CEDH · CASELAW;REPORTS;ENG — 1 avril 1992

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          APPLICATION No. 15207/89                                     S.                                   against                                   AUSTRIA                          REPORT OF THE COMMISSION                          (adopted on 1 April 1992)                              TABLE OF CONTENTS   Page   I.     INTRODUCTION       (paras. 1 - 5)   . . . . . . . . . . . . . . . . .            1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6 - 9)   . . . . . . . . . . . . . . . . .            2   III.   OPINION OF THE COMMISSION       (paras. 10 - 17)   . . . . . . . . . . . . . . . .            3         A.    Complaint declared admissible            (para. 10)    . . . . . . . . . . . . . . . .            3         B.    Point at issue            (para. 11)    . . . . . . . . . . . . . . . .            3         C.    Compliance with Article 6 para. 1 of the Convention            (paras. 12 - 17)    . . . . . . . . . . . . .            3         CONCLUSION. . . . . . . . . . . . . . . . . . . .            4   APPENDIX : Decision on the admissibility of the application        5   I.     INTRODUCTION   1.     The present report concerns Application No. 15207/89 by S. against Austria, introduced on 7 May 1987 and registered on 10 July 1989.         The applicant, born in 1920, is an Austrian national and resident in Vienna.         The Austrian Government are represented by their Agent, Ambassador H. Türk, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   2.     The application was communicated to the Government on 9 November 1989.   On 8 January 1991 the application was referred to the Second Chamber. Following an exchange of memorials, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 14 October 1991.   The decision on admissibility is appended to this Report.         The Government have made further submissions on 18 November 1991; the applicant submitted further observations on 27 November 1991.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report in accordance with Article 31 para. 1 of the Convention, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS                       A.V. ALMEIDA RIBEIRO   4.     In this report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Austrian Government.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     On 26 September 1977 the applicant instituted proceedings before the Vienna Labour Court (Arbeitsgericht) against his former employer claiming outstanding salary and compensation in various respects.   He later amended his claims with regard to commissions due for several periods of time.   7.     On 25 April 1984 the Vienna Labour Court, having held several hearings and taken in particular expert evidence, ordered the defendant to pay the applicant about AS 276,856 (gross) as well as AS 1,460 (net) with interest, and dismissed the remainder of the action.   8.     In appeal proceedings before the Vienna Regional Court (Landesgericht), the judgment was quashed and the case sent back to the Labour Court in April 1985.   The second set of proceedings before the Labour Court terminated on 3 March 1986.   In further appeal proceedings before the Vienna Court of Appeal (Oberlandesgericht), the case was sent back to the Vienna Labour Court as regards parts of the applicant's claims, while the dismissal of the remainder of the claims was confirmed.   9.     On 21 October 1987 the Austrian Supreme Court (Oberster Gerichtshof), upon the applicant's appeal, held in a final judgment (Endurteil) that the defendant had to pay the applicant about AS 240,739 (gross) and AS 445,797 (net), both amounts with interest. It dismissed the remainder of the claims and counter-claims.   The Supreme Court considered in particular that, on the basis of proceedings of eight years and four expert opinions, only low amounts of the applicant's commission claims had been clearly established by the lower courts.   Proceedings to clarify the exact amounts would entail an expenditure which could not be justified. The Supreme Court therefore assessed the applicant's commission claims as it saw fit (nach freier Überzeugung), in accordance with S. 273 of the Austrian Code of Civil Procedure (Zivilprozeßordnung). The judgment was served upon the applicant on 19 November 1987.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   10.    The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.     Point at issue   11.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   12.    Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   13.    The proceedings in question concerned the applicant's claims of outstanding salary, commissions and other compensation matters against his former employer.   The purpose of the proceedings was to obtain a decision in a dispute over "civil rights and obligations", and they accordingly fell within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   14.    These proceedings, which began on 26 September 1977 and ended on 19 November 1987, lasted ten years.   15.    The Commission recalls that the reasonableness 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 (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, para. 30).   16.    According to the Government, the length of the period in question was due to the complexity of the case and the applicant's conduct.   17.    The Commission finds that the labour court proceedings at issue concerned various commission and compensation claims and were of some complexity as regards the establishment of the relevant facts.   The applicant's conduct is not in itself sufficient to explain the length of the proceedings.   As regards the conduct of the Austrian judicial authorities, the Commission notes in particular that the first set of proceedings before the Vienna Labour Court lasted almost seven years, a considerable time being consumed in taking expert evidence.   In this respect, the Commission refers to the reasoning of the Austrian Supreme Court in its judgment of 21 October 1987,   assessing the remaining claims as it saw fit, in accordance with the Austrian Code of Civil Procedure. The Commission considers that no convincing explanation of the delay has been advanced by the respondent Government.   18.    In the light of the criteria established by case-law and having regard to all the information in its possession, the Commission finds that the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.         CONCLUSION   19.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention   Secretary to the Second Chamber    President of the Second Chamber           (K. ROGGE)                           (S. TRECHSEL)