CONCURRING OPINION BY MR. H.G. SCHERMERS

      The proceedings against which the present application was brought

can be separated in two parts.  (1) The proceedings started on

28 September 1979 and terminated by a judgment in default of

31 October 1979 and (2) the proceedings started by the applicant on

17 June 1985, when he had become aware of the judgment in default, and

terminated on 3 December 1990.

      I agree with the majority of the Commission - and with the

Austrian courts - that the two parts which concerned the same issue,

are parts of one and the same case in as far as it concerns the subject

matter.  For the sake of length of procedure, however, we must separate

the two parts and treat them as separate proceedings because for that

sake they are not interrelated.  The opening date of the second part

of the proceedings solely depends on the factual circumstance when the

judgment in default comes to the attention of its addressee.  It has

nothing to do with the proceedings themselves.  This re-opening of the

case may be any time after the judgment in default.  To include this

time in the length of the proceedings introduces an element of

arbitrariness, which, in my opinion, cannot be justified.  In the

Commission's opinion (para. 33) this case took more than eleven years.

Had the applicant been informed about the judgment in default five

years earlier, then the time could have been six years, had he been

informed ten years later, the time would probably have been 21 years.

These different times have no relationship at all to the proceedings.

      In my opinion, the time involved is just over one month for the

judgment in default and 5 years and 5½ months for the proceedings after

the applicant's objection, which means more than 5½ years in total.

Finding this too long I agree with the Commission's final conclusion

that Article 6 (1) has been violated, but I do not agree with the

Commission's finding that the case took more than eleven years.