Resolution CM/ResDH(2009)118 [1]

Execution of the judgments of the European Court of Human Rights

Schreder and 9 other cases against Austria concerning the excessive length of judicial civil proceedings

(Schreder, Application No. 38536/97, judgment of 13 December 2001,

final on 13 March 2002,

Gollner, Application No. 49455/99, judgment of 17 January 2002,

final on 17 April 2002,

H.E., Application No. 33505/96, judgment of 11 July 2002,

final on 6 November 2002,

Girardi, Application No. 50064/99, judgment of 11 December 2003,

final on 11 March 2004,

Löffler (No. 2), Application No. 72159/01, judgment of 4 March 2004,

final on 4 June 2004, rectified on 2 December 2004,

Wohlmeyer Bau GmbH, Application No. 20077/02, judgment of 8 July 2004,

final on 8 October 2004,

Ullrich, Application No. 66956/01, judgment of 21 October 2004,

final on 21 January 2005,

El Massry, Application No. 61930/00, judgment of 24 March 2005 ,

final on 24 June 2005,

Baumann, Application No. 76809/01, judgment of 7 October 2004,

revised on 9 June 2005, final on 30 November 2005,

Holzinger (No. 3), Application No. 9318/05, judgment of 15 January 2009,

final on 5 June 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the excessive length of certain proceedings concerning the determination of civil rights and obligations before Austrian courts (violations of Article 6, paragraph 1, of the Convention) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)118

Information on the measures taken to comply with the judgments in the cases of

Schreder and 9 other cases against Austria concerning the excessive length of judicial civil proceedings

Introductory case summary

These cases concern the excessive length of certain civil proceedings before Austrian courts conducted under the Code of Civil Proceedings or the Non-Contentious Proceedings Act (violations of Article 6§1).

The proceedings in the Schreder case concerned an action against the applicant for repayment of a credit, which began on 8/04/1986 and ended on 18/02/1997 (ten years and more than ten months). In particular, the proceedings had been pending before the Innsbruck Regional Court for some six and a half years.

The proceedings in the Gollner case concerned the applicant ' s maintenance claim against her former husband, which started on 23/10/1992 and ended on 13/02/2001 (eight years and three and a half months). The European Court underlined that this duration was in particular due to the fact that the appellate court had to refer the case twice back to the Herzogenburg District Court on account of procedural defects.

The proceedings in the case of H.E. started on 28/06/1985 when the applicant ' s tenants appealed against an increase in rent and ended on 24/05/1996 (ten years and almost eleven months). Substantial delays occurred due to four changes of judges while the proceedings were pending for almost ten years before the Hernals District Court.

The Girardi case concerns two sets of proceedings (between 1990 and 1999, which lasted for nine years and four months, and eight years and five months, respectively) opposing the applicant and the Youth Welfare Office and dealing with the reimbursement of accommodation expenses incurred for the applicant ' s daughter during a stay in a public children ' s home. The European Court noted a number of periods of inactivity of several years before the Vienna Juvenile Court.

The Löffler case concerns official liability proceedings instituted by the applicant for compensation of damages caused by his conviction which was annulled and his detention. The proceedings began in 1993 and were still pending on appeal when the European Court gave its judgment (approximately ten years and nine months). The Court noted substantial periods of inactivity before the Steyr Regional Court . On 19/05/2005 the proceedings were stayed (“ewiges Ruhen”) on the motion of both parties.

The Wohlmeyer Bau GmbH case concerns proceedings instituted by the applicant company in 1993 concerning a building contract which were still pending at first instance when the European Court gave its judgment (more than ten years and eight months). The Court underlined significant delays attributable to the experts and substantial periods of inactivity before the St. Pölten Regional Court . On 30/08/2004 the proceedings were stayed (“ewiges Ruhen”) on the motion of both parties.

The Ullrich case concerns proceedings instituted by the applicant against a company for damage, which had occurred during welding work in the applicant ' s boutique. Proceedings began in May 1995 and ended in December 2003 (eight years and six months, out of which the case had been pending for eight years and two months before the Salzburg Regional Court ).

The El Massry case concerns proceedings instituted by the applicant against a company administering public hospitals for damages for medical malpractice. The proceedings started in November 1992 and ended in November 2003 (almost 11 years).

The Baumann case concerns the applicant ' s request for the division of matrimonial property and savings following her divorce. The proceedings began on15/12/1987 and ended on 22/05/2001 (13 years and five months). Major delays occurred due to the suspension of the proceedings pending the outcome of the related tax assessment case.

The Holzinger (No. 3) case concerns the applicant ' s action against his former lawyer, which was instituted on 30/11/1994 and ended on 21/10/2004 (ten years and ten months). The European Court noted that the Austrian courts dealt with the case at a very slow pace. In particular, there was a standstill of one year before the Salzburg Regional Court .

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Schreder (38536/97)

-

-

10 000 ATS (726,73 EUR)

726,73 EUR

Paid on 15/04/2002

Gollner (49455/99)

-

9447,66 EUR

2446,73 EUR

11894,39 EUR

Paid on 30/04/2002

H.E. (33505/96)

-

-

3370 EUR

3370 EUR

Paid on 23/10/2002

Girardi (50064/99)

-

-

-

-

Löffler (No. 2) (72159/01)

-

6600 EUR

2000 EUR + 101,79 EUR (default interest)

8701,79 EUR

Paid on 16/11/2004

Wohlmeyer Bau GmbH (20077/02)

-

8000 EUR

7677,85 EUR

15677,85 EUR

Paid on 1/12/2004

Ullrich (66956/01)

-

5000 EUR

100 EUR

5100 EUR

Paid on 15/02/2005

El Massry (61930/00)

-

9000 EUR

900 EUR

9900 EUR

Paid on 19/07/2005

Baumann (76809/01)

-

9000 EUR

4241,91 EUR

13241,91 EUR

Paid on 9/06/2005

Holzinger (No. 3) (9318/05)

-

4000 EUR

232,55 EUR

4232,55 EUR

Paid on 14/07/2009

b) Individual measures

The European Court awarded no just satisfaction in the cases of Schreder, H.E, and Girardi, in which no claim had been made. The proceedings are over in all cases.

II. General measures

1) Legislative reforms:

a) The Code of Civil Proceedings (Zivilprozessordnung):

The Code of Civil Proceedings was amended on 30/04/2002 (published in Federal Law Gazette I No. 76/2002, entry into force on 1/01/2003), with a view to streamlining and accelerating judicial proceedings. A number of measures were introduced to prevent abuse of procedures, not least by precluding belated presentations by the parties by their own fault (Section 179), setting time-limits for the submission of expert opinions (Section 357§1), and by introducing sanctions where parties unjustifiably refuse to cooperate with experts (Section 357§2). In addition, the summons procedure has been simplified (Section 371§2). Moreover, an important part of the reform lies in streamlining the proceedings ( Verfahrenskonzentration ), for example, by introducing a preliminary hearing where a “case-processing programme” ( Prozessprogramm ) shall be established (Section 258).

b) The Non-Contentious Proceedings Act (Ausserstreitgesetz):

A new Non-Contentious Proceedings Act entered into force on 1/01/2005 (published in Federal Law Gazette (BGBl) I No. 111/2003, available online at http://www.ris.bka.gv.at/Dokumente/BgblPdf/2003_111_1/2003_111_1.pdf .

A number of provisions are similar to the amended Code of Civil Procedure, to guarantee the efficient and speedy conduct of the proceedings, such as stricter time-limits for parties to respond to other parties ' requests, enhancing the efficiency of the summons procedure, and limiting the possibilities of submitting new evidence during the course of proceedings. Section 13 provides that courts are obliged to minimise the length of the proceedings as far as possible and that parties are obliged to contribute to their speedy conduct. Section 23 provides for the same time-limits as set out in the Code of Civil Proceedings.

c) The Rent Act (Mietrechtsgesetz):

On 1/05/2005 procedural amendments of the Rent Act entered into force. Section 37§3 item 16 provides new legal remedies which contain components aimed at accelerating proceedings. Item 17 provides reimbursement of the winning party ' s legal representation by the losing party only insofar as these acts have been adequate and have not unnecessarily delayed the proceedings.

2) Supervisory (disciplinary) mechanism:

In addition, a supervisory disciplinary mechanism has been set up in respect of the courts that had caused the delay in the case of H.E., taking into account that the main problem had been the repeated change of judges.

3) Dissolution of the Vienna Juvenile Court :

Following a re-organisation of the judiciary, the Vienna Juvenile Court was dissolved in 2003 and custody proceedings now fall within the competence of first-instance district courts.

4) Publication and dissemination:

All judgments of the European Court against Austria concerning a violation in respect of the length of civil proceedings are automatically transmitted to the competent Higher Regional Court with the request to disseminate it in the area of its jurisdiction and to inform the authorities that had been directly involved in this violation. Furthermore, the judgments are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS).

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that Austria has thus complied with its obligations under Article 46 paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies