Application No. 11768/85
by ZAPATA S.A. and North Pacific Trading Ltd.
against Austria
The European Commission of Human Rights sitting in private
on 9 May 1989, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 August 1984
by Zapata S.A. and North Pacific Trading Ltd.against Austria and
registered on 27 September 1985 under file No. 11768/85;
Having regard to the report provided for in Rule 40 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 first applicant is a limited company with legal
personality under Swiss law and has its seat in Geuensee (Lucerne).
It is involved in the production of technical installations, inter
alia winding engines. The second applicant is a limited company with
legal personality under British law and has its seat in Hong Kong. It
is an import and export trading company. Before the Commission, the
first applicant is represented by Mr. Weiss-Tessbach, a lawyer
practising in Vienna. The second applicant is represented by
Mr. Zerner, a lawyer also practising in Vienna.
In June 1976 the first applicant effected with an Austrian
insurance company an insurance for about 31 million Austrian Schilling
concerning a particular shipment of goods sold to the second
applicant. In January 1977 the ship carrying the goods at issue sank
near the Maldives.
In August 1977 the first applicant lodged an action against
the insurance company with the Vienna Commercial Court (Handelsgericht)
claiming the amount insured. The second applicant joined the
proceedings as a co-plaintiff.
On 16 April 1985, following several sets of appeal
proceedings, the Vienna Commercial Court (Handelsgericht)
provisionally discontinued the proceedings in particular pending the
termination of criminal proceedings in connection with the occurrence
of loss in the instant case. On 20 December 1985 the Vienna Court of
Appeal (Oberlandesgericht) also adjourned further appeal proceedings
pending the termination of the above criminal proceedings.
The civil proceedings have apparently not yet been resumed. In
August 1988, in the criminal proceedings, the Vienna Regional Court of
Appeal (Oberlandesgericht) decided to open the trial against the
responsible managers of the applicants on charges of fraud and
endangering through explosives. It appears that one of the accused is
in hiding.
COMPLAINTS
The applicants complained under Article 6 para. 1 of the
Convention about the length of their compensation proceedings before
the Austrian courts. They also alleged that one of the judges at the
Austrian Supreme Court, who dealt with their case in one of the appeal
proceedings, was biased against them.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 September 1984 and
registered on 27 September 1985.
On 7 December 1987 the Commission decided that, in accordance
with Rule 42 para. 2 (b) of its Rules of Procedure, the application be
brought to the notice of the respondent Government and that they be
invited to submit written observations on its admissibility and merits
as regards the length of the civil proceedings.
On 23 February 1988 the respondent Government submitted their
observations.
On 29 March 1988 the applicants requested that the time-limit
to submit their observations in reply before 15 April 1988 be extended
until 30 September 1988.
On 9 September 1988, following further submissions by the
respondent Government dated 6 April and 10 August 1988, the applicants
requested to extend their time-limit until 20 October 1988.
On 8 October 1988 the Commission decided to adjourn its
further examination of the present case.
On 13 December 1988 the respondent Government submitted further
information on the present case.
By letter of 23 March 1989 the Secretariat noted that the
applicants' observations had not yet been received, and warned the
applicants about the consequences under Rule 44 para. 1 of the
Commission's Rules of Procedure. The applicants did not react to this
letter.
REASONS FOR THE DECISION
The Commission finds that the circumstances of the present
case, namely the applicants' failure to comply with the Commission's
request to submit observations in reply before 15 April 1988 or within
the time-limits indicated by them, and to react to the further letter
of the Secretariat of 23 March 1989, leads to the conclusion that they
do not intend to pursue their application.
The Commission considers that there are no reasons of a
general character affecting the observance of the Convention which
necessitate the further examination of this case.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J. A. FROWEIN)
Full & Egal Universal Law Academy