THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37261/97 by Elfriede STRASSER against Austria

The European Court of Human Rights, sitting on 25 September 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and  Mrs S. Dollé , Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 26 May 1997 and registered on 5 August 1997,

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 submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Elfriede Strasser, is an Austrian national , born in 1947 and living in Salzburg . She is represented before the Court by Mr F. Hitzenbichler, a lawyer practising in Salzburg.

A. The circumstances of the case

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

On 5 June 1989, the applicant filed an action with the Salzburg District Court ( Bezirksgericht ) requesting the repayment of rent and of capital expenditure ( Investitionskostenaufwand ) from her lessor. In these and the subsequent proceedings the applicant was represented by counsel.

On 18 December 1991, the District Court dismissed the action. The applicant appealed against this decision on 6 February 1992.

On 4 May 1992, the Salzburg Court of Appeal ( Oberlandesgericht ) referred the case back to the Salzburg District Court requesting that additional evidence be taken. As regards the capital expenditure the applicant appealed against this decision on 4 June 1992.

On 31 August 1992, the Supreme Court dismissed the appeal and confirmed the Court of Appeal’s decision to refer the case back to the Salzburg District Court for the taking of additional evidence.

The District Court held hearings on 16 March and 7 June 1993. An expert was appointed on 17 August 1993, who submitted his opinion on 28 September 1994. Following a change of the competent judge a further hearing was held on 2 May 1995 where the expert was present and orally explained his opinion.

On 7 July 1995, the District Court, having regard to the submissions of the parties, the witnesses, and the experts, rendered a partial judgment granting the applicant’s claim for repayment of certain sums which she had paid in rent. Her claim for repayment of capital expenditure was admitted in substance, the precise amount remaining to be fixed after the taking of further evidence.

On 27 November 1995, the Salzburg Court of Appeal dismissed the applicant’s appeal as far as the claim for capital expenditure was concerned.

The defendant filed a further appeal on points of law on 6 February 1996. Thereupon, on 25 October 1996, the Supreme Court confirmed the Court of Appeal’s decision as to the claim for repayment of rent, but  agreeing with the defendant  dismissed the applicant’s claim for compensation for capital expenditure finding that the Court of Appeal had wrongly applied the law in this respect. The decision was served on 2 December 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."

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length and the alleged unfairness of the proceedings. She submits in particular that the Supreme Court arbitrarily took a decision on the merits contrary to the evidence in the case-file and without having heard her.

THE LAW

1. The applicant complains about the length of the proceedings which started on 5 June 1989 and ended on 2 December 1996, the date on which the decision of the Supreme Court was served on her. The proceedings therefore lasted seven and a half years. Article 6 § 1 of the Convention, as relevant, reads as follows:

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

The Government contend that the applicant failed to exhaust domestic remedies as she has not made use of Section 91 of the Courts Act to expedite the proceedings. She could have lodged a request under that section in November 1993 in order to have a time-limit imposed on the expert and thus speed up the proceedings by up to eight months.

The applicant contests the Government’s view. In her view an application under Section 91 of the Courts Act would not have accelerated the proceedings. The applicant submits that, given that the expert was apparently overburdened with work, another expert would have had to be appointed.

In the case of Holzinger v. Austria the Court has found 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, 30.01.01, §§ 24-25, to be published in ECHR 2001-).

In the present case, the Court agrees with the Government that the applicant, during the periods of delay between the hearings of 7 June 1993 and 2 May 1995, could have filed a request pursuant to Section 91 of the Courts Act to expedite the proceedings. However, she did not make use of this possibility and has, therefore, failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. This part of the application must therefore be rejected in accordance with Article 35 § 4 of the Convention.

2. As regards the applicant’s complaint related to the alleged unfairness of the proceedings, the Court recalls its case-law that it is not for the Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention ( García Ruiz v. Spain [GC] no. 30544/96, § 28, ECHR 1999-I). In the present case there is no indication that the applicant, represented by counsel, could not duly put forward her arguments or that the proceedings were otherwise unfair. As far as the applicant’s complaint about the Supreme Court’s failure to hear her, the Court recalls that, provided that a public hearing has been held at first instance, leave to appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see for instance the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36). In the present case public hearings at which both parties were heard were held at first instance. There are no special features of the proceedings which would have required the Supreme Court, which only had to deal with points of law, to hear the applicant. It follows that this part of the application has to be rejected pursuant to Article 35 § 4 of the Convention as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.- P.Costa Registrar President