THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28898/95

by Adolf HOLZINGER

against Austria

The European Court of Human Rights ( Third Section ) sitting on 12 October 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann , Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 June 1995 by Adolf Holzinger against Austria and registered on 9 October 1995 under file no. 28898/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the European Commission for Human Rights’ partial decision of 27 November 1996;

Having regard to the observations submitted by the respondent Government on 6 March 1997 and the observations in reply submitted by the applicant on 8 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1934. He lives in Hallein . The facts of the application, as submitted by the parties, may be summarised as follows.

On 8 July 1987 the applicant brought proceedings (17 C 1018/87) in the Salzburg District Court ( Bezirksgericht ) against a former lawyer for the sum of AS 11,294.05. The lawyer opposed the proceedings, and a hearing was held on 25 January 1988. The court decided to adjourn the proceedings until other proceedings (20 SW 2/87) had been determined. Those proceedings ended on 15 March 1988, and the applicant requested the continuation of the proceedings 17 C 1018/87, adding to the amount claimed.

From November 1988 the applicant was represented by a lawyer, but continued to make applications to the court on his own behalf.

A second hearing took place on 1 December 1989. The court adjourned the case pending the outcome of further parallel proceedings (3 Cg 216/88) against the same defendant. The final decision in those proceedings entered into force on 4 November 1993, and on 15 November 1993 the applicant requested the continuation of the proceedings. He also increased the amount claimed.

On 12 December 1994 a hearing was held in the case. The applicant limited the amount claimed to AS 24,339.80 and submitted further documentation. The court adjourned the hearing for the files in all parallel proceedings to be obtained.

On 16 January 1995 the defendant died. On 18 April 1995 the case was adjourned ( unterbrochen ) pursuant to Article 155 of the Code of Civil Procedure ( Zivilprozessordnung ). On 4 May 1995 the applicant applied for the proceedings to be continued, and on 29 June 1995 the applicant purported to withdraw his action as he (wrongly) thought that it was statute-barred. On 19 March 1997 the applicant applied for the proceedings to be “re-opened” on the ground that the applicant’s belief that the action was statute-barred derived from misleading information from the defendant’s insurer. On 11 April 1997 the applicant revoked his withdrawal, and again applied for the proceedings to be continued.

The Salzburg District Court rejected the applications for the proceedings to be continued, and declined to re-open the proceedings as no final decision had been taken. The applicant appealed.

On 23 July 1997 the Salzburg Regional Court ( Landesgericht ) allowed the applicant’s appeal in part, and remitted the case to the District Court which, on 20 July 1998, gave judgment in the applicant’s favour as to AS 15,157.80 and against him as to AS 9,182. The applicant was awarded his costs. The applicant’s appeal against the part of the judgment against him was dismissed by the Salzburg Regional Court on 20 January 1999. The judgment was received by the applicant’s representative on 4 February 1999.

THE LAW

The applicant ’s complaint relates to the length of the proceedings in question. These proceedings began on 8 July 1987 and ended on 4 February 1999 when the applicant’s representative received the Salzburg Regional Court ’s judgment of 20 January 1999.

The Government, by reference to Section 91 of the Courts Act ( Gerichtsorganisations-gesetz ), claim that the applicant has not exhausted domestic remedies in respect of his complaint concerning the length of the proceedings.

According to the applicant, the length of the proceedings – a period of over 11 and a half years – is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government contest the allegation.

In connection with the Government’s contentions as regards Section 91 of the Courts Act, the Court recalls that in an application before the former Commission, the Commission found that “an application under Section 91 is an interlocutory application to a court whereby a higher court is requested to fix an adequate time limit for taking a procedural measure which the court below has failed to take. It cannot give rise to any finding as to the length of the proceedings as a whole, nor can it give rise to redress, for example compensation, for any unreasonable delay to that point.” The Commission found that an application under Section 91 did not constitute an effective remedy under the former Article 26 of the Convention, but that it was relevant as to the question whether, in all the circumstances, the proceedings had taken an unreasonably long time (No. 23459/94, Dec. 10.9.97, unpublished). The Court finds the same reasoning to apply in the present case. Accordingly, there was in the present case no failure on the part of the applicant to exhaust domestic remedies.

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.

For these reasons, the Court, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé N. Bratza

Registrar President