CASE OF T. v. AUSTRIA

THIRD SECTION

CASE OF T. v. AUSTRIA

(Application no. 27783/95)

JUDGMENT

STRASBOURG

14 November 2000

In the case of T. v. Austria,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of

MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrP. Kūris,
MrsF. Tulkens
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and MrsS. Dollé, Section Registrar,

Having deliberated in private on  24 October 2000,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), by an Austrian national, Mr T. (“the applicant”), on 21 December 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention). It originated in an application (no. 27783/95) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission) under former Article 25 of the Convention by the applicant on 16 May 1995. The applicant was granted leave to present his own case in accordance with Rule 36 § 4 (b) of the Rules of Court. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

2.  The applicant’s application to the Court referred to former Article 48 of the Convention as amended by Protocol No. 9 which Austria had ratified. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach of Article 6 §§ 1 and 3 of the Convention.

3. On 11 February 2000 the Panel of the Grand Chamber decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and Rules 100 § 1 and 24 § 6 of the Rules of Court, that the application would be examined by one of the Sections. It was, thereupon assigned to the Third Section. Within that Section, the Chamber was constituted in accordance with Rule 26 § 1 of the Rules of Court.

4.  In accordance with Rule 59 § 3 of the Rules of Court, the President of the Chamber invited the parties to submit a memorial on the issues in the case. The Registrar received the applicant’s memorial on 31 May 2000 and the Government’s memorial on 13 June 2000.

5.  After consulting the Agent of the Government and the applicant, the Chamber decided not to hold a hearing in the case.

THE FACTS

I.THE CIRCUMSTANCES OF THE CASE

A.The proceedings between the applicant and a bank

6.  On 27 June 1988 the C-Bank filed an action for payment of Austrian schillings (ATS) 8,497 against the applicant on the ground that, following termination of their contractual relationship, the applicant's current account showed a debit balance for this amount.

7.  On 18 July 1988 the Hietzing District Court (Bezirksgericht), in summary proceedings, issued an order for payment of the debt (Zahlungsbefehl) against the applicant. The applicant, represented by Mr K., filed an objection (Einspruch), which the District Court received on 5 August 1988.

8.  On 15 November 1988 judge D. at the District Court held a hearing.

9.  On 30 November 1988 the District Court received notice that Mr K. no longer represented the applicant. On 2 February 1989 a hearing which had been scheduled for 9 February 1989 was cancelled. The Government submit that this was due to the fact that the applicant's representative had withdrawn from the case, while the applicant submits that the court was prevented from holding the hearing. Subsequently, 22 December 1989 was set for the next hearing.

10.  On 13 December 1989 the applicant, represented by Mrs O., filed a counterclaim (Widerklage) requesting compensation in the total amount of ATS 89,543 for loss of interest which had allegedly been caused by the negligent conduct of the bank in connection with a loan taken out by a certain E., for which he, the applicant, had mortgaged his property. Further, he requested a declaratory decision to the effect that a guarantee he had given to the C-Bank in relation to E.'s debt was null and void.

11.  On 21 December 1989, the bank filed preparatory submissions in reply. It particularly denied that there was a link between the two claims at issue.

12.  On 22 December 1989 judge G. at the District Court held a hearing.

13.  On 30 March, 24 April and 25 June 1990, judge P. at the District Court held hearings. The parties presented documentary evidence and the court heard N. and W., two employees of the C-Bank, and K., the lawyer involved in the case, as witnesses. At the last of these hearings the court decided to join the proceedings concerning the bank's claim and the applicant's counterclaim. It also noted that the C-Bank had extended their claim, requesting additional payment of ATS 14,180 for which the applicant was allegedly liable on account of his guarantee for the debt of E.

14.  On 29 June 1990 the District Court decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and E., which was pending before the Vienna Regional Civil Court (Landesgericht), became final.

15.  On 16 October 1990 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision to adjourn on the ground that, according to the relevant procedural rules, it had to be taken in the course of an oral hearing.

16.  On 16 January 1991 Mrs O. informed the District Court that she no longer represented the applicant. The applicant was subsequently represented by Mr R.

17.  On 11 April 1991 and 10 October 1991, judge Ed. at the District Court held further hearings. The applicant was heard as a party and W. was again heard as a witness. At the latter hearing the Court again decided to adjourn the proceedings until the judgment of the Vienna Regional Civil Court in the proceedings between the applicant and E. became final.

18.  On 4 February 1992 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision and ordered the District Court to continue the proceedings. It found that the District Court had wrongly assumed that the proceedings between the applicant and E. would resolve a preliminary incidental question. The District Court received the Regional Court's decision on 10 March 1992.

19.  On 1 September 1992 the applicant extended his counterclaim to a total amount of ATS 213,440.

20.  On 6 October 1992 judge Ed. at the District Court, upon the claimant's request, adjourned a hearing which had been scheduled for 15 October 1992 to 26 January 1993.

21.  On 2 November 1992 the applicant informed the District Court that he had revoked Mr R.'s power of attorney.

22.  On 18 January 1993 judge Ed. made a request to be replaced as she considered herself to be biased on account of certain accusations which the applicant had made against her. On the same day the President of the District Court granted her request and assigned the case to judge A. A hearing which had been scheduled for 26 January 1993 was cancelled. The applicant was at that time represented by Mrs W.

23.  On 23 February 1993 the District Court received notice that Mrs W. no longer represented the applicant.

24.  The next hearing was scheduled for 21 June 1993 but had to be postponed to 12 July 1993 upon the claimant's request.

25.  On 17 June 1993 the applicant requested legal aid. Upon the District Court's request, he supplemented his application on 1 July 1993.

26.  On 5 July 1993 the District Court dismissed the applicant's request for legal aid.

27.  On 9 July 1993 Mr H., who had been appointed as the applicant's representative by the Lawyer's Chamber under section 10 § 3 of the Lawyer's Act (Rechtsanwaltsordnung) - applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him - requested that the hearing scheduled for 12 July 1993 be postponed. The applicant claims that he had only requested the appointment of counsel for this specific request, while the Lawyer's Chamber appointed Mr H. to represent him in the further proceedings.

28.  On 16 November 1993 the District Court upon the request of Mr H. postponed the next hearing which had been scheduled for 3 December 1993 to 21 January 1994.

29.  On 18 January 1994 Mr H. requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant. The District Court dismissed the request. The applicant submits that he was unaware that Mr H. acted as his counsel and that the latter had tried to contact him at a wrong address. He further claims that the summons to appear personally at the hearing of 21 January 1994 was not correctly served on him.

30.  On 21 January 1994 judge A. at the District Court held a further hearing and admitted the extension of the applicant's counterclaim.

31.  On 25 February 1994 the District Court received notice that Mr H. no longer represented the applicant.

32.  On 18 April 1994 the District Court cancelled the date for the next hearing which had been set for 22 April 1994. It noted that, in the proceedings at issue, the parties were obliged to be represented by a lawyer (Anwaltszwang). As the applicant had requested legal aid (see paragraph 35 below) and was currently not represented, the hearing could not take place.

33.  On 11 October 1996 judge Z. at the District Court set 30 October 1996 as a date for the next hearing. In the summons the applicant was informed that he had to be represented by counsel at the hearing. Should he not be represented, he would be considered as being in default. Upon the claimant's request the hearing was postponed to 2 December 1996.

34.  On 2 December 1996 neither of the parties appeared at the hearing. Consequently, the proceedings were stayed (Ruhen des Verfahrens). So far, neither of the parties has requested their continuation.

B.The proceedings relating to the imposition of a fine for abuse of process

35.  On 8 April 1994 the applicant requested legal aid. He submitted a declaration of means, according to which he had no income, property, savings or other assets. Further, he declared that he had debts with the S-Bank and the Sch. limited company. The standard form for this declaration contained a warning that, in case legal aid was obtained improperly by making false or incomplete statements, a fine for abuse of process (Mutwillensstrafe) could be imposed.

36.  In his accompanying submissions the applicant stated, inter alia, that until September 1993 he had received ATS 15,000 per month from the Sch. Company. As of 1 October 1993 he was without income and was moreover obliged to pay back any payments he had received from that company. His old-age pension was only due as of 1 September 1994. Further, the applicant stated that he had no relatives and received support from a few acquaintances.

37.  On 11 April 1994 judge Er. at the District Court ordered the applicant to provide further information. He was requested to submit the names and addresses of the persons supporting him, and to specify the amounts, intervals and means of their payments. Further, the applicant was requested to submit a number of supporting documents.

38.  On 15 April 1994 the applicant submitted that he received ATS 200 per week from a certain Mrs F. He also submitted a number of documents.

39.  On 5 May 1994 the District Court, without a hearing, dismissed the applicant's request for legal aid and imposed a fine of ATS 30,000 for abuse of process. Referring to the applicant's declaration of means and his further submissions, it found that the applicant had made incomplete or false statements. In particular he had declared that he was without income since 1 October 1993 and only received ATS 200 per week. However, the documents submitted by him showed that he had paid his rent of ATS 1,234 from October 1993 to January 1994. As the total income which he claimed per month was less than this sum, it could not be deduced from his submissions how he had been able to pay his rent. Finally, the Court noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted improperly to obtain legal aid. 

40.  On 8 May 1994 the applicant appealed against this decision.

41.  On 28 February 1995 the Vienna Regional Civil Court, sitting in private, dismissed the applicant's appeal. It found that the District Court had rightly rejected the applicant's request for legal aid. The applicant's submissions that he had savings which allowed him to pay his rent from October 1993 onwards, constituted new facts which were inadmissible in the appeal proceedings. In his request for legal aid he had stated that he had received no income since 1 October 1993 and depended on the support of acquaintances. Upon the Court's request to supplement his submissions, the applicant had specified that he received ATS 200 per week as support. He had not, however, stated that he had any savings to cover his maintenance. The District Court had rightly concluded that he had made incomplete or false statements and had, thus, failed to show that the costs of the proceedings would endanger his means of livelihood. It had also correctly imposed a fine for abuse of process in accordance with section 69 of the Code of Civil Procedure (Zivilprozessordnung).

42.  On 28 March 1995 the District Court issued an order for payment of the fine for abuse of process.

43.  On 16 August 1995 the District Court, referring to section 220 § 3 of the Code of Civil Procedure, noted that an attempt to collect the fine had been futile, and converted the fine into ten days’ imprisonment. The applicant was informed that he could lodge an appeal against this decision. It appears that the applicant did not do so.

II.RELEVANT DOMESTIC LAW

A.       Code of Civil Procedure

44.  Section 69 of the Code of Civil Procedure (Zivilprozeßordnung) provides that a court shall impose a fine for abuse of process of up to ten times the amount provided for in section 220 § 1 of the same Code (namely ATS 400,000) on a litigant who obtains legal aid improperly by making false or incomplete statements.

45.  Section 220 provides inter alia that a fine for abuse of process may not exceed ATS 40,000 (paragraph 1). In the event of an inability to pay, the fine shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days (paragraph 3).

46.  According to section 514 of the Code of Civil Procedure an appeal (Rekurs) lies against any decision of a court, unless it is explicitly excluded.

B.      Penal Code

47.  Section 19 of the Penal Code (Strafgesetzbuch) deals with fines (Geldstrafen). It provides that fines shall be expressed as day-fines. They shall not amount to less than two day-fines (paragraph 1). Day-fines shall be fixed according to the offender’s means and personal circumstances at the time of the judgment at first instance. However, they shall not amount to less than ATS 30 or more than ATS 4,500 (paragraph 2). If a fine proves to be irrecoverable, a sentence of imprisonment in default shall be passed. One day’s imprisonment in default shall correspond to two day-fines (paragraph 3).

THE LAW

I.Scope of the case

48.  The applicant, in his memorial, complained about an alleged lack of access to court on account of the refusal of legal aid.

49.  The Court recalls that the scope of the case is determined by the Commission’s decision on admissibility (see for instance the Fusco v. Italy judgment of 2 September 1997, Reports of Judgments and Decisions 1997‑V, p. 1731, § 16). The Commission declared the application inadmissible with the exception of the complaint about the length of the proceedings between the applicant and a bank and the complaint about a violation of his defence rights in the proceedings relating to the fine for abuse of process. It follows that the scope of the present case is limited to these complaints.

II.ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

50.  The applicant complained about the length of the proceedings between him and a bank. He relied on Article 6 § 1 of the Convention which, so far as relevant, 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...”

51.  The applicant maintained that the proceedings lasted unreasonably long and that considerable delays were caused by the District Court. He asserted that the various changes of his representatives did not cause any substantial delays.

52.  The Government contended that the duration of the proceedings can still be regarded as reasonable in the circumstances of the case. They argued that the proceedings were complex and that the applicant did not take any steps to expedite the proceedings, but caused substantial delays in that he frequently changed his representative, failed to make his submissions in a concise manner and submitted evidence belatedly.

53.  The Court agrees with the Commission that the proceedings at issue lasted from 27 June 1988 until 2 December 1996, that is almost eight and a half years at one level of jurisdiction.

54.  The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see among many others the Ciricosta and Viola v. Italy judgment of 4 December 1995, Series A no. 337-A, p. 9, § 24).

55.  The Commission found that the proceedings were of a certain complexity, as they concerned the bank’s claim and the applicant’s counterclaim which were both extended in the course of the proceedings, but that delays of altogether four years and three months were imputable to the District Court while the delays caused by the applicant were much less important. In sum, the Commission found that an overall duration of eight and a half years at one level of jurisdiction could not be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention.

56.  The Court sees no reason to disagree with the conclusion reached by the Commission. Accordingly, there has been a breach of Article 6 § 1 of the Convention.

III. alleged violation of Article 6 §§ 1 and 3 of the ConvenTion

57.  The applicant complained that the District Court, before imposing a fine for abuse of process on him, did not inform him of its suspicion that he had made false or incomplete statements in his legal aid request and that he could not, therefore, duly defend himself. He relied on Article 6 §§ 1 and 3 (a) and (b) of the Convention which, so far as relevant, read as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence; ...”

58.  The Court will first examine whether Article 6 applied to the proceedings at issue.

A.Applicability of Article 6 

59.  The applicant did not put forward any specific argument on this issue, but it follows from his submissions that he considers the criminal head of Article 6 § 1 to be applicable.

60.  The Government for their part, contested the applicability of Article 6 § 1. They asserted that the proceedings relating to the imposition of a fine for abuse of process did not involve the determination of a “criminal charge”. The Government disagreed with the Commission, arguing that the nature and severity of the penalty at stake in the present case was not such as to bring the matter into the criminal sphere. They pointed out that the amount of the maximum penalty, i.e. ATS 400,000, although very high, was the only element which distinguished the present case from the Putz v. Austria judgment of 22 February 1996, (Reports of judgments and decisions 1996-I), in which the Court came to the conclusion that Article 6 was not applicable. Referring to the Court’s Bendenoun v. France judgment of 24 February 1994 (Series A no. 284), the Government further argued that the amount of the penalty alone could not suffice to conclude that the proceedings at issue fell within the criminal sphere. Moreover, the prison term in default which was at stake in the present case, was considerably shorter than the one at stake in the Ravnsborg case. The fact that the fine in the present case could be converted into a prison term without any further hearing could not justify the conclusion that Article 6 was applicable.

61.  The Court recalls that the question whether the criminal head of Article 6 applies has to be assessed in the light of three alternative criteria laid down in the Court’s case-law, namely the classification of the offence in domestic law, the nature of the offence and the nature and severity of the penalty (see, in particular, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, pp. 34-35, § 82; the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, pp. 17-18, §§ 31-34; the Ravnsborg v. Sweden judgment of 23 March 1994, Series A no. 283-B, p. 28, § 30; the Putz v. Austria judgment, previously cited, p. 324, § 31).

62.  The Commission found that the offence laid down in section 69 of the Code of Civil Procedure was not classified as criminal under Austrian law, and that its nature, relating to the inherent power of a court to ensure the proper and orderly conduct of its own proceedings, was disciplinary rather than criminal. The Court agrees with this assessment.

63.  It remains to be examined whether the nature and severity of the penalty that the applicant risked incurring may bring the matter within the criminal sphere (see the Ravnsborg judgment, previously cited, p. 30, § 35, and the Putz judgment, also previously cited, p. 325, § 34).

64.  The Commission observed that the maximum penalty of ATS 400,000, which the applicant risked incurring under section 69 in conjunction with section 220 § 1 of the Code of Civil Procedure, was considerably higher than in comparable cases relating to penalties for misconduct in court proceedings. The penalty of ATS 30,000 actually imposed was also more important than any of the penalties imposed in these cases (see the above-mentioned Weber judgment, pp. 9 and 18, §§ 16 and 34; the Ravnsborg judgment, previously cited, pp. 30-31, § 35; the Putz judgment, previously cited, pp. 326, § 37).

65.  The Government argued that the amount of the penalty at stake in itself cannot bring the matter into the criminal sphere. It is true that in the Bendenoun judgment to which the Government referred, the Court did not only rely on the high amount of the penalty at stake, but also had regard to other factors, in particular the nature of the penalty which was punitive rather than compensatory (see the Bendenoun v. France judgment, previously cited, p. 20, § 47). In the present case too, the fine the applicant risked incurring was very substantial, coming within the range of fines provided for in the Penal Code (see paragraph 47 above), and it was not intended as compensation for damage but was punitive in character.

66.  Finally, the Government argued that the term of ten days’ imprisonment in default, which was at stake and was actually imposed on the applicant in the present application, was much shorter than the one at stake in the Ravnsborg case. However, in the latter case, the Court attached importance to the fact that a conversion of the fine into a prison term required an oral hearing in separate court proceedings (see the Ravnsborg judgment, ibid.). No such guarantees were attached to the conversion of the fine in the present case.

67.  In conclusion the Court, having regard to the punitive nature and the high amount of the penalty at stake and the possibility of converting it into a prison term without the guarantee of a hearing, finds that what was at stake for the applicant was sufficiently important to warrant classifying the offence as criminal within the meaning of Article 6 §1.

B.Compliance with Article 6 §§ 1 and 3

68.  The applicant maintained that his defence rights, in particular his rights under Article 6 § 3 (a) and (b), were violated in that the District Court, before imposing a fine for abuse of process on him, did not inform him of the suspicion that he had made false or incomplete statements in his legal aid request. He claims that, thereby, he could not duly defend himself.

69.  The Government contended that the applicant failed to exercise his defence rights. They pointed out in particular that he could have put forward his defence in his submissions of 15 April 1994 which were his reply to the order to supplement his legal aid request. Furthermore, the Government considered that the applicant failed to file an appeal against the decision imposing a fine for the abuse of process.

70.  The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1, and it will therefore consider the applicant’s complaints under the two provisions taken together (see, among other authorities, the Kremzow v. Austria judgment of 21 September 1993, Series A no. 268-B, p. 41, § 44).

71.  Like the Commission, the Court notes that the District Court, on 11 April 1994, ordered the applicant to supplement his legal aid request, but did not indicate that it suspected him of having committed the offence punishable under section 69 of the Code of Civil Procedure. Without having held a hearing, it found him guilty of this offence on 5 May 1994 and imposed a fine for abuse of process. Thus, the applicant only learned about the accusations levelled against him when the District Court’s decision was served on him. Contrary to the Government’s assertion, the applicant did appeal from this decision (see paragraph 40 above). However, the appeal was not capable of remedying the shortcomings of the first instance proceedings, because the Regional Court confirmed the District Court’s decision on 28 February 1995 without a hearing and rejected the submissions made by the applicant in his defence as constituting new facts which were inadmissible on appeal.

72.  The Court concludes, therefore, that there has been a violation of Article 6 § 1 taken in conjunction with Article 6 § 3 (a) and (b) of the Convention. 

IV.APPLICATION OF ARTICLE 41 OF THE CONVENTION

73.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.Costs and expenses

74.  The applicant limited his claim to expenses incurred in the proceedings before the Convention organs. He claimed a total amount of ATS 5,218 for postage and photocopying. The Government did not comment. The Court awards this sum in full.

B.Default interest

75.  According to the information available to the Court, the statutory rate of interest applicable in Austria at the date of adoption of the present judgment is 4% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.Holds that there has been a violation of Article 6 § 1 of the Convention as regards the length of the proceedings between the applicant and a bank;

2.Holds that there has been a violation of Article 6 § 1, taken in conjunction with Article 6 § 3 (a) and (b) of the Convention, as regards the proceedings resulting in the imposition of a fine for abuse of process;

3.Holds

(a)that the respondent State is to pay the applicant, within three months, 5,218 (five thousand two hundred and eighteen) Austrian schillings for costs and expenses;

(b)that simple interest at an annual rate of 4% shall be payable from the expiry of the above-mentioned three months until settlement.

Done in English, and notified in writing on 14 November 2000, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. DolléJ.-P. Costa
RegistrarPresident

 

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