VOGL and VOGL v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicants are father and son, both Austrian nationals, residing in Linz and Gallneukirchen, respectively. They are represented before the Court by Mr H. Blum, a lawyer practising in Linz, Austria. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 September 1987 a banking institution (hereafter “R.”) filed a counterclaim against the first applicant and his wife requesting repayment of a mortgage loan, the validity of which had been contested by the couple in another set of proceedings (“the main proceedings”). On 16 October 1991 the second applicant joined the main proceedings as the first applicant and his wife had meanwhile transferred part of the real estate affected by the mortgage to the second applicant. On 14 October 1987 the first applicant filed a statement of defence (Klagebeantwortung). On 17 December 1987 the court suspended the counterclaim proceedings until the delivery of a final judgment in the main proceedings. They were terminated by the Supreme Court’s judgment of 26 April 1994. On 25 May 1994 R. filed a motion with the Linz Regional Court for the continuation of the proceedings. By a written submission of 8 June 1994, the first applicant gave notice of the proceedings (Streitverkündung) to the second applicant. At the hearing of 13 June 1994 the applicants challenged the judge for bias. They contended that she had made subjective statements about the first applicant’s son and the second applicant’s brother, A., in the judgment given in the main proceedings and had accused the first applicant and his wife of delaying the proceedings. By a decision of 7 June 1994, the Linz Regional Court rejected the motion, finding that the applicants’ allegations did not suffice to bear out a challenge for bias. On 24 August 1994 the Linz Court of Appeal dismissed the first applicant’s appeal. On 6 September 1994 the Linz Regional Court appointed an expert. On 27 September 1994 the first applicant requested the reopening of the main proceedings. On 16 January 1996 the Supreme Court dismissed this request after it had been examined at two lower instances. On 30 January 1996 the court file was transmitted to the expert for the preparation of his opinion. The expert submitted his opinion on 16 April 1996. The court ordered the parties to submit their comments and requests thereto within two weeks. Both parties asked for an extension of the timelimit, which was granted. On 16 September 1996 the applicants submitted their observations. On 8 October 1996 another hearing took place at which the applicants were present. A further hearing was scheduled for 28 November 1996, to which the first applicant and the applicants’ counsel were summoned. On 20 November 1996 the applicants’ counsel filed a motion for an adjournment. He stated that he was unable to attend the meeting because of a clash with other appointments, that the first applicant had already scheduled a week’s holiday in Switzerland, and the second applicant had planned to take part in a fair in Italy. The request was refused. The court ordered them to submit certain documents within a period of three days. On 26 November 1996 the applicants requested an extension of this time-limit, which was not granted. Thereupon, the applicants filed another motion challenging the judge for bias. They contended that the refusal of their requests proved that she was not willing to grant them a fair trial. They further complained that the judge had in an emotional manner conducted the hearing of 8 October 1996, which might have been caused by the fact that she had learned about the applicants’ submission of a complaint to the European Commission of Human Rights relating to the main proceedings. The hearing of 28 November 1996 was held as scheduled in the presence of the applicants’ lawyer, but in the absence of the applicants. At the hearing counsel further amended the motion for bias after the judge had objected to the allegation that she was not willing to grant the applicants a fair trial and after she had mentioned that she had a problem with the applicants’ counsel. After the expert had given his opinion, the judge closed the hearing and announced the delivery of the written judgment following the final decision on the applicants’ motion for bias. On 23 January 1997 the Linz Regional Court dismissed the motion challenging the judge for bias. It held that the applicants had raised their argument as regards the alleged emotional conduct of the judge at the hearing of 8 October 1996 too late and that the remainder of the motion did not disclose any indication of bias. The applicants appealed, arguing in essence that the hearing held on 28 November had been scheduled too late. Therefore, they had not had enough time to prepare their pleadings. Further, the period fixed for the delivery of documents had been too short. The refusal of an adjournment resulted in their exclusion from the proceedings. Finally, they contended that the judge had conducted the hearing in an emotional manner, and that the Regional Court had failed to deal with the respective amendments of 28 November 1996. On 4 April 1997 the appeal was dismissed by the Linz Court of Appeal (Oberlandesgericht). It noted that the summons had been served early enough to respect the eight-day preparation-time guaranteed by Austrian law. The lower court had lawfully refused the adjournment request as the first applicant was represented by a lawyer and his absence was for reasons of private holidays. As regards the absence of the applicants’ counsel, he had not submitted reasons why he was unable to attend the hearing or why he could not be represented by another lawyer. In any event, the second applicant had not been summoned in person. Therefore, the applicants had not been excluded from the procedure as they had been represented by a lawyer throughout, particularly at the hearing on 28 November 1996. As to the order to submit documents within three days, the Court of Appeal found that, pursuant to the Code of Civil Procedure, documents which were relied upon by a party in order to establish the truth of its allegations had to be submitted by that party if not otherwise provided. No sanction could be imposed in case of non-compliance with that order. As to the applicants’ allegations concerning the judge’s emotional manner of conducting the hearing of 8 October 1996, the Court of Appeal confirmed the lower court’s decision that this complaint should have been raised already at the hearing and was therefore belated. The judge’s objection to the allegation that she had denied the applicants a fair trial did not disclose any lack of impartiality on her part. Her further statement that she had a problem with the applicants’ counsel was not conducive to a constructive atmosphere in respect of the proceedings and might have been taken as a personal statement. However, in the context of counsel’s repeated but unfounded motions for bias, it was understandable that she perceived counsel’s actions to be problematic. This would not justify any fears that the judge would act and decide other than on objective grounds. In its judgment dated 29 November 1996, the Linz Regional Court granted the R.’s claim, referring to the submissions of the parties, the evidence of witnesses and experts, as well as the documentary evidence and the case-files of the proceedings. The judgment was served on 16 May 1997. On 13 June 1997 the applicants lodged an appeal against the Regional Court’s judgment of 29 November 1996 claiming in particular that the first instance court had refused to take evidence proposed by them. On 30 January 1998 the Linz Court of Appeal dismissed the applicants’ appeal on grounds of nullity and confirmed the lower court’s decision, but allowed their complaint as regards part of the sums involved. It held that the Regional Court had correctly refused the applicants’ requests for the further taking of evidence since their numerous requests were aimed at delaying the proceedings. Moreover, at the hearing of 8 October 1996 and for the first time, the applicants stated the opposite of what they had claimed in the main and in the counterclaim proceedings. Their further requests related to issues of law and facts that were already dealt with and finally determined in the main proceedings. On the whole, the Linz Court of Appeal found that the lower court had carefully assessed the evidence submitted to it. On 16 June 1998 the Supreme Court (Oberster Gerichtshof) dismissed the appeal. The decision was served on 16 July 1998. 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 after 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."