AS TO THE ADMISSIBILITY OF
Application No. 21518/93
by August VRNAK
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 7 September 1993, 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
G.B. REFFI
B. CONFORTI
N. BRATZA
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 31 January 1992
by August VRNAK against Austria and registered on 11 March 1993 under
file No. 21518/93;
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 an Austrian citizen born in 1920 and living in
Perg. He is represented by Mr. H. Blum, a lawyer practising in Linz.
The applicant complains about the length of civil court
proceedings.
On 16 December 1985 the applicant brought an action against his
ex-wife claiming re-payment of AS 55,000.
By judgment of the District Court (Bezirksgericht) in Perg of 27
December 1984 the applicant had been ordered to pay maintenance to his
ex-wife.
On the basis of the judgment of 27 December 1984 the applicant's
wife instituted execution proceedings and claimed payment of arrears
of maintenance in the amount of AS 70,000 as well as costs of the
proceedings in the amount of AS 60,000.
With his action of 16 December 1985 the applicant claimed that
in the execution proceedings his wife had obtained higher payments than
were due to her.
On 13 March 1989 the District Court (Bezirksgericht) in Wels gave
a judgement finding that the applicant had a claim in the amount of
AS 13,000 while the defendant had a counter-claim in the amount of
AS 8,500 and consequently as of 28 July 1988 the defendant party had
to pay the applicant AS 4,500 plus interest. The court stated that at
the oral hearing of 14 July 1986 the plaintiff claimed the amount
originally requested for in his action of 16 December 1985. At an oral
hearing of 14 December 1987 he reduced his claim to the costs of the
proceedings. In a brief of 15 March 1988 the applicant again amended
his claim and in an oral hearing of 28 July 1988 he added a claim in
the amount of AS 13,000. It is further stated in the judgment that at
an oral hearing of 5 December 1988 the plaintiff had alleged that the
defendant had accepted a friendly settlement in other proceedings on
30 September 1987 recognising her obligation to pay back AS 30,000.
The judgment of 13 March 1989 comprises 31 pages.
On 27 September 1989, following appeal of both parties, the
Regional Court (Kreisgericht) in Wels admitted a further claim which
had been raised by the applicant on 14 March 1988. To this extent the
judgment appealed from had declared the action to be inadmissible. The
Appellate Court quashed the judgment appealed from and sent the case
back for a new decision.
On 7 January 1991 the District Court in Wels again gave judgment
according to which the applicant had a claim of AS 5,500 while an
exceeding claim in the amount of AS 20,000 was unfounded. The
defendant had a counter-claim in the amount of AS 4,000 so that the
defendant owed AS 1,500 to the plaintiff. The plaintiff was ordered
to pay the defendant party the costs of the proceedings in the amount
of AS 26,000.
On 5 June 1991 the Regional Court in Wels rejected the
applicant's appeal against this judgment.
COMPLAINTS
The applicant complains of the length of the above proceedings
and submits that these proceedings had only become necessary because
the District Court in Perg unlawfully allowed the defendant party to
execute a judgment against him. He invokes Article 6 of the
Convention.
THE LAW
The applicant has complained about the length of civil
proceedings which he brought on 16 December 1985 claiming back certain
amounts of money which he had allegedly overpaid his wife who had
previously instituted execution proceedings against him claiming
payment of arrears of maintenance.
The question of whether or not the reasonable time requirement
was respected depends on an examination of the circumstances of each
given case taking in particular into account the complexity of the
matter, the handling of the case by the competent domestic courts and
the attitude of the applicant in the domestic proceedings.
The proceedings here in question have been of a certain
complexity as both parties alleged various claims raising issues as to
the legal foundation and to the manner of calculation necessitating a
rather voluminous judgment of 31 pages.
Insofar as the handling of the case by the domestic courts is
concerned, the Commission notes that the first instance judgment was
on appeal partly quashed and the case to this extent sent back to the
first instance for a new trial. The second first instance decision of
7 January 1991 was again appealed against which means that the matter
was examined twice in first instance and twice in second instance.
The only period that appears to be open to criticism is that from
16 December 1985 when the action was lodged until 13 March 1989. Thus
the first trial proceedings had lasted approximately 3 years and 3
months.
However, not only was the matter of some complexity but in
addition it has to be noted that the applicant repeatedly changed his
submissions as is stated in the judgment of the District Court.
Assessing the proceedings globally the Commission cannot find in
these particular circumstances that there is an appearance of a
violation of the reasonable time requirement and the application is
therefore 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy