AS TO THE ADMISSIBILITY OF
Application No. 25825/94
by Anton and Walter VOGL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
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 23 November 1994
by Anton and Walter VOGL against Austria and registered on
1 December 1994 under file No. 25825/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
18 March 1996 and the observations in reply submitted by the
applicant on 20 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens and resident at Eggendorf
and Gallneukirchen, respectively. The second applicant is one of the
first applicant's sons. In the proceedings before the Commission, they
are represented by Mr. H. Blum, a lawyer practising in Linz.
The facts, as submitted by the parties, may be summarised as
follows.
On 31 August 1987 the first applicant and his wife instituted
proceedings before the Linz Regional Court (Landesgericht) against a
banking institution, challenging the validity of two mortgage
agreements (Pfandbestellungsverträge) of 1979 and 1980. They submitted
that, in the context of these agreements, the banking institution had
accepted securities by the first applicant and his wife in respect of
loans given to Mr. A. Vogl jun., their other son, although it had known
about this son's insolvency and failed to inform the first applicant
and his wife accordingly.
The Regional Court held a hearing on 17 December 1987. In
February 1988 the Court inquired of the parties as to hearing
Mr. A. Vogl jun. as a witness. In April and May 1988 documents were
produced by the plaintiffs and the defendant, respectively.
At the next hearing of 4 November 1988, the Court heard witnesses
and appointed an accountant expert who received the files in
January 1989 and delivered his opinion in March 1990.
On 20 June 1990 the Court, upon the plaintiffs' request, ordered
the accountant expert to examine all of the defendant's business papers
as a preservative measure (Beweissicherung) regarding the taking of
evidence on the debts of Mr. A. Vogl jun. The expert's supplementary
opinion was received at the Court, following a query in October 1990,
on 5 December 1990. The plaintiffs subsequently challenged the expert,
by a motion which was later withdrawn, and requested an explanation of
his opinion in court.
By submissions dated 25 February 1991 the plaintiffs filed a
third party notice (Streitverkündung) with the Regional Court
indicating that in December 1990 they had transferred to the second
applicant, by way of gift, part of their real estate affected by the
pledge agreements at issue in the court proceedings.
At the hearing of 26 February 1991 the parties entered into a
provisional agreement from which the plaintiffs withdrew on
14 March 1991. A further hearing was held on 24 September 1991.
On 15 October 1991 the second applicant joined the proceedings
as intervener (Nebenintervenient) on the plaintiffs' side, and
requested the taking of further evidence. Further hearings took place
on 30 October and 11 December 1991 and, inter alia, the expert was
heard.
On 18 December 1991 the Regional Court dismissed the plaintiffs'
action. The Court found that the mortgage agreements were valid, in
particular that the defendant had not been informed, at the relevant
time, of any insolvency of Mr. A. Vogl jun. and had not, therefore,
failed in its obligation to warn about any risks on the occasion of the
agreements in question. The judgment was served on 13 February 1992.
The plaintiffs and the intervener appealed on 12 March 1992.
They further lodged a request with the Regional Court for the reopening
of the first instance proceedings with a view to the taking of new
evidence. Thereupon, the Regional Court, pursuant to S. 545 of the
Code of Civil Procedure (Zivilprozeßordnung), suspended the appeal
proceedings. The request for reopening was dismissed by the Regional
Court in April 1992, as confirmed by the Court of Appeal in August 1992
and the Supreme Court on 15 December 1992. The files were returned to
the Regional Court on 27 January 1993 and on 1 February 1993 the appeal
proceedings were resumed and the files forwarded to the Linz Court of
Appeal (Oberlandesgericht) on 5 February 1993.
On 19 October 1993 the Court of Appeal rejected the plaintiffs'
and the intervener's plea of nullity (Nichtigkeitsberufung).
Furthermore, following a hearing, it dismissed their appeal (Berufung).
The judgment was served on 10 March 1994.
On 26 April 1994 the Supreme Court (Oberster Gerichtshof) refused
the plaintiffs' and the intervener's appeal on points of law (außer-
ordentliche Revision). The Supreme Court observed that the legal
conditions for such a remedy were not complied with, i.e. the decision
of the case did not, as claimed by the appellants, depend upon a
question of substantive or procedural law which was of considerable
importance in view of the uniformity of law, the stability of law or
the development of law. The judgment was served on 24 May 1994.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
about the length of the above court proceedings and refer in particular
to delays in the proceedings before the Linz Regional Court and the
Linz Court of Appeal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 November 1994 and registered
on 1 December 1994.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
18 March 1996. The applicant replied on 20 May 1996.
THE LAW
The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of civil proceedings relating to the
validity of mortgage agreements.
Article 6 para. 1 (Art. 6-1), as far as relevant, provides as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
The respondent Government maintain that the length of the
proceedings was justified in the circumstances of the present case.
The Government submit in particular that the case was complex and
necessitated inter alia the taking of expert evidence. In their view,
no delays were imputable to the Austrian authorities. The Austrian
courts conducted the proceedings speedily. Some delay occurred in the
course of the preparation of the expert opinion. However, the
competent court urged the expert to submit his opinion in due time.
Moreover, the appeal proceedings were suspended pending the proceedings
concerning the applicants' request for reopening the first instance
proceedings; however, no unreasonable delay was caused thereby.
Rather, the reopening proceedings were, in three instances, terminated,
and the appeal proceedings resumed, within less than one year.
According to the Government, the length of the proceedings is due
to the applicants' own conduct. Furthermore, the applicants failed to
take the necessary procedural steps to urge a speedier handling of
their case. In this respect, they refer to S. 91 of the Courts Act
(Gerichts-Organisationsgesetz), which has been in force since
1 January 1990 and which provides, inter alia, that 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. The Government also observe that the second applicant
only joined the proceedings in 1991.
The applicants dispute the Government's arguments. They point
at a delay of the first instance proceedings between May and
November 1988 as well as between March and September 1991 and refer in
particular to the delayed expert opinion. Moreover, according to them,
the first instance judgment was served belatedly. There was further
no justification for the length of the appeal proceedings.
As regards the time to be taken into consideration, the
Commission notes that the action was filed by the first applicant and
his wife in August 1987. The second applicant joined the proceedings
as intervener in October 1991. The proceedings terminated with the
Supreme Court's decision of 26 April 1994 which was served on
24 May 1994. The proceedings thus lasted altogether six years and nine
months in respect of the first applicant. The second applicant was
involved in these proceedings for a period of two years and
seven months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (cf. Eur. Court HR, Vernillo
v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30). In this instance those circumstances call for a global
assessment so that the Commission does not consider it necessary to
consider these questions in detail.
The Commission, having regard to the fact that the case came
before three instances and included proceedings, at three instances,
regarding the applicants' request for reopening the first instance
proceedings, finds that the delays that occurred, in particular before
the Linz Regional Court, do not appear substantial enough for the total
length of the proceedings to have exceeded a "reasonable time"
(cf. Eur. Court HR, Cesarini v. Italy judgment of 12 October 1991,
Series A no. 245-B, p. 26, para. 20; Salerno v. Italy judgment of
12 October 1992, Series A no. 245-D, p. 56, para. 21).
The applicants' submissions do not, therefore, disclose any
appearance of a breach of their right to a hearing within a "reasonable
time", as guaranteed by Article 6 para. 1 (Art. 6-1).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy