AS TO THE ADMISSIBILITY OF
Application No. 16942/90
by Gert LAGLER
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 13 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 19 July 1990
by Gert Lagler against Austria and registered on 27 July 1990
under file No. 16942/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
14 September 1992 and the observations in reply submitted
by the applicant on 29 November 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1949. He lives
in Vienna.
On 20 December 1984 the applicant issued a writ out of the
Vienna Regional Court (Landesgericht) against his former parents-
in-law in connection with disputes arising out of the financing
of a dwelling house. A witness was heard on 26 November 1985 and
the proceedings were adjourned until 25 February 1986. On that
date, separate proceedings between the parties were joined to the
present proceedings. Further witnesses were heard on 6 and 9
June 1986. On 16 October 1986 the applicant was heard and on 27
February 1987 the Court decided to examine the file relating to
criminal proceedings pending against the applicant. The
proceedings were adjourned.
On 6 September 1988 the Court decided that it did not need
to await the outcome of the criminal proceedings before taking
a decision in the case. On 31 March 1989 the applicant's former
wife and the defendants were heard, and on 11 July 1989 the
applicant's former wife was heard again. A further witness was
heard on 30 November 1989. On
28 June 1990, with the agreement of the parties, the proceedings
were adjourned pending the outcome of the criminal proceedings.
The applicant requested the resumption of the proceedings on 2
February 1991. The request was refused on 20 March 1991, but
granted on the applicant's appeal (Rekurs) by the Vienna Court
of Appeal (Oberlandesgericht) on 8 May 1991.
On 15 May 1993 the Regional Court gave judgment against the
applicant. He appealed to the Vienna Court of Appeal which, on
17 November 1993, held a hearing on the appeal.
COMPLAINTS
The applicant initially alleged a violation of Article 6
para, 1 of the Convention by reason of the length of the
proceedings. In his observations of 29 November 1993, he also
alleged that the proceedings were unfair.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 July 1990 and
registered on 27 July 1990.
On 13 February 1992 the Commission decided to communicate
the application to the respondent Government for observations on
its admissibility and merits. The Government submitted their
observations on 14 September 1992.
On 23 October 1992 the applicant was granted an extension
to 30 November 1992 for submission of his observations in reply.
On 19 November 1993 the applicant was reminded that the time-
limit for submission of his observations had expired, and that
the Commission could conclude that he had lost interest in the
case and strike it off its list of cases.
The applicant submitted his observations in reply on
29 November 1993.
THE LAW
The applicant initially alleged a violation of Article 6
para. 1 (Art. 6-1) of the Convention by reason of the length of
the proceedings. Article 6 para. 1 (Art. 6-1) of the Convention
provides, so far as relevant, as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing within a reasonable time ... "
The Commission notes that the applicant introduced the
proceedings on 20 December 1984 and the first instance judgment
was given on 15 May 1993. The proceedings are now pending before
the Vienna Court of Appeal, where a hearing was held on 17
November 1993.
The Government submit that the applicant has failed to
exhaust the domestic remedies available to him in that he
requested an adjournment of the proceedings on 28 June 1990, and
that he did not appeal against the decision to adjourn. They
also point out that the applicant has not made any applications
under Section 91 of the Courts Act (Gerichtsorganisationsgesetz),
nor has he made an hierarchical appeal (Aufsichtsbeschwerde) with
the judiciary to speed up the proceedings. The applicant submits
that the reason his representative agreed to the adjournment of
the proceedings on 28 June 1990 was that a substitute lawyer had
had to attend on that day. He points out that the usual lawyer
on 2 February 1991 requested that the proceedings be resumed.
The applicant states that an application under Section 91 of the
Courts Act has only been possible since 1 January 1990, and he
considers it anyway to be mere window dressing. He considers
that hierarchical appeal are also no real assistance in
accelerating proceedings.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of remedies which relate
to the breaches of the Convention alleged and at the same time
can provide effective and sufficient redress.
It is furthermore established that the burden of proving the
existence of available and sufficient domestic remedies lies upon
the State invoking the rule (cf., Eur. Court H.R., Deweer
judgment of 27 February 1980, Series A no. 35, p. 15, para. 26;
No. 9013/80, Dec. 11.12.82, D.R. 30, p. 96, p.102).
The Commission notes that the applicant, through his lawyer,
consented to the adjournment of the proceedings on 28 June 1990.
As the period between that adjournment and 2 February 1991, when
the applicant's usual lawyer requested that the proceedings be
resumed, the Commission finds that this matter concerns the
merits of the case, and does not raise questions concerning
exhaustion of domestic remedies.
As to the possibility of an application under Section 91 of
the Courts Act and a hierarchical appeal, the Commission notes
that the Government have given no details of how an application
under Section 91 could result in a finding that the proceedings
to that point had lasted excessively long, nor how redress could
be afforded. The Commission also notes that the provision
entered into force only in 1990, that is, over five years after
the present proceedings began. As to the possibility of an
hierarchical appeal, the Commission recalls that hierarchical
appeals in the Austrian legal system do not give the right to an
individual to the exercise by the State of its supervisory
powers, and that any proceedings which do subsequently take place
do not involve the participation of the individual who made the
hierarchical appeal in the first place (No. 7464/76, Dec.
5.12.78, D.R. 14, p. 51, 54). The Commission also notes that the
Government have not specified how this avenue could have remedied
the length of the proceedings complained of. Accordingly, the
Commission finds that the application cannot be declared
inadmissible for non-exhaustion of domestic remedies.
According to the applicant, the length of the proceedings
is in breach of the "reasonable time" requirement of Article 6
para. 1
(Art. 6-1) of the Convention. The Government take the opposite
view.
The Commission considers, in the light of the criteria
established by the case-law of the Convention institutions on the
question of "reasonable time" (the complexity of the case, the
applicant's conduct and that of the competent authorities), and
having regard to all the information in its possession, that a
thorough examination of this complaint is required as to the
merits.
2. In his observations in reply, the applicant for the first
time made a complaint concerning the fairness of the proceedings.
The Commission notes that the proceedings which form the
substance of this application are still proceeding. The
complaint is therefore premature.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits of the
case the complaint relating to the length of the
proceedings
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy