CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 22189/93                       by A.L.                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 31 August 1994, 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                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              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 3 May 1993 by A.L. against Austria and registered on 12 July 1993 under file No. 22189/93;         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 1926.   He lives in Graz and is represented before the Commission by Mr. M. Drexler, lawyer, of Vienna.         On 26 April 1988 the applicant introduced with the Graz Regional Court (Landesgericht) a document entitled a "writ" (Klage).   He requested that the defendant's title to a parcel of land should be deleted, and that the defendant should be required to put the land in its former state.   It also included an application for legal aid.   The "writ" was not signed by a lawyer, as required by the relevant rules, and was treated as an application for legal aid.   On 11 May 1988 the Regional Court considered the history of the disputes between the applicant and the defendant, and considered that, if the claim was not to be regarded as vexatious (mutwillig), it had no prospects of success.   The decision is dated 19 May 1988.   The application for legal aid was refused.         The applicant appealed against the refusal of legal aid to the Graz Court of Appeal (Oberlandesgericht) which, on 6 July 1988, refused it.   The Court of Appeal pointed out that the property had once belonged to the applicant, but had been sold at auction to the defendant's father, and was now lawfully owned by the defendant.   It also recalled that, according to Article 63 para. 1 of the Code of Civil Procedure (Zivilprozessordnung), legal aid was not to be granted for proceedings which appeared to have no prospects of success.   The Court of Appeal also pointed out that the fact that the "writ" should have been signed was a procedural error which could be rectified, and of which the first instance court would have to inform the applicant.         On 1 August 1988 the Graz Regional Court gave the applicant a time-limit of three weeks to have a lawyer sign the "writ" if he wished the proceedings to continue.         On 1 September 1988 the Regional Court rejected the applicant's "appeal" (Rekurs) which he had made on 30 August 1988, and which again had not been signed by a lawyer, as it could not be regarded as a writ and the question of legal aid had already been decided.   The applicant's appeal to the Graz Court of Appeal in this respect was rejected on 3 November 1988.         On 8 March and 6 April 1989 the Regional Court granted extensions of three weeks for the signature of the writ by a lawyer.   The applicant's appeal to the Graz Court of Appeal was dismissed on 30 May 1989.         On 20 November 1989 and 15 January 1990 the applicant's representative requested extensions of time for signing the "writ". The Regional Court on 18 January 1990 granted the extension and refused other applications the lawyer had made.   The writ was eventually duly served on 3 April 1990.   The Court made a note of the proceedings in the Land Register on 11 June 1990.         On 30 July 1990 the Regional Court rejected the application for legal aid on the ground that the position had not changed merely because the applicant now had a lawyer.   The applicant's appeal of 6 August 1990 was rejected on 12 October 1990.   The Court of Appeal added that a further appeal was not admissible (der Revisionsrekurs ... [ist] jedenfalls unzulässig).   On 20 November 1990 the judge, who had been responsible for the case since 26 October 1990, was replaced as he had informed the court that he was not impartial.         On the merits of the case, the Regional Court found against the applicant on 8 February 1991.   The Court declined to take any evidence beyond looking at the court files relating to the history of the case and referring to the Court of Appeal's decision of 12 October 1990, and found it unnecessary to make further comments as to the facts.   The Court did not make an order penalising the applicant for a vexatious action as only the Supreme Court (Oberster Gerichtshof) had that power. The Court of Appeal rejected the applicant's appeal on 10 June 1991. It added that as no important questions of law within the meaning of Article 502 para. 1 of the Code of Civil Procedure were involved, a further appeal (ordentliche Revision) did not lie.   The applicant's extraordinary further appeal (ausserordentliche Revision) of 6 March 1992 was rejected by the Supreme Court on 1 September 1992 on the ground that the requirements of Article 502 para. 1 of the Code of Civil Procedure had not been complied with.   COMPLAINTS         The applicant alleges a violation of Article 6 para. 1 of the Convention in two respects.         First, he alleges that the refusal to hear witnesses, but rather to rely on the Court records and the outcome of the legal aid application was not "fair" within the meaning of Article 6 of the Convention.         Secondly, he alleges that the proceedings exceeded the "reasonable time" requirement of Article 6 para. 1 of the Convention.   THE LAW   1.     The applicant alleges a violation of Article 6 (Art. 6) of the Convention in that the court which decided the merits of his case did not call any witnesses, but relied on earlier court files and the outcome of a legal aid application in the case itself.   Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows.         "In the determination of his civil rights and obligations ...,       everyone is entitled to a fair ... hearing within a reasonable       time..."         The Commission first notes that it is unclear whether, given the statement of the Graz Court of Appeal that a further appeal was not possible because the conditions of Article 502 para. 1 were not met, and the Supreme Court's rejection of the applicant's extraordinary further appeal for the same reason, the applicant has complied with the six months time limit set out in Article 26 (Art. 26) of the Convention.    However, the Commission is not required to determine this question, as even if the applicant has compiled with the time-limit, the application is in any event inadmissible for the following reasons.         With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see e.g. No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).         To the extent that the fairness of the proceedings is at issue, the Commission recalls that it is for domestic courts in the first place to determine the quality and quantity of evidence they need to decide a case (cf. Eur. Court H.R., H. v. France judgment of 24 October 1989, Series A no. 162, p. 23, para. 61).   Moreover, States are permitted to regulate the access to court of persons suffering from a disability provided the essence of the right of access to court is respected, and this reasoning applies mutatis mutandis to other limitations on access to court (cf. Fayed et al. v. the United Kingdom, Comm. Rep. 7.4.93, pending before the European Court of Human Rights, para. 66 et seq.).         The Commission notes that the applicant was refused legal aid on 19 May 1988 on the ground that he had no prospect of success, given that he was in fact trying to upset an judgment against him.   The court which eventually decided the merits of the case agreed with this finding, and also consulted the case-file of the earlier proceedings. In these circumstances, the Commission finds no indication that the refusal to call further witnesses was in any way unreasonable or unfair.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also alleges that the proceedings exceeded the "reasonable time" requirement of Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission notes that the applicant first introduced his "writ" in person on 26 April 1988, but that his representative only signed it - a requirement of Austrian law -   3 April 1990.   The final decision, assuming the application to comply with the six months rule in Article 26 (Art. 26) of the Convention, is the decision of the Supreme Court of 1 September 1992.   The proceedings thus lasted, at the very longest, almost four and half years.         Having regard to the criteria established by the Convention organs in determining the reasonableness of the length of proceedings (complexity of the case, behaviour of the applicant and his lawyer, and the conduct of the judicial bodies), the Commission finds that the judicial bodies dealt with the applicant's case patiently and with expedition, that there are no unseemly gaps in the proceedings, and that the length of the proceedings was almost entirely due to the applicant's own behaviour.   Whilst the case as presented by the applicant was particularly complex, as it was an attempt by the applicant to have re-determined old actions, the judicial authorities concentrated properly on the relevant matters.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)