CEDH · CASELAW;REPORTS;ENG — 6 avril 1994

.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                            FIRST CHAMBER                      Application No. 18823/91                                  B. E.                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 6 April 1994)   TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1 - 15)   . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2 - 4)   . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5 - 10) . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11 - 15)   . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16 - 66) . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 67   - 84)   . . . . . . . . . . . . . . . . . . .7        A.    Complaint declared admissible           (para. 67)   . . . . . . . . . . . . . . . . . . . .7        B.     Point at issue           (para 68) . . . . . . . . . . . . . . . . . . . . .7        C.    Compliance with Article 6 para. 1 of the Convention           (paras. 69 - 83). . . . . . . . . . . . . . . . . .7        CONCLUSION      (para. 84) . . . . . . . . . . . . . . . . . . . . . . .9   APPENDIX I      : HISTORY OF THE PROCEEDINGS . . . . . . . . 10   APPENDIX II     : DECISION ON THE ADMISSIBILITY   . . . . . . 11   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is an Austrian citizen born in 1940 and resident in Linz.   She is represented before the Commission by Mr. Helmut Blum a lawyer practising in Linz.   3.    The application is directed against Austria. The respondent Government were represented by its Agent, Ambassador Helmut Türk, Deputy Secretary General and Legal Counsel of the Federal Ministry of Foreign Affairs.   4.    The case concerns a complaint of the length of civil proceedings relating to an action for damages against a dentist.   The applicant invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 3 May 1991 and registered on 19 September 1991.   6.    On 13 January 1992 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 22 April 1992. The applicant replied on 10 June 1992.   8.    On 8 January 1993 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention.   It declared inadmissible the remainder of the application.   9.    The text of the Commission's decision on admissibility was sent to the parties on 25 January 1993 and they were invited to submit such further information or observations on the merits as they wished.   No further observations on the merits of the complaint concerning the length of the civil proceedings were submitted subsequent to the decision declaring this complaint admissible.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.    The present report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV   12.   The text of this Report was adopted on 6 April 1994 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        i)    to establish the facts, and        ii)   to state an opinion as to whether the facts found disclose      a breach by the State concerned of its obligations under the      Convention.   14.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   16.   On 17 March 1980 the applicant underwent surgical treatment by a dentist and was accidentally injured as a consequence of the loosening of a part of a dental drill in action.   The blast of the drill caused the applicant an aero-embolism (Luftemphysem).   17.   On 16 March 1983 the applicant brought an action for damages against the dentist, the efforts to reach a friendly settlement with the dentist's insurance company having failed.   18.   On 5 April 1983 the competent Regional Court (Landesgericht) in Linz held a first hearing before Judge Z.   The defendant applied to dismiss the action and was ordered to submit his observations before 29 April 1983.   19.   On 18 April 1983 the defendant submitted his memorial and on 1 June 1983 another hearing took place and the Court decided to take expert evidence.   The applicant requested that no doctor from the Linz area be chosen as an expert.   Subsequently the applicant submitted various documents relating to her treatment after the incident of 17 March 1980 and requested to hear Drs. H. and E.   20.   On 29 July 1983 the court requested several expert opinions to be submitted, namely by Dr. R. St., oral surgeon, Vienna, Dr. H. Sch., ophthalmologist, Vienna, and Dr. P. St. expert in medical equipment, Vienna.   Previously, on 16 June 1983 the court had issued orders for the procurement of the applicant's case history and x-rays from two hospitals.   21.   On 7 September 1983 the court requested the hospitals in which the applicant was treated to submit further documents.   22.   On 28 September 1983 the applicant submitted supplementary observations and requested the court to obtain further evidence.   23.   On the same day the court issued an order for the procurement of further medical documents.   24.   On 2 January 1984 the applicant requested that two doctors be heard as witnesses.   25.   On 4 April 1984 another judge who had taken over the case decided to appoint Dr. T., Salzburg, expert in oral surgery.   26.   On 24 April 1984 the applicant objected to the appointment of Dr. T.   27.   On 25 April 1984 another expert, Professor St., Vienna, oral surgery, was appointed and the file submitted to him.   28.   On 13 July 1984 Professor St. submitted his expert opinion according to which the defending dentist could not be blamed for the incidents which caused the applicant's injury which in any event, according to the expert opinion, had not caused any long-lasting after- effects.   29.   On 16 July 1984 Professor Dr. Sch., ophthalmologist, was appointed and the file submitted to him.   30.   On 7 August 1984 Professor Sch. submitted his expert opinion according to which the applicant's optic nerves were not impaired by the incidents in question.   31.   Meanwhile a new judge had taken over the case.   32.   On 5 September 1984 the applicant requested that the expert opinions be discussed and certain documents be obtained by the court as evidence.   33.   On 7 February 1985 the applicant suggested that four witnesses should be heard, namely S.E., Dr. H. M.-Sch., Dr. F.W., and Dr. H.M..   34.   On 12 April 1985 a technical expert in electrical engineering, Dr. St., was appointed by the court.   35.   On 25 April 1985 expert Dr. St. declared that he was not competent to answer questions relating to precision mechanics.   36.   On 29 April 1985 an expert in electrical engineering, Mr. H. was appointed.   37.   On 5 June 1985 this expert returned the file declining to take on the matter due to overwork.   38.   On 14 June 1985 another technical expert, Mr. K., Salzburg, was appointed and the file sent to him on 5 July 1985.   39.   On 4 November 1985 expert K. submitted his expert opinion according to which the defendant had acted carelessly when treating the applicant on 17 March 1980.     40.   On 11 November 1985 the court ordered the expert opinion to be served on the parties with the invitation to submit observations.   41.   On 8 January 1986 an oral hearing was fixed for 25 March 1986.   42.   On 25 March 1986 another hearing took place before Judge H. The expert opinions were not discussed, nor were any witnesses heard. Only documentary evidence was discussed and questions put to the applicant.   43.   On 23 May 1986 the Regional Court made a rogatory request to the District Court (Bezirksgericht) Innere Stadt Wien for the hearing of the experts Dr. St. and Dr. Sch.   44.   The two experts were heard by the District Court on 9 July 1986 (Dr. St.) and 18 December 1986 (Dr. Sch.) respectively.   45.   On 11 March 1987 the Vienna District Court returned the file to the Linz Regional Court where meanwhile a new judge had taken over the case.   46.   On 29 April 1987 an oral hearing was fixed for 7 July 1987.   47.   On 15 June 1987 the oral hearing had to be postponed until 7 October 1987 due to the judge's workload.   48.   By 30 September 1987 a new judge took over the case and postponed the oral hearing sine die.   49.   On 9 October 1987 the applicant extended her claim (Klageerweiterung).   50.   On 30 December 1987 the applicant's counsel requested that another oral hearing be fixed and on 27 January 1988 he requested that the expert opinions be further discussed.   51.   On 11 January 1988 an oral hearing was fixed by the new judge for February 1988 and the applicant was requested to submit an income certificate concerning her husband.   52.   On 4 February 1988 an oral hearing took place and a witness S.E. and the parties were heard.   The court decided to withdraw legal aid.   53.   On 16 February 1988 the applicant submitted further documents.   54.   Judgment was given on 8 July 1988 but not communicated to the applicant before 9 November 1988.   55.   Both parties appealed.   56.   The Court of Appeal granted the applicant's appeal and referred the case back to the first instance for the taking of further evidence. The appellate court's judgment was rendered on 14 June 1989 and served on the applicant on 2 August 1989.   57.   On 5 October 1989 the applicant extended her claim.   58.   On 18 January 1990 the case was again heard at first instance. Subsequently a new judge took over the case.   Dr. K.J. was appointed expert.   The oral hearing was adjourned until 20 February 1990 as some witnesses could not attend the hearing.   59.   On 26 January and 12 February 1990 respectively two doctors informed the court that they were not available on 20 February 1990.   60.   On 14 February 1990 the oral hearing was postponed.   61.   On 22 March 1990 an oral hearing was fixed for 9 October 1990.   62.   On 9 October 1990 at an oral hearing the defendant was heard as well as four witnesses and the expert opinions were discussed and supplemented by three experts.   63.   On 14 December 1990 the Regional Court dismissed the applicant's remaining claims.   This judgment was served on 28 December 1990.   64.   The applicant appealed.   65.   On 8 May 1991 the appeal was rejected by the Court of Appeal (Oberlandesgericht) in Linz.   The decision of the Court of Appeal was served on the applicant on 31 May 1991.   66.   The applicant then lodged an extraordinary appeal on points of law to the Supreme Court (Oberster Gerichtshof).   This   appeal was rejected by a decision of 18 September 1991, served on the applicant on 10 October 1991.   III.   OPINION OF THE COMMISSION   A.    Complaint declared admissible   67.   The Commission declared admissible the applicant's complaint about the length of the civil proceedings relating to her action for damages against a dentist.   B.    Point at issue   68.   The only point at issue is whether the length of the civil proceedings complained of exceeded "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   69.   Article 6 para. 1 (Art. 6-1) of the Convention provides that:        "In the determination of his civil rights and obligations....,      everyone is entitled to a .... hearing within a reasonable time      by (a)... tribunal ... "   70.   The applicability of Article 6 para. 1 (Art. 6-1) is not in dispute.   71.   The proceedings in question were started on 16 March 1983 and ended, as was not contested by the respondent Government, with the Supreme Court's decision rejecting the applicant's extraordinary appeal.   This decision was served on the applicant on 10 October 1991. The proceedings thus lasted 8 years and almost 7 months.   72.   The reasonableness of the length of proceedings is to be determined principally on the basis of the following criteria:   the complexity of the case, the attitude of the parties and the manner in which the competent authorities dealt with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   73.   The respondent Government argue that the proceedings in question concerned a complex matter as the causes of the applicant's injuries and their consequences could only be determined with the help of various medical experts.   As the applicant had objected to the appointment of experts working in the district of Linz, experts had to be chosen in Vienna and the files had to be sent to them.   74.   The Government consider the length of the proceedings as being due mainly to the applicant's own behaviour as she repeatedly requested the taking of new evidence or repeatedly submitted new documents.   It is pointed out in this context that the medical experts had come to the conclusion that the defendant dentist caused the applicant's injury by negligence but on the other hand they denied a causal link between the applicant's subsequent complaints and the incident of 17 March 1980. Consequently, so it is argued, a decision could have been taken after the hearing of 25 March 1986, had the applicant not herself again requested the taking of further evidence.   75.   As to the handling of the matter by the courts it is admitted that in first instance five different judges dealt with the matter consecutively and that each of them of necessity needed some time to familiarise himself with the complex matter.   The frequent change of judges is explained by the fact that the first judge retired whilst the others were allocated new responsibilities which did not allow them to continue dealing with the applicant's matter.   In 1988 the judge had to be replaced in order to expedite the proceedings. The delay between the pronouncement of the first instance judgment and its communication to the parties is explained partly by the workload of the judge and the secretariat and partly by an inadvertence on the part of the court's registry.   76.   The fact that between March 1987 and 4 February 1988 no hearing took place is also mainly explained by the judge's workload.   Delays in 1990 are mainly explained by the necessity to hear four experts at the same time.   Therefore the date of the hearing had to be fixed a long time in advance.   77.   In view of all the circumstances the Government conclude that the matter was decided within a reasonable time.   78.   The applicant first denies that the proceedings concerned a complex matter.   She blames the court's manner of dealing with the matter for the delays, pointing out that the court of appeal referred the matter back to the first instance court as it considered that not all relevant evidence had been collected.   79.   The applicant denies having delayed the proceedings by filing new requests for the taking of evidence.   She alleges that all relevant applications for the taking of evidence were submitted right at the beginning of the proceedings but that she had to repeat them again and again as the court did not deal with them.   She maintains that if the proceedings had been conducted properly and the judge dealing with the matter had not been replaced so often a first instance decision could have been given on 25 March 1986.   80.   Agreeing with the respondent Government the Commission considers that in view of the necessity of obtaining various expert opinions the case was of a certain complexity.   81.   As to the handling of the case by the parties, it is true that the conduct of civil litigation is largely dependent on their collaboration.   Nevertheless, the judicial authorities remain responsible for ensuring that the matter is dealt with expeditiously (c.f. Eur. Court H.R., Martins Moreira judgment of 26 October 1988, Series A No. 143, p. 17, para. 46).   In any event the Commission cannot find that the applicant's repeated requests for the obtaining of additional evidence were prompted by other reasons than the justified interests of defending her case in the best possible manner.   82.   As to the handling of the matter by the judicial authorities, the Government admit that certain delays were due to the frequent changes of judges.   Convincing reasons for some of these changes have not been given by the respondent Government.   To the extent that the judges in question were needed to deal with other cases, it has to be pointed out that Article 6 para. 1 (Art. 6-1) imposes on the Contracting States the duty to organise their legal systems in such a way that their courts can meet each of its requirements (cf, inter alia, Eur. Court H.R., Barbagallo judgement of 27 February 1992, Series A no. 230, p. 92, para. 18).   83.   Noting that there were periods of inactivity, such as from March 1987 until 4 February 1988 and from 18 January 1990 until 9 October 1990, which are not convincingly explained by the respondent Government, the Commission considers that, judged globally in the light of the above-mentioned criteria and the particular circumstances of the present case, the length of the proceedings in question exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.        CONCLUSION   84.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                           (A. WEITZEL)                             APPENDIX I                     HISTORY OF THE PROCEEDINGS   Date                            Item _________________________________________________________________   3 May 1991                      Introduction of the application   19 September 1991               Registration of the application   Examination of Admissibility   13 January 1992                 Decision of the Commission to                                invite the Government to submit                                observations on the admissibility                                and merits of the application   22 April 1992                   Government's observations   10 June 1992                    Applicant's observations in reply   8 January 1993                  Commission's decision declaring                                complaint on length of proceedings                                admissible   Examination of the merits   25 January 1993                 Decision on admissibility                                transmitted to the parties   11 May 1993                     Commission's consideration of                                application with a view to a 3 September 1993                friendly settlement   6 April 1994                    Commission's deliberations on the                                merits, final vote and adoption of                                the Report