THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61930/00 by Mohamed EL MASSRY against Austria

The European Court of Human Rights (Third Section), sitting on 20 November 2003 as a Chamber composed of: [Note1]

Mr G. Ress , President

Mr I. Cabral Barreto, Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mrs E. Steiner,

Mrs A . Gyulumyan , judges , and Mr V. Berger , Section Registrar , [Note2]

Having regard [Note3] to the above application lodged on 24 August 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mohamed El Massry, is a Egyptan [Note4] national, who was born in 1949 and lives in Bad Mitterndorf (Austria). He is represented before the Court by Mr Buchmayr, a lawyer practising in Linz.

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

A. The circumstances of the case

On 16 September 1989 the applicant was the victim of an assault and was heavily injured. He was brought to the Bad Aussee Hospital ( Landeskrankenhaus ) where he received medical treatment as he suffered from pulmonary disease. The applicant underwent an operation and was transferred to the Graz Hospital where another operation was carried out. After this medical treatment the applicant's ability to work was considerably reduced. He became unemployed and was without income.

On 27 November 1992 he instituted civil proceedings against the Steiermärkische Krankenanstalten Gesm.b.H., the company which administers public hospitals in the region of Styria. He claimed damages for pain and suffering and loss of profit. He alleged that medical malpractice had caused his state of health and that the surgeons treating him had infringed their duty to provide explanations and advice concerning the treatment.

On 12 January, 24 February, 29 November and 14 December 1993, and on 12 January, 15 and 29 April and 15 December 1994 the Leoben Regional Court held hearings. It heard numerous witnesses and medical experts. On 30 September 1993 the applicant challenged one of the experts. However, his challenge was dismissed on 14 October 1993.

On 15 December 1994 the Regional Court, after having held a hearing, gave a partial judgment ( Teilurteil ). It considered the claim for damages to be well-founded in principle ( dem Grunde nach ), while the exact amount of compensation had to be determined in further proceedings. It found that the surgeons treating the applicant had infringed their duty to provide explanations and advice concerning the treatment.

On 3 February 1995 the defendant filed an appeal against this decision and on 5 March 1995 the applicant commented on this appeal.

On 22 June 1995 the Court of Appeal dismissed the defendant's appeal.

On 22 November 1995 the Supreme Court dismissed the defendant's further appeal ( ausserordentliche Revision ) on points of law.

On 8 March, 4 July, 26 November and 18 December 1996, and on 10 January 1997 the Regional Court, presided by another judge, held hearings and heard further medical experts. The issue to be clarified at this stage of the proceedings was the level of the applicant's ability to work before the incident and the extent to which the medical treatment received at the hospitals influenced his ability to work. On the basis of these findings, the amount of compensation due had to be assessed.

On 23 October 1996 the applicant amended and extended his claim.

On 10 January 1997 the Regional Court ordered a medical expert to amend his opinion. On 28 May and on 17 June 1997 the Court urged the expert to deliver his opinion.

On 18 June 1997 the applicant filed a request under Section 91 ( Fristsetzungsantrag , “ Section 91 request”) of the Court Organisation Act ( Gerichtsorganisationsgesetz ) and asked the Court of Appeal to set a time ‑ limit for the delivery of a medical expert report as the appointed expert had not submitted his report for more than five months.

On 2 July 1997 the Court of Appeal allowed the applicant's request and fixed a time-imit for the delivery of the report of four weeks.

On 7 July 1997 the expert submitted the opinion. Subsequently, the parties were invited to comment on it.

On 24 November 1997 the Regional Court held another hearing and appointed a further expert. On 25 March 1998 the new expert report was delivered. On 22 April 1998 the defendant challenged the new expert for bias ( Ablehnungsantrag ). On the same day the court dismissed this application.

On 12 June 1998 the applicant requested the court to hold a further hearing. On 22 July and 5 November 1998 the Regional Court held further hearings in which the applicant extended his claim.

On 9 February 1999 the Regional Court gave a partial judgment and determined the precise amounts of compensation to be paid by the defendant.

On 19 March 1999 both the applicant and the defendant filed an appeal.

On 7 October 1999 the Court of Appeal, after a hearing, dismissed the applicant's appeal and partly allowed the defendants' appeal. It reduced the amount of compensation and quashed parts of the Regional Court's judgment and, to this extent, remitted the case to the Regional Court. This decision was served on 27 February 2000. On 27 March 2000 the applicant filed an appeal on points of law.

On 30 Mai 2000 the Supreme Court rejected the applicant's appeal on points of law. This decision was served on 27 July 2000.

On 19 October 2000 the applicant filed new submissions concerning his remaining claim and on 14 November 2000 the Regional Court held a hearing.

On 9 February 2001 the Regional Court appointed a medical expert who submitted his opinion on 24 March 2001. On 3 April 2001 the Regional Court ordered the applicant to comment on this opinion, which he did on 24 April 2001.

On 12 July 2001 the Regional Court held a hearing.

On 25 January 2002 the Regional Court partly allowed the applicant's claim, granting the amount of EUR 204,139.99, inter alia , for medical and travelling costs and a monthly payment of EUR 472.37.

On 19 March 2002 both the applicant and the defendant filed appeals against this decision.

On 16 June 2002 the Court of Appeal partly allowed both appeals. It reduced the amount to EUR 184,619.40 and remitted the case concerning the travelling costs and the monthly payment to the Regional Court.

On 19 February 2003 the Regional Court held another hearing. It decided to repeat the taking of evidence as, meanwhile, the case had been taken over by another judge.

On 30 July 2003 the Regional Court partly allowed the applicant's claim granting the amount of EUR 125,782.47, inter alia , for medical and travelling costs and a monthly payment of EUR 472.37.

On 22 September 2003 the defendant filed an appeal and on 22 October 2003 the applicant filed his observations.

The proceedings are still pending.

B. Relevant domestic law and practice

Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

  (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

  (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the proceedings.

THE LAW [Note5]

The applicant's complaint under Article 6 § 1 relates to the length of the civil proceedings. Article 6 § 1, so far as relevant, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”

a. The Government contended that the applicant has failed to exhaust domestic remedies. Referring to the case of Holzinger v. Austria (no. 23459/94, §§ 24-25, ECHR 2001-I), in which the Court found that a request under Section 91 of the Courts Act constitutes an effective remedy in order to accelerate proceedings, it was submitted that the applicant only filed one such application after the proceedings had already lasted five years, whereas this remedy would have been at the applicant's disposal during the whole proceedings.

The applicant submitted that it was primarily the courts' task to deal expeditiously with his case. Further, he pointed out that he had made use of the remedy at issue and that he could only be obliged to do so if there were obvious periods of inactivity.

The Court recalls that a request under Section 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings ( Holzinger v. Austria , no. 23459/94, §§ 24-25, ECHR 2001-I).

As to the Government's submission that the applicant could have used the request at issue more often, the Court does not find it necessary to determine whether it is obligatory to file a Section 91 request more than once in order to comply with the rule of exhaustion of domestic remedies as required under Article 35 § 1.

In the present case, the applicant made use of this remedy on 18 June 1997. The Court observes that there is no other considerable period of inactivity in the proceedings at which the lodging of an request under Section 91 would have been adequate or necessary. Even the Government did not specify at which time the applicant should have lodged another request under Section 91, but only submitted that the remedy at issue was at his disposal throughout the proceedings. Therefore, the Government failed to deliver convincing arguments on how this remedy could have hastened the proceedings. The Court finds that the present applicant has exhausted domestic remedies and, therefore, dismisses the Government's preliminary objection.

b. As to the period to be taken into consideration, the Court observes that the proceedings started on 27 November 1992, when the applicant brought his civil action, and that they are still pending. Therefore, they lasted for approximately eleven years.

The Government contended that the length of the proceedings may still be regarded as reasonable as they were extraordinarily complex. Difficult medical questions had to be determined, such as the causal link between the alleged medical malpractice and the applicant's state of health. In this respect numerous and time-consuming expert opinions had to be obtained from various specialists.

As to the applicant's conduct in the proceedings, the Government stressed that he twice extended his claim and that the parties of the proceedings made extensive use of remedies available; in particular, both the applicant and the defendant challenged experts. Moreover, all the partial decisions of the civil courts were challenged by the parties and dealt with on three levels of jurisdiction. Also, the hearing scheduled for 22 July 1998 was postponed upon the parties' request in order to allow friendly settlement negotiations, and the proceedings were only resumed on 5 November 1998.

As to the conduct of the courts, the Government asserted that there were no periods of inactivity and that the courts conducted the proceedings in an expeditious manner. In particular, the courts repeatedly urged the experts to deliver their opinions and very rarely allowed requests by the parties to postpone hearings.

The applicant admitted that the proceedings concerning compensation for medical malpractice raised difficult questions of fact and law. However, in particular after the Regional Court's finding in November 1995 that the applicant's claim was well-founded in principle, the Regional Court in the ensuing proceedings again allowed motions of the defendant concerning the well-foundedness of the applicant's claim which considerably delayed the proceedings. Moreover, the applicant submitted that the Regional Court had appointed experts which were practising within the area of influence of the defendant, a company administering public hospitals in Styria. Only when the court appointed another expert practising outside this geographical area, were reliable opinions delivered.

As to his own conduct, the applicant submitted that he could not be blamed for having used all legal remedies available to him and that he had not contributed to the length of the proceedings. Finally, he pointed out that the outcome of the proceedings was of great importance for him, as he was no longer able to work after the medical malpractice and did not dispose of any income except for the amounts granted in the compensation proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Georg Ress Registrar President [Note6]

Appl. no. 61930/00

El Massry v. Austria

Summary of the applicant's observations in reply

The applicant contests the Government's submissions on non-exhaustion as it was primarily the court's task to deal expeditiously with his case. Further, he pointed out that he had made use of the remedy at issue and that he may only be obliged to make use of it if there are obvious periods of inactivity.

As regards the merits the applicant admitted that the proceedings concerning compensation for medical malpractice raised difficult questions of fact and law. However, in particular after the Regional Court's finding, that the applicant's claim was well-founded in principle in November 1995, the Regional Court in the ensuing proceedings allowed again motions of the defendant concerning the well-foundedness of the applicant's claim which considerably delayed the proceedings. Moreover, he submitted that the Regional Court had appointed experts which were practising within the area of influence of the defendant, the company which administers public hospitals in the region of Styria. Only when the court appointed another expert practising outside this area, reliable opinions had been delivered.

As to his own conduct he submitted that he could not be blamed for having used all legal remedies available to him and that he did not contribute to the length of the proceedings. Finally, he pointed out that the outcome of the proceedings was of great importance as after the medical malpractice he was no longer able to work and did not dispose of any income except for the amounts granted in the compensation proceedings. He, therefore, maintains his allegations.

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