CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 octobre 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. 18606/91                         by E. & Co.                         against Austria             The European Commission of Human Rights sitting in private on 8 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              M.    F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, 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 25 February 1991 by E. & Co. against Austria and registered on 26 July 1991 under file No. 18606/91;           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 a forwarding company and has its seat in Haan/Rheinland, Germany.   It is represented by Mr.   G. Wagner, a lawyer in Linz, Austria.           The facts of the case, as submitted by the applicant, may be summarised as follows.           In February 1978 the applicant company was requested by the E.-E. company to transport products of that company to Turkey.   The applicant company subsequently charged the Austrian company S. & E. to carry out this transport.   The S. & E. company took the goods, allegedly in violation of the contractual agreements, to a customs-free area in Linz with the intention to retain them, invoking a right of pledge.   1.       Proceedings instituted to have the goods returned           The applicant company thereupon instituted proceedings against the S. & E. company, requesting the return of the goods.   The action was granted by the District Court (Kreisgericht) in Steyr on 12 July 1979. According to the findings of the Court the S. & E. company had no right of retention.           The defendant company lodged an appeal which was rejected by the Court of Appeal (Oberlandesgericht) in Linz on 30 October 1979.   On 20 January 1981 the Supreme Court (Oberster Gerichtshof), on appeal on points of law (Revision), quashed the preceding decisions and sent the case back to the first instance court for a new trial.           On 20 June 1984 the Steyr District Court again granted the action.   This judgment was confirmed by the Court of Appeal in Linz on 28 November 1984.   An appeal on points of law was rejected by the Supreme Court on 16 September 1986.   2.       Proceedings relating to compensation           Further to the proceedings instituted to have the goods returned the applicant company, on 2 February 1979, brought another action for damages against the S. & E. company alleging that the defendant had unlawfully retained goods which belonged to the E.-E. company.   These proceedings were suspended on 30 March 1979 pending the outcome of the above proceedings concerning the request for the return of the goods.           After termination of the latter proceedings on 16 September 1986, the applicant company requested on 23 October 1986 to continue the proceedings concerning its request for damages.   On 23 July 1987 the District Court in Steyr granted the action.   On 20 April 1988 this judgment was confirmed by the Court of Appeal in Linz.   On 15 November 1988 the Supreme Court quashed the preceding judgment and sent the case back to the first instance court for a new trial.           On 24 August 1990 the Steyr District Court again gave judgment for the applicant company ordering the defendant to pay damages in the amount of DM 56,272.   On 4 September 1990 the written judgment was served on the parties.   The judgment became final.           Subsequently the applicant tried to enforce the judgment but it turned out that the defendant company had fallen bankrupt in the meantime. COMPLAINTS           The applicant company considers that the two sets of proceedings formed a whole as they concerned the same facts.   It considers that the length of the two proceedings taken together exceeded a reasonable time and therefore violated Article 6 para. 1 of the Convention.     THE LAW           The applicant complains of the length of civil proceedings relating to an action for damages instituted on 2 February 1979 and ended on 4 September 1990 when the judgment, which became final, was served on the parties.   The proceedings thus lasted about eleven years and seven months.           Article 6 para. 1 (Art. 6-1) of the Convention guarantees a right to have a civil claim determined within a reasonable time.           The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard, inter alia, to the complexity of the case and to the conduct of the parties and the competent authorities (see, in particular, Eur.   Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).           The Commission notes that the proceedings in question were suspended, apparently with the parties' consent, on 30 March 1979 and not taken up again until 23 October 1986, when the applicant company made a corresponding request.   This had become necessary in view of parallel proceedings between the same parties relating to the same facts but another claim, namely the applicant company's request for the return of goods withheld by the defendant.   The applicant company does not contest the necessity or practicality of the adjournment.   It only argues that the two sets of proceedings formed a whole and their length had to be judged accordingly.           The Commission cannot share this opinion.   It is true that the parties and facts were identical in the two proceedings.   They concerned, however, different claims which had to be determined under different statutory provisions.   Consequently the subject-matter in each case was different and the proceedings relating to the request for the return of the goods were therefore a separate entity.   However, the reasonableness of the duration of these proceedings has not been challenged within the six-month time-limit prescribed by Article 26 (Art. 26) of the Convention.           The Commission is therefore prevented from examining the question whether these proceedings have been terminated within a reasonable time.           It follows that the Commission can only examine whether the periods from 2 February 1979 (lodging of action) to 30 March 1979 (suspension) and subsequently from 23 October 1986 to 4 September 1990 disclose any objectionable delays for which the judicial authorities can be held responsible.   In this respect it has to be noted, however, that the case was first dealt with in three instances and eventually returned to the first instance court for a retrial.           In these circumstances the Commission finds that the matter does not disclose any appearance of a violation of the right to speedy proceedings and the application has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.               For these reasons, the Commission by a majority             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)