FOURTH SECTION

DECISION

Application no . 65013/11 Robert SEIDL and Others against Austria

The European Court of Human Rights (Fourth Section), sitting on 23 May 2017 as a Committee composed of:

Vincent A. De Gaetano, President, Egidijus KÅ«ris, Gabriele Kucsko-Stadlmayer, judges, and Andrea Tamietti, Deputy Section Registrar

Having regard to the above application lodged on 14 October 2011,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

1. A list of the applicants is set out in the appendix. They are all represented by Mr W. Proksch, a lawyer practising in Vienna.

2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

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

1. The land consolidation proceedings

4 . In 1983 land consolidation proceedings were opened in Gerasdorf, where the applicants lived as farmers. The applicants were parties to these proceedings. On 21 February 2008 the Administrative Court issued its final decision relating to the applicants in these proceedings.

5. On 11 September 2008 the applicants lodged an application with the Court relating to the duration of the land consolidation proceedings. The Court found a violation of Article 6 § 1 of the Convention in that respect ( Seidl and Others v. Austria , no. 45322/08, 19 December 2013).

2. The official liability proceedings

(a) The first round of the proceedings

6 . On 2 July 1990, hence while the land consolidation proceedings were still pending, the applicants initiated official liability proceedings ( Amtshaftungsverfahren ) against the Region of Lower Austria ( Land Niederösterreich ) by submitting a claim for compensation in respect of loss of earnings as a result of delays in the land consolidation proceedings and the provisional allocation of land of inferior quality (see paragraph 4 above).

7 . On 8 July 1990 the St. Pölten Regional Court ( Landesgericht ) rejected the complaint for lack of jurisdiction and on 6 August 1990 it referred the case to the competent Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen – hereinafter, “the Civil Court”).

8. On 10 January 1992 the applicants extended their claim.

9 . On 7 April 1992 an expert was appointed and ordered to deliver an opinion within eight months. On 2 June 1993 the expert informed the Civil Court that some of the investigations could only be carried out in autumn. Between 14 April and 4 July 1994 the expert submitted his opinion, in several parts. On 23 May 1995 he was ordered to deliver a supplementary opinion within three months. He submitted it on 2 November 1995.

10. On 9 January 1996 the applicants requested the Civil Court to take a decision on an equitable basis because the land consolidation proceedings could not be expected to be terminated any time soon and the expert had encountered difficulties during his investigations.

11 . On 10 June 1996 the Civil Court, after having held seven hearings, dismissed the applicants ’ claim for compensation. The applicants appealed.

12 . On 23 June 1997 the Vienna Court of Appeal ( Oberlandesgericht ) quashed the Civil Court ’ s judgment and remitted the case to the lower instance. The applicants filed an appeal on points of law ( Revisionsrekurs ) against the Court of Appeal ’ s decision.

13 . On 9 June 1998 the Supreme Court ( Oberster Gerichtshof ) dismissed the appeal on points of law. In its reasons it stated, in substance, that the case was not yet ready for decision, inter alia , because a further examination of the exact nature of the applicants ’ claims was required. Furthermore, because the calculation of the alleged damages crucially depended on the final decision to be issued in the land consolidation proceedings, before taking its own decision the Civil Court would have to suspend the official liability proceedings until the termination of the land consolidation proceedings.

(b) The second round of the proceedings

14 . On 6 March 2000, after two exchanges of written submissions between the parties and three hearings, the applicants requested the Civil Court to suspend the proceedings.

15 . On 20 June 2000, in the course of an oral hearing, both parties to the official liability proceedings agreed to suspend the proceedings ( Ruhen des Verfahrens ).

16 . On 12 December 2002 the applicants requested that the proceedings be resumed. The Civil Court granted that request.

17 . On 21 August 2003 the Civil Court ordered a suspension of the proceedings ( Unterbrechung des Verfahrens ) because the land consolidation proceedings (see paragraph 4 above) were still pending before the Administrative Court.

18 . On 2 October 2003 the applicants requested that the proceedings be resumed. On 7 October 2003 the Civil Court rejected that request on the ground that the Administrative Court had not issued its decision yet. The applicants did not appeal against that decision.

19 . On 22 April 2008 the applicants again requested that the official liability proceedings be resumed, arguing that the Administrative Court had, on 21 February 2008, issued its final decision in the land consolidation proceedings (see paragraph 4 above). That request was granted.

20. On 16 July 2008 the applicants extended their claim.

21 . On 30 December 2009 the Civil Court, after having held thirteen hearings, dismissed the applicants ’ claims. The applicants appealed.

22. On 27 August 2010 the Court of Appeal dismissed the appeal. The applicants filed an extraordinary appeal on points of law ( außerordentliche Revision ) against that decision.

23 . On 31 March 2011 the Supreme Court rejected the extraordinary appeal on points of law. That decision was served on the applicants ’ counsel on 14 April 2011.

B. Relevant domestic law

24. Section 91 of the Court Act ( Gerichtsorganisationsgesetz ) 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 taking 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

25. Relying on Article 6 § 1 of the Convention, the applicants complained about the length of the official liability proceedings.

THE LAW

26. The applicants complained that the duration of the official liability proceedings was in breach of the “reasonable time” requirement enshrined in Article 6 § 1 of the Convention.

In so far as relevant, this provision 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 ...”

A. The Government ’ s preliminary objection of non-exhaustion of domestic remedies

27 . The Government took the view that the applicants had failed to exhaust domestic remedies. Firstly, they had not filed a request for the setting of a time-limit by vi rtue of section 91 of the Court Act, which would have been an effective remedy to expedite the proceedings. In the Government ’ s view, this would have been possible throughout the proceedings . Secondly, the Government stressed that the applicants had not appealed against the Civil Court ’ s decision of 7 October 2003 by which their request to resume the proceedings was dismissed (see paragraph 18 above).

28. The applicants claimed that, following the Supreme Court ’ s decision of 9 June 1998 (see paragraph 13 above), they had only been able to request that the proceedings be resumed after more than ten years of suspension, namely after the land consolidation proceedings had been terminated.

29. The Court reiterates that a request under s ection 91 of the Court Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings. However, the effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole (see, among other authorities, Holzinger v. Austria (no. 1) , no. 23459/94, §§ 22 and 24-25, ECHR 2001-I ). Thus, where proceedings include a substantial period during which the applicant has no remedy to expedite the proceedings at his/her disposal, a request under section 91 cannot be considered an effective remedy (see Holzinger v. Austria (no. 2) , no. 28898/95, §§ 21-22, 30 January 2001 ).

30 . In the present case, the Court considers that the applicants could have requested that a time-limit be se t under section 91 of the Court Act during the first round of the proceedings between 1990 and 1998, and during the second round, after the Administrative Court had issued its final decision in the land consolidation proceedings in February 2008. In particular, between 1992 and 1995 the applicants could have requested a time-limit for the expert to deliver his opinion and his supplementary opinion (see paragraph 9 above; see A.S. v. Austria (dec.), no. 42033/98, 7 May 2002; Rosenauer v. Austria (dec.), no. 38897/97, 21 February 2002; and H.P. and Others v. Austria (dec.), no. 35435/97, 23 October 2001 ).

31. On the other hand, the Court observes that the period between 9 June 1998, when the Supreme Court issued its decision indicating that the official liability proceedings should be suspended until the termination of the land consolidation proceedings (see paragraph 13 above), and 21 February 2008, when the Administrative Court issued its final decision in the land consolidation proceedings (see paragraph 4 above), lasted nine years and eight and a half months and hence accounted for almost half of the overall length of the proceedings. Due to the necessity to wait for the outcome of the land consolidation proceedings, the Court cannot find that, during this period, the applicants had an effective remedy at their disposal to accelerate the official liability proceedings, as neither a request under section 91 of the Courts Act nor an appeal against the Civil Court ’ s decision of 7 October 2003 would have had prospects of success.

32. Accordingly, in the particular circumstances of the present case, the Court is satisfied that the applicants did not have effective remedies at their disposal with regard to the overall duration of the proceedings (see Holzinger (no. 2) , cited above, §§ 21-22 ). The Court thus rejects the Government ’ s argument that the applicants have failed to exhaust domestic remedies.

B. The duration of the relevant proceedings

33. The applicants ’ complaint relates to the length of the official liability proceedings, which began on 2 July 1990, when the applicants submitted their initial claim (see paragraph 6 above), and ended on 14 April 2011, when the Supreme Court ’ s decision of 31 March 2011 was served on the applicants ’ counsel (see paragraph 23 above). They therefore lasted around 20 years and nine and a half months for three levels of jurisdiction (including one remittal).

34. The Government submitted that the proceedings at issue had been particularly complex. Among other things, the establishment of facts had required, in total, 20 oral hearings, and it had been necessary to obtain a comprehensive expert opinion and a supplementary opinion. Moreover, the Government pointed out that the decision in the official liability proceedings had essentially depended on the outcome of the land consolidation proceedings underlying the claim for compensation. Although the Civil Court had, in the first round of the proceedings, made an attempt to decide the compensation claim before the final decision in the land consolidation proceedings, this dependence had, in the second round of the proceedings, resulted in a suspension of the proceedings for two and a half years, namely from June 2000 until December 2002, because of an agreement between the parties. It had also resulted in another suspension of the proceedings for almost five years, from July 2003 until April 2008, until the final conclusion of the land consolidation proceedings. The Government claimed that these periods could not be taken into account when assessing the duration of the official liability proceedings because the Court had, in the case of Seidl and Others v. Austria (no. 45322/08, 19 December 2013), already found a violation of Article 6 § 1 of the Convention in respect of the duration of the land consolidation proceedings.

35. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

36. The Court observes that the applicants ’ official liability claims related exclusively to unlawful acts of public authorities in land consolidation proceedings that were still pending when the applicants filed their initial claim for compensation (see paragraph 6 above). The Court is satisfied that the very nature of the claims entailed that the decision in the official liability proceedings substantially depended on the outcome of the land consolidation proceedings (see, mutatis mutandis , Iribarren Pinillos v. Spain , no. 36777/03, § 65, 8 January 2009). The Court notes that the domestic courts took numerous procedural steps, such as holding a number of oral hearings, obtaining an expert opinion and a supplementary opinion (see paragraphs 9 , 11 and 14 - 18 above), and even tried to decide the case while the land consolidation proceedings were still pending (see paragraphs 11 and 12 above), before the Supreme Court indicated in its decision that it was necessary to wait for the outcome of the land consolidation proceedings (see paragraph 13 above). Therefore, notwithstanding the importance of the subject matter for the applicants, it could not have been reasonably expected that the official liability proceedings would be concluded as long as the land consolidation proceedings were pending.

37. The Court considers that any delays that occurred in the official liability proceedings before the Administrative Court issued its final decision in the land consolidation proceedings (see paragraph 4 above) were an inevitable result of the duration of the land consolidation proceedings. The Court cannot find that this can be attributed to the authorities beyond the responsibility for the duration of the land consolidation proceedings, in respect of which the Court has, in the case of Seidl and Others (cited above), already found a violation of Article 6 § 1 of the Convention. It is therefore not necessary to examine in detail to what extent the conduct of the applicants contributed to the duration of the official liability proceedings.

38. As regards the period after the termination of the land consolidation proceedings, the Court considers that official liability proceedings were – regardless of their complexity – concluded with reasonable expediency, namely within less than three years for three levels of jurisdiction (see paragraphs 19-23 above).

39. In light of the above considerations, the Court considers that there is no appearance of a violation of the reasonable time requirement under Article 6 § 1 of the Convention.

40. It follows that the application 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 application inadmissible.

Done in English and notified in writing on 15 June 2017 .

Andrea Tamietti Vincent A. De Gaetano              Deputy Registrar President

Appendix