THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32637/96 by Ernst STEINER against Austria

The European Court of Human Rights (Third Section), sitting on 22 November 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve ,

Mrs E. Steiner , judges , and Mr V. B erger , Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 16 June 1996 and registered on 19 August 1996,

Having regard to the partial decision on admissibility by the Commission on 22 October 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ernst Steiner, is an Austrian national , born in 1941 and living in Marchtrenk /Austria.

A. The circumstances of the case

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

On 7 December 1973 the Roman Catholic Rectory of Saint Nicolaus ( Römisch-katholische Stadtpfarrkirche St. Nikolaus , hereafter “the Rectory”), the owner of an estate in Hall/Tyrol, concluded a contract with Mr M. S., the owner of three adjacent estates, authorising him to use its estate for the construction of a sales hall. The agreement was subject to the condition that M. S. obtained the prior permission by the M. company, the tenant of the Rectory’s estate. M. S. later transferred his entitlement as regards the sales hall to the L. company.

On 2 October 1985 a donation contract of 23 December 1982 between the L. company as donor and the applicant as recipient was deposited with the Hall District Court and subsequently entered into the land register. The purpose of this contract was to transfer to the applicant the ownership of the sales hall, including the part of the building that had been constructed on the Rectory’s estate.

On 16 December 1987 the Rectory brought an action against the applicant before the Innsbruck Regional Court, requesting that the entry of the above donation contract into the land register be declared null and void. In an alternative claim the Rectory requested a declaratory judgment that the applicant had no property rights regarding the part of the sales hall constructed on the Rectory’s estate.

On 18 December 1987 the Innsbruck Regional Court refused to deal with the action for lack of competence and transferred the case to the Wels Regional Court. The Rectory’s appeal against this decision remained unsuccessful. In March 1988 the court file arrived at the Wels Regional Court.

At the hearing of 13 June 1988 the Wels Regional Court closed the proceedings and announced that the judgment would be given in writing.

By judgment of 21 October 1988 the Wels Regional Court dismissed the plaintiff’s main as well as its alternative claim. It found that the Rectory lacked legal interest in the matter since its own legal position was in no way affected by the registration of the donation.

On 12 October 1989 the Linz Court of Appeal, upon the Rectory’s appeal, partly quashed the judgment for errors of law and referred the case back to the Wels Regional Court.

On 13 June 1990 the Supreme Court, on both parties’ appeals, quashed the Court of Appeal’s decision and referred the case back to the Regional Court.

On 7 November 1990 the H. company, the successor of the M. company as tenant of the Rectory’s estate, intervened in the proceedings as co ‑ plaintiff. Hearings took place on 8 November 1990, 4 February, 23 April and 11 July 1991. On the latter date the applicant requested the court to revoke the co-plaintiff’s admission to the proceedings. On 22 January 1992 the Wels Regional Court rejected the applicant’s request. On 14 February 1992 the applicant appealed against this decision. On 6 April 1992 the Linz Court of Appeal dismissed the applicant’s appeal.

On 24 June 1992 the Wels Regional Court announced a hearing to be held at the Innsbruck Regional Court on 17 and 18 September 1992, at which 22 witnesses residing in Tyrol would be heard. On 27 August 1992 the applicant requested the court to cancel that hearing. He referred to the imminent change of judges.

On 29 January 1993 the Wels Regional Court, following a change of the competent judge, resumed the proceedings and heard a number of witnesses. The parties to the proceedings requested the court to hear further witnesses. Those not residing in Wels should be heard by way of judicial assistance.

On 16 July, 17 August and 24 September 1993 judicial assistance hearings were held at the Vienna District Court.

Further judicial assistance hearings were held at the Baden District Court on 16 November 1993, at the Innsbruck District Court on 16 February 1994, and at the Hall District Court on 24 March 1994.

On 18 November 1994 the Wels Regional Court held a hearing, at which it heard witnesses proposed by the applicant, and subsequently rejected the requests to hear further witnesses as irrelevant. It announced that the written version of the judgment would be served as soon as witness Z. had been heard by way of judicial assistance at the Vienna District Court.

Witness Z. failed to appear before the Vienna District Court on 4 and 18 January 1995. He was heard on 10 March 1995.

On 25 August 1995 the Wels Regional Court granted the Rectory’s claim and ordered that the entry in the land register of the donation contract between the L. company and the applicant concerning the part of the building located on the tenant’s estate of the Rectory be annulled. The court, having regard to the documentary evidence and the statements of the witnesses heard, found that in the absence of an agreement by the tenant of the Rectory’s estate (the M. company), the authorisation by the Rectory of December 1973 was not valid. Therefore M. S. and his successors could not lawfully acquire any ownership rights regarding the part of the sales hall situated on the Rectory’s estate.

On 6 December 1995 the Linz Court of Appeal dismissed the applicant’s appeal of 3 October 1995.

On 27 March 1996 the Supreme Court refused to deal with the applicant’s appeal on points of law. The decision was served on the applicant’s counsel on 7 May 1996.

B. Relevant domestic law

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’s remaining complaint is that the length of the civil proceedings exceeded the "reasonable time" referred to in Article 6 of the Convention.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 16 December 1987 and ended on 7 May 1996 with the Supreme Court’s decision being served on the applicant’s counsel. They therefore lasted eight years and almost five months. The applicant invokes Article 6 § 1 of the Convention which, as far as relevant, reads as follows:

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

The Government contend that the applicant failed to exhaust domestic remedies as he did not pursue an application under section 91 of the Courts Act.

The Court doubts whether there were any periods during which the courts were dilatory as required by section 91 of the Courts Act. Thus it is questionable whether the applicant could have made use of this remedy with reasonable prospects of success. However, the Court does not consider it necessary in the present case to examine the issue of exhaustion of domestic remedies as the application is, in any event, inadmissible for the following reasons.

The Court recalls that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see for instance Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

The Court observes that the case was complex, involving complicated legal issues and the hearing of a large number of witnesses by way of legal assistance. Further t he Court considers that there are no delays attributable to the courts. In particular, t he Court observes that between 16 December 1987 and March 1988 the question which court had jurisdiction over the case was determined at two instances. In the period from 13 June 1988 until 13 June 1990 the case was examined by the courts at three levels of jurisdiction. At the outset of the second round of the proceedings until 6 April 1992, the courts dealt with the applicant’s challenge relating to the admission of the co-plaintiff at two instances. The subsequent delay of the proceedings is attributable to the applicant who requested the court to cancel the hearings scheduled for 17 and 18 September 1992. After the proceedings were resumed on 29 January 1993, two oral hearings and seven hearings by way of legal assistance were held at four different courts until 10 March 1995. On 25 August 1995 the Wels Regional Court gave judgment. The Linz Court of Appeal decided on the applicant’s appeal on 6 December 1995. The Supreme Court finally determined the case on 27 March 1996 and the decision was served on the applicant on 7 May 1996. On the whole the case was dealt with by the courts in an expedient manner

In these circumstances the Court is satisfied that the overall duration of the proceedings, which were twice dealt with at three levels of jurisdiction fulfilled, the “reasonable time” requirement laid down in Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Vincent B erger Georg Ress Registrar President