AS TO THE ADMISSIBILITY OF
Application No. 18606/91
by E. & Co.
against Austria
The European Commission of Human Rights sitting in private
on 8 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
M. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 February 1991
by E. & Co. against Austria and registered on 26 July 1991 under
file No. 18606/91;
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 a forwarding company and has its seat in
Haan/Rheinland, Germany. It is represented by Mr. G. Wagner, a lawyer
in Linz, Austria.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In February 1978 the applicant company was requested by the
E.-E. company to transport products of that company to Turkey. The
applicant company subsequently charged the Austrian company S. & E. to
carry out this transport. The S. & E. company took the goods,
allegedly in violation of the contractual agreements, to a customs-free
area in Linz with the intention to retain them, invoking a right of
pledge.
1. Proceedings instituted to have the goods returned
The applicant company thereupon instituted proceedings against
the S. & E. company, requesting the return of the goods. The action
was granted by the District Court (Kreisgericht) in Steyr on 12 July 1979.
According to the findings of the Court the S. & E. company had no
right of retention.
The defendant company lodged an appeal which was rejected by
the Court of Appeal (Oberlandesgericht) in Linz on 30 October 1979. On
20 January 1981 the Supreme Court (Oberster Gerichtshof), on appeal on
points of law (Revision), quashed the preceding decisions and sent the
case back to the first instance court for a new trial.
On 20 June 1984 the Steyr District Court again granted the
action. This judgment was confirmed by the Court of Appeal in Linz
on 28 November 1984. An appeal on points of law was rejected by the
Supreme Court on 16 September 1986.
2. Proceedings relating to compensation
Further to the proceedings instituted to have the goods
returned the applicant company, on 2 February 1979, brought another
action for damages against the S. & E. company alleging that the
defendant had unlawfully retained goods which belonged to the E.-E.
company. These proceedings were suspended on 30 March 1979 pending
the outcome of the above proceedings concerning the request for the
return of the goods.
After termination of the latter proceedings on 16 September
1986, the applicant company requested on 23 October 1986 to continue
the proceedings concerning its request for damages. On 23 July 1987
the District Court in Steyr granted the action. On 20 April 1988
this judgment was confirmed by the Court of Appeal in Linz. On
15 November 1988 the Supreme Court quashed the preceding judgment and
sent the case back to the first instance court for a new trial.
On 24 August 1990 the Steyr District Court again gave judgment
for the applicant company ordering the defendant to pay damages in the
amount of DM 56,272. On 4 September 1990 the written judgment was
served on the parties. The judgment became final.
Subsequently the applicant tried to enforce the judgment but
it turned out that the defendant company had fallen bankrupt in the
meantime.
COMPLAINTS
The applicant company considers that the two sets of
proceedings formed a whole as they concerned the same facts. It
considers that the length of the two proceedings taken together
exceeded a reasonable time and therefore violated Article 6 para. 1
of the Convention.
THE LAW
The applicant complains of the length of civil proceedings
relating to an action for damages instituted on 2 February 1979 and
ended on 4 September 1990 when the judgment, which became final, was
served on the parties. The proceedings thus lasted about eleven years
and seven months.
Article 6 para. 1 (Art. 6-1) of the Convention guarantees a
right to have a civil claim determined within a reasonable time.
The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
having regard, inter alia, to the complexity of the case and to the
conduct of the parties and the competent authorities (see, in
particular, Eur. Court H.R., Zimmermann and Steiner judgment of
13 July 1983, Series A no. 66, p. 11, para. 24).
The Commission notes that the proceedings in question were
suspended, apparently with the parties' consent, on 30 March 1979 and
not taken up again until 23 October 1986, when the applicant company
made a corresponding request. This had become necessary in view of
parallel proceedings between the same parties relating to the same
facts but another claim, namely the applicant company's request for
the return of goods withheld by the defendant. The applicant company
does not contest the necessity or practicality of the adjournment. It
only argues that the two sets of proceedings formed a whole and their
length had to be judged accordingly.
The Commission cannot share this opinion. It is true that the
parties and facts were identical in the two proceedings. They
concerned, however, different claims which had to be determined under
different statutory provisions. Consequently the subject-matter in
each case was different and the proceedings relating to the request
for the return of the goods were therefore a separate entity. However,
the reasonableness of the duration of these proceedings has not been
challenged within the six-month time-limit prescribed by Article 26
(Art. 26) of the Convention.
The Commission is therefore prevented from examining the
question whether these proceedings have been terminated within a
reasonable time.
It follows that the Commission can only examine whether the
periods from 2 February 1979 (lodging of action) to 30 March 1979
(suspension) and subsequently from 23 October 1986 to 4 September 1990
disclose any objectionable delays for which the judicial authorities
can be held responsible. In this respect it has to be noted, however,
that the case was first dealt with in three instances and eventually
returned to the first instance court for a retrial.
In these circumstances the Commission finds that the matter
does not disclose any appearance of a violation of the right to speedy
proceedings and the application has to be rejected in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly
ill-founded.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy