric expert

opinions of March and June 1978 contained in these files were

transmitted to the Regional Court on 23 April 1987. On 30 April 1987

the Korneuburg Regional Court, upon the Vienna Regional Court's

request for transmission of the criminal files, replied that these

files were not available pending re-opening proceedings. On 11 May

1987 the criminal files were sent, and they were partly photocopied.

On 11 June 1987 the applicant was granted legal aid. On

6 July 1987 Mr. T. was appointed as counsel for the applicant.

On 21 July 1987 the applicant instituted proceedings before

the Federal Ministry of Justice (Bundesministerium der Justiz)

claiming compensation under the Official Liability Act (Amts-

haftungsgesetz) for misconduct of the civil proceedings. On

24 August 1987 the files were forwarded to the Vienna Court of Appeal

for examination and comment in respect of these compensation claims.

On 18 September the files were forwarded to the Ministry of Justice,

and on 25 September to the Treasury Department (Finanzprokuratur).

In the meantime, on 22 September 1987 Mr. Neufeldt-Schoeller

had been appointed as the applicant's counsel. On 12 October 1987

counsel asked for a copy of the files and, referring to Article 6

para. 1 of the Convention, raised the problem of the length of the

proceedings. On 9 November 1987 he was informed that the files had

been sent to the Federal Ministry of Justice.

On 26 November 1987 the applicant instituted civil proceedings

before the Vienna Regional Court claiming compensation under the

Official Liability Act in view of the delay of his appeal proceedings.

On 11 December 1987, following an exchange of further

submissions and comments, the Treasury Department dismissed the

applicant's compensation claims and the Federal Ministry of Justice

informed the Vienna Court of Appeal accordingly. The files were sent

back on 30 December 1987.

Meanwhile, on 23 December 1987 the applicant had challenged

two judges at the Court of Appeal for bias.

On 5 January 1988 the Vienna Regional Court appointed the

psychiatric expert Mr. G. to deliver an opinion on the question of the

applicant's state of mental health in 1979.

On 11 January 1988 the applicant lodged further compensation

claims with the Treasury Department.

On 22 January 1988 the applicant's counsel again urged a

decision on appeal, and the production of a copy of the file.

On 18 February the applicant appealed against the decision of

5 January 1988 on the appointment of a psychiatric expert without

having been heard previously. The applicant also reminded the Court

of Appeal of his earlier requests for a copy of the file.

According to a report of the competent judge at the Regional

Court dated 23 February 1988, these earlier requests were not in the

file.

The proceedings were suspended in March 1988 due to the death

of the plaintiff's counsel.

On 22 March 1988 the applicant requested the Vienna Court of

Appeal to revoke its decision of 30 March 1987, whereby the

supplementary inquiries had been delegated to the Regional Court, and

to conduct itself the necessary inquiries and to appoint a psychiatric

expert, for example Mr. S.

On 6 April 1988 the plaintiff requested an oral hearing.

On 28 June 1988 the Vienna Regional Court submitted the files

to the Court of Appeal for decision on the applicant's appeal of

18 February 1988 against the appointment of the expert G. On 29 July

1988 the Court of Appeal rejected this appeal.

On 5 August 1988 the Court of Appeal rejected the applicant's

requests of 22 March 1988 on the ground that, under the Code of Civil

Procedure (Zivilprozeßordnung), the Court of Appeal was free to

delegate inquiries to the Regional Court and to supplement them, if

necessary. On 4 October 1988 the files were returned to the Vienna

Regional Court. On 12 October 1988 the Court of Appeal's decisions of

29 July and 5 August 1988 were served upon the applicant.

In the meantime, on 2 September 1988, the applicant had lodged

disciplinary complaints with the Supreme Court (Oberster Gerichtshof)

as regards the length of the appeal proceedings.

On 12 October 1988 the Regional Court summoned the applicant's

wife and the psychiatric expert G. for a hearing on 15 December 1988

on the question of the applicant's capacity to enter into legal

transactions. The summons of the applicant's wife could not be

served on the ground that she had moved in the meantime.

On 24 October 1988 the applicant appealed against the Court of

Appeal's decision of 29 July 1988 concerning the appointment of the

psychiatric expert G.

On 10 November 1988 the hearing fixed for December 1988 was

cancelled and the files were submitted to the Supreme Court for

decision upon the applicant's appeal of 24 October.

On 2 November 1988 the applicant complained that his request

of 17 June 1985 to quash the enforceability of the Regional Court's

judgment of 1979 had not been decided upon.

On 11 November 1988 the applicant asked for access to the

Regional Court's files, which was refused on the ground that the files

had been submitted to the Supreme Court. The applicant appealed

against this decision on 15 November 1988.

On 24 December 1988 the Supreme Court dismissed the

applicant's appeal concerning the appointment of the psychiatric

expert G. The files were returned to the Regional Court on

21 December 1988. The decision was served upon the applicant on

3 February 1989.

On 27 December 1988 the President of the Vienna Court of

Appeal, upon the applicant's inquiry of 15 December, informed him

that, having regard to the work load of the Court of Appeal, no

disciplinary action had been taken in respect of the delay in the

proceedings.

On 9 January 1989 the Regional Court summoned the applicant's

wife and the expert G. for a hearing on 21 February 1989 on the matter

of the applicant's mental health.

On 9 January 1989 the applicant also renewed his complaint

that no copy of the files had been prepared and asked for information

about the measures taken to reduce the Court of Appeal's work load.

On 12 January 1989 the applicant requested the Court of Appeal

to decide upon his request to quash the enforceability of the judgment

of 1979.

On 18 January 1989 the President of the Court of Appeal

informed the applicant that the Federal Ministry of Justice had

refused to create additional posts for judges, except one in 1986.

On 24 January 1989 the competent judge at the Vienna Regional Court,

upon instruction by the President of the Court of Appeal, was informed

about the preparation of file copies.

On 27 January 1989 the applicant was summoned for the

hearing on 21 February 1989.

On 6 February 1989 the applicant complained that his counsel

had not been summoned. Furthermore, he appealed against his summons

of 27 January and submitted that a warrent to appear was unlawful. He

also lodged various other complaints that earlier requests had not

been decided upon, and complained about the information by the

President of the Court of Appeal of 18 January 1989 to the Federal

Ministry of Justice.

On 13 February 1989 the applicant repeated his request with

the Court of Appeal that no further investigations be conducted by the

Vienna Regional Court.

On 20 February 1989 the applicant's wife informed the Regional

Court that she could not appear at the hearing on 21 February, and

that it had not been clarified whether she, a doctor, was dispensed

from her duty of secrecy. One day later the Regional Court informed

the Mittersteig Prison that it had not issued a warrant to appear in

court, the applicant should be brought before court if he so wished.

At the hearing on 21 February 1989 the applicant and the

psychiatric expert G. were present. Upon the applicant's complaint

that his counsel had not been summoned, the Regional Court told him

that the hearing concerned was held in camera in order to hear him as

witness (Auskunftsperson). Following a warning by the Judge N., the

applicant challenged him for bias. The Regional Court requested the

applicant to inform the Court, within two weeks, whether he dispensed

his wife from her duty of secrecy, as well as to have his motion of

challenge filed by counsel.

On 22 February 1989 the applicant filed the motion to

challenge the Regional Court Judge N. for bias. On 27 February 1989

he requested that the psychiatric expert be instructed to deliver his

opinion within two months and to examine the applicant.

In two decisions of 9 March 1989 the Vienna Court of Appeal

dismissed the applicant's respective requests of 13 February (to have

the supplementary investigations conducted by the Court of Appeal) and

12 January 1989 (to have the enforceability of the judgment of 1979

quashed). The decisions were served on 5 April 1989.

In March and April 1989 the files were sent to another

Department of the Vienna Regional Court and to the Vienna Court of

Appeal in view of other proceedings. On 21 April 1989 the Regional

Court ordered that the files be copied.

On 17 May 1989 the Federal Ministry of Justice informed the

applicant that the number of judicial posts of the Court of Appeal had

developed as follows during the relevant period: 1986 - 70, 1987 - 77,

1988 - 77, 1989 - 73. The backlog of pending cases had risen from 438

in 1982 to 817 in 1986.

On 18 May 1989 the Supreme Court dismissed the applicant's

appeal of 17 April 1989 against the Court of Appeal's decisions of

9 March 1989.

On 24 May 1989 the Vienna Court of Appeal dismissed the

applicant's appeal in which he had claimed that on 11 November 1988 he

had been refused to consult the file. The Court of Appeal found in

particular that no such decision had been taken on the ground that at

the time in question the files had been sent to the Court of Appeal

and were, therefore, not available at the Regional Court.

On 12 July 1989 Judge N. at the Regional Court commented upon

the applicant's motion of challenge for bias of 22 February.

On 22 July 1989 the Vienna Regional Court instructed the

psychiatric expert G. to prepare his expert opinion according to the

Court's decision of 5 January 1988. On 27 July the expert was set a

time-limit of two months. On 18 August 1989 the expert examined the

applicant. On 6 September 1989 the expert submitted his opinion

according to which the applicant had been capable to enter into legal

transactions in October and November 1979.

In October 1989 the files concerning the applicant's appeal

against the judgment of 1979 and concerning his challenge of Judge N.

were transferred to the Vienna Court of Appeal.

On 7 November 1989 the Vienna Court of Appeal, in camera,

dismissed the applicant's appeal of 17 June 1985, insofar it concerned

reasons of nullity. The Court of Appeal found in particular that on

9 November 1979 the applicant had not been at his place of residence

where he had only returned at the end of the month. However, there

was nothing to indicate that in October and November 1979 the

applicant, having regard to his mental health, had not been capable to

understand that a statement of civil claims and later a judgment had

been served upon him. The Court of Appeal considered that the service

of the judgment concerned by way of depositing it at the local post

office had contravened S. 104 of the Code of Civil Procedure in the

version in force at that time. Thus the time-limit for lodging an

appeal had not started to run. The applicant's appeal had, therefore,

been lodged in time.

On 13 November 1989 the applicant was summoned to appear at a

hearing on his appeal fixed for 19 December 1989.

On 27 November 1989 the applicant notified a change of

counsel; he was then represented by Mr. M., a lawyer practising in

Vienna.

On 19 December 1989, at the hearing before the Court of

Appeal, the applicant complained about the composition of the Vienna

Court of Appeal. The Court of Appeal informed the parties of its

decision of 7 November 1989. Furthermore, it confirmed the judgment

in default of 1979. In its decision, the Court of Appeal found in

particular that the plaintiff's submissions on its claims, although

short, had been sufficient.

On 28 June 1990 the Supreme Court declared the applicant's

appeal against the Court of Appeal's decision of 7 November 1989

inadmissible. Upon the applicant's appeal on points of law

(Revision), the Supreme Court quashed the judgment of 19 December

1989. The Supreme Court considered in particular that the composition

of the Chamber at the Court of Appeal, which had dealt with the

applicant's case, did not clearly follow from the Court of Appeal's

rules on the distribution of cases (Geschäftsverteilung). The case

was sent back to the Vienna Court of Appeal.

In the resumed appeal proceedings, a hearing was fixed for

18 September 1990.

On 12 September 1990 the plaintiff withdrew its action, thereby

waiving its claim against the applicant.

On 9 October 1990 the applicant requested the Regional Court

to fix his legal expenses for payment by the plaintiff.

On 18 October 1990 the Vienna Court of Appeal declared the

judgment of 1979 without effect. The decision was served upon the

applicant on 3 December 1990.

Meanwhile, on 9 November 1990 the applicant requested the

Vienna Court of Appeal to set a time-limit for the Regional Court to

decide upon his claim for reimbursement of legal expenses.

On 3 December 1990 the Vienna District Court discontinued the

execution proceedings against the applicant.

On 16 January 1991 the Court of Appeal dismissed the

applicant's request of 9 November 1990 on the ground that after the

Court of Appeal's decision of 18 October 1990 the files had been

transmitted to the Federal Ministry of Justice and not been available

for the Regional Court. Thus there was no failure of the Regional

Court. The decision was served on 8 February 1991.

On 20 February 1991 the Treasury Department, referring to

earlier correspondence, dismissed the applicant's renewed claims under

the Official Liability Act in respect of the length of his appeal

proceedings. The Department considered in particular that

compensation for undue delays of the proceedings could only be paid

in case the action had been won. Anyway, the applicant should await

the cost decision of the Vienna Regional Court.

COMPLAINTS

The applicant complains that in the above proceedings he did

not get a hearing within a reasonable time. He also submits that he

did not have an effective remedy under Austrian law as regards the

delay in the procedure. He invokes Article 6 para. 1 and Article 13

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 March 1988 and registered

on 29 March 1988.

On 12 July 1989 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written submissions on its admissibility and merits.

On 27 November 1989 the observations were submitted by the

respondent Government. On 19 March 1990, after an extension of the

time-limit, the applicant sent his observations in reply. He made

further submissions on 19 September 1990 and 18 March 1991.

THE LAW

The applicant complains about the length of civil proceedings

concerning the claim of a banking institute for repayment of debts.

He relies upon Article 6 para. 1 (Art. 6-1) of the Convention which,

insofar as relevant, provides:

"In the determination of his civil rights and

obligations ... everyone is entitled to a fair and

public hearing within a reasonable time by an

independent and impartial tribunal established by law."

The Government submit that the starting point for the period

to be considered under Article 6 para. 1 (Art. 6-1) of the Convention

is 17 June 1985 when the applicant lodged his appeal against the

default judgment of 31 October 1979. The length of the proceedings

was particularly due to the numerous remedies lodged by the applicant,

including hierarchical complaints, requests for disciplinary

proceedings, official liability proceedings, motions to challenge

judges for bias. Thereby the original files, and later also the copy

of the files prepared in January 1988, had to be transferred to other

courts. Moreover, pending such remedies the main appeal proceedings

could not be furthered.

The Commission finds that the applicant's complaint about the

length of his civil proceedings raises questions of fact and law which

are of such complexity that their determination requires an

examination of the merits. The application is therefore not

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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K. v. AUSTRIA

K. v. AUSTRIA