CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 1993

.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. 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)