FIRST SECTION

DECISION

Application no. 60560/00 by Wolfgang SCHMID against Austria

The European Court of Human Rights (First Section), sitting on 12 June 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs F. Tulkens , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar , Having regard to the above application lodged on 30 June 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wolfgang Schmid , is an Austrian national, who lives in Vienna. He is represented before the Court by Prunbaumer , Themmer & Toth , lawyers practising in Vienna.

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

On 20 April 1993 the applicant, on behalf of a company owned by him, instituted civil proceedings against a client.

On 9 July and 3 December 1993 the Vienna Regional Civil Court ( Landesgericht ) held hearings and adjourned the case.

On 7 June 1995 the Regional Court, after the case had been taken over by another judge, urged the appointed expert to submit his report.

On 25 April 1996, after the expert opinion had been amended upon the applicant’s request, the Regional Court held a hearing and decided to repeat the taking of evidence ( Neudurchführung der Verhandlung ) as, meanwhile, the case had been taken over by another judge.

On 3 March 1997 the Regional Court held a hearing and decided to repeat the taking of evidence as, meanwhile, the case had been taken over by another judge.

On 3 September 1998 the Regional Court held a hearing and decided to repeat the taking of evidence as, meanwhile, the case had been taken over by another judge.

On 22 February 2000, the applicant filed a request for acceleration of the proceedings ( Fristsetzungsantrag ) under section 91 of the Austrian Court Act ( Gerichtsorganisationsgesetz ). In particular he requested that the Regional Court be ordered to hold a hearing and to take a decision.

On 3 October 2000 the Regional Court held a hearing and decided to repeat the taking of evidence as, meanwhile, the case had been taken over by another judge. Moreover, the court adjourned the hearing to 29 November 2000. This hearing was cancelled.

On 30 March 2001 bankruptcy proceedings against the defendant were instituted and, thus, the civil proceedings concerning the applicant’s claim were suspended.

On 4 March 2002 the applicant and the defendant, in the course of the bankruptcy proceedings, concluded an agreement concerning the applicant’s claim.

COMPLAINT

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

THE LAW

On 25 April 2003 the Court received the following declaration from the Government:

“I declare that the Government offer to pay the amount of 13,330 euros (EUR) to  Wolfgang Schmid in respect of the application no. 60560/00 on an ex gratia basis for the withdrawal of his application pending before the Court. This sum (EUR 13,330) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 23 April 2003 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay me the amount of 13,330 euros (EUR) on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 13,330) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the offer and withdraw the application waiving any further claims against Austria in respect of the application. I declare that this constitutes a final settlement of the case.”

The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application;

(b) the matter has been resolved;..

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court takes note of the agreement reached between the parties and considers that the applicant no longer intends pursue his application and that the matter has been resolved. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the application should be struck out of the list in accordance with Article 37 § 1 (a) and (b) of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis              Deputy Registrar President