CASE OF HOLZINGER v. AUSTRIA (No. 1)
Preliminary objection allowed (non-exhaustion of domestic remedies)
6. On 16 May 1988 the applicant introduced proceedings in the Salzburg District Court (Bezirksgericht) against a former lawyer for the sum of 30,000 Austrian schillings (ATS). The District Court rejected the claim on 20 May 1988 because it considered that it had no jurisdiction. On 1 June 1988 it quashed its previous decision and, upon the applicant's request (Überweisungsantrag), remitted the case to the Regional Court (Landesgericht). On 8 August 1988 the Regional Court instructed the applicant to submit his claim through a lawyer, which he did on 13 September 1988. 7. On 23 November 1988 the Regional Court found that the judge who had been in charge of the case was not impartial, and quashed all procedural steps taken after 7 July 1988. 8. A defence pleading was lodged on 21 December 1988 and, on 22 February 1989, at the applicant's request, the Regional Court adjourned the proceedings pending the outcome of a different action, the proceedings only to be resumed on application by the parties. On 30 June 1989 the applicant's lawyer requested that the proceedings be resumed and increased the claim to ATS 449,417.23. The Regional Court returned the request on 4 August 1989 with the instruction to formulate it properly. 9. A hearing which had been set down for 20 December 1989 was adjourned when the judge in charge of the case changed. 10. On 31 March 1990 the defendant gave up his professional activities, and the proceedings had to be adjourned for a lawyer to be appointed. On 6 June 1990 the applicant requested the court to order the defendant to appoint a lawyer, and on 13 June it did so. The defendant failed to appoint a lawyer within the time-limit. On 9 November 1990 the court announced that, in view of the defendant's failure to appoint a lawyer, the proceedings were resumed. A hearing was fixed for 11 December 1990. 11. At the hearing on 11 December 1990 the proceedings had to be commenced again because of a change of judge. The defendant was neither present nor represented, and the applicant's representative asked for judgment to be entered by default. The court adjourned the proceedings in order to allow consideration to be given to additional papers submitted by the applicant's representatives. On 23 January 1991 the Regional Court permitted the defendant, who had produced a medical certificate in respect of 11 December 1990, to remain in the proceedings. 12. On 16 October 1991 the applicant wrote to the court requesting that the proceedings be resumed. On 18 October the parties were summoned to a hearing set for 26 November 1991. That hearing was postponed as the applicant had informed the court that he would be absent from 18 November 1991 to 28 January 1992. On 12 March 1992 the applicant again asked for the proceedings to be resumed. On 23 March the parties were summoned to a hearing set for 7 May 1992. At the end of that hearing the proceedings were adjourned, and on 18 May 1992 the applicant asked for them to be resumed soon as he was to be away from 9 September to 20 November 1992. On 25 May 1992 the court set the next hearing for 7 July 1992, when the applicant replied to questions, his representative submitted a series of documents and the proceedings were again adjourned. 13. The next hearing took place on 26 November 1992, at the end of which the judge declared the trial closed. The judgment, 18 February 1993, was received by the applicant's representative on 4 March 1993. The court found that the applicant's action was statute-barred. The applicant's appeal of 18 March 1993 was returned by the court on 1 April 1993 as it had not been duly signed by a lawyer. The appeal was re-submitted on 28 April. The defendant's reply was dated 26 May 1993, and by a judgment dated 29 September 1993 the Linz Court of Appeal dismissed the applicant's appeal, confirming the Regional Court's judgment. The judgment stated that no further appeal (Revision) was possible. The applicant's representative received the decision on 4 November 1993. 14. An application by the applicant for legal aid for an extraordinary appeal dated 9 November 1993 was rejected on 11 November 1993 as the proceedings had ended. 15. On 6 May 1994 the Linz Court of Appeal dismissed a challenge by the applicant to a decision of the Regional Court of 11 November 1993 by which the defendant had been permitted to enforce a costs order against him. 16. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. “(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert's report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks of receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a Chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal.”