AS TO THE ADMISSIBILITY OF
Application No. 13715/88
by K.
against Austria
The European Commission of Human Rights (Second Chamber)
sitting in private on 10 September 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
Mrs. G. H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second 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 7 March 1988
by K. against Austria and registered
on 29 March 1988 under file No. 13715/88;
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 facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1938, is an Austrian national. At
present he is serving a life sentence for murder at the prison of
M. In the present case the applicant was first represented by Mr. G.
Neufeldt-Schoeller, a lawyer practising in Vienna. Since 24 February
1989 he has been represented by Mr. W.L. Weh, a lawyer practising in
Bregenz.
The applicant has lodged further applications with the
Commission, which concern criminal proceedings leading to his
conviction of murder (No. 12350/86) and criminal proceedings under the
Austrian Code of Financial Offences (No. 15883/89) and are still
pending before the Commission.
On 28 September 1979 an Austrian banking institute brought
an action against the applicant in the Vienna Regional Court
(Landesgericht), claiming repayment of a credit of AS 231,113 plus
13.5% interest as from 1 January 1979. The statement of claim and the
summons for the hearing fixed for 31 October 1979 were served upon the
applicant personally on 9 October 1979.
On 31 October 1979 the Regional Court, by a judgment in default
(Versäumungsurteil), allowed the claim.
On 9 November 1979 the judgment was served upon the applicant
by deposit at the local post office of his place of residence on the
ground that he could not be reached at home. On 26 November 1979 the
Vienna Regional Court stated the binding force and enforceability of
the judgment concerned. The deposited judgment was returned by the
post office as not claimed on 28 November 1979.
Subsequently, in November or December 1984 in the context of
criminal proceedings against him, the applicant heard about the above
judgment.
On 20 May 1985 the applicant requested the Vienna Regional
Court to send him a copy of the above judgment.
On 28 May 1985 the Regional Court ordered that the judgment be
served upon the applicant in prison. The applicant received the
judgment on 31 May 1985.
On 17 June 1985 the applicant filed an objection (Widerspruch)
and an appeal (Berufung) against the Regional Court's judgment of 31
October 1979. He requested free legal aid for the appeal proceedings.
He claimed in particular that the initial notification of the
judgment, deposited with the post office on 9 November 1979, was
ineffective as he had been absent from his domicile. Furthermore, he
submitted that the judgment was tainted with nullity as he had
suffered from mental illness at the relevant time and not been
represented in the proceedings. In this respect he referred to
psychiatric expert opinions obtained in disciplinary proceedings in
1978 and in the above criminal proceedings. He also requested that
the enforceability of the judgment be set aside.
Before transmitting the applicant's remedies to the competent
Court of Appeal (Oberlandesgericht), the Regional Court made
inquiries concerning the applicant's absence from his domicile in
1979. It heard the applicant on 23 July 1985. Following an
unsuccessful attempt to summon the applicant's wife in October 1985,
she was heard on 26 November 1985. Further the Regional Court, in
order to find out the applicant's whereabouts on 9 November 1979,
unsuccessfully requested transmission of the applicant's criminal
files and asked the Vienna Federal Police Department (Bundespolizei-
direktion) for copies of the applicant's passport. The applicant was
heard again on 10 March 1986.
On 18 March 1986 the Vienna Regional Court transmitted the
file to the Vienna Court of Appeal.
On 9 July 1986 the applicant repeated his request for free
legal aid. On 30 December 1986 he asked about the state of
proceedings as regards this request.
On 12 February 1987 the applicant asked about the state of his
appeal proceedings.
On 30 March 1987 the Vienna Court of Appeal returned the files
to the Regional Court with a request to clarify the question of the
applicant's alleged incapacity to conduct proceedings in October and
November 1979.
On 10 April 1987 the Regional Court requested the Vienna Court
of Appeal for transmission of the files concerning the disciplinary
proceedings against the applicant. The relevant psychiatric expert
opinions of March and June 1978 contained in these files were
transmitted to the Regional Court on 23 April 1987. On 30 April 1987
the Korneuburg Regional Court, upon the Vienna Regional Court's
request for transmission of the criminal files, replied that these
files were not available pending re-opening proceedings. On 11 May
1987 the criminal files were sent, and they were partly photocopied.
On 11 June 1987 the applicant was granted legal aid. On
6 July 1987 Mr. T. was appointed as counsel for the applicant.
On 21 July 1987 the applicant instituted proceedings before
the Federal Ministry of Justice (Bundesministerium der Justiz)
claiming compensation under the Official Liability Act (Amts-
haftungsgesetz) for misconduct of the civil proceedings. On
24 August 1987 the files were forwarded to the Vienna Court of Appeal
for examination and comment in respect of these compensation claims.
On 18 September the files were forwarded to the Ministry of Justice,
and on 25 September to the Treasury Department (Finanzprokuratur).
In the meantime, on 22 September 1987 Mr. Neufeldt-Schoeller
had been appointed as the applicant's counsel. On 12 October 1987
counsel asked for a copy of the files and, referring to Article 6
para. 1 of the Convention, raised the problem of the length of the
proceedings. On 9 November 1987 he was informed that the files had
been sent to the Federal Ministry of Justice.
On 26 November 1987 the applicant instituted civil proceedings
before the Vienna Regional Court claiming compensation under the
Official Liability Act in view of the delay of his appeal proceedings.
On 11 December 1987, following an exchange of further
submissions and comments, the Treasury Department dismissed the
applicant's compensation claims and the Federal Ministry of Justice
informed the Vienna Court of Appeal accordingly. The files were sent
back on 30 December 1987.
Meanwhile, on 23 December 1987 the applicant had challenged
two judges at the Court of Appeal for bias.
On 5 January 1988 the Vienna Regional Court appointed the
psychiatric expert Mr. G. to deliver an opinion on the question of the
applicant's state of mental health in 1979.
On 11 January 1988 the applicant lodged further compensation
claims with the Treasury Department.
On 22 January 1988 the applicant's counsel again urged a
decision on appeal, and the production of a copy of the file.
On 18 February the applicant appealed against the decision of
5 January 1988 on the appointment of a psychiatric expert without
having been heard previously. The applicant also reminded the Court
of Appeal of his earlier requests for a copy of the file.
According to a report of the competent judge at the Regional
Court dated 23 February 1988, these earlier requests were not in the
file.
The proceedings were suspended in March 1988 due to the death
of the plaintiff's counsel.
On 22 March 1988 the applicant requested the Vienna Court of
Appeal to revoke its decision of 30 March 1987, whereby the
supplementary inquiries had been delegated to the Regional Court, and
to conduct itself the necessary inquiries and to appoint a psychiatric
expert, for example Mr. S.
On 6 April 1988 the plaintiff requested an oral hearing.
On 28 June 1988 the Vienna Regional Court submitted the files
to the Court of Appeal for decision on the applicant's appeal of
18 February 1988 against the appointment of the expert G. On 29 July
1988 the Court of Appeal rejected this appeal.
On 5 August 1988 the Court of Appeal rejected the applicant's
requests of 22 March 1988 on the ground that, under the Code of Civil
Procedure (Zivilprozeßordnung), the Court of Appeal was free to
delegate inquiries to the Regional Court and to supplement them, if
necessary. On 4 October 1988 the files were returned to the Vienna
Regional Court. On 12 October 1988 the Court of Appeal's decisions of
29 July and 5 August 1988 were served upon the applicant.
In the meantime, on 2 September 1988, the applicant had lodged
disciplinary complaints with the Supreme Court (Oberster Gerichtshof)
as regards the length of the appeal proceedings.
On 12 October 1988 the Regional Court summoned the applicant's
wife and the psychiatric expert G. for a hearing on 15 December 1988
on the question of the applicant's capacity to enter into legal
transactions. The summons of the applicant's wife could not be
served on the ground that she had moved in the meantime.
On 24 October 1988 the applicant appealed against the Court of
Appeal's decision of 29 July 1988 concerning the appointment of the
psychiatric expert G.
On 10 November 1988 the hearing fixed for December 1988 was
cancelled and the files were submitted to the Supreme Court for
decision upon the applicant's appeal of 24 October.
On 2 November 1988 the applicant complained that his request
of 17 June 1985 to quash the enforceability of the Regional Court's
judgment of 1979 had not been decided upon.
On 11 November 1988 the applicant asked for access to the
Regional Court's files, which was refused on the ground that the files
had been submitted to the Supreme Court. The applicant appealed
against this decision on 15 November 1988.
On 24 December 1988 the Supreme Court dismissed the
applicant's appeal concerning the appointment of the psychiatric
expert G. The files were returned to the Regional Court on
21 December 1988. The decision was served upon the applicant on
3 February 1989.
On 27 December 1988 the President of the Vienna Court of
Appeal, upon the applicant's inquiry of 15 December, informed him
that, having regard to the work load of the Court of Appeal, no
disciplinary action had been taken in respect of the delay in the
proceedings.
On 9 January 1989 the Regional Court summoned the applicant's
wife and the expert G. for a hearing on 21 February 1989 on the matter
of the applicant's mental health.
On 9 January 1989 the applicant also renewed his complaint
that no copy of the files had been prepared and asked for information
about the measures taken to reduce the Court of Appeal's work load.
On 12 January 1989 the applicant requested the Court of Appeal
to decide upon his request to quash the enforceability of the judgment
of 1979.
On 18 January 1989 the President of the Court of Appeal
informed the applicant that the Federal Ministry of Justice had
refused to create additional posts for judges, except one in 1986.
On 24 January 1989 the competent judge at the Vienna Regional Court,
upon instruction by the President of the Court of Appeal, was informed
about the preparation of file copies.
On 27 January 1989 the applicant was summoned for the
hearing on 21 February 1989.
On 6 February 1989 the applicant complained that his counsel
had not been summoned. Furthermore, he appealed against his summons
of 27 January and submitted that a warrent to appear was unlawful. He
also lodged various other complaints that earlier requests had not
been decided upon, and complained about the information by the
President of the Court of Appeal of 18 January 1989 to the Federal
Ministry of Justice.
On 13 February 1989 the applicant repeated his request with
the Court of Appeal that no further investigations be conducted by the
Vienna Regional Court.
On 20 February 1989 the applicant's wife informed the Regional
Court that she could not appear at the hearing on 21 February, and
that it had not been clarified whether she, a doctor, was dispensed
from her duty of secrecy. One day later the Regional Court informed
the Mittersteig Prison that it had not issued a warrant to appear in
court, the applicant should be brought before court if he so wished.
At the hearing on 21 February 1989 the applicant and the
psychiatric expert G. were present. Upon the applicant's complaint
that his counsel had not been summoned, the Regional Court told him
that the hearing concerned was held in camera in order to hear him as
witness (Auskunftsperson). Following a warning by the Judge N., the
applicant challenged him for bias. The Regional Court requested the
applicant to inform the Court, within two weeks, whether he dispensed
his wife from her duty of secrecy, as well as to have his motion of
challenge filed by counsel.
On 22 February 1989 the applicant filed the motion to
challenge the Regional Court Judge N. for bias. On 27 February 1989
he requested that the psychiatric expert be instructed to deliver his
opinion within two months and to examine the applicant.
In two decisions of 9 March 1989 the Vienna Court of Appeal
dismissed the applicant's respective requests of 13 February (to have
the supplementary investigations conducted by the Court of Appeal) and
12 January 1989 (to have the enforceability of the judgment of 1979
quashed). The decisions were served on 5 April 1989.
In March and April 1989 the files were sent to another
Department of the Vienna Regional Court and to the Vienna Court of
Appeal in view of other proceedings. On 21 April 1989 the Regional
Court ordered that the files be copied.
On 17 May 1989 the Federal Ministry of Justice informed the
applicant that the number of judicial posts of the Court of Appeal had
developed as follows during the relevant period: 1986 - 70, 1987 - 77,
1988 - 77, 1989 - 73. The backlog of pending cases had risen from 438
in 1982 to 817 in 1986.
On 18 May 1989 the Supreme Court dismissed the applicant's
appeal of 17 April 1989 against the Court of Appeal's decisions of
9 March 1989.
On 24 May 1989 the Vienna Court of Appeal dismissed the
applicant's appeal in which he had claimed that on 11 November 1988 he
had been refused to consult the file. The Court of Appeal found in
particular that no such decision had been taken on the ground that at
the time in question the files had been sent to the Court of Appeal
and were, therefore, not available at the Regional Court.
On 12 July 1989 Judge N. at the Regional Court commented upon
the applicant's motion of challenge for bias of 22 February.
On 22 July 1989 the Vienna Regional Court instructed the
psychiatric expert G. to prepare his expert opinion according to the
Court's decision of 5 January 1988. On 27 July the expert was set a
time-limit of two months. On 18 August 1989 the expert examined the
applicant. On 6 September 1989 the expert submitted his opinion
according to which the applicant had been capable to enter into legal
transactions in October and November 1979.
In October 1989 the files concerning the applicant's appeal
against the judgment of 1979 and concerning his challenge of Judge N.
were transferred to the Vienna Court of Appeal.
On 7 November 1989 the Vienna Court of Appeal, in camera,
dismissed the applicant's appeal of 17 June 1985, insofar it concerned
reasons of nullity. The Court of Appeal found in particular that on
9 November 1979 the applicant had not been at his place of residence
where he had only returned at the end of the month. However, there
was nothing to indicate that in October and November 1979 the
applicant, having regard to his mental health, had not been capable to
understand that a statement of civil claims and later a judgment had
been served upon him. The Court of Appeal considered that the service
of the judgment concerned by way of depositing it at the local post
office had contravened S. 104 of the Code of Civil Procedure in the
version in force at that time. Thus the time-limit for lodging an
appeal had not started to run. The applicant's appeal had, therefore,
been lodged in time.
On 13 November 1989 the applicant was summoned to appear at a
hearing on his appeal fixed for 19 December 1989.
On 27 November 1989 the applicant notified a change of
counsel; he was then represented by Mr. M., a lawyer practising in
Vienna.
On 19 December 1989, at the hearing before the Court of
Appeal, the applicant complained about the composition of the Vienna
Court of Appeal. The Court of Appeal informed the parties of its
decision of 7 November 1989. Furthermore, it confirmed the judgment
in default of 1979. In its decision, the Court of Appeal found in
particular that the plaintiff's submissions on its claims, although
short, had been sufficient.
On 28 June 1990 the Supreme Court declared the applicant's
appeal against the Court of Appeal's decision of 7 November 1989
inadmissible. Upon the applicant's appeal on points of law
(Revision), the Supreme Court quashed the judgment of 19 December
1989. The Supreme Court considered in particular that the composition
of the Chamber at the Court of Appeal, which had dealt with the
applicant's case, did not clearly follow from the Court of Appeal's
rules on the distribution of cases (Geschäftsverteilung). The case
was sent back to the Vienna Court of Appeal.
In the resumed appeal proceedings, a hearing was fixed for
18 September 1990.
On 12 September 1990 the plaintiff withdrew its action, thereby
waiving its claim against the applicant.
On 9 October 1990 the applicant requested the Regional Court
to fix his legal expenses for payment by the plaintiff.
On 18 October 1990 the Vienna Court of Appeal declared the
judgment of 1979 without effect. The decision was served upon the
applicant on 3 December 1990.
Meanwhile, on 9 November 1990 the applicant requested the
Vienna Court of Appeal to set a time-limit for the Regional Court to
decide upon his claim for reimbursement of legal expenses.
On 3 December 1990 the Vienna District Court discontinued the
execution proceedings against the applicant.
On 16 January 1991 the Court of Appeal dismissed the
applicant's request of 9 November 1990 on the ground that after the
Court of Appeal's decision of 18 October 1990 the files had been
transmitted to the Federal Ministry of Justice and not been available
for the Regional Court. Thus there was no failure of the Regional
Court. The decision was served on 8 February 1991.
On 20 February 1991 the Treasury Department, referring to
earlier correspondence, dismissed the applicant's renewed claims under
the Official Liability Act in respect of the length of his appeal
proceedings. The Department considered in particular that
compensation for undue delays of the proceedings could only be paid
in case the action had been won. Anyway, the applicant should await
the cost decision of the Vienna Regional Court.
COMPLAINTS
The applicant complains that in the above proceedings he did
not get a hearing within a reasonable time. He also submits that he
did not have an effective remedy under Austrian law as regards the
delay in the procedure. He invokes Article 6 para. 1 and Article 13
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 March 1988 and registered
on 29 March 1988.
On 12 July 1989 the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit written submissions on its admissibility and merits.
On 27 November 1989 the observations were submitted by the
respondent Government. On 19 March 1990, after an extension of the
time-limit, the applicant sent his observations in reply. He made
further submissions on 19 September 1990 and 18 March 1991.
THE LAW
The applicant complains about the length of civil proceedings
concerning the claim of a banking institute for repayment of debts.
He relies upon Article 6 para. 1 (Art. 6-1) of the Convention which,
insofar as relevant, provides:
"In the determination of his civil rights and
obligations ... everyone is entitled to a fair and
public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Government submit that the starting point for the period
to be considered under Article 6 para. 1 (Art. 6-1) of the Convention
is 17 June 1985 when the applicant lodged his appeal against the
default judgment of 31 October 1979. The length of the proceedings
was particularly due to the numerous remedies lodged by the applicant,
including hierarchical complaints, requests for disciplinary
proceedings, official liability proceedings, motions to challenge
judges for bias. Thereby the original files, and later also the copy
of the files prepared in January 1988, had to be transferred to other
courts. Moreover, pending such remedies the main appeal proceedings
could not be furthered.
The Commission finds that the applicant's complaint about the
length of his civil proceedings raises questions of fact and law which
are of such complexity that their determination requires an
examination of the merits. The application is therefore not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention and no other ground for declaring it
inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy