THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50171/99
by Anton VOGL and Walter VOGL
against Austria
The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and MrT.L. Early, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 31 March 1999 and registered on 6 August 1999,
Having regard to the decision on admissibility by the European Commission of Human Rights of 10 September 1997 on the applicants’ earlier application no. 25825/94,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine application no. 50171/99 was transferred to the Court,
Having regard to the observations and the supplementary observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are father and son, both Austrian nationals, residing in Linz and Gallneukirchen, respectively. They are represented before the Court by Mr H. Blum, a lawyer practising in Linz, Austria.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 September 1987 a banking institution (hereafter “R.”) filed a counterclaim against the first applicant and his wife requesting repayment of a mortgage loan, the validity of which had been contested by the couple in another set of proceedings (“the main proceedings”). On 16 October 1991 the second applicant joined the main proceedings as the first applicant and his wife had meanwhile transferred part of the real estate affected by the mortgage to the second applicant. On 14 October 1987 the first applicant filed a statement of defence (Klagebeantwortung).
On 17 December 1987 the court suspended the counterclaim proceedings until the delivery of a final judgment in the main proceedings. They were terminated by the Supreme Court’s judgment of 26 April 1994.
On 25 May 1994 R. filed a motion with the Linz Regional Court for the continuation of the proceedings. By a written submission of 8 June 1994, the first applicant gave notice of the proceedings (Streitverkündung) to the second applicant.
At the hearing of 13 June 1994 the applicants challenged the judge for bias. They contended that she had made subjective statements about the first applicant’s son and the second applicant’s brother, A., in the judgment given in the main proceedings and had accused the first applicant and his wife of delaying the proceedings. By a decision of 7 June 1994, the Linz Regional Court rejected the motion, finding that the applicants’ allegations did not suffice to bear out a challenge for bias. On 24 August 1994 the Linz Court of Appeal dismissed the first applicant’s appeal.
On 6 September 1994 the Linz Regional Court appointed an expert.
On 27 September 1994 the first applicant requested the reopening of the main proceedings. On 16 January 1996 the Supreme Court dismissed this request after it had been examined at two lower instances.
On 30 January 1996 the court file was transmitted to the expert for the preparation of his opinion. The expert submitted his opinion on 16 April 1996. The court ordered the parties to submit their comments and requests thereto within two weeks. Both parties asked for an extension of the time‑limit, which was granted. On 16 September 1996 the applicants submitted their observations.
On 8 October 1996 another hearing took place at which the applicants were present. A further hearing was scheduled for 28 November 1996, to which the first applicant and the applicants’ counsel were summoned. On 20 November 1996 the applicants’ counsel filed a motion for an adjournment. He stated that he was unable to attend the meeting because of a clash with other appointments, that the first applicant had already scheduled a week’s holiday in Switzerland, and the second applicant had planned to take part in a fair in Italy. The request was refused.
The court ordered them to submit certain documents within a period of three days. On 26 November 1996 the applicants requested an extension of this time-limit, which was not granted. Thereupon, the applicants filed another motion challenging the judge for bias. They contended that the refusal of their requests proved that she was not willing to grant them a fair trial. They further complained that the judge had in an emotional manner conducted the hearing of 8 October 1996, which might have been caused by the fact that she had learned about the applicants’ submission of a complaint to the European Commission of Human Rights relating to the main proceedings.
The hearing of 28 November 1996 was held as scheduled in the presence of the applicants’ lawyer, but in the absence of the applicants. At the hearing counsel further amended the motion for bias after the judge had objected to the allegation that she was not willing to grant the applicants a fair trial and after she had mentioned that she had a problem with the applicants’ counsel.
After the expert had given his opinion, the judge closed the hearing and announced the delivery of the written judgment following the final decision on the applicants’ motion for bias.
On 23 January 1997 the Linz Regional Court dismissed the motion challenging the judge for bias. It held that the applicants had raised their argument as regards the alleged emotional conduct of the judge at the hearing of 8 October 1996 too late and that the remainder of the motion did not disclose any indication of bias.
The applicants appealed, arguing in essence that the hearing held on 28 November had been scheduled too late. Therefore, they had not had enough time to prepare their pleadings. Further, the period fixed for the delivery of documents had been too short. The refusal of an adjournment resulted in their exclusion from the proceedings. Finally, they contended that the judge had conducted the hearing in an emotional manner, and that the Regional Court had failed to deal with the respective amendments of 28 November 1996.
On 4 April 1997 the appeal was dismissed by the Linz Court of Appeal (Oberlandesgericht). It noted that the summons had been served early enough to respect the eight-day preparation-time guaranteed by Austrian law. The lower court had lawfully refused the adjournment request as the first applicant was represented by a lawyer and his absence was for reasons of private holidays. As regards the absence of the applicants’ counsel, he had not submitted reasons why he was unable to attend the hearing or why he could not be represented by another lawyer. In any event, the second applicant had not been summoned in person. Therefore, the applicants had not been excluded from the procedure as they had been represented by a lawyer throughout, particularly at the hearing on 28 November 1996. As to the order to submit documents within three days, the Court of Appeal found that, pursuant to the Code of Civil Procedure, documents which were relied upon by a party in order to establish the truth of its allegations had to be submitted by that party if not otherwise provided. No sanction could be imposed in case of non-compliance with that order. As to the applicants’ allegations concerning the judge’s emotional manner of conducting the hearing of 8 October 1996, the Court of Appeal confirmed the lower court’s decision that this complaint should have been raised already at the hearing and was therefore belated. The judge’s objection to the allegation that she had denied the applicants a fair trial did not disclose any lack of impartiality on her part. Her further statement that she had a problem with the applicants’ counsel was not conducive to a constructive atmosphere in respect of the proceedings and might have been taken as a personal statement. However, in the context of counsel’s repeated but unfounded motions for bias, it was understandable that she perceived counsel’s actions to be problematic. This would not justify any fears that the judge would act and decide other than on objective grounds.
In its judgment dated 29 November 1996, the Linz Regional Court granted the R.’s claim, referring to the submissions of the parties, the evidence of witnesses and experts, as well as the documentary evidence and the case-files of the proceedings. The judgment was served on 16 May 1997.
On 13 June 1997 the applicants lodged an appeal against the Regional Court’s judgment of 29 November 1996 claiming in particular that the first instance court had refused to take evidence proposed by them.
On 30 January 1998 the Linz Court of Appeal dismissed the applicants’ appeal on grounds of nullity and confirmed the lower court’s decision, but allowed their complaint as regards part of the sums involved. It held that the Regional Court had correctly refused the applicants’ requests for the further taking of evidence since their numerous requests were aimed at delaying the proceedings. Moreover, at the hearing of 8 October 1996 and for the first time, the applicants stated the opposite of what they had claimed in the main and in the counterclaim proceedings. Their further requests related to issues of law and facts that were already dealt with and finally determined in the main proceedings. On the whole, the Linz Court of Appeal found that the lower court had carefully assessed the evidence submitted to it.
On 16 June 1998 the Supreme Court (Oberster Gerichtshof) dismissed the appeal. The decision was served on 16 July 1998.
B. Relevant domestic law
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows.
"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."
COMPLAINTS
The applicants complain under Article 6 of the Convention about the length of the proceedings relating to the validity of the mortgage agreement and the length of the related counterclaim proceedings. They further complain about the alleged unfairness of these proceedings, in particular, that they could not participate in the hearing of 28 November 1996, that the first instance judge was biased and that the courts refused to take evidence proposed by them.
THE LAW
1. The applicants’ first complaint relates to the length of the main proceedings which has already been examined by the European Commission of Human Rights and declared inadmissible in its decision of 10 September 1997 concerning the applicants’ case no. 25825/94. The Court observes that the present application contains no relevant new facts.
It follows that this part of the application is substantially the same as the matter that has already been submitted to another procedure of international investigation or settlement within the meaning of Article 35 § 2 (b), and has therefore to be rejected in accordance with Article 35 § 4 of the Convention.
2. The applicants’ second complaint concerns the length of the counterclaim proceedings. These proceedings started on 23 September 1987 and ended on 16 July 1998 with the decision of the Supreme Court being served on the applicants’ counsel. They therefore lasted over ten years and nine months at three instances as regards the first applicant. The second applicant joined the proceedings on 8 June 1994. The proceedings therefore lasted over four years and one month at three instances as regards the second applicant. The applicants invoke Article 6 § 1 of the Convention which, as far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”
The Government contend that the applicants failed to exhaust domestic remedies as they did not pursue an application under section 91 of the Courts Act.
The applicants contest the Government’s view and submit that a request under section 91 of the Courts Act would not have been an effective remedy to accelerate the proceedings. It would, rather, have further aggravated the already tense atmosphere between the judge and the applicants.
The Court does not consider it necessary in the present case to determine whether the applicants could have made use of section 91 of the Courts Act, as the applicants’ complaint is, in any event, inadmissible for the following reasons.
As to the period from 17 December 1987 until 25 May 1994, during which the proceedings were suspended pending the final decision in the main proceedings, the Court refers to the Commission’s conclusion that the main proceedings were not unreasonably long. The Court considers that no complaint can be made with regard to this period.
As to the period after 25 May 1994, the Court observes that from 13 June 1994 until 24 August 1994, the Austrian courts, at two instances, dealt with the applicants’ motion challenging the judge for bias. The Court finds that the length of this period cannot be regarded as unreasonable.
As to the period between 27 September 1994 and 16 January 1996, during which the applicants’ request for the re-opening of the main proceedings was examined at three instances, the Court finds that this period cannot be regarded as excessive either.
The Court further considers that the period of three and a half months between 30 January 1996 and 16 April 1996, within which the expert submitted his opinion, does not disclose any undue delay.
The Court also observes that the subsequent delay in the proceedings until 16 September 1996 is attributable to the parties who asked for an extension of the time-limit for submission of observations on the expert’s opinion.
The Court notes that the applicants filed a further motion challenging the judge for bias on 26 November 1996. This motion was examined at two levels of jurisdiction within a period of slightly more than four months and was finally determined by the Linz Court of Appeal on 4 April 1997. This period cannot be regarded as unreasonably long.
The Court finally notes that the counterclaim was determined by the Linz Regional Court once the judgment was served on the applicants on 16 May 1997. The Linz Court of Appeal decided on the applicants’ appeal on 30 January 1998. On 16 July 1998 the Supreme Court’s decision on the applicants’ further appeal was served on the applicants. The determination of the counterclaim therefore took fourteen months and involved three levels of jurisdiction. In these circumstances, the Court concludes that no periods of undue delay can be discerned. It is, therefore, satisfied that the proceedings were conducted within “a reasonable time” as required by Article 6 § 1.
This part of the application must therefore be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicants further complain under Article 6 § 1 of the Convention of alleged judicial bias and unfairness.
a) The applicants contend that the judge at first instance was biased, in particular that her conduct in the proceedings and her statements about the applicants showed that she was not willing to act and decide objectively on the case. They also complain that their motions for bias were wrongly dismissed by the courts.
The Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal convictions of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 46; Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, § 28; Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 25).
Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (cf. Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 32; Padovani judgment, op. cit., p. 20, § 26). As to the objective test, it
must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his or her impartiality (the Fey judgment op. cit., § 30; Padovani judgment op. cit., § 27).
The Court notes as regards the subjective test and with reference to the applicants’ motion of bias in 1994 that the second applicant did not appeal against the decision of the Regional Court and, thus, failed to exhaust domestic remedies in this respect. As regards the first applicant’s challenge, the Court finds that the mere statement by the judge accusing the first applicant and his wife of delaying the proceedings does not suffice to show a lack of impartiality on her part. As to the challenge made in 1996, the Court finds that the Austrian courts gave sufficient and detailed reasons for dismissing the applicants’ motions of bias.
As regards the objective test, the mere fact that - as far as the applicants’ complaint can be understood - the same judge had made statements in the main proceedings, does not objectively justify any fears as to a lack of impartiality on her part (see mutatis mutandis the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 16, § 38; Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 40, § 97, Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III, p. 819, § 63).
It follows that this part of the application is to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
b) The applicants complain that they could not participate in the hearing of 28 November 1996 because the judge did not grant an adjournment.
The Court observes that the applicants were present at the hearing on 8 October 1996. As to the hearing of 28 November 1996, at which they were represented by their lawyer, the courts gave sufficient reasons for refusing their request for an adjournment. The Court notes in particular that the second applicant had not been summoned and did not claim that his personal presence was necessary. The first applicant had not advanced any compelling reasons as to why he could not participate. In these circumstances, the Court concludes that there is no indication that the applicants, represented throughout the proceedings by counsel, could not duly present their case or that the proceedings were otherwise unfair.
It follows that this part of the application must also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
c) The applicants further submit that the courts failed to take evidence proposed by them.
The Court recalls its case-law that it is not for the Court to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the
right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC] no. 30544/96, § 28, ECHR 1999-I).
In the present case the courts, giving sufficient and convincing reasons, refused the applicants’ requests for the taking of evidence as irrelevant. The Court sees no reason to dispute their refusal from the standpoint of Article 6.
It follows that this part of the application also has to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident
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