CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                           Application No. 13715/88                         by K.                         against Austria             The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1991, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   H. G. SCHERMERS              Mrs.   G. H. THUNE              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                Mr.   K. ROGGE, Secretary to the Second 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 7 March 1988 by K. against Austria and registered on 29 March 1988 under file No. 13715/88;           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 facts of the case, as they have been submitted by the parties, may be summarised as follows:           The applicant, born in 1938, is an Austrian national.   At present he is serving a life sentence for murder at the prison of M.   In the present case the applicant was first represented by Mr.   G. Neufeldt-Schoeller, a lawyer practising in Vienna.   Since 24 February 1989 he has been represented by Mr.   W.L. Weh, a lawyer practising in Bregenz.           The applicant has lodged further applications with the Commission, which concern criminal proceedings leading to his conviction of murder (No. 12350/86) and criminal proceedings under the Austrian Code of Financial Offences (No. 15883/89) and are still pending before the Commission.           On 28 September 1979 an Austrian banking institute brought an action against the applicant in the Vienna Regional Court (Landesgericht), claiming repayment of a credit of AS 231,113 plus 13.5% interest as from 1 January 1979.   The statement of claim and the summons for the hearing fixed for 31 October 1979 were served upon the applicant personally on 9 October 1979.           On 31 October 1979 the Regional Court, by a judgment in default (Versäumungsurteil), allowed the claim.           On 9 November 1979 the judgment was served upon the applicant by deposit at the local post office of his place of residence on the ground that he could not be reached at home.   On 26 November 1979 the Vienna Regional Court stated the binding force and enforceability of the judgment concerned.   The deposited judgment was returned by the post office as not claimed on 28 November 1979.           Subsequently, in November or December 1984 in the context of criminal proceedings against him, the applicant heard about the above judgment.           On 20 May 1985 the applicant requested the Vienna Regional Court to send him a copy of the above judgment.           On 28 May 1985 the Regional Court ordered that the judgment be served upon the applicant in prison.   The applicant received the judgment on 31 May 1985.           On 17 June 1985 the applicant filed an objection (Widerspruch) and an appeal (Berufung) against the Regional Court's judgment of 31 October 1979.   He requested free legal aid for the appeal proceedings. He claimed in particular that the initial notification of the judgment, deposited with the post office on 9 November 1979, was ineffective as he had been absent from his domicile.   Furthermore, he   submitted that the judgment was tainted with nullity as he had suffered from mental illness at the relevant time and not been represented in the proceedings.   In this respect he referred to psychiatric expert opinions obtained in disciplinary proceedings in 1978 and in the above criminal proceedings.   He also requested that the enforceability of the judgment be set aside.        Before transmitting the applicant's remedies to the competent Court of Appeal (Oberlandesgericht), the Regional Court made inquiries concerning the applicant's absence from his domicile in 1979.   It heard the applicant on 23 July 1985.   Following an unsuccessful attempt to summon the applicant's wife in October 1985, she was heard on 26 November 1985.   Further the Regional Court, in order to find out the applicant's whereabouts on 9 November 1979, unsuccessfully requested transmission of the applicant's criminal files and asked the Vienna Federal Police Department (Bundespolizei- direktion) for copies of the applicant's passport.   The applicant was heard again on 10 March 1986.           On 18 March 1986 the Vienna Regional Court transmitted the file to the Vienna Court of Appeal.           On 9 July 1986 the applicant repeated his request for free legal aid.   On 30 December 1986 he asked about the state of proceedings as regards this request.           On 12 February 1987 the applicant asked about the state of his appeal proceedings.           On 30 March 1987 the Vienna Court of Appeal returned the files to the Regional Court with a request to clarify the question of the applicant's alleged incapacity to conduct proceedings in October and November 1979.           On 10 April 1987 the Regional Court requested the Vienna Court of Appeal for transmission of the files concerning the disciplinary proceedings against the applicant.   The relevant psychiatric expert opinions of March and June 1978 contained in these files were transmitted to the Regional Court on 23 April 1987.   On 30 April 1987 the Korneuburg Regional Court, upon the Vienna Regional Court's request for transmission of the criminal files, replied that these files were not available pending re-opening proceedings.   On 11 May 1987 the criminal files were sent, and they were partly photocopied.           On 11 June 1987 the applicant was granted legal aid.   On 6 July 1987 Mr.   T. was appointed as counsel for the applicant.           On 21 July 1987 the applicant instituted proceedings before the Federal Ministry of Justice (Bundesministerium der Justiz) claiming compensation under the Official Liability Act (Amts- haftungsgesetz) for misconduct of the civil proceedings.   On 24 August 1987 the files were forwarded to the Vienna Court of Appeal for examination and comment in respect of these compensation claims. On 18 September the files were forwarded to the Ministry of Justice, and on 25 September to the Treasury Department (Finanzprokuratur).           In the meantime, on 22 September 1987 Mr.   Neufeldt-Schoeller had been appointed as the applicant's counsel.   On 12 October 1987 counsel asked for a copy of the files and, referring to Article 6 para. 1 of the Convention, raised the problem of the length of the proceedings.   On 9 November 1987 he was informed that the files had been sent to the Federal Ministry of Justice.           On 26 November 1987 the applicant instituted civil proceedings before the Vienna Regional Court claiming compensation under the Official Liability Act in view of the delay of his appeal proceedings.           On 11 December 1987, following an exchange of further submissions and comments, the Treasury Department dismissed the applicant's compensation claims and the Federal Ministry of Justice informed the Vienna Court of Appeal accordingly.   The files were sent back on 30 December 1987.           Meanwhile, on 23 December 1987 the applicant had challenged two judges at the Court of Appeal for bias.           On 5 January 1988 the Vienna Regional Court appointed the psychiatric expert Mr.   G. to deliver an opinion on the question of the applicant's state of mental health in 1979.           On 11 January 1988 the applicant lodged further compensation claims with the Treasury Department.           On 22 January 1988 the applicant's counsel again urged a decision on appeal, and the production of a copy of the file.           On 18 February the applicant appealed against the decision of 5 January 1988 on the appointment of a psychiatric expert without having been heard previously.   The applicant also reminded the Court of Appeal of his earlier requests for a copy of the file.           According to a report of the competent judge at the Regional Court dated 23 February 1988, these earlier requests were not in the file.           The proceedings were suspended in March 1988 due to the death of the plaintiff's counsel.           On 22 March 1988 the applicant requested the Vienna Court of Appeal to revoke its decision of 30 March 1987, whereby the supplementary inquiries had been delegated to the Regional Court, and to conduct itself the necessary inquiries and to appoint a psychiatric expert, for example Mr.   S.           On 6 April 1988 the plaintiff requested an oral hearing.           On 28 June 1988 the Vienna Regional Court submitted the files to the Court of Appeal for decision on the applicant's appeal of 18 February 1988 against the appointment of the expert G.   On 29 July 1988 the Court of Appeal rejected this appeal.           On 5 August 1988 the Court of Appeal rejected the applicant's requests of 22 March 1988 on the ground that, under the Code of Civil Procedure (Zivilprozeßordnung), the Court of Appeal was free to delegate inquiries to the Regional Court and to supplement them, if necessary.   On 4 October 1988 the files were returned to the Vienna Regional Court.   On 12 October 1988 the Court of Appeal's decisions of 29 July and 5 August 1988 were served upon the applicant.           In the meantime, on 2 September 1988, the applicant had lodged disciplinary complaints with the Supreme Court (Oberster Gerichtshof) as regards the length of the appeal proceedings.           On 12 October 1988 the Regional Court summoned the applicant's wife and the psychiatric expert G. for a hearing on 15 December 1988 on the question of the applicant's capacity to enter into legal transactions.   The summons of the applicant's wife could not be served on the ground that she had moved in the meantime.           On 24 October 1988 the applicant appealed against the Court of Appeal's decision of 29 July 1988 concerning the appointment of the psychiatric expert G.           On 10 November 1988 the hearing fixed for December 1988 was cancelled and the files were submitted to the Supreme Court for decision upon the applicant's appeal of 24 October.           On 2 November 1988 the applicant complained that his request of 17 June 1985 to quash the enforceability of the Regional Court's judgment of 1979 had not been decided upon.           On 11 November 1988 the applicant asked for access to the Regional Court's files, which was refused on the ground that the files had been submitted to the Supreme Court.   The applicant appealed against this decision on 15 November 1988.           On 24 December 1988 the Supreme Court dismissed the applicant's appeal concerning the appointment of the psychiatric expert G.   The files were returned to the Regional Court on 21 December 1988.   The decision was served upon the applicant on 3 February 1989.           On 27 December 1988 the President of the Vienna Court of Appeal, upon the applicant's inquiry of 15 December, informed him that, having regard to the work load of the Court of Appeal, no disciplinary action had been taken in respect of the delay in the proceedings.           On 9 January 1989 the Regional Court summoned the applicant's wife and the expert G. for a hearing on 21 February 1989 on the matter of the applicant's mental health.           On 9 January 1989 the applicant also renewed his complaint that no copy of the files had been prepared and asked for information about the measures taken to reduce the Court of Appeal's work load.         On 12 January 1989 the applicant requested the Court of Appeal to decide upon his request to quash the enforceability of the judgment of 1979.           On 18 January 1989 the President of the Court of Appeal informed the applicant that the Federal Ministry of Justice had refused to create additional posts for judges, except one in 1986. On 24 January 1989 the competent judge at the Vienna Regional Court, upon instruction by the President of the Court of Appeal, was informed about the preparation of file copies.           On 27 January 1989 the applicant was summoned for the hearing on 21 February 1989.           On 6 February 1989 the applicant complained that his counsel had not been summoned.   Furthermore, he appealed against his summons of 27 January and submitted that a warrent to appear was unlawful.   He also lodged various other complaints that earlier requests had not been decided upon, and complained about the information by the President of the Court of Appeal of 18 January 1989 to the Federal Ministry of Justice.           On 13 February 1989 the applicant repeated his request with the Court of Appeal that no further investigations be conducted by the Vienna Regional Court.           On 20 February 1989 the applicant's wife informed the Regional Court that she could not appear at the hearing on 21 February, and that it had not been clarified whether she, a doctor, was dispensed from her duty of secrecy.   One day later the Regional Court informed the Mittersteig Prison that it had not issued a warrant to appear in court, the applicant should be brought before court if he so wished.           At the hearing on 21 February 1989 the applicant and the psychiatric expert G. were present.   Upon the applicant's complaint that his counsel had not been summoned, the Regional Court told him that the hearing concerned was held in camera in order to hear him as witness (Auskunftsperson).   Following a warning by the Judge N., the applicant challenged him for bias.   The Regional Court requested the applicant to inform the Court, within two weeks, whether he dispensed his wife from her duty of secrecy, as well as to have his motion of challenge filed by counsel.           On 22 February 1989 the applicant filed the motion to challenge the Regional Court Judge N. for bias.   On 27 February 1989 he requested that the psychiatric expert be instructed to deliver his opinion within two months and to examine the applicant.           In two decisions of 9 March 1989 the Vienna Court of Appeal dismissed the applicant's respective requests of 13 February (to have the supplementary investigations conducted by the Court of Appeal) and 12 January 1989 (to have the enforceability of the judgment of 1979 quashed).   The decisions were served on 5 April 1989.           In March and April 1989 the files were sent to another Department of the Vienna Regional Court and to the Vienna Court of Appeal in view of other proceedings.   On 21 April 1989 the Regional Court ordered that the files be copied.           On 17 May 1989 the Federal Ministry of Justice informed the applicant that the number of judicial posts of the Court of Appeal had developed as follows during the relevant period: 1986 - 70, 1987 - 77, 1988 - 77, 1989 - 73.   The backlog of pending cases had risen from 438 in 1982 to 817 in 1986.           On 18 May 1989 the Supreme Court dismissed the applicant's appeal of 17 April 1989 against the Court of Appeal's decisions of 9 March 1989.           On 24 May 1989 the Vienna Court of Appeal dismissed the applicant's appeal in which he had claimed that on 11 November 1988 he had been refused to consult the file.   The Court of Appeal found in particular that no such decision had been taken on the ground that at the time in question the files had been sent to the Court of Appeal and were, therefore, not available at the Regional Court.           On 12 July 1989 Judge N. at the Regional Court commented upon the applicant's motion of challenge for bias of 22 February.           On 22 July 1989 the Vienna Regional Court instructed the psychiatric expert G. to prepare his expert opinion according to the Court's decision of 5 January 1988.   On 27 July the expert was set a time-limit of two months.   On 18 August 1989 the expert examined the applicant.   On 6 September 1989 the expert submitted his opinion according to which the applicant had been capable to enter into legal transactions in October and November 1979.           In October 1989 the files concerning the applicant's appeal against the judgment of 1979 and concerning his challenge of Judge N. were transferred to the Vienna Court of Appeal.           On 7 November 1989 the Vienna Court of Appeal, in camera, dismissed the applicant's appeal of 17 June 1985, insofar it concerned reasons of nullity.   The Court of Appeal found in particular that on 9 November 1979 the applicant had not been at his place of residence where he had only returned at the end of the month.   However, there was nothing to indicate that in October and November 1979 the applicant, having regard to his mental health, had not been capable to understand that a statement of civil claims and later a judgment had been served upon him.   The Court of Appeal considered that the service of the judgment concerned by way of depositing it at the local post office had contravened S. 104 of the Code of Civil Procedure in the version in force at that time.   Thus the time-limit for lodging an appeal had not started to run.   The applicant's appeal had, therefore, been lodged in time.           On 13 November 1989 the applicant was summoned to appear at a hearing on his appeal fixed for 19 December 1989.           On 27 November 1989 the applicant notified a change of counsel; he was then represented by Mr.   M., a lawyer practising in Vienna.           On 19 December 1989, at the hearing before the Court of Appeal, the applicant complained about the composition of the Vienna Court of Appeal.   The Court of Appeal informed the parties of its decision of 7 November 1989.   Furthermore, it confirmed the judgment in default of 1979.   In its decision, the Court of Appeal found in particular that the plaintiff's submissions on its claims, although short, had been sufficient.           On 28 June 1990 the Supreme Court declared the applicant's appeal against the Court of Appeal's decision of 7 November 1989 inadmissible.   Upon the applicant's appeal on points of law (Revision), the Supreme Court quashed the judgment of 19 December 1989.   The Supreme Court considered in particular that the composition of the Chamber at the Court of Appeal, which had dealt with the applicant's case, did not clearly follow from the Court of Appeal's rules on the distribution of cases (Geschäftsverteilung).   The case was sent back to the Vienna Court of Appeal.           In the resumed appeal proceedings, a hearing was fixed for 18 September 1990.           On 12 September 1990 the plaintiff withdrew its action, thereby waiving its claim against the applicant.           On 9 October 1990 the applicant requested the Regional Court to fix his legal expenses for payment by the plaintiff.           On 18 October 1990 the Vienna Court of Appeal declared the judgment of 1979 without effect.   The decision was served upon the applicant on 3 December 1990.           Meanwhile, on 9 November 1990 the applicant requested the Vienna Court of Appeal to set a time-limit for the Regional Court to decide upon his claim for reimbursement of legal expenses.           On 3 December 1990 the Vienna District Court discontinued the execution proceedings against the applicant.           On 16 January 1991 the Court of Appeal dismissed the applicant's request of 9 November 1990 on the ground that after the Court of Appeal's decision of 18 October 1990 the files had been transmitted to the Federal Ministry of Justice and not been available for the Regional Court.   Thus there was no failure of the Regional Court.   The decision was served on 8 February 1991.           On 20 February 1991 the Treasury Department, referring to earlier correspondence, dismissed the applicant's renewed claims under the Official Liability Act in respect of the length of his appeal proceedings.   The Department considered in particular that compensation for undue delays of the proceedings could only be paid in case the action had been won.   Anyway, the applicant should await the cost decision of the Vienna Regional Court.     COMPLAINTS           The applicant complains that in the above proceedings he did not get a hearing within a reasonable time.   He also submits that he did not have an effective remedy under Austrian law as regards the delay in the procedure.   He invokes Article 6 para. 1 and Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 7 March 1988 and registered on 29 March 1988.           On 12 July 1989 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written submissions on its admissibility and merits.           On 27 November 1989 the observations were submitted by the respondent Government.   On 19 March 1990, after an extension of the time-limit, the applicant sent his observations in reply.   He made further submissions on 19 September 1990 and 18 March 1991.     THE LAW           The applicant complains about the length of civil proceedings concerning the claim of a banking institute for repayment of debts. He relies upon Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides:   "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Government submit that the starting point for the period to be considered under Article 6 para. 1 (Art. 6-1) of the Convention is 17 June 1985 when the applicant lodged his appeal against the default judgment of 31 October 1979.   The length of the proceedings was particularly due to the numerous remedies lodged by the applicant, including hierarchical complaints, requests for disciplinary proceedings, official liability proceedings, motions to challenge judges for bias. Thereby the original files, and later also the copy of the files prepared in January 1988, had to be transferred to other courts. Moreover, pending such remedies the main appeal proceedings could not be furthered.           The Commission finds that the applicant's complaint about the length of his civil proceedings raises questions of fact and law which are of such complexity that their determination requires an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.               For these reasons, the Commission, unanimously,             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.       Secretary to the Second Chamber            President of the Second Chamber                  (K. ROGGE)                                (S. TRECHSEL)