CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 1996

.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. 19743/92                       by Herbert HRDLICKA                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 16 October 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              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 25 November 1991 by Herbert HRDLICKA against Austria and registered on 23 March 1992 under file No. 19743/92;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      1 July 1994 and the observations in reply submitted by the      applicant on 22 August 1994;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, an Austrian citizen born in 1939, resides in Vienna.   Before the Commission the applicant is represented by Mr. A. Laimer, a lawyer practising in Vienna.   The facts of the case, as they have been submitted by the parties, may be summarised as follows.        On 21 July 1976 the applicant was seriously injured in a traffic accident.   On 16 July 1979 he lodged an action with the Vienna Regional Court (Landesgericht).   He claimed compensation from the car driver involved in the accident (who had been earlier found criminally responsible for the injuries the applicant had suffered) and from her insurance company.        On 16 October 1979 the applicant extended his claim.   The Vienna Regional Court held hearings on 19 October 1979, on 7 November 1979, on 18 March and on 23 May 1980 in the course of which it inspected the place of the accident, heard witnesses and took expert evidence.        On 2 June 1980 the applicant extended his claim.   Further hearings were held on 10 September and on 4 November 1980.   After a supplementary opinion by a photogrammetric expert had been submitted, the next hearing was scheduled for 12 November 1981.   However, the proceedings had to be suspended due to the parties' failure to appear.        The applicant requested twice that the proceedings be resumed. On 3 May 1982 a further technical expert opinion was submitted and the court granted the defendants' request for medical expert evidence.   It was submitted on 13 July 1982.        On 11 October 1982 the Vienna Regional Court decided to obtain supplementary medical expert evidence.   A further hearing was held on 27 May 1983.        On 18 May 1984, after supplementary medical expert evidence had been submitted, the applicant extended his claim.   The court requested a neurological expert opinion.   After three experts had refused to prepare the opinion, it was finally submitted on 14 May 1985.        On 7 October 1985 a hearing was adjourned at the applicant's request.        On 13 January 1986 the applicant extended his claim.   As the case had been taken over by another judge, it was decided to start the trial anew pursuant to Section 412 of the Code of Civil Procedure. Consequently, the contents of the file were read out.   A medical expert was requested to submit a supplementary opinion on the question of the necessity of certain treatments undergone by the applicant.        Further hearings were held on 17 April, on 30 July and on 24 November 1986.   At each of these hearings the applicant extended his claim.   An expert was ordered to prepare an opinion on various medical costs.   It was submitted on 20 August 1987.        On 8 January 1988 a new judge took over the case.   Another technical expert opinion was requested.   On 5 February 1988 the applicant requested that the time limit for submitting his pleading should be extended.   He submitted the pleading on 16 March 1988.        On 19 April 1988 the court decided to take evidence by inspection on the spot.        On 19 July 1988 the parties reached a friendly settlement.   It was denounced by the applicant on 20 October 1988.        On 29 June 1989 a hearing was held on the spot.   Further hearings in court were held on 10 and on 31 October 1989.   In the course of the latter hearing a technical expert submitted his opinion and the court decided to obtain further evidence.        On 5 December 1991, after a change of judges, the court heard a witness and adjourned the case as a further witness had failed to appear.   The Vienna Regional Court held further hearings on 17 January and on 11 February 1992, and on 26 June 1992 it delivered a judgment by which it dismissed the applicant's claim.   It found that the claim had become statute-barred due to a mistake made by the lawyer by whom the applicant was then represented.        On 16 September 1992 the applicant lodged an appeal.   It was dismissed by the Vienna Court of Appeal (Oberlandesgericht) on 13 May 1993.   COMPLAINT        The applicant complains of the length of the proceedings concerning his claim for damages and alleges a violation of Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 25 November 1991 and registered on 23 March 1992.        On 11 January 1994 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 1 July 1994, after two extensions of the time-limit fixed for that purpose.   The applicant replied on 22 August 1994.   THE LAW        The applicant complains about the length of the proceedings concerning his claim for damages.   He alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention which reads, so far as relevant, as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing within a      reasonable time by an independent and impartial tribunal      established by law.      ..."        The Government submit that the case at issue was complex because of difficulties in both establishing the basis of the applicant's claim and its assessment which required obtaining a number of expert opinions.   They admit that after the applicant had denounced a friendly settlement, there were delays in the proceedings which amounted to some 3 years and were due, in particular, to changes of judges.          The Government contend, however, that the length of the proceedings is due mainly to the applicant's conduct.   In particular, they point out that as the applicant modified his claim repeatedly, it was necessary to obtain additional expert opinions.   Further delays were caused, in the Government's view, by suspension of the proceedings following the parties' failure to appear, by the applicant's requests for adjournment of the proceedings, for extension of time limits and by his decision to denounce a friendly settlement.        The applicant submits that the case cannot be regarded as complex as his claim was based on a criminal court's finding that one of the defendants was criminally responsible for the accident in which he had been injured.   He contends that the first instance court could have envisaged that opinions of different experts would be necessary in order to assess his claim, and that it could have requested such opinions at the very beginning of the proceedings.        The applicant further submits that the proceedings before the first instance court could have ended at the hearing which was scheduled for 24 November 1987.   In his view, the changes of judges and starting the proceedings anew resulted in undue delays.        The applicant points out, in particular, that the Vienna Regional Court held a hearing only eight months after he had denounced a friendly settlement, and that it remained inactive for two years following the hearing of 31 October 1989.   He concludes that the delays in determining his claim are imputable preponderantly to insufficient organisation of the courts and to the way in which the proceedings were conducted.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to the parties' observations, that the issue to be decided raises questions of fact and law which can only by determined after an examination of the merits.   It follows that the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber