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ZAPATA S.A. ; NORTH PACIFIC TRADING LTD, v. AUSTRIA

Doc ref: 11768/85 • ECHR ID: 001-997

Document date: May 9, 1989

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ZAPATA S.A. ; NORTH PACIFIC TRADING LTD, v. AUSTRIA

Doc ref: 11768/85 • ECHR ID: 001-997

Document date: May 9, 1989

Cited paragraphs only

Application No. 11768/85

by ZAPATA S.A. and North Pacific Trading Ltd.

against Austria

The European Commission of Human Rights sitting in private

on 9 May 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 August 1984

by Zapata S.A. and North Pacific Trading Ltd.against Austria and

registered on 27 September 1985 under file No. 11768/85;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The first applicant is a limited company with legal

personality under Swiss law and has its seat in Geuensee (Lucerne).

It is involved in the production of technical installations, inter

alia winding engines. The second applicant is a limited company with

legal personality under British law and has its seat in Hong Kong. It

is an import and export trading company. Before the Commission, the

first applicant is represented by Mr. Weiss-Tessbach, a lawyer

practising in Vienna. The second applicant is represented by

Mr. Zerner, a lawyer also practising in Vienna.

In June 1976 the first applicant effected with an Austrian

insurance company an insurance for about 31 million Austrian Schilling

concerning a particular shipment of goods sold to the second

applicant. In January 1977 the ship carrying the goods at issue sank

near the Maldives.

In August 1977 the first applicant lodged an action against

the insurance company with the Vienna Commercial Court (Handelsgericht)

claiming the amount insured. The second applicant joined the

proceedings as a co-plaintiff.

On 16 April 1985, following several sets of appeal

proceedings, the Vienna Commercial Court (Handelsgericht)

provisionally discontinued the proceedings in particular pending the

termination of criminal proceedings in connection with the occurrence

of loss in the instant case. On 20 December 1985 the Vienna Court of

Appeal (Oberlandesgericht) also adjourned further appeal proceedings

pending the termination of the above criminal proceedings.

The civil proceedings have apparently not yet been resumed. In

August 1988, in the criminal proceedings, the Vienna Regional Court of

Appeal (Oberlandesgericht) decided to open the trial against the

responsible managers of the applicants on charges of fraud and

endangering through explosives. It appears that one of the accused is

in hiding.

COMPLAINTS

The applicants complained under Article 6 para. 1 of the

Convention about the length of their compensation proceedings before

the Austrian courts. They also alleged that one of the judges at the

Austrian Supreme Court, who dealt with their case in one of the appeal

proceedings, was biased against them.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 September 1984 and

registered on 27 September 1985.

On 7 December 1987 the Commission decided that, in accordance

with Rule 42 para. 2 (b) of its Rules of Procedure, the application be

brought to the notice of the respondent Government and that they be

invited to submit written observations on its admissibility and merits

as regards the length of the civil proceedings.

On 23 February 1988 the respondent Government submitted their

observations.

On 29 March 1988 the applicants requested that the time-limit

to submit their observations in reply before 15 April 1988 be extended

until 30 September 1988.

On 9 September 1988, following further submissions by the

respondent Government dated 6 April and 10 August 1988, the applicants

requested to extend their time-limit until 20 October 1988.

On 8 October 1988 the Commission decided to adjourn its

further examination of the present case.

On 13 December 1988 the respondent Government submitted further

information on the present case.

By letter of 23 March 1989 the Secretariat noted that the

applicants' observations had not yet been received, and warned the

applicants about the consequences under Rule 44 para. 1 of the

Commission's Rules of Procedure. The applicants did not react to this

letter.

REASONS FOR THE DECISION

The Commission finds that the circumstances of the present

case, namely the applicants' failure to comply with the Commission's

request to submit observations in reply before 15 April 1988 or within

the time-limits indicated by them, and to react to the further letter

of the Secretariat of 23 March 1989, leads to the conclusion that they

do not intend to pursue their application.

The Commission considers that there are no reasons of a

general character affecting the observance of the Convention which

necessitate the further examination of this case.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J. A. FROWEIN)

LEXI

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