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You are here: BAILII >> Databases >> European Court of Human Rights >> LECHNER AND HESS v. AUSTRIA - 9316/81 [1987] ECHR 7 (23 April 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/7.html
Cite as: (1987) 9 EHRR 490, [1987] ECHR 7
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In the case of Lechner and Hess*,
_______________
* Note by the Registrar: The case is numbered 11/1985/97/145. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. R. Ryssdal, President,
Mr. Thór Vilhjálmsson,
Mr. F. Matscher,
Mr. L.-E. Pettiti,
Mr. C. Russo,
Mr. J. Gersing,
Mr. A. Spielmann,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 October 1986 and on 25 March 1987,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The present case was brought before the Court on
17 October 1985 by the European Commission of Human Rights
("the Commission"), within the three-month period laid down in
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.
The case originated in an application (no. 9316/81) against the
Republic of Austria lodged with the Commission on 18 February 1981
under Article 25 (art. 25) by three Austrian citizens, Siegfried and
Rosalia Lechner (husband and wife) and Mrs. Rosalia Hess, the wife's
mother.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the Austrian declaration recognising the compulsory
jurisdiction of the Court (Article 46) (art. 46). Its purpose is to
obtain a decision as to whether or not the facts of the case disclose
a breach by the respondent State of its obligations under
Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent them (Rule 30).
3. The Chamber of seven judges to be constituted included ex
officio Mr. F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43) and Mr. R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 25 October 1985, in the
presence of the Registrar, the President of the Court drew by lot the
names of the other five members, namely Mr. W. Ganshof van der
Meersch, Mr. Thór Vilhjálmsson, Mr. L.-E. Pettiti, Mr. J. Gersing and
Mr. A. Spielmann (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently, Mr. C. Russo, substitute judge,
replaced Mr. Ganshof van der Meersch, whose term of office had expired
(Rule 22 para. 1).
4. Mr. Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Deputy Registrar, consulted the Agent
of the Austrian Government ("the Government"), the Commission's
Delegate and the applicants' lawyer on the need for a written
procedure (Rule 37 para. 1). On 20 January 1986, he decided that the said
lawyer should have until 14 March to file a memorial, to which the
Delegate should be entitled to reply in writing within two months of
the day on which the Registrar forwarded it to him.
The applicants' memorial reached the registry on 21 March; it included
a request for leave to use German in both the written and the oral
proceedings; the President granted leave on the same day.
On 18 April, the Secretary to the Commission informed the Registrar
that the Commission's Delegate did not think it necessary to submit
any observations at that stage.
On 21 April, the President granted the applicants legal aid, for which
they had applied in their memorial.
5. Having consulted - through the Deputy Registrar - the Agent of
the Government, the Commission's Delegate and the applicants' lawyer
(Rule 38), the President directed that the hearing should take place
on 21 October 1986.
6. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mr. H. Türk, Legal Adviser, Ministry of Foreign Affairs, Agent,
Mr. N. Okresek, Federal Chancellery,
Mr. P. Reindl, Ministry of Justice, Advisers;
- for the Commission
Mr. A. Weitzel, Delegate;
- for the applicants
Mr. H. Gussenbauer, Rechtsanwalt, Counsel,
Mr. S. Lechner,
Mrs. R. Lechner, Applicants.
The Court heard addresses by Mr. Türk and Mr. Reindl for the
Government, by Mr. Weitzel for the Commission and by Mr. Gussenbauer
for the applicants as well as their replies to its questions.
7. On various dates between 1 October 1986 and 4 March 1987, the
Registrar received:
- from the Commission, a number of documents either at the President's
request or of its own accord;
- from the applicants, further particulars of their claims for just
satisfaction in respect of costs and expenses;
- from the Commission's Delegate and subsequently the Agent of the
Government, comments on the said claims;
- the applicants' replies to these comments.
AS TO THE FACTS
8. The applicants, a married couple, Siegfried and
Rosalia Lechner, and Mrs. Lechner's mother, Mrs. Rosalia Hess, are
Austrian citizens who were born in 1935, 1939 and 1910 respectively
and live in Vienna.
A. Background
9. On 7 August 1970, the applicants purchased a house in Vienna
from Mr. and Mrs. Josef Mayer. In order to pay the price of
650,000 Austrian schillings, they had to sell a house and a flat they
owned.
Mr. and Mrs. Mayer were involved in divorce proceedings at the time
the contract was concluded; Mrs. Mayer's lawyer, Mr. Weiser, played an
active part in their negotiations with the applicants and represented
the vendors in all the subsequent proceedings. The applicants, on the
other hand, frequently changed their lawyers.
10. The applicants moved into the house on 9 September 1970. A
few weeks later, however, Mr. Mayer informed them that the planning
department (Baubehörde) had not given him permission for the house to
be occupied (Benützungsbewilligung) but that this was a pure
formality.
The applicants approached the said department in order to obtain the
necessary permission, but without success because the house had
several defects. On 20 March 1972, the department did however issue
them with a permit to occupy the house except for the garage and the
veranda above it; the first floor and the attic were not included in
the list of rooms they could use.
On 5 April 1972, the applicants appealed to the Vienna City
authorities against this decision and requested a permit that would be
valid for the whole of the building, although they also mentioned a
number of structural defects.
After the applicants had announced, more than six months later, that
they intended to appeal to the Administrative Court
(Verwaltungsgerichtshof) against the planning department's failure to
act, the existing permit was withdrawn by the City authorities for
technical reasons (on 3 July 1973); this was tantamount to prohibiting
them from occupying the house either in whole or in part.
They continued to live there, however, until October 1978 (see
paragraph 31 below).
B. Proceedings from which the present case arose
1. Civil action against the vendors
11. On 15 May 1972, the applicants brought an action against the
vendors in the Vienna Regional Civil Court (Landesgericht für
Zivilsachen) claiming rescission of the contract of sale, repayment of
the purchase price and simultaneous return of the property to the
vendors, plus compensation. They argued that they had been
deliberately misled by the vendors as regards the fact that permission
had not been granted for the house to be occupied. They gave further
particulars of their claims on 28 March 1973. Earlier, the Regional
Civil Court had held several hearings, and had taken evidence, notably
in the form of testimony; it had also on 7 September 1972 and on
several subsequent occasions asked the planning department to produce
the file on the building in issue, but in vain. Eventually, officials
from the planning department were examined on 14 December 1972 and 28
March 1973. It emerged that the documents in question were in their
possession, but neither the Regional Civil Court nor the parties
gained access to them.
12. The Regional Civil Court dismissed the applicants' claims on
1 June 1973. They might indeed have had reason to believe that a permit
to occupy the house had been issued, as the vendors had lived in it
for a long time, but the planning department had inspected the house
before the vendors left it and had found that there were a number of
defects. The applicants had failed to remedy these after the contract
of sale had been concluded, and it was therefore their own fault that
the permit had been refused. Furthermore, there was no evidence of
any misrepresentation to their detriment.
On 21 November 1973, the Vienna Court of Appeal (Oberlandesgericht)
set aside this judgment on an appeal lodged by the applicants
on 31 August 1973, and remitted the case to the Regional Civil Court,
which received the Court of Appeal's judgment on 20 December 1973.
13. On 5 February 1974, the applicants challenged the judge
hearing the case, alleging bias and that he had behaved arbitrarily
with regard to the substantive issues in the case. The Regional Civil
Court dismissed the challenge on 14 March 1974.
Hearings were held on 16 April and 19 June 1974, and at the second of
these the applicants amended their pleadings by requesting the court
to order, additionally, that the vendors should put at their disposal
a house that was similar but built in conformity with the existing
regulations.
14. A further hearing took place on 5 December 1974, which the
applicants' lawyer had unsuccessfully tried to have set down for an
earlier date. In accordance with a common practice in the Austrian
courts, and at the vendors' request, the Regional Civil Court
adjourned the proceedings until the criminal proceedings which the
purchasers had meanwhile taken against them for fraud were concluded
(see paragraph 20 below).
This decision was served on the applicants on 27 January 1975, and on
6 February they appealed against it to the Vienna Court of Appeal and
requested that the civil proceedings should be resumed. On 1 July,
they complained to the President of the Court of Appeal about the fact
that it had not yet given its decision.
The Court of Appeal dismissed the applicants' appeal on 7 July on the
grounds that the civil court could not obtain the planning
department's files earlier than the criminal court (Landesgericht für
Strafsachen), and that the outcome of the criminal proceedings would
provide guidance for the civil proceedings.
On 30 July, the President of the Court of Appeal informed the
applicants that their complaint of 1 July had not given rise to any
supervisory orders.
15. After they had dropped their private prosecution against the
vendors (see paragraph 28 below), the applicants requested the
Regional Civil Court (on 27 December 1976) to resume the proceedings.
It began by asking the criminal court to produce the files on the
criminal and civil proceedings. These reached it on 22 March 1977,
and on that same day the court ordered the applicants to attend a
hearing on 17 May 1977. On that occasion the new judge in charge of
the case ordered further inquiries to be made and adjourned the case
sine die. On 20 May 1977, the file on the civil proceedings was
forwarded to the disciplinary committee of the Vienna Bar for the
purposes of a complaint the applicants had lodged against one of their
lawyers, and it remained with the committee until 19 July. On
22 July, it was sent to the Vienna District Criminal Court
(Strafbezirksgericht), which was dealing with the prosecution for
defamation brought against Mr. and Mrs. Lechner by the vendors and
their lawyer, Mr. Weiser (see paragraphs 18 and 19 below). The file
was not returned until 1 February 1978, after several reminders.
A further hearing took place on 25 April 1978 before a third judge,
the previous judge having retired. A few days earlier (on 19 April),
the house in issue had been sold by auction in connection with
enforcement proceedings by the municipality of Vienna against the
applicants, in which other creditors had joined (see paragraph 31
below).
16. On 3 June 1978, Mrs. Lechner complained to the Federal
Ministry of Justice about the slowness of the proceedings.
She also wrote on 7 June to the parliamentary ombudsman (Volksanwalt).
He replied on 5 July that although the civil proceedings had indeed
been delayed owing to the manner in which the first two judges had
dealt with the case before their retirement, the proceedings were now
being supervised by the President of the Regional Civil Court and that
the Federal Minister of Justice would monitor their progress.
Mrs. Lechner again applied to the Minister on 18 August 1978.
17. After hearings on 19 September and 20 December 1978, the
Regional Civil Court dismissed the applicants' action on
22 December 1978. It held that the action could not succeed because
they were no longer in a position to restore the house to the vendors.
The judgment did not deal with the request for rescission of the
contract of sale.
On 23 January 1979, the applicants appealed to the Vienna Court of
Appeal against this judgment, which had been served on them on
10 January. The Court of Appeal affirmed the judgment on 27 June.
On 1 October, the applicants lodged an appeal on points of law
(Revision) which the Supreme Court (Oberster Gerichtshof) dismissed on
27 May 1980. It held that they had not taken the opportunity afforded
by the Regional Civil Court to clarify their pleadings. The sole
issue remaining to be determined was the applicants' claim to be given
another house and to return the one they had bought, since they had
not complained to the Court of Appeal of the Regional Civil Court's
failure to give a decision on their claim for rescission of the
contract of sale and such a matter could not be raised for the first
time at the Revision stage.
The judgment was served on the applicants on 3 September 1980.
2. Prosecution of the vendors
(a) Origin of the action
18. At the hearing of the civil action on 14 December 1972
Mrs. Lechner had called the vendor, Mr. Mayer, a crook. He
accordingly brought a private prosecution against her for defamation
in the Vienna District Criminal Court. On 5 February 1973, the court
acquitted her on the ground, inter alia, that the vendors' behaviour
was such as to justify her statement. Additionally, the court made an
order (Verfügung) on 8 February to the effect that the minutes of the
hearing and a copy of the judgment should be forwarded to the Vienna
Public Prosecutor's Office (Staatsanwaltschaft). It further suggested
to Mrs. Lechner that she should herself prosecute the vendors for
fraud.
On an appeal by Mr. Mayer, the Vienna Regional Criminal Court set
aside this judgment on 17 April 1973 and remitted the case to the
District Court with the direction that further evidence should be
obtained. The case was discontinued on 26 April 1979.
19. In connection with this prosecution, Mr. Mayer's lawyer had
also instituted criminal proceedings for defamation against Mr.
Lechner. These proceedings ended with the latter's being convicted by
the Vienna District Criminal Court on 26 April 1979.
(b) Main proceedings
20. After the minutes of the hearing on 5 February 1973 and a copy
of the judgment given the same day had been sent to the Public
Prosecutor's Office (see paragraph 18 above), the applicants in their
turn laid an information against the vendors on 13 March, alleging
fraud.
On 7 September, the Public Prosecutor's Office informed them that it
could not find sufficient grounds for bringing a prosecution.
Mrs. Lechner complained about this to the Federal Ministry of Justice
on 23 October.
21. In a letter of 19 September 1973 to the Vienna Regional
Criminal Court the applicants applied, in the context of a private
prosecution in which they claimed civil damages, to have an
investigation commenced in respect of the vendors. The court had a
new file compiled by the investigating judge, who sent it to the
Public Prosecutor's Office (under Articles 48 para. 1 and 49 para. 1 of the
Code of Criminal Procedure). The latter returned the file to the
court on 28 December 1973 with a request to be kept informed.
On 28 January 1974, the applicants complained to the Vienna Court of
Appeal and to the Public Prosecutor's Office about the Regional
Criminal Court's failure to act.
Three days later, they lodged an appeal to the same end with the
President of the Court of Appeal.
On 12 March, the Court of Appeal, exercising its supervisory
jurisdiction, asked the Regional Criminal Court to give a decision as
quickly as possible on the applicants' application for a preliminary
investigation. It approved the investigating judge's action in
sending the file to the Public Prosecutor's Office, since the latter
might have decided to prosecute the vendors itself. However, the
investigating judge ought to have ensured that the file was returned
to him sooner and, despite the complexity of the case, should have
urged the Regional Criminal Court to take a rapid decision.
22. On 22 March 1974, the Regional Criminal Court granted the
application for a preliminary investigation to be commenced but
suggested to the investigating judge that he should await the outcome
of the civil proceedings against the vendors and the criminal
proceedings against Mrs. Lechner (see paragraphs 11 and 18 above).
On 16 April, the applicants entered an objection to that suggestion by
requesting the Court of Appeal to exercise its supervisory
jurisdiction: in their view the commencement of a preliminary
investigation had already been unduly delayed. They simultaneously
made the same complaint to the Regional Criminal Court.
23. On 24 April, the Public Prosecutor's Office said in reply to
the applicants' letter of 28 January 1974 (see paragraph 21 above)
that it was not proposing to bring a prosecution and that the
applicants had no right to see its file notes.
24. On 2 and 17 June, the investigating judge dealing with the
case - who on 15 February had ordered further inquiries to be made, in
particular regarding the vendors' police record and the civil
proceedings - received two applications from the applicants. In the
first of these they asked that Mr. and Mrs. Mayer should be
questioned, and in the second they sought their arrest because of the
risk that evidence would be destroyed. The investigating judge
dismissed the second application on 21 August and reserved his
decision on the first application until such time as the applicants
clarified their appeal of 16 April 1974 (see paragraph 22 above).
The applicants appealed against that decision on 5 September and the
Regional Criminal Court quashed it on 10 October 1974 but refused to
order the vendors' arrest, as evidence might already have been
destroyed during the interval that had elapsed since the sale.
It also noted that an order had been made in the meantime for the
Mayers to be questioned.
25. In fact, on 27 September 1974, the Court of Appeal, exercising
its supervisory jurisdiction, had asked the investigating judge to
complete his task as soon as possible. While stating that it could
not encroach on the powers of the investigating judge or the Regional
Criminal Court, the Court of Appeal considered that the proceedings
had taken too long. The investigating judge had failed in his duty to
establish the facts and obtain the necessary evidence, because the
Regional Criminal Court's suggestion - that he should await the
outcome of other proceedings (see paragraph 22 above) - was not
binding on him and did not absolve him from his duty to proceed with
the preliminary investigation. It was certainly for him to decide
what measures should be taken, but there seemed to be a need to
question the vendors and to inform them that a preliminary
investigation was to commence and that they had a right of appeal
against that decision. The Court of Appeal also criticised him for
having delayed taking a decision on the applications made by the
applicants on 2 and 17 June 1974 (see paragraph 24 above). Moreover,
he had no power to reserve his decision on whether or not to question
the vendors; he should have left that decision to the Regional
Criminal Court.
As to the appeal of 16 April 1974 (see paragraph 22 above), the Court
of Appeal noted that the applicants had succeeded in having a
preliminary investigation commenced and that it had ordered that this
investigation should be proceeded with. That being so, the applicants
should be urged to specify the nature of their claims and, if
appropriate, be encouraged to withdraw them in order to avoid any
further unnecessary delay.
26. On 11 November 1974, Mrs. Lechner laid an information with the
Vienna Public Prosecutor's Office against the Mayers' lawyer, alleging
fraud; she claimed that he had fraudulently abetted the conclusion of
the contract of sale. On 25 November, she requested that these
criminal proceedings and those pending against the vendors should be
joined (see paragraphs 20-25 above). On 28 November, the Regional
Criminal Court dismissed that application on the ground that the two
cases were at different stages. On 6 February 1975, the Public
Prosecutor's Office informed the applicants that it could not find
sufficient grounds for bringing a prosecution.
27. Pursuant to the decisions of the Regional Criminal Court and
the Court of Appeal (see paragraphs 24 and 25 above), Mr. Mayer was
questioned on 11 November 1974, Mrs. Lechner on 15 November, and
Mr. Lechner on 13 December; according to the Government, the latter
did not sign the record of his examination until later.
On 2 January 1975, the investigating judge informed the applicants
that he had not yet been able to interview Mrs. Mayer, in the first
instance because of an administrative error and subsequently because
she had failed to appear. The interview eventually took place
on 7 January 1975.
On 12 May, the applicants again asked the judge to question the
vendors.
28. The Vienna Regional Criminal Court closed the preliminary
investigation on 8 June 1976. It informed Mr. and Mrs. Lechner that
they could prefer an indictment (Anklageschrift) against the vendors
within two weeks. They did not do so; on the other hand, they
requested the court on 24 June and 13 July to complete the
investigation, as they maintained that despite the steps they had
taken, the judge had not obtained the relevant testimony. The court
refused this request on 28 October, and decided on 25 November to stay
the criminal proceedings against the vendors, as the applicants had
not lodged any indictment within two weeks of being served with the
decision of 28 October.
3. Action for damages against the municipality of Vienna
29. On 6 August 1975, the applicants claimed 2,500,000 schillings
in compensation from the municipality of Vienna for breach of its
obligations. They alleged that owing to the unlawful conduct of the
planning department, the vendors had been able, without a permit, to
occupy for fifteen years a building which, despite its structural
defects, was entered in the land register. Furthermore, the planning
department had consistently refused to part with its file, and this
had delayed a good many of the court proceedings that were pending.
Given the impossibility of bringing the house into line with the
applicable regulations, the applicants demanded in exchange a house
that was similar but did conform to the regulations.
On 21 October, the municipality of Vienna refused to recognise any
right to compensation.
30. The applicants consequently brought an action for damages in
respect of liability of public authorities against the municipality in
the Vienna Regional Civil Court.
The Regional Civil Court dismissed the action on 31 August 1976,
finding that the amount claimed by the applicants was not
substantiated. The applicants appealed against this judgment
on 8 October, but the Court of Appeal upheld it on 6 December on the
ground that the complaints against the municipality of Vienna were of
a subsidiary nature: since the main civil proceedings had not yet been
concluded, it was impossible to know whether the applicants had
sustained damage corresponding to the amount claimed.
The appeal on points of law which the applicants lodged on
4 January 1977 was unsuccessful too. The Supreme Court dismissed it
on 16 February 1977, holding that even if the Court of Appeal's
reasoning was open to doubt, the claim for compensation had to be
rejected on another ground, namely that the damage suffered by the
applicants was a direct consequence of the vendors' conduct and not of
that of the authorities. The applicants were ordered to pay the court
costs and the costs of the municipality of Vienna.
4. Administrative proceedings and enforcement proceedings brought
against the applicants by the municipality of Vienna
31. On 24 September 1975, the Vienna municipal authorities imposed
a fine of 1,000 schillings on the applicants for having occupied their
house without a permit. The authorities subsequently applied for
enforcement proceedings to be instituted against Mr. Lechner, and this
application was granted by the Hietzing District Court on
24 February 1977. Furthermore, three lawyers who had represented the
applicants became parties to the proceedings. On 10 January 1978, the
applicants asked the municipal authorities to stay the proceedings
pending the outcome of the applicants' civil action against the
vendors. On 22 January, Mr. Lechner wrote to the Federal Chancellor
to ask his support for this request.
As the applicants were unable to pay the sum of 500,000 schillings
claimed by their creditors, the house was sold by auction on
19 April 1978 for 821,000 schillings. The applicants were evicted
from it on 31 October 1978.
32. Since then, several actions for the recovery of debts have
been taken against the applicants by the Austrian State, by the
vendors and by the lawyers who had dealt with the case. The
applicants claim that their debts amount to 1,300,000 schillings, that
they have lost all their assets and that Mrs. Hess's pension and
Mr. Lechner's salary have been attached.
PROCEEDINGS BEFORE THE COMMISSION
33. The applicants applied to the Commission on 18 February 1981.
They complained of the length of the civil and criminal proceedings
they had instituted against Mr. and Mrs. Mayer, arguing that they had
exceeded the "reasonable time" stipulated in Article 6 para. 1 (art. 6-1)
of the Convention.
34. The Commission declared the application (no. 9316/81)
admissible on 11 October 1984. In its report of 2 July 1985 (made
under Article 31) (art. 31), it expressed the unanimous opinion
that there had been a breach of Article 6 para. 1 (art. 6-1). The full
text of its opinion is reproduced as an annex to this judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
35. In the applicants' submission, the length of the civil and
criminal proceedings they had instituted against Mr. and Mrs. Mayer
exceeded the "reasonable time" stipulated in Article 6 para. 1 (art. 6-1)
of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a]
... tribunal ...."
The Government contested this claim, while the Commission accepted it
in substance.
A. The period to be considered
36. The period to be considered is not in dispute: it began on
15 May 1972, when the applicants brought their action in the Vienna
Regional Civil Court (see paragraph 11 above), and ended on
3 September 1980, with the notification of the Supreme Court's
judgment (see paragraph 17 above). It accordingly amounted to eight
years, three months and nineteen days.
37. As the Government pointed out, the period contains two phases.
38. The first of these ran from 15 May 1972 to 20 December 1973,
when the Court of Appeal's judgment of 21 November remitting the case
to the Regional Civil Court reached the latter court (see paragraphs
11-12 above), that is to say a little over a year and a half. It is
not open to criticism, more especially as it included several hearings
and other procedural steps at two levels of jurisdiction (see
paragraph 11 above).
39. On the other hand, a problem does arise concerning the second
phase, which lasted for almost seven years, from 20 December 1973
to 3 September 1980 (see paragraphs 13-17 above).
While the duration of the appeal and the Revision proceedings - five
and eleven months respectively - appears normal in the circumstances,
the same may not be true of the proceedings in the Vienna Regional
Civil Court, which took five years (20 December 1973 - 10 January 1979).
Prima facie, such a period seems excessive. It has to be noted,
however, that the court adjourned the proceedings on 5 December 1974
to await the outcome of the applicants' prosecution of the vendors for
fraud.
These criminal proceedings had begun on 8 February 1973; they gave
rise to several supervisory orders by the Vienna Court of Appeal (see
paragraphs 21-22 and 25 above). They are relevant here, however, only
in so far as they had a bearing on the course of the civil
proceedings, which were resumed more than two years after the
adjournment.
B. Reasonableness of the length of the proceedings
40. The reasonableness of the length of proceedings is to be
assessed according to the particular circumstances of the case and
having regard to the criteria laid down in the case-law of the Court
(see, inter alia, the Zimmermann and Steiner judgment of 13 July 1983,
Series A no. 66, p. 11, para. 24).
41. The Government relied on the fact that civil proceedings in
Austria are founded on the principle that new matters cannot be raised
on appeal (Neuerungsverbot): the higher court is restricted to
reviewing the impugned decision on the basis of the material before
the court below, so that the examination of the facts of the dispute
is essentially carried out by the trial court, which accordingly must
generally be allowed extra time to reach a decision.
Without minimising the relevance of this factor, the Court does not
believe it to be of such weight as to absolve the lower court from
having to comply with the requirements of Article 6 para. 1 (art. 6-1)
regarding the conduct and expeditiousness of trial (see, mutatis
mutandis, the Buchholz judgment of 6 May 1981, Series A no. 42, p. 16,
para. 50, and the Guincho judgment of 10 July 1984, Series A no. 81,
p. 14, para. 32).
1. Complexity of the case
42. As the Commission pointed out, the case did not present any
exceptional legal difficulties.
43. The Government rightly relied, amongst other things, on the
complexity of the facts to be clarified, which obviously entailed
extra work, particularly as the facts gave rise to controversy.
The applicants altered the basis of their claim on 19 June 1974 when
they asked the civil court to order the vendors to put at their
disposal a house that was similar but conformed to the regulations in
force. The Court agrees with the Commission: although the new claim
did not raise any complex legal problems, it was incompatible with the
old claim, and this led to some confusion. The court could have
indicated this at the outset, however, and thereby have avoided
unnecessary delay.
44. To this must be added the intertwining of several sets of
civil, criminal and administrative proceedings (see paragraphs 11,
18-20, 26 and 29 above); this made the task of the relevant courts
- particularly the Vienna Regional Civil Court - more difficult.
2. The applicants' behaviour
45. Unlike the Commission, the Government considered that the
applicants' behaviour also had a bearing on the length of the
proceedings. The applicants had, admittedly, attempted to complain
about the length of the proceedings or to reduce it, but in the
Government's view the measures they took were hardly suited to the
circumstances of the case.
The applicants did indeed take a series of steps which, far from
helping the courts to take a decision speedily, considerably
complicated the dispute: the amendment of their original claim in June
1974 (see paragraph 43 above); the challenging of the judge dealing
with the case (see paragraph 13 above); the continual changing of
lawyers (see paragraph 9 above) and the disciplinary proceedings
brought against one of them (see paragraph 15 above); the complaints
of fraud against the vendors and their lawyer (see paragraphs 20 and
26 above); and, lastly, the applicants' attitude towards the vendors
and their lawyer, which resulted in the applicants' being prosecuted
for defamation (see paragraphs 18-19 above).
46. The Court does not consider that it has to go into the
relevance and the purpose served by several of these steps; it merely
notes that some of them had only a limited bearing on the course and
duration of the proceedings. The application challenging the judge,
for example, took scarcely more than a month to deal with (see
paragraph 13 above). Similarly, the disciplinary committee of the
Vienna Bar kept the file on the civil proceedings - which had been
forwarded to it for study in connection with the applicants' complaint
against their lawyer - for only two months (see paragraph 15 above).
47. As to the parallel criminal proceedings, a distinction must be
made between Mr. and Mrs. Lechner's proceedings against the vendors
and their lawyer and the vendors' and their lawyer's against Mr. and
Mrs. Lechner.
Although the applicants may have brought the latter proceedings upon
themselves through their attitude, it is uncertain whether they can be
held responsible for the course those proceedings took; yet this
delayed the proceedings in issue by at least six months (see
paragraph 15 above).
The first set of criminal proceedings had an even greater impact on
the length of the civil proceedings. At the vendors' request, the
Regional Civil Court adjourned the latter to await the outcome of the
criminal proceedings, and resumed them - at the applicants' request -
on 27 December 1976, after an interval of more than two years (see
paragraphs 14-15 above).
In the Commission's view, no criticism can be levelled at the
applicants in relation to this set of proceedings. The Court notes
that having acquitted Mrs. Lechner of the defamation charge, the
Vienna District Criminal Court decided on 8 February 1973 to forward
to the Public Prosecutor's Office the minutes of the hearing and a
copy of the judgment of 5 February 1973 and at the same time suggested
to Mrs. Lechner that she should bring a prosecution (see paragraph 18
above). The Public Prosecutor's Office, however, twice decided not to
prosecute - in October 1973 and April 1974 (see paragraphs 20 and 23
above) - and it was only thanks to Mr. and Mrs. Lechner's persistence
that on 22 March 1974 the Regional Criminal Court ordered a
preliminary investigation to be undertaken (see paragraphs 21 and 22
above). Although this lasted until 8 June 1976 - more than two years,
therefore - despite the steps taken by the applicants, they did
themselves contribute to its prolongation by almost six months by
asking the court on 24 June and 13 July 1976 for further inquiries to
be made instead of preferring an indictment (see paragraph 28 above);
in addition, Mr. Lechner refused for a while to sign the record of his
examination (see paragraph 27 above) and did not appear at certain
hearings, although he apologised for this.
48. The Court also considers, like the Commission, that the
enforcement proceedings and the auctioning of the house resulted from
the applicants' behaviour. They had not paid either the fine imposed
on them by the Vienna municipal authorities in respect of the unlawful
occupation of premises or their lawyers' fees (see paragraph 31
above). However, they had at the time disputed some of the relevant
sums. Furthermore, these proceedings did not have any direct bearing
on the length of the civil proceedings, although they affected their
outcome. The same is true of the action for damages in respect of
liability of public authorities that was brought against the
municipality of Vienna.
49. In the Government's submission, the Lechners complicated the
proceedings by amending their initial claim and by lodging numerous
appeals and applications (see paragraphs 13, 14 and 16 above). The
Court has already dealt with the first of these points (see paragraph
43 above). As to the second point, the applicants cannot be blamed
for making full use of the remedies available to them under domestic
law, but their behaviour is an objective fact; it cannot be attributed
to the respondent State and must be taken into account for the purpose
of determining whether or not the "reasonable time" has been exceeded
(see, mutatis mutandis, the Eckle judgment of 15 July 1982, Series A
no. 51, p. 36, para. 82).
Even so, regard must also be had to the fact that several of the
appeals in question were brought with the aim of expediting the
proceedings. Thus, for instance, the applicants appealed against the
decision to adjourn the proceedings and subsequently applied for them
to be resumed when the criminal proceedings against the vendors were
dropped (see paragraphs 14-15 above); they also requested the civil
court on several occasions to give a decision before the house was
auctioned. They can scarcely be held responsible for the failure of
these endeavours.
50. However, an overall assessment leads to the conclusion that
the different procedural measures taken on the applicants' behalf and
their personal behaviour certainly contributed to the length of the
proceedings. In this respect the Court does not share the view
expressed by the Commission in paragraphs 87 and 100 of its report.
3. The Austrian authorities' behaviour
51. It remains to examine the behaviour of the Austrian
authorities.
52. The applicants firstly blamed the Regional Civil Court for not
having obtained the planning department's file within a reasonable
time. In point of fact, the Regional Civil Court asked for the file
on 7 September 1972 and on several subsequent occasions, but the
department made no response (see paragraph 11 above); the
responsibility for the resultant delay lies with the department and
attaches, in the final analysis, to the State (see, amongst other
authorities and mutatis mutandis, the above-mentioned Zimmermann and
Steiner judgment, Series A no. 66, p. 13, para. 32).
53. The Commission also considered the adjournment of the
proceedings in December 1974 to have been unnecessary. In its view,
it would have been sufficient for the Regional Civil Court to have
ruled in good time that the applicants' amended claim was without
foundation (see paragraph 43 above). The Court notes, however, that
the decision criticised by the Commission, which was upheld on appeal,
was in conformity with the law (Article 191 of the Code of Civil
Procedure) and with Austrian judicial practice (see paragraph 14
above).
In the instant case the applicants had chosen to bring first a civil
action and then criminal proceedings against the vendors. It is
understandable that the Regional Civil Court should have preferred to
adjourn the civil case to await the outcome of the prosecution the
applicants had brought for fraud, so as to avoid any intertwining of
simultaneous proceedings.
54. As to this same prosecution, attention has to be focused on
the period running from the adjournment of the civil proceedings to
their resumption (see paragraph 39 above). The preliminary
investigation ordered in March 1974, which had already been repeatedly
delayed (see paragraphs 21-22 and 24-25 above), made scarcely any
headway after the adjournment. Admittedly, the judge dealing with the
case took some evidence at the end of 1974 and early in 1975 and the
applicants caused some delay by their behaviour (see paragraph 27
above), but that does not explain why the investigation was not
concluded until 8 June 1976 (see paragraph 28 above).
55. As soon as the prosecution was discontinued on 25 November
1976, the applicants applied for the civil proceedings to be resumed.
The civil court, however, did not receive the files from the criminal
court until 22 March 1977 and on the same day it set the date for a
hearing (the one of 17 May 1977), which was presided over by a new
judge. At the second hearing - on 25 April 1978, that is to say
nearly a year after the first hearing - a third judge dealt with the
case (see paragraph 15 above). After two further hearings (in
September and December 1978), he dismissed the applicants' action on
22 December (see paragraph 17 above). There was accordingly a lapse
of two years between the request for the proceedings to be resumed and
the delivery of the Regional Civil Court's judgment.
56. In the Government's submission, the Regional Civil Court's
long period of inactivity between the first two hearings - eleven
months - occurred because the file was not available. It was needed
by the disciplinary committee of the Vienna Bar from 20 May to
19 July 1977 and then by the District Criminal Court from
22 July 1977 to 1 February 1978 (see paragraph 15 above). While not
overlooking the applicants' share of responsibility for the
involvement of those two tribunals (see paragraphs 46-47 above), the
Court notes that the forwarding of the documents in the file entailed
considerable losses of time.
57. Furthermore, the applicants on several occasions asked for a
decision to be given on the merits before the auctioning of their
house, which took place on 19 April 1978 (see paragraph 31 above), a
few days before the second hearing. The court could therefore not
have been unaware at the time of the constantly growing seriousness of
what was at stake in the dispute. It is difficult to understand why
it did not take steps to avoid any delay.
58. Undoubtedly, the repeated changes of judge slowed down the
proceedings, because each of the judges had to begin by acquainting
himself with the case; but that cannot exonerate the State, which is
responsible for ensuring that the administration of justice is
properly organised (see, mutatis mutandis, the above-mentioned Guincho
judgment, Series A no. 81, p. 16, para. 38).
4. Conclusion
59. Looking at all the material available as a whole, the Court
considers that, in the many court proceedings instituted by the
applicants as well as the vendors during the period in question
(15 May 1972 to 3 September 1980), two stages are open to criticism.
Firstly, as pointed out by the Court of Appeal already in
September 1974, the investigation opened against the vendors at the
applicants' request took a very long time, i.e., from 13 March 1973 to
8 June 1976. In particular, no explanation has been given as to what
happened between 12 May 1975, when the applicants again asked the
investigating judge to question the vendors, and 8 June 1976, when the
Vienna Regional Criminal Court closed the investigation.
Secondly, the Vienna Regional Civil Court ought to have conducted the
civil proceedings, which were resumed at the applicants' request
on 27 December 1976, more speedily, especially since it had the
advantage of the lengthy investigation carried out in the first phase
of the civil proceedings and in the second phase before they were
adjourned, as well as of the file of the criminal proceedings.
This also seems to have been the opinion of the ombudsman (see
paragraph 16 above). Apart from the considerable time the civil
proceedings had already occupied before they were resumed, the judges
responsible for the case should have given consideration to the
possible serious consequences for the applicants of any further delay
and, on that basis, have handled the case with special diligence.
Account must also be taken of the attitude of the administrative
authorities.
Although the Court agrees with the Government that the behaviour of
the applicants and some of the methods chosen by their different
lawyers had a regrettable impact on the Austrian courts' ability to
settle the disputes before them with due expedition, it has come to
the conclusion that the "reasonable time" stipulated in Article 6 para. 1
(art. 6-1) was exceeded and that this is a situation for which the
Austrian authorities must be held partly responsible. There was
accordingly a violation of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
60. By Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
61. In their memorial of March 1986 the applicants asked that the
Austrian Government should provide them with a property similar to the
one they had lost. In the alternative, they claimed lump-sum
compensation in an amount of approximately 3 million schillings plus
appropriate compensation for non-pecuniary damage. In subsequent
observations they also claimed full reimbursement of the costs they
incurred in Austria in connection with proceedings relating directly
or indirectly to the house concerned.
62. The Government submitted that the applicants had not suffered
any pecuniary damage. At all events, the Government contended, there
was no causal link between the length of the proceedings and either
the auctioning of the house or the greater part of the costs and
expenses mentioned. In particular, the applicants would have owed
fees to their lawyers even if the civil tribunal had taken its
decisions sooner.
The Commission saw, on the contrary, an indirect link: the auction
deprived the applicants of any chance of winning their case and thus
of avoiding having to pay court costs and lawyers' fees. In any
event, part of these latter expenses could have been eliminated if the
relevant tribunals had acted with proper expedition. In the
Commission's view, the applicants were moreover entitled to
compensation for non-pecuniary damage and to the reimbursement of
their costs and expenses in so far as these were related to the
subject-matter of their application.
63. The Court finds that the question is accordingly ready for
decision (Rule 53 para. 1, first sentence, of the Rules of Court).
64. As to the pecuniary damage, the material before the Court does
not warrant the conclusion that compliance with Article 6 para. 1
(art. 6-1) would have prevented the auctioning of the house. On the
other hand, the applicants did suffer, on account of the consequences
of the length of the proceedings, some loss of real opportunities
which justifies an award of just satisfaction in the present case
(see, amongst other authorities, the Sporrong and Lönnroth judgment of
18 December 1984, Series A no. 88, p. 13, para. 25).
Furthermore, they lived in prolonged uncertainty and anxiety as to the
outcome and financial repercussions of the proceedings.
As these factors do not lend themselves to precise quantification, the
Court has taken them in together and, as required by Article 50
(art. 50), on an equitable basis (see, inter alia, the Bönisch
judgment of 2 June 1986, Series A no. 103, p. 8, para. 13). It awards the
applicants compensation in the amount of 200,000 schillings.
65. The applicants additionally claimed reimbursement of
1,395,622.78 schillings in respect of costs incurred before the
national tribunals, including 591,256.69 schillings referable to the
civil proceedings in question.
Having regard to the criteria the Court has adopted in previous cases
(see, among many others, the above-mentioned Zimmermann and Steiner
judgment, Series A no. 66, p. 14, para. 36), only the latter sum may be
taken into consideration, at least to the extent that the length of
the said proceedings, which was partly attributable to the behaviour
of the authorities concerned (see paragraphs 52 and 54-59 above),
occasioned the applicants additional expenses and that they attempted
to shorten the proceedings by a number of their actions
(see paragraph 49 in fine above).
As to the Strasbourg proceedings, the applicants presented their own
case to the Commission and were granted free legal aid for the
proceedings before the Court; under this head they claimed only
compensation for the time spent on preparing their submissions.
As it is unable to make an exact assessment, the Court must again
determine the matter on an equitable basis. It awards the applicants
the sum of 150,000 schillings for costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State is to pay the applicants
200,000 (two hundred thousand) schillings for damage and 150,000 (one
hundred and fifty thousand) schillings for costs and expenses;
3. Rejects the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 23 April 1987.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar