AS TO THE ADMISSIBILITY OF
Application No. 23957/94
by Johann BREITENEDER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 February 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
M. VILA AMIGÓ
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 17 March 1994 by
Johann BREITENEDER against Austria and registered on 25 April 1994
under file No. 23957/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 2 August 1996 and the observations in reply submitted by
the applicant on 21 October 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen and a business man by
profession. He is living in Vienna. In the proceedings before the
Commission he is represented by Mr. D. Böhmdorfer, a lawyer practising
in Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 2 April 1986 the applicant brought an action in the Vienna
Regional Civil Court (Landesgericht) claiming payment of AS 843,850
from the defendant who had bought an apartment from him. The claim in
question concerned the last instalment which was due within fourteen
days "after the contractually agreed conditions as described in the
equipment list are fulfilled." On 7 April 1986 the Court ordered the
defendant to submit his observations on the claim.
On 17 July 1986 the defendant submitted his observations which
also contained a list of alleged defects found in the apartment at
issue. On 29 August and on 19 September 1986 further submissions were
filed by the applicant and by the defendant, respectively.
On 19 September 1986 the Regional Court held the first oral
hearing. It made an order for the taking of evidence (Beweisbeschluß),
stating that it would hear the architects Ha. and G. involved in the
case and two further witnesses as regards the contents of the
contractual agreement between the parties and the question whether the
construction works as carried out by the applicant were defective.
On 2 October 1986 the applicant made further observations and
extended his claim (Klagsausdehnung). Furthermore, he objected to a
private expert opinion submitted by the defendant.
On 10 December 1986 the Regional Court held a second hearing and
at which it supplemented the order to take evidence and decided to
inspect the apartment at issue and to appoint an expert in the field
of construction.
On 26 February 1987 the Regional Court carried out a visit on the
site (Ortsaugenschein) together with the expert R., whom it instructed
to draft a proposal for a friendly settlement, to submit it to the
parties and to inform the court before 10 April whether they had
accepted his proposal.
On 19 May 1987 the expert R. reported to the Regional Court that
friendly settlement discussions had been taken up and had been
adjourned pending submission of further documents by the applicant,
concerning the main issue, namely the alleged defects of the thermal
insulation of the glass construction in the roof of the apartment.
According to the defendant the costs to eliminate this defect allegedly
amounted to some 325,000 AS.
On 16 September 1987 the expert R. held a hearing with the
parties in his office, proposing a friendly settlement on the basis of
a payment of AS 700,000 including AS 100,000 interest, to the
applicant. On 28 September 1987 the defendant declared that he would
accept the friendly settlement, whereas the applicant submitted, on
30 September 1987, that he could not envisage a friendly settlement on
the above basis.
On 6 October 1987 the expert R. informed the court that a
friendly settlement could not be reached and that the appointment of
a further expert in construction physics appeared to be necessary in
view of the defendant's allegation of insufficient thermal insulation.
On the same day the expert R. requested the applicant to submit further
documentary evidence.
On 6 November 1987 the Regional Court ordered to obtaining of the
opinion of an expert in construction physics and ordered the defendant
to advance costs of AS 30,000 for this purpose.
On 26 November 1987 the applicant submitted further documents in
order to show that the thermal insulation had been carried out
correctly.
On 16 September 1988 the Regional Court invited the parties to
state on the basis of the opinion established by the expert R. whether
further settlement talks might be held or whether another hearing was
necessary.
On 15 February 1989 the applicant informed the Regional Court
that negotiations to reach an out-of-court settlement had failed.
On 27 April 1989 the Regional Court held the fourth hearing. The
defendant claimed that the expert opinions had shown defects as regards
the thermal insulation of the apartment and that it was, therefore, not
possible to obtain an official certificate of compliance with the
building standards stating that the apartment was ready for use
(Benützungsbewilligung). The applicant contested this view. The Court
decided to hear Mr. He., and the architects Ha. and G. who were
involved in the case.
On 13 June 1989 the applicant filed further requests for the
taking of evidence.
On 18 July 1989 the Regional Court informed the parties that the
next hearing was postponed from 4 September to 12 October 1989.
On 12 October 1989 the Regional Court held the fifth hearing. It
turned out that the Vienna Municipality still had not issued a
certificate of compliance with the building standards stating that the
apartment was ready for use. H., a civil servant in the competent
department of the Vienna Municipality, stated on an informal basis
that he would meanwhile conduct the administrative proceedings
necessary for issuing the said certificate, and it was agreed with the
parties that the hearing would be postponed to 18 January 1990 to await
the outcome of these proceedings.
On 18 January 1990 the Regional Court held the sixth hearing. The
parties stated that no progress had been achieved in the above
administrative proceedings. The applicant named two further witnesses
and it was agreed with the parties that the architects, Ha. and G.,
would jointly discuss the problem and take new measurements. Then, the
hearing was adjourned until 30 March 1990. On 30 January 1990 the
defendant submitted further requests for the taking of evidence.
On 30 March 1990 the Regional Court held the seventh oral
hearing. The parties stated that the proceedings for obtaining the
certificate of compliance with the building standards had not
progressed. The Court heard two witnesses, namely the lawyer and the
real estate manager involved in the sales contract of the apartment at
issue and decided to hear to two further witnesses proposed by the
parties.
On 15 June 1990 the Regional Court informed the parties that the
next hearing was postponed from 19 June to 30 August 1990. According
to the file the adjournment was necessary at the defendant's request.
On 30 August 1990 the Regional Court held the eighth hearing. It
heard the two architects who had been involved in the case on the
respective parties' sides and one further witness. The Court decided
to inspect the site once more, this time together with a building
expert. Further it requested the parties to inform it before
15 November 1990 of any possible results of the administrative
proceedings concerning the certificate that the apartment was ready for
use.
On 5 September 1990 the defendant made a proposal for further
taking of evidence which the Regional Court rejected on 2 October 1990.
On 16 November 1990 the applicant informed the Court that
proceedings to obtain a certificate that the apartment was ready for
use had commenced. By decision of the same day, the Court expressed the
opinion that the issuance of such a certificate appeared to be
essential for the proceedings. It also indicated that, if either of the
parties wished to continue the court proceedings before the said
certificate had been issued, they should inform the judge of their
intention to do so.
On 12 December 1990 the Regional Court requested the applicant
to report on the progress of the aforementioned proceedings.
On 31 May 1991 the applicant requested that the proceedings be
continued.
On 30 September 1991 the Regional Court held the ninth oral
hearing. The parties reported that the Vienna Municipality had not yet
issued a certificate that the apartment was ready for use. Discussing
the matter with the parties, the Court noted that the main issue was
still the question of the alleged defects of the glass construction in
the roof of the apartment. Thus, the Court decided to hold another
hearing on the site on 16 December 1991.
On 9 December 1991 the Regional Court informed the parties that
expert R. was not available on 16 December 1991 and that the hearing
had to be postponed to 3 February 1992.
On 3 February 1992 the Regional Court held the tenth oral hearing
on the site. It heard He. and P., another civil servant of the Vienna
Municipality, as witnesses. Subsequently the matter was adjourned sine
die. As to the further procedure it was agreed that the applicant would
see to it that certain defects were repaired and that the court would
not take any further procedural steps until notice by one of the
parties. As no further requests were made by either party the file was
taken off the list on 31 December 1992.
On 3 July 1993 the applicant requested that the proceedings be
resumed and informed the court that a partial certificate that the flat
was ready for use had meanwhile been issued.
On 27 August 1993 the Regional Court held the eleventh oral
hearing. It was again discussed whether a friendly settlement could be
reached and the parties agreed to conduct out-of-court settlement
negotiations and to inform the court before 1 October 1993 whether such
a settlement had been reached. The proceedings were again adjourned
sine die.
On 10 November 1993 the applicant requested a continuation of the
proceedings and a hearing was scheduled for 18 March 1994.
On 18 March 1994 the Regional Court held the twelfth hearing
during which settlement negotiations were conducted and a witness was
excused on the ground of illness. In this hearing the parties again
requested the court not to take any further evidence as they were still
trying to reach an out-of-court settlement and stated that they would
inform the court by 10 April 1994 at the latest whether or not they
wished to carry on with the proceedings. In case the continuation of
the proceedings was actually desired a possible date for another
hearing was reserved by the Court on 14 June 1994.
On 14 June 1994 the Regional Court held the fourteenth hearing,
after having been informed that the parties' negotiations had failed
and it was decided to conduct another inspection on site visit to the
apartment.
On 7 September 1994 the Court carried out another visit to the
site. After three and a half hours of negotiations a friendly
settlement was reached and the proceedings were terminated.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that the proceedings before the Vienna Regional Civil Court concerning
his claim for payment relating to the sale of an apartment lasted
unreasonably long.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 March 1994 and registered
on 25 April 1994.
On 12 April 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
2 August 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 21 October 1996.
THE LAW
The applicant complains about the length of the proceedings
concerning his claim for payment relating to the sale of an apartment.
He invokes Article 6 para. 1 (Art. 6-1) of the Convention, which 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
... ."
The Government submit in particular that the proceedings were
highly complex in both legal and factual terms and necessitated the
taking of expert opinions in different fields of building and
construction matters. As regards the conduct of the Regional Court and
the conduct of the applicant, the Government point out that the Court
with the agreement of the parties tried to reach a friendly settlement
throughout the proceedings. Some periods of inactivity, namely from
19 May to 16 September 1987, from 16 September 1988 to 15 February
1989, from 27 August to 10 November 1993 and from 18 March to 10 April
1994, were due to out-of-court settlement negotiations between the
parties. As regards two further periods, namely from 16 November 1990
to 31 May 1991 and from 3 February 1992 to 3 July 1993, it had been
agreed between the Court and the parties that the proceedings would
only be resumed at the request of one of the parties. Moreover, the
Government point out that the parties never complained that the
proceedings were protracted or lasted too long.
The applicant maintains that the overall duration of the
proceedings was excessive and was mainly due to the Regional Court's
conduct, which acted without any concept and had no intention to decide
on the merits of the case. For instance, the Court first did not order
the expert R. to submit an opinion, but only instructed him to make a
friendly settlement proposal and to discuss it with the parties, thus
leaving it to the expert to conduct the proceedings. The Court again
and again tried to achieve a friendly settlement but failed to take the
necessary evidence to enable it to give judgement. Thus, the parties
were almost forced to conclude a friendly settlement in the end.
Further, the applicant points out that according to the relevant case-
law of the Austrian courts the full price for an apartment, or
construction works in general, is only due once they are free from any
defects. That carries the risk that the purchaser, who is already using
the apartment, delays payment by alleging some defects. Such
proceedings should, therefore, be conducted expeditiously, all the more
so, if a considerable amount of money is at stake as in the present
case.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs, on the question
of "reasonable time" (the complexity of the case, the applicant's
conduct and that of the authorities), and having regard to all the
information in its possession, that a thorough examination of the
applicant's complaint is required, both as to the law and as to the
facts.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy