LAMPRECHT v. AUSTRIA
Inadmissible
Ireneu Cabral Barreto
The applicant, Mrs Elisabeth Lamprecht, is an Austrian national who lives in Linz. She was represented before the Court by Mr H. Blum, a lawyer practising in Linz. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant introduced proceedings for the preservation of evidence (Beweissicherungsverfahren) against a building company, P. On 3 February 2000 the Linz District Court (Bezirksgericht) ordered the applicant to pay part of the defendant's costs relating to the preservation of evidence, namely 7,416.96 Austrian schillings (ATS). The defendant appealed against the costs order (Kostenrekurs). This appeal was not transmitted to the applicant. On 21 December 2000 the Linz Regional Court (Landesgericht), sitting in camera, partly granted the defendant's appeal and ordered the applicant to reimburse costs of altogether ATS 8,459.64. No main proceedings were brought, as meanwhile, in April 2000, the parties had concluded an out-of-court settlement. Under the terms of this settlement the P. company paid the applicant ATS 25,000 as compensation for damages and ATS 20,693.98 as reimbursement for cash expenses incurred in the proceedings for the preservation of evidence. Proceedings for the preservation of evidence are regulated in the Code of Civil Procedure (Zivilprozeßordnung). “(1) An application for evidence to be taken or for witnesses and experts to be heard can be lodged, for the purposes of securing the presentation of the evidence, at any time in the proceedings and even before the proceedings have begun if there is cause to fear that the evidence will otherwise be lost or its examination made difficult. (2) Those measures can also be ordered where the conditions of [Article 284] paragraph 1 are not satisfied if the present condition of an item of evidence is to be ascertained and the applicant has a legal interest in having it ascertained.” “(3) The party applying for the measure shall be liable for the costs of the taking of evidence without prejudice to any claim for damages on their part. The other party to the proceedings shall be reimbursed the necessary costs of his or her participation in the taking of evidence without prejudice to the decision in the main proceedings.”