CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 21 juin 2016

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AUSTRIA   (Application no. 43463/09)                 JUDGMENT     STRASBOURG   21 June 2016             This judgment is final but it may be subject to editorial revision.     In the case of Hackel v. Austria, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Krzysztof Wojtyczek, President,   Iulia Motoc,   Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 31 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 43463/09) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Gabriele Hackel (“the   applicant”), on 5 August 2009. 2.     The applicant was represented by Steiner Sokolski Rechtsanwälte OG, a law firm practising in Vienna. The Austrian Government (“the   Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.     On 4 September 2013 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1959 and lives in Vienna. 5.     The applicant was a public official working for the Vienna municipality ( Magistrat der Stadt Wien ). On 2   February 1996 the personnel office ( Personalamt ) of the Vienna municipality accepted the applicant’s resignation ( Entsagung ), and held that she was entitled to severance pay ( Abfindung ) amounting to three monthly salaries. On 18 March 1996 the same authority amended the aforementioned decision, stating that the applicant was not eligible for severance pay. 6.     The applicant appealed on 1 April 1996. On 3   September 1996 the Appeal Panel of the Vienna municipality ( Berufungssenat der Stadt Wien ) dismissed her appeal as unfounded. 7.     On 9 October 1996 the applicant lodged a complaint against the appeal decision with the Administrative Court ( Verwaltungsgerichtshof ). On 17 October 2001 the Administrative Court set aside the appeal decision of 3 September 1996 due to lack of jurisdiction of the personnel office of the Vienna municipality. 8.     On 13 June 2002 the applicant filed a request for transfer of jurisdiction ( Devolutionsantrag ), since the Appeal Panel had not rendered a fresh decision by then. However, on 7 August 2002, the Appeal Panel set aside the decision of 18 March 1996 and at the same time decided on the merits of the subject matter and stated that the applicant was not eligible for severance pay. 9.     On 19 September 2002 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). On 30   November 2004 the Constitutional Court set aside the Appeal Panel’s decision on the merits due to lack of jurisdiction of the panel with regard to the subject matter. 10.     On 1 April 2005 the Vienna Municipal Council ( Gemeinderat der Stadt Wien ) rendered a decision declaring that the applicant was not eligible for severance pay. 11.     The applicant lodged a complaint against that decision with the Constitutional Court on 17 May 2005. On 12 October 2005 the Constitutional Court declared that the applicant’s constitutionally guaranteed right to have proceedings determining her civil rights conducted within a reasonable time had been violated. However, it dismissed her request to set aside the decision of the Municipal Council and refused to deal with the remainder of the complaint. The Constitutional Court conceded that the proceedings had already had an overall duration of approximately nine years, which resulted entirely from the conduct of the authorities and courts involved. Furthermore, the subject matter of the proceedings was not particularly complex. However, setting aside the decision (preliminarily) concluding those overly long proceedings would not be capable of remedying the violation of the applicant’s rights; on the contrary, it would again delay the termination of the proceedings. 12.     On 16 December 2005 the applicant amended her complaint for the proceedings before the Administrative Court. On 13 March 2009 the Administrative Court dismissed the applicant’s complaint as unfounded. That judgment was served on the applicant’s counsel on 3 April 2009. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...” 14.     The period to be taken into consideration began on 1 April 1996, when the applicant lodged the appeal against the personnel office’s decision of 18 March 1996, and ended on 3 April 2009, when the final decision of the Administrative Court was served on her counsel. It thus lasted 13 years, during which the case came before a total of three different administrative bodies and two judicial bodies, including remittals. A.     Admissibility 15.     The Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 16.     The Government argued that, from a legal point of view, the proceedings had been complex concerning the question of which body of the Vienna Municipality was competent to decide on the matter. Furthermore, the applicant had resigned from her position of her own motion. She could and should have seen from the applicable legal provisions that she was not entitled to any severance pay. The Government conceded, however, that the applicant had not contributed to the length of the proceedings. 17.     The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 18.     The Court further notes that the proceedings in question were not particularly complex. Much rather, the domestic authorities had problems in establishing which authority was competent to decide on the matter. 19.     The Court finds that the applicant has not contributed to the length of the proceedings, but that there were major delays before the domestic authorities. Most strikingly, the applicant’s complaints were pending before the Administrative Court for five years during the first set of proceedings, and three years and three months during the third set of proceedings. Furthermore, it took the Constitutional Court more than two years to deal with the applicant’s complaint during the second set of proceedings. These delays are solely attributable to the authorities. 20.     As to the issue at stake for the applicant, the Court observes that severance pay of three months’ salary is not an insignificant amount. Whether or not the applicant could and should have been able to recognise that the applicable legal provision did not apply to her is a question of the interpretation of domestic law and therefore not for the Court to judge. 21.     Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of explaining the delays. Having regard to its case-law on the subject (see for example Otto   v. Austria, no. 12702/08, 22 October 2009, and Strobel   v.   Austria, no. 25929/05, 4   June 2009), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 22.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 23.     The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage for feelings of listlessness she had experienced because of the undue length of the proceedings. 24.     The Government contested the claim, arguing that the applicant had not suffered any considerable financial or other disadvantage as a result of the duration of the domestic proceedings, for which reason the finding of a violation would constitute in itself sufficient reparation. 25.     The Court considers that the applicant must have sustained non ‑ pecuniary damage. Taking into account the overall duration of the proceedings in question and having regard to the materials before it, the Court considers that it should award the full sum claimed. B.     Costs and expenses 26.     The applicant also claimed EUR 1,781.80 for certain costs and expenses incurred before the domestic courts and EUR 5,000 for those incurred before the Court. 27.     The Government contested these claims. 28.     According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings, as it has not been shown that they were incurred in an attempt to prevent or redress the violation found. In turn, it considers it reasonable to award the sum of EUR 1,500 for the proceedings before the Court. C.     Default interest 29.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months, the following amounts: (i)     EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 21 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Krzysztof Wojtyczek Deputy Registrar   President