AS TO THE ADMISSIBILITY OF
Application No. 26244/95
by BONUM Realitätenverwertung GmbH
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 November 1994
by BONUM Realitätenverwertung GmbH against Austria and registered on
19 January 1995 under file No. 26244/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
12 December 1996 and the observations in reply submitted by the
applicant on 21 January 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a limited liability company in liquidation,
which was located in Vienna. In the proceedings before the Commission
it is represented by Mr. F. Insam, a lawyer practising in Graz.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 13 May 1988, the applicant company as first plaintiff and
Mrs. D. Insam as second plaintiff lodged an action with the Vienna
Commercial Court (Handelsgericht) against the company's three former
managing directors, claiming payment of damages. The applicant company
also claimed recovery (Herausgabe) of various business records. In
these and the subsequent proceedings, the applicant company as well as
the second plaintiff were represented by Mr. F. Insam.
On 8 February 1990 the Supreme Court (Oberster Gerichtshof) gave
a partial decision dismissing the claims as regards damages. It quashed
the lower instance's decisions relating to the claim for recovery of
business records and referred the case back to the first instance
court. Subsequently, the Vienna Commercial Court issued a decision
relating to the costs against which the second plaintiff appealed.
Moreover, the plaintiff's representative repeatedly requested that the
file be transferred to the Graz Regional Civil Court for inspection.
On 5 March 1991 the applicant company brought a subsidiary motion
for restoration (Rekonstruktion) of various business records.
On 3 June 1991 the Vienna Commercial Court dismissed the
applicant company's claim for recovery of business records as well as
its subsidiary motion for restoration. The judgment was given orally.
On 17 June 1991 the applicant company filed an application to fixing
a time-limit under S. 91 of the Court Organisation Act (Gerichts-
organisationsgesetz) for issuing the written version of the judgment.
Following its service, the applicant company lodged an appeal.
On 5 December 1991 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant company's appeal. As regards the claim for
recovery of business records the Court of Appeal found that business
records were part of a company's property. According to the relevant
provisions of the Civil Code, it was incumbent on the owner to prove
that the defendant had the property at issue in his possession. The
applicant company had failed to furnish such proof.
As to the subsidiary motion for restoration of the business
records, the Court of Appeal found it established that certain business
records had been handed over by the first defendant to the third
defendant and by the latter to the trustee in bankruptcy. In this
respect, the defendants did not have any obligation to restore the
records at issue and the claim had to be dismissed. The defendants had
failed to keep certain other records, but there was no general
obligation of the managing director of a limited liability company to
retroactively restore business records and the company was, thus, only
entitled to claim damages. However, the applicant company had failed
to show that it had suffered any damage. The Commercial Court had,
thus, rightly dismissed the applicant company's claim and its
subsidiary motion. Further, the Court of Appeal ordered the
applicant company to pay the costs incurred by the defendants as well
as the costs of the proceedings.
On 23 December 1991 the applicant company lodged a special appeal
on points of law (außerordentliche Revision) as regards the dismissal
of its subsidiary motion for restoration of the business records. It
did not appeal as regards the main claim for recovery of the said
business records.
On 3 January 1992 the Vienna Commercial Court submitted the
applicant company's appeal as well as the file to the Supreme Court.
According to the Supreme Court's Rules of Procedure the case came
before its Sixth Chamber.
On 19 February 1992 the Vienna Commercial Court requested the
Supreme Court for a short-term transfer of the file. The file was
needed in order to decide on an appeal (Rekurs) brought by the
applicant company in enforcement proceedings instituted by the
applicant company's former managing directors as regards the costs
awarded to them in the above decision of 5 December 1991.
On 28 February 1992, the Supreme Court returned the file to the
Vienna Commercial Court. On 8 July 1992 the Vienna Court of Appeal
dismissed the applicant company's appeal in the enforcement
proceedings, whereupon the applicant company, on 29 July 1992, lodged
a further appeal (Revisionsrekurs) with the Supreme Court. In this case
the Third Chamber of the Supreme Court was competent to decide. It
dismissed the applicant company's appeal on 27 August 1992.
Subsequently, on 21 September 1992, the President of the Third Chamber
of the Supreme Court returned the file to the Vienna Commercial Court
requesting it to transfer it to the Graz Regional Civil Court for a
short-term inspection of the file. On 16 October 1992 the latter Court
returned the file to the Vienna Commercial Court.
On 23 October 1992 the Vienna Commercial Court returned the file
to the Supreme Court.
On 21 December 1993 the applicant company concluded a settlement
with one of its former managing directors, namely the first defendant.
On 28 December 1993 the applicant company withdrew its appeal on
points of law as regards the first defendant.
On 20 October 1994 the Supreme Court rejected the applicant
company's special appeal on points of law. It referred to
S. 502 para. 1 of the Code of Civil Procedure (Zivilprozeßordnung),
according to which an appeal on points of law against a decision of an
appellate court is only admissible if the decision depends on the
solution of a particularly important question of procedural or
substantive law, which applies where the case-law of the Supreme Court
is inconsistent or lacking or where the appellate court's decision
deviates from the case-law of the Supreme Court. In the circumstances
of the case, the Supreme Court found in particular that the applicant
company did not have a claim against the remaining defendants, i.e. the
second and the third defendants, as regards the restoration of certain
business records. As the first defendant had failed to keep the records
at issue, the second and third defendants could reasonably have assumed
that the applicant company did not require them to keep them either,
in particular as no instructions to the contrary had been given. On
11 November 1994 the Supreme Court's decision was served on the
applicant company.
COMPLAINTS
The applicant company complains under Article 6 para. 1 of the
Convention that the proceedings relating to its claim against its
former managing directors for recovery and it subsidiary motion for
restoration of business records lasted unreasonably long, in particular
as regards the proceedings before the Supreme Court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 November 1994 and registered
on 19 January 1995.
On 4 September 1996 the Commission decided to communicate the
application.
The Government's written observations were submitted on
12 December 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 21 January 1997.
THE LAW
The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention that the proceedings relating to its claim
against its former managing directors for recovery and it subsidiary
motion for restoration of business records lasted unreasonably long,
in particular as regards the proceedings before the Supreme Court.
Article 6 para. 1 (Art. 6-1), so far as relevant, 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 submit that the applicant company cannot claim to
be a victim under Article 25 (Art. 25) of the Convention as regards the
alleged breach of Article 6 (Art. 6). They argue that it appears from
the applicant company's written submissions that the applicant company
in essence complains about the refusal of its claim for damages rather
than about the duration of the proceedings before the Supreme Court.
They allege that the applicant company by lodging the application is
just trying to get some compensation out of the matter.
Further, the Government argue that, as regards the said claim for
damages against the applicant company's former managing directors, a
partial final decision had already been given by the Supreme Court on
8 February 1990 and that the Commission, on 15 January 1994, has
dismissed application No. 17285/90, brought by D. Insam, the second
plaintiff in the proceedings at issue, as being inadmissible. On the
basis of the above argument, i.e. that the present application relates
in essence to the refusal of the applicant company's claim for damages,
the Government submit that the present application concerns
substantially the same matter as the one already examined by the
Commission and should, therefore, be rejected pursuant to
Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.
The applicant company did not reply to the above arguments.
The Commission notes that the applicant company explicitly
complains about the length of the proceedings relating to its claim
against its former managing directors for recovery and its subsidiary
motion for restoration of business records. There are no reasons to
doubt that the applicant company can claim to be a victim within the
meaning of Article 25 (Art. 25) of the Convention of the alleged
violation of Article 6 (Art. 6) of the Convention.
Further the Commission notes that application No. 17285/90,
though relating to the same set of proceedings, was lodged by a
different applicant, namely D. Insam. Moreover, it related to
complaints under Article 6 (Art. 6) of the Convention about the alleged
unfairness of the proceedings, the lack of a public hearing before the
Supreme Court and the lack of public pronouncement of Supreme Court's
judgment of 8 February 1990 and to a complaint under Article 1 of
Protocol No. 1 (P1-1). It follows that the present petition is not
"substantially the same" within the meaning of Article 27 para. 1 (b)
(Art. 27-1-b) as the matter which has been examined by the Commission
in the above application.
b. As to the merits of the applicant company's complaint, the
Government submit that the duration of the proceedings before the
Supreme Court can still be regarded as reasonable. They point out that,
on 19 February 1992 the Vienna Commercial Court requested the Supreme
Court for a short-term transfer of the file. It could not be expected
that the competent chamber of the Supreme Court would not have the file
at its disposal for a longer period and, thus, the production of
photocopies was not warranted. Moreover, the Government point out that
the transfer was caused by the applicant company's appeal in related
enforcement proceedings and its subsequent further appeal, which had
to be dealt with by another Chamber of the Supreme Court. Following an
inspection of the file by the Graz Regional Court, it was sent back to
the Supreme Court on 23 October 1992. Thus, the Government argue that
only the period from that date until 20 October 1994 has to be taken
into consideration.
The Government further submit that the legal question raised by
the applicant company's special appeal on points of law, namely whether
former managing directors are obliged to restore business records which
they did not keep during their term of office, proved to be complex.
Although the appeal was finally rejected on the ground that the
prerequisites of S. 502 para. 1 of the Code of Civil Procedure were not
met, intensive discussions and deliberations preceded. Despite the fact
that in such a case no reasoning is required, the Supreme Court, in its
decision of 20 October 1994 gave a brief outline of the principles
underlying its decision. Finally, the Government claim that the
applicant company itself contributed to the length of the proceedings,
by making extensive use of available remedies and by taking unnecessary
procedural steps, for instance by lodging an application for setting
a time-limit only fourteen days after the Vienna Commercial Court had
given its oral judgment on 3 June 1991.
The applicant company contests the Government's view. It submits
in particular that the Supreme Court's decision of 20 October 1994
contained no more than four pages. As regards delays caused by the
transfer of the file requested by the Vienna Commercial Court on
19 February 1992, the applicant company argues that the courts would
have been obliged to produce a copy of the file. Further, it submits
that it is for the State to avoid delays which may be caused by the
fact that different Chambers of the Supreme Court are competent to deal
with remedies brought in related proceedings. The applicant company
contests that any delays are imputable to it.
The Commission finds that the proceedings at issue related to the
recovery of the applicant company's property, namely its business
records, and to related claims resulting from the contractual
relationship between the applicant company and its former managing
directors. Thus, they involved a determination of the applicant
company's "civil rights" within the meaning of Article 6 (Art. 6) of
the Convention, which is, therefore, applicable.
As regards the period to be taken into consideration, the
Commission notes that the applicant company, in its initial action of
13 May 1988 had claimed damages from its three former managing
directors as well as recovery of the business records at issue. A
partial decision as regards the claim for damages was given on
8 February 1990, whereas the proceedings concerning the claim for
recovery of business records continued. On 5 March 1991 the applicant
company lodged a subsidiary motion for restoration of the business
records. It was only this issue which was still at issue in the
applicant company's special appeal on points of law submitted to the
Supreme Court on 3 January 1992. The Supreme Court gave its decision
on 20 October 1994, which was served on the applicant company on
11 November 1994.
The proceedings, therefore, lasted from 13 May 1988 until
11 November 1994, i.e. altogether six and a half years. However, the
subsidiary motion for restoration of the business records which was
still at issue before the Supreme Court had only been introduced on
5 March 1991. In this regard the proceedings lasted three years and
eight months.
The Commission recalls that the reasonableness of the length of
proceedings is to be determined with reference to the criteria laid
down in the Court's case-law and in the light of the circumstances of
the case, which in this instance call for an overall assessment (see
Eur. Court HR, Cesarini v. Italy judgment of 12 October 1992, Series A
no. 245-B, p. 26, para. 17).
The Commission finds that the present case was of a certain
complexity. Two plaintiffs and three defendants were involved. The
proceedings initially also related to a claim for damages which was
decided upon by a partial decision of the Supreme Court in 1990.
Moreover, the legal question raised by the applicant company's
subsidiary motion, namely to what extent former managing directors of
a limited liability company are obliged to restore business records,
which was still at issue in the second set of proceedings before the
Supreme Court appears to have been rather unusual and difficult.
As regards the conduct of the Austrian authorities, the
Commission finds that the proceedings, concerning the remaining issue
of the business records were conducted speedily by the Vienna
Commercial Court and the Vienna Court of Appeal in 1991. The duration
of the proceedings before the Supreme Court, where the case was pending
from 3 January 1992 until 20 October 1994, i.e. for two years and nine
and a half months, may on the face of it appear excessive. At the
beginning of this period a delay between 19 February 1992 and
23 October 1992 was caused by various transfers of the file. However,
as regards the remaining and more substantial period from
23 October 1992 to 20 October 1994, the Commission notes that the
applicant company concluded a settlement with one of its former
managing directors on 21 December 1993 and subsequently withdrew its
appeal on points of law as regards this defendant. This might have
justified some delay in order to see whether the applicant company
would also come to a settlement with the other two defendants.
Having regard to the circumstances of the case, in particular the
complexity of case and the fact that, after the introduction of the
applicant company's subsidiary claim for restoration of the business
records in March 1991, it was dealt with by three instances within
three years and eight months, the delay that occurred before the
Supreme Court does not appear substantial enough for the total length
of the proceedings to be considered unreasonable.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy