AS TO THE ADMISSIBILITY OF
Application No. 19368/92
by H.D.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 1 April 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 8 November 1991
by H.D. against Austria and registered on 17 January 1992 under file
No. 19368/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1942 and living in
Vienna. She is represented by Mr. Gerhard Weiser, a lawyer practising
in Vienna.
It follows from the applicant's statements and the documents
submitted that on 3 November 1989 she was ordered by the District Court
(Bezirksgericht) in Döbling to pay 593.80 AS plus costs and expenses
in the amount of some 7,000 AS to the plaintiff, an insurance company.
The Court found that the applicant had concluded a fire insurance
contract with the plaintiff and owed the insurance premium. The
applicant's allegations that the insurance contract had been denounced
by her was considered to be unproven.
On 11 September 1990 the Vienna Regional Court (Landesgericht)
rejected the applicant's nullity appeal (Nichtigkeitsberufung). The
applicant had alleged a procedural violation rendering the first
instance judgement null and void because contrary to Section 412 (2)
of the Civil Procedure Code (Zivilprozessordnung) the judgment had not
been given by the judge who participated in the hearings. The Regional
Court found that although the first instance judge had been replaced
after the taking of evidence the new judge had participated in a
hearing on 16 October 1989 when the contents of the file were read out.
There had therefore been a new hearing with the new judge and
consequently there was no reason to annul the judgment in accordance
with Section 477 (1) No. 2 of the Civil Procedure Code. Even if the
reading out of the prior result of the taking of evidence had not been
approved by the applicant this procedural defect (Verfahrensmangel) did
not constitute a ground of nullity.
The applicant then requested legal aid to lodge a further remedy
against the Regional Court's decision. She also requested that her
remedy be given suspensive effect.
These requests were rejected by the Döbling District Court on
15 October 1990. In respect of the request for legal aid the Court
stated that the applicant had not shown to be indigent. Furthermore
the Court considered there was no reason to give the applicant's remedy
suspensive effect as the proceedings had already lasted three years and
two instances had given judgment against her. Furthermore the Court
took into consideration the trivial nature of the value of claim. A
provisional enforcement could therefore not cause any irrecuperable
damage to the applicant.
On 9 April 1991 the Vienna Regional Court rejected as being
inadmissible the applicant's appeal against the District Court's
decision of 15 October 1990. The Court stated that the applicant's
case did not fall under the exceptions stated in Section 517 of the
Civil Procedure Code which enumerates the conditions under which an
appeal does lie although the value of claim does not exceed 15,000 AS.
COMPLAINTS
The applicant complains that in the above civil proceedings she
was denied the right to a fair hearing and wrongly ordered to pay an
insurance premium to the plaintiff company. She considers that her
requests for legal aid and suspensive effect were arbitrarily rejected
and alleges violations of Articles 6 and 13 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
-3- 19368/92
THE LAW
The applicant complains of alleged procedural irregularities
in civil proceedings to which she was the defendant party.
It is true that Article 6 (Art. 6) of the Convention secures to
everyone the right to a fair hearing.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision, as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter ... within
a period of six months from the date on which the final decision was
taken".
In the present case the decision of the Vienna Regional Court
rejecting the applicant's plea of nullity has to be considered as the
final decision regarding the subject of this particular complaint as
the following remedy lodged by the applicant was rejected as being
inadmissible. There is nothing to show that the Vienna Regional Court
arbitrarily refused to consider the merits of the applicant's further
remedy. It follows that the final decision was given on
11 September 1990, whereas the application was submitted to the
Commission on 8 November 1991, that is, more than six months after the
date of this decision. Furthermore, an examination of the case does
not disclose the existence of any special circumstances which might
have interrupted or suspended the running of that period.
It follows that the application has been introduced out of time
and must be rejected in accordance with Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy