CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 27783/95                       by R. T.                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs    M. HION            Mr     R. NICOLINI              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 16 May 1995 by R. T. against Austria and registered on 4 July 1995 under file No. 27783/95;        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      11 July 1997 and the observations in reply submitted by the      applicant on 28 September 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1929, is an Austrian national residing in Vienna.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        On 27 June 1988 the C-Bank filed an action for payment of AS 8,497 against the applicant on the ground that, following termination of their contractual relationship, the applicant's current account showed a debit balance in the above amount.        On 18 July 1988 the Hietzing District Court (Bezirksgericht), in summary proceedings, issued an order for payment of the above debt (Zahlungsbefehl) against the applicant. The applicant, represented by Mr K., filed an objection (Einspruch) which the District Court received on 5 August 1988.        On 15 November 1988 judge D. at the District Court held a hearing.        On 30 November 1988 the District Court received notice that Mr K. no longer represented the applicant. On 2 February 1989 a hearing which had been scheduled for 9 February 1989 was cancelled. The Government submit that this was due to the fact that the applicant's representative had withdrawn from the case, while the applicant submits that the court was prevented from holding the hearing. Subsequently, 22 December 1989 was set as a date for the next hearing.        On 13 December 1989 the applicant, represented by Mrs O., filed a counterclaim (Widerklage) requesting compensation of a total amount of AS 89,543 for loss of interest which had allegedly been caused by negligent conduct of the bank. He submitted in particular that he had acted as representative for a certain E., who had taken a loan with the C-Bank, for which he had mortgaged his property. To avoid the forced sale of the said property he, the applicant, had taken a loan with the S-Bank, part of which he used to cover E.'s debt. The C-Bank, however, had informed him that a permit of the Austrian National Bank (Nationalbank) was necessary for the transfer. The sum had meanwhile been deposited in a fiduciary account of a lawyer, who had assigned his rights as regards interest to the applicant. The applicant alleged that the C-Bank had failed to request the permit speedily thereby causing the interest on E.'s debt to increase, which then had to be covered by the interest accrued on the fiduciary account. Further, he requested a declaratory decision to the effect that a guarantee he had given to the C-Bank in relation to E.'s debt was null and void.        On 21 December 1989, the bank filed preparatory submissions (vorbereitender Schriftsatz) in reply. It denied in particular that there was a link between the two claims at issue.        On 22 December 1989 judge G. at the District Court held a hearing.        On 30 March, 24 April and 25 June 1990 judge P. at the District Court held hearings. The parties presented documentary evidence and the court heard N. and W., two employees of the C-Bank and K., the lawyer involved in the case, as witnesses. At the last of these hearings the Court decided to join the proceedings concerning the bank's claim and the applicant's counterclaim. It also noted that the C-Bank had extended their claim, requesting additional payment of AS 14,180 for which the applicant was allegedly liable on account of his guarantee for the debt of E.        On 29 June 1990 the District Court decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and E., which was pending before the Vienna Regional Civil Court (Landesgericht), became final. The applicant filed a request for reinstatement and an appeal against the above decision. His request for reinstatement was granted.        On 16 October 1990 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision to adjourn on the ground that, according to the relevant procedural rules, it had to be taken in the course of an oral hearing.        On 16 January 1991 Mrs O. informed the District Court that she no longer represented the applicant. The applicant was subsequently represented by Mr R.        On 11 April 1991 and 10 October 1991 judge Ed. at the District Court held further hearings. The applicant was heard as a party and W. was again heard as a witness. At the latter hearing the Court again decided to adjourn the proceedings until the judgment of the Vienna Regional Civil Court in the proceedings between the applicant and E. became final.        On 4 February 1992 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision and ordered the District Court to continue the proceedings. It found that the District Court had wrongly assumed that the proceedings between the applicant and E. would resolve an incidental question (Vorfrage). The District Court received the Regional Court's decision on 10 March 1992.        On 1 September 1992 the applicant extended his counterclaim to a total amount of AS 213,440.        On 6 October 1992 judge Ed. at the District Court, upon the claimant's request, adjourned a hearing which had been scheduled for 15 October 1992 to 26 January 1993.        On 2 November 1992 the applicant informed the District Court that he had revoked Mr R.'s power of attorney.        On 18 January 1993 judge Ed. made a request to be replaced as she considered herself to be biased   on account of accusations which the applicant had made against her. On the same day the President of the District Court granted her request and assigned the case to judge A. A hearing which had been scheduled for 26 January 1993 was cancelled. The applicant was at that time represented by Mrs W.        On 23 February 1993 the District Court received notice that Mrs W. no longer represented the applicant.        The next hearing was scheduled for 21 June 1993 but had to postponed to 12 July 1993 upon the claimant's request.        On 17 June 1993 the applicant requested legal aid. Upon the District Court's request he supplemented it on 1 July 1993.        On 5 July 1993 the District Court dismissed the applicant's request for legal aid.        On 9 July 1993 Mr H., who had been appointed as the applicant's representative by the Lawyer's Chamber under S. 10 para. 3 of the Lawyer's Act (Rechtsanwaltsordnung), (applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him), requested that the hearing scheduled for 12 July 1993 be postponed. The applicant claims that he had only requested the appointment of counsel for this specific request, while the Lawyer's Chamber appointed Mr H. to represent him in the further proceedings.        On 16 November 1993 the District Court upon the request of Mr H. postponed the next hearing which had been scheduled for 3 December 1993 to 21 January 1994.        On 18 January 1994 the Mr H requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant. The District Court dismissed the request. The applicant submits that he was unaware that Mr H. acted as his counsel and that the latter had tried to contact him at a wrong address. He further claims that the summons to appear personally at the hearing of 21 January 1994 was not correctly served on him.        On 21 January 1994 judge A. at the District Court held a further hearing and admitted the extension of the applicant's counterclaim.        On 25 February 1994 the District Court received notice that Mr H. no longer represented the applicant.        On 8 April 1994 the applicant requested legal aid. He submitted a declaration of means (Vermögensbekenntnis). In Section II "Housing conditions", (Wohnverhältnisse) he stated that he had to pay a monthly rent of AS 1,234 for his apartment. In Section III "Income" (Einkommen), he stated that he had no income. According to Section IV "Assets" (Vermögen) he had no property, no business, AS 347 in cash, no savings accounts, a current account with a debit balance, and no other assets. According to Section V "Debts" (Schulden) he had debts with the S-Bank of AS 850,000 and AS 495,000 with the Sch. limited company. Finally, under Section VI "Maintenance" he declared that he did not have any maintenance obligations or claims. The standard form for this declaration contained a warning that, in case legal aid was obtained improperly by making false or incomplete statements, a fine for abuse of process (Mutwillensstrafe) could be imposed.        In his accompanying submissions the applicant stated inter alia that until September 1993 he had received AS 15,000 per month from the Sch. limited company. As of 1 October 1993 he was without income and was moreover obliged to pay back any payments he had received from the said company. His old-age pension was only due as of 1 September 1994. Further the applicant stated that he had no relatives and received support from a few acquaintances.        On 11 April 1994 judge Er. at the District Court ordered the applicant to provide further information. He was requested, inter alia, to submit the names and addresses of the persons supporting him, and to specify the amounts, intervals and means of their payments. Further, the applicant was requested to submit a number of supporting documents.        On 15 April 1994 the applicant submitted inter alia that he received AS 200 per week from a certain Mrs F. He also submitted a number of documents.        On 18 April 1994 the District Court cancelled the date for the next hearing which had been set for 22 April 1994. It noted that, in the proceedings at issue, the parties were obliged to be represented by a lawyer (Anwaltszwang). As the applicant had requested legal aid and was currently not represented the hearing could not take place.        On 5 May 1994 the District Court dismissed the applicant's request for legal aid and imposed a fine of AS 30,000 for abuse of process   on him. Referring to the applicant's declaration of means and his further submissions, it found that the applicant had made incomplete or false statements. In particular he had declared that he was without income since 1 October 1993 and only received AS 200 per week. However, the documents submitted by him showed that he had paid his rent of AS 1,234 from October 1993 to January 1994. As the payments received per month did not amount to this sum, it did not follow from his submissions how he had been able to pay his rent. Finally, the Court noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted to improperly obtain legal aid.        On 8 May 1994 the applicant appealed against this decision.        On 28 February 1995 the Vienna Regional Civil Court dismissed the applicant's appeal. It referred to S. 63 para. 1 of the Code of Civil Procedure (Zivilprozeßordnung), according to which legal aid had to be granted to a party whose necessary means of livelihood would be endangered if he or she had to bear the costs of the proceedings. According to S. 66 para. 2 of the said Code the party's declaration of means formed the basis for the court's decision. In case of doubt the court had to examine the said declaration for instance by requesting the party for further information and supporting documents.        In the present case, the District Court had rightly rejected the applicant's request for legal aid. The applicant's submissions that he had savings which allowed him to pay his rent from October 1993 onwards, constituted new facts, which were inadmissible in the appeal proceedings. In his request for legal aid he had stated that he had received no income since 1 October 1993 and depended on the support of acquaintances. Upon the Court's request to supplement his submissions, the applicant had specified that he received AS 200 per week as support. He had not however, stated that he had any savings to cover his maintenance. The District Court had rightly concluded that he had made incomplete or false statements and had, thus, failed to show that the costs of the proceedings would endanger his means of livelihood. It had also correctly imposed a fine for abuse of process in accordance with S. 69 of the Code of Civil Procedure.        On 28 March 1995 the District Court issued an order for payment of the fine for abuse of process.        On 16 August 1995 the District Court, referring to S. 220 para. 3 of the Code of Civil Procedure, noted that an attempt to collect the fine had been futile and converted the fine into ten days of imprisonment. The applicant was informed that he could lodge an appeal against this decision. It appears that the applicant did not appeal.        On 11 October 1996 judge Z. at the District Court set 30 October 1996 as a date for the next hearing. In the summons the applicant was informed that he had to be represented by counsel at the hearing. Should he not be represented he would be considered as being in default. Upon the claimant's request the hearing was postponed to 2 December 1996.        On 2 December 1996 neither of the parties appeared at the hearing. Consequently, the proceedings were stayed (Ruhen des Verfahrens). So far, none of the parties has requested their continuation.   B.    Relevant domestic law        S. 220 of the Code of Civil Procedure   (Zivilprozeßordnung) provides inter alia that a fine for abuse of process may not exceed AS 40,000 (paragraph 1). In the event of inability to pay, a fine shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days (paragraph 3).        S. 69 of the Code of Civil Procedure provides that a court shall impose a fine for abuse of process of up to ten times the amount provided for in S. 220 para. 1 of the same Code (namely AS 400,000) on a litigant who obtains legal aid improperly by making false or incomplete statements.        According to S. 514 of the Code of Civil Procedure an appeal (Rekurs) lies against any decision of a court, unless it is explicitly excluded.     COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings between him and the C-Bank.   2.    The applicant complains under Article 6 para. 3 (a) and (b) of the Convention that the District Court, before imposing the fine for abuse of process on him, did not inform him of its suspicion that he had made false or incomplete statements in his request for legal aid and that he could, therefore, not duly defend himself.   3.    The applicant further complains under Article 6 para. 1 of the Convention that the District Court denied him legal aid and imposed a fine for abuse of process on him. He alleges that he is, thus, prevented from pursuing his claim, as he is required to be represented by counsel in the proceedings at issue. The applicant also complains under Article 14 of the Convention that he has been discriminated against on account of his lack of funds.   4.    Finally, the applicant complains under Article 1 of Protocol No. 1 that the imposition of a fine for abuse of process violated his right to property.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 16 May 1995 and registered on 4 July 1995.        On 10 April 1997 the Commission decided to communicate the applicant's complaint concerning the length of civil proceedings between him and a bank, his complaint concerning the issue of access to court in these proceedings and his complaint about a lack of defence rights in the proceedings leading to the imposition of a fine for abuse of process to the respondent Government.        The Government's written observations were submitted on 11 July 1997 after an extension of the time-limit fixed for that purpose.   The applicant replied on 28 September 1997.     THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the proceedings between him and the C- Bank.        Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair ... hearing within a reasonable      time by [a] ... tribunal ... "        The Government submit that the duration of the proceedings, which lasted from 27 June 1988 until 2 December 1996, has to be regarded as reasonable in the circumstances of the case. They argue that the proceedings were complex, as they involved the bank's claim and the applicant's counterclaim, relating to events which had taken place a long time ago and necessitating extensive taking of evidence. Moreover, the Government submit that the applicant did not take any steps to expedite the proceedings but, on the contrary, caused substantial delays in particular in that he frequently changed his representative, and in the case of Mr H. also failed to inform him of the background of the case, requested several times that hearings be postponed, extended his counterclaim and submitted evidence belatedly. Finally, the applicant displayed a lack of interest in the proceedings in that he failed to appear at the hearing of 2 December 1996. As the claimant equally failed to appear, the proceedings were stayed.        The applicant contests the Government's view. He submits in particular that the change of his representatives did not cause any substantial delays. Further, he claims that Mr H.'s lack of information was due to the latter's failure to contact him. Finally, the applicant argues that the court failed to set a date for a hearing between 22 April 1994 and 30 October 1996.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.   2.    The applicant complains under Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b) of the Convention that the District Court, before imposing the fine for abuse of process on him, did not inform him of its suspicion that he had made false or incomplete statements in his request for legal aid and that he could, therefore, not duly defend himself.      Article 6 (Art. 6), so far as relevant, reads as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ... by [a] ...      tribunal ...        ...        3.     Everyone charged with a criminal offence has the following      minimum rights:              a.     to be informed promptly, in a language which he      understands and in detail, of the nature and cause of the      accusation against him;              b.     to have adequate time and facilities for the      preparation of his defence;"        The Government submit that the proceedings relating to the imposition of a fine for abuse of process do not involve the determination of a "criminal charge" within the meaning of Article 6 (Art. 6). Referring to the case-law of the Convention organs, they argue that the offence laid down in S. 69 of the Code of Civil Procedure does not belong to the criminal sphere under Austrian law. Moreover, it only applies to a limited circle of people. As to the nature and severity of the sanction at stake, the Government argue that although the   maximum penalty provided for in S. 69 in conjunction with S. 220 para. 1 of the Code of Civil Procedure may be up to a maximum of AS 400,000, only a penalty of AS 30,000 was imposed and the prison sentence in case of default may, in any event, not exceed ten days. Moreover, the applicant could have lodged an appeal against the conversion of the fine into a term of imprisonment. Further, the Government argue that, even assuming that Article 6 (Art. 6) applies, the applicant's defence rights were not unduly curtailed.        The applicant has not made any submissions on these issues.        The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and fact under the Convention, including the question of the applicability of Article 6 (Art. 6) of the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.   3.    The applicant further complains under Article 6 para. 1 (Art. 6-1) of the Convention that the District Court denied him legal aid and imposed a fine for abuse of process on him. He alleges that he is, thus, prevented from pursuing his claim, as he is required to be represented by counsel in the proceedings at issue. The applicant also complains under Article 14 (Art. 14) of the Convention that he has been discriminated against on account of his lack of funds.   a.    The Commission will first examine the applicant's complaint under Article 6 para. 1 (Art. 6-1), concerning the alleged lack of access to court.        The Government, referring to the case-law of the Convention organs, submit that the very essence of the applicant's right to access to court has not been curtailed by the refusal to grant him legal aid. They point out in particular that legal aid is only to be awarded to litigants who are economically unable to cover the costs of the proceedings. The applicant, however, tried to obtain legal aid in an illicit manner in that he made false or incomplete statements in the legal aid application form. Thus, the refusal of his request for legal aid was in the interest of proper administration of justice.        The applicant contests the Government's view. He submits that living on social security benefits since June 1994 and on a minimum pension since December 1996 he is unable to bear the costs of the proceedings.        The Commission notes that the proceedings are not yet terminated, but have been stayed as both parties failed to appear at the hearing of 2 December 1996. Thus, the question may arise whether the applicant's complaint is not premature. However, the Commission does not have to resolve this question, as the applicant's complaint is, in any event, inadmissible for the following reasons.        The Commission recalls that Article 6 para. 1 (Art. 6-1) secures to everyone the right of access to court. This right may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aims sought to be achieved (see Eur. Court HR, Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, para. 65 with further references).        The present case concerns civil proceedings in which the parties were obliged to be legally represented, while legal aid was available to indigent litigants. The applicant was first represented by various counsel of his own choosing, but applied for legal aid in the course of the proceedings. Following a first unsuccessful request, the applicant made a new request in April 1994. However, after having ordered him to supplement his declaration of means in order to clarify some inconsistencies, the District Court refused his request and imposed a fine of AS 30,000 for abuse of process on him. The Regional Court, upon the applicant's appeal, confirmed this decision, finding that the applicant had made false or incomplete statements and had failed to show that he was unable to bear the costs of the proceedings.        The Commission will examine whether the refusal of legal aid combined with the imposition of a fine for abuse of process unduly restricted the applicant's right of access to court. The Commission notes that the competent courts found that the applicant's statements were false or incomplete and that he had failed to show that he was unable to bear the costs of the proceedings. There is nothing to indicate that the refusal of legal aid was arbitrary. As regards the fine imposed, the Commission finds that it was not of an amount which would as such impair the applicant's access to court. Moreover, it served a legitimate aim, namely to ensure that limited legal aid funds are only given to litigants who have submitted their declaration of means accurately and completely and have shown that they are indigent. Moreover, the fine was only imposed after thorough examination of the case and was subject to review by a higher court. Thus, it does not appear to be disproportionate to the legitimate aim pursued.        In these circumstances, the Commission finds that the applicant's right of access to court was not limited in a way which was incompatible with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   b.    The Commission has further examined the applicant's complaint under Article 14 taken together with Article 6 (Art. 14+6). Having regard to its above considerations, the Commission finds that there is no indication that the applicant was denied legal aid without any objective or reasonable justification (cf. No. 23419/94, Dec. 6.9.95, D.R. 82, p. 41). Therefore, there is no appearance of a violation of Article 14 in combination with Article 6 (Art. 14+6) of the Convention.        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.   4.    Finally, the applicant complains under Article 1 of Protocol No. 1 (P1-1) that the imposition of a fine for abuse of process violated his right to property.        Article 1 of Protocol No. 1 (P1-1) reads as follows:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law.        The preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."        The Commission finds that the measure complained of constituted an interference with the applicant's right to the peaceful enjoyment of his possessions. However, the fine at issue is a "penalty" within the meaning of the second paragraph of this Article which can reasonably be regarded as necessary.        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.        For these reasons, the Commission,        by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint about the length of the proceedings between      him and a bank and his complaint that the District Court, before      imposing the fine for abuse of process on him, did not inform him      of its suspicion that he had made false or incomplete statements      in his request for legal aid and that he could not duly defend      himself;        unanimously,        DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                                M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber