EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 19740/92
Luise Basta
against
Austria
REPORT OF THE COMMISSION
(adopted on 15 January 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-5)1
II.ESTABLISHMENT OF THE FACTS
(paras. 6-14)2
III.OPINION OF THE COMMISSION
(paras. 15-26)3
A.Complaint declared admissible
(para. 15)3
B.Point at issue
(para. 16)3
C.As regards Article 6 para. 1 of the Convention
(paras. 17-25)3
CONCLUSION
(para. 26)4
APPENDIX:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION5
I.INTRODUCTION
1.The present Report concerns Application No. 19740/92 introduced on 5
August 1991 against Austria and registered on 13 March 1992.
The applicant is an Austrian and Hungarian national born in 1955 and
resident in Vienna.
The applicant is represented before the Commission by Mr. W. Mayerhofer, a
lawyer practising in Vienna.
The respondent Government of Austria are represented by their Agent,
Ambassador F. Cede, head of the International Law Department at the Federal
Ministry for Foreign Affairs.
2.The application was communicated to the Government on 8 January 1993.
Following an exchange of written observations, the complaint relating to the
length of proceedings (Article 6 para. 1 of the Convention) was declared
admissible on 26 June 1996. The decision on admissibility is appended to this
Report.
3.Having noted that there is no basis upon which a friendly settlement
within the meaning of Article 28 para. 1 (b) of the Convention can be secured,
the Commission (First Chamber), after deliberating, adopted this Report on 15
January 1997 in accordance with Article 31 para. 1 of the Convention, the
following members being present:
Mrs.J. LIDDY, President
MM.L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs.M. HION
4.In this Report the Commission states its opinion as to whether the facts
found disclose a violation of the Convention by Austria.
5.The text of the Report is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the Convention.
II.ESTABLISHMENT OF THE FACTS
6.On 22 August 1979 the applicant brought an action before the Vienna Labour
Court (Arbeitsgericht) against the Republic of Austria submitting that she had
been an employee of the Austrian Embassy in Budapest and had been unlawfully
dismissed. She claimed a finding that her employment contract was still valid
and that the defendant owed her some AS 300.000. The action was dismissed on 7
July 1981.
7.On 18 February 1982 the Vienna Regional Court (Landesgericht) acting as
court of appeal dismissed the applicant's appeal. However, on 9 November 1982
the Supreme Court (Oberster Gerichtshof), upon the applicant's appeal on points
of law, quashed the Regional Court's judgment and sent the case back to it.
8. On 21 February 1983 the parties reached a friendly settlement before the
Regional Court which was, however, revoked by the applicant on 29 March 1983.
9.On 16 December 1983 the Federal Ministry of Justice replied to a request
by the Regional Court concerning the law applicable in the present case under
Hungarian international private law. On 22 November 1984 the Regional Court
requested information about Hungarian law by way of a letters rogatory addressed
to the Hungarian authorities. Despite reminders by the Regional Court no answer
was received to this request over the following two years.
10.On 23 January 1987 the files were transmitted to the Vienna Court of
Appeal (Oberlandesgericht) which had in the mean-time acquired jurisdiction in
the matter according to changes in the law.
11.On 18 May 1987 the Court of Appeal again addressed letters rogatory to the
Hungarian authorities. On 27 January 1988 an answer to the rogatory request was
eventually received following several reminders. On 4 May 1988 the Court of
Appeal addressed further letters rogatory to the Hungarian authorities. A reply
was received on 30 April 1990 and a second reply on 9 August 1990, following the
Court of Appeal's repeated insistence.
12.On 12 April 1991 the Court of Appeal quashed the judgment of 9 June 1981
and referred the case back to the first instance court.
13.On 16 September 1993 the Vienna Labour and Social Court (Arbeits-und
Sozialgericht) dismissed the applicant's action.
14.On 28 November 1994 the Vienna Court of Appeal dismissed the applicant's
appeal and on 22 November 1995 the Supreme Court dismissed the applicant's
appeal on points of law.
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
15.The Commission has declared admissible the applicant's complaint that his
case has not been heard within a reasonable time.
B.Point at issue
16.The only point at issue is whether the length of the proceedings
complained of has exceeded the "reasonable time" requirement referred to in
Article 6 para. 1 (Art. 6-1) of the Convention.
C.As regards Article 6 para. 1 (Art. 6-1) of the Convention
17.The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
provides as follows :
"In the determination of his civil rights and obligations ..., everyone is
entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."
18.The proceedings in question concerned the applicant's dismissal as
employee under a private law contract by the Austrian Embassy in Hungary and her
claim for compensation. The purpose of the proceedings was to obtain a decision
in a dispute over "civil rights and obligations", and they accordingly fall
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.
19.These proceedings, which began on 22 August 1979 and ended on 22 November
1995, have lasted sixteen years and three months.
20.The Commission recalls that the reasonableness of proceedings must be
assessed in the light of the particular circumstances of the case and with the
help of the following criteria: the complexity of the case, the conduct of the
parties and the conduct of the authorities dealing with the case (see Eur. Court
H.R., Vernillo v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30). In this instance the circumstances call for an overall assessment
(see Eur. Court HR, Boddaert v. Belgium judgment of 12 October 1992, Series A
no. 235-D, p. 82, para. 36).
21.The Government submit that the case had been particularly complex as it
involved difficult questions of Hungarian law which was applicable in the
present case and which the Austrian courts could only resolve after having
obtained the necessary information from the Hungarian authorities. The Austrian
courts have dealt with the applicant's case without undue delay. Delays which
occurred in the proceedings were not attributable to the Austrian courts as the
Hungarian authorities had acted on letters rogatory only after considerable time
had passed and after they had been repeatedly urged to do so by the Austrian
courts. Also the applicant's conduct had prolonged the proceedings as she had
failed four times to participate in court hearings so that the proceedings
consequently had become dormant for some time.
22.The Commission finds that the case was relatively complex as it involved
questions of Hungarian law and in order to resolve these issues the Austrian
courts had to rely on information from Hungarian authorities. The Commission
also finds that the Austrian courts were not responsible for delays caused in
the proceedings by belated replies to letters rogatory addressed to the
Hungarian authorities and by the applicant's conduct. Though these
circumstances contributed to the length of the proceedings they cannot explain
the overall length of more than sixteen years.
23.The Commission observes in particular that after the Supreme Court, on 9
November 1982, had quashed the judgment given in the first set of proceedings it
took the Regional Court and then the Court of Appeal more than eight years
before, on 12 April 1991, the Court of Appeal decided again on the applicant's
appeal against the judgment of 9 June 1981. Even then the applicant's claim was
not determined but her case was referred back to the court of first instance and
a new set of proceedings, involving three levels of jurisdiction, commenced,
which again lasted for more than four and half a year.
24.The Commission reaffirms that special diligence is necessary in employment
disputes and that it is for Contracting States to organise their legal systems
in such a way that their courts can guarantee the right of everyone to obtain a
final decision on disputes relating to civil rights and obligations within a
reasonable time (cf. Eur. Court H.R., Vocaturo v. Italy judgment of 24 May 1991,
Series A no. 206-C, p. 32, para. 17).
25.In the light of the criteria established by case-law and having regard to
the circumstances of the present case, the Commission considers that the length
of the proceedings was excessive and failed to meet the "reasonable time"
requirement.
CONCLUSION
26.The Commission concludes, unanimously, that there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention.
M.F. BUQUICCHIOJ. LIDDY
SecretaryPresident
to the First Chamberof the First Chamber
Full & Egal Universal Law Academy