Information Note on the Court’s case-law 26

January 2001

Holzinger v. Austria (no. 2) - 28898/95

Judgment 30.1.2001 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Length of proceedings:  application under Section 91 of the Courts Act

Facts : The applicant instituted civil proceedings in 8 July 1987. The proceedings ended at first instance in July 1998. The dec ision on the applicant’s appeal was given in January 1999. The applicant complains about the length of the proceedings.

Law : Government's preliminary objection (non-exhaustion) – In the first Holzinger v. Austria case (see above), the Court found that a re quest under Section 91 of the Courts Act is, in principle, an effective remedy in respect of complaints about the length of court proceedings. However, it added that the effectiveness of such a remedy may depend on whether it has a significant effect on th e length of the proceedings as a whole. In this case, the proceedings had already lasted some two and a half years when the provision in question came into force and the remedy became available to the applicant. This period, during which the applicant had no remedy at his disposal, is substantial, and even if he had lodged an application under Section 91, any decision which might have speeded up the proceedings could not have made up for delay which had already occurred. The case is therefore distinguishabl e from the applicant's first case and the remedy in question cannot be considered as effective.

The proceedings lasted over 11½ years. It is relevant that the applicant did not make use of the remedy which became available, and the various adjournments of the proceedings, one of which lasted almost four years, had his consent, so that the ensuing delays were his responsibility. However, the authorities were responsible for the delays during the first two and a half years and no sufficient explanation for th is has been provided.

Conclusion : violation (unanimously).

Article 41 – The Court considered that there was no causal link between the violation and the pecuniary damages claimed by the applicant. It awarded him 30,000 schillings (ATS) in respect of non-pecuniary damage and also made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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