CASE OF T. v. AUSTRIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Criminal charge;Reasonable time);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)
6. On 27 June 1988 the C-Bank filed an action for payment of Austrian schillings (ATS) 8,497 against the applicant on the ground that, following termination of their contractual relationship, the applicant's current account showed a debit balance for this amount. 7. On 18 July 1988 the Hietzing District Court (Bezirksgericht), in summary proceedings, issued an order for payment of the debt (Zahlungsbefehl) against the applicant. The applicant, represented by Mr K., filed an objection (Einspruch), which the District Court received on 5 August 1988. 8. On 15 November 1988 judge D. at the District Court held a hearing. 9. On 30 November 1988 the District Court received notice that Mr K. no longer represented the applicant. On 2 February 1989 a hearing which had been scheduled for 9 February 1989 was cancelled. The Government submit that this was due to the fact that the applicant's representative had withdrawn from the case, while the applicant submits that the court was prevented from holding the hearing. Subsequently, 22 December 1989 was set for the next hearing. 10. On 13 December 1989 the applicant, represented by Mrs O., filed a counterclaim (Widerklage) requesting compensation in the total amount of ATS 89,543 for loss of interest which had allegedly been caused by the negligent conduct of the bank in connection with a loan taken out by a certain E., for which he, the applicant, had mortgaged his property. Further, he requested a declaratory decision to the effect that a guarantee he had given to the C-Bank in relation to E.'s debt was null and void. 11. On 21 December 1989, the bank filed preparatory submissions in reply. It particularly denied that there was a link between the two claims at issue. 12. On 22 December 1989 judge G. at the District Court held a hearing. 13. On 30 March, 24 April and 25 June 1990, judge P. at the District Court held hearings. The parties presented documentary evidence and the court heard N. and W., two employees of the C-Bank, and K., the lawyer involved in the case, as witnesses. At the last of these hearings the court decided to join the proceedings concerning the bank's claim and the applicant's counterclaim. It also noted that the C-Bank had extended their claim, requesting additional payment of ATS 14,180 for which the applicant was allegedly liable on account of his guarantee for the debt of E. 14. On 29 June 1990 the District Court decided to adjourn the proceedings until the judgment in another set of proceedings between the applicant and E., which was pending before the Vienna Regional Civil Court (Landesgericht), became final. 15. On 16 October 1990 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision to adjourn on the ground that, according to the relevant procedural rules, it had to be taken in the course of an oral hearing. 16. On 16 January 1991 Mrs O. informed the District Court that she no longer represented the applicant. The applicant was subsequently represented by Mr R. 17. On 11 April 1991 and 10 October 1991, judge Ed. at the District Court held further hearings. The applicant was heard as a party and W. was again heard as a witness. At the latter hearing the Court again decided to adjourn the proceedings until the judgment of the Vienna Regional Civil Court in the proceedings between the applicant and E. became final. 18. On 4 February 1992 the Vienna Regional Civil Court, upon the applicant's appeal, quashed the decision and ordered the District Court to continue the proceedings. It found that the District Court had wrongly assumed that the proceedings between the applicant and E. would resolve a preliminary incidental question. The District Court received the Regional Court's decision on 10 March 1992. 19. On 1 September 1992 the applicant extended his counterclaim to a total amount of ATS 213,440. 20. On 6 October 1992 judge Ed. at the District Court, upon the claimant's request, adjourned a hearing which had been scheduled for 15 October 1992 to 26 January 1993. 21. On 2 November 1992 the applicant informed the District Court that he had revoked Mr R.'s power of attorney. 22. On 18 January 1993 judge Ed. made a request to be replaced as she considered herself to be biased on account of certain accusations which the applicant had made against her. On the same day the President of the District Court granted her request and assigned the case to judge A. A hearing which had been scheduled for 26 January 1993 was cancelled. The applicant was at that time represented by Mrs W. 23. On 23 February 1993 the District Court received notice that Mrs W. no longer represented the applicant. 24. The next hearing was scheduled for 21 June 1993 but had to be postponed to 12 July 1993 upon the claimant's request. 25. On 17 June 1993 the applicant requested legal aid. Upon the District Court's request, he supplemented his application on 1 July 1993. 26. On 5 July 1993 the District Court dismissed the applicant's request for legal aid. 27. On 9 July 1993 Mr H., who had been appointed as the applicant's representative by the Lawyer's Chamber under section 10 § 3 of the Lawyer's Act (Rechtsanwaltsordnung) - applicable in a case where a litigant who is not indigent is unable to find a lawyer willing to represent him - requested that the hearing scheduled for 12 July 1993 be postponed. The applicant claims that he had only requested the appointment of counsel for this specific request, while the Lawyer's Chamber appointed Mr H. to represent him in the further proceedings. 28. On 16 November 1993 the District Court upon the request of Mr H. postponed the next hearing which had been scheduled for 3 December 1993 to 21 January 1994. 29. On 18 January 1994 Mr H. requested that the hearing again be postponed as he had been unable to obtain the necessary information from the applicant. The District Court dismissed the request. The applicant submits that he was unaware that Mr H. acted as his counsel and that the latter had tried to contact him at a wrong address. He further claims that the summons to appear personally at the hearing of 21 January 1994 was not correctly served on him. 30. On 21 January 1994 judge A. at the District Court held a further hearing and admitted the extension of the applicant's counterclaim. 31. On 25 February 1994 the District Court received notice that Mr H. no longer represented the applicant. 32. On 18 April 1994 the District Court cancelled the date for the next hearing which had been set for 22 April 1994. It noted that, in the proceedings at issue, the parties were obliged to be represented by a lawyer (Anwaltszwang). As the applicant had requested legal aid (see paragraph 35 below) and was currently not represented, the hearing could not take place. 33. On 11 October 1996 judge Z. at the District Court set 30 October 1996 as a date for the next hearing. In the summons the applicant was informed that he had to be represented by counsel at the hearing. Should he not be represented, he would be considered as being in default. Upon the claimant's request the hearing was postponed to 2 December 1996. 34. On 2 December 1996 neither of the parties appeared at the hearing. Consequently, the proceedings were stayed (Ruhen des Verfahrens). So far, neither of the parties has requested their continuation. 35. On 8 April 1994 the applicant requested legal aid. He submitted a declaration of means, according to which he had no income, property, savings or other assets. Further, he declared that he had debts with the S-Bank and the Sch. limited company. The standard form for this declaration contained a warning that, in case legal aid was obtained improperly by making false or incomplete statements, a fine for abuse of process (Mutwillensstrafe) could be imposed. 36. In his accompanying submissions the applicant stated, inter alia, that until September 1993 he had received ATS 15,000 per month from the Sch. Company. As of 1 October 1993 he was without income and was moreover obliged to pay back any payments he had received from that company. His old-age pension was only due as of 1 September 1994. Further, the applicant stated that he had no relatives and received support from a few acquaintances. 37. On 11 April 1994 judge Er. at the District Court ordered the applicant to provide further information. He was requested to submit the names and addresses of the persons supporting him, and to specify the amounts, intervals and means of their payments. Further, the applicant was requested to submit a number of supporting documents. 38. On 15 April 1994 the applicant submitted that he received ATS 200 per week from a certain Mrs F. He also submitted a number of documents. 39. On 5 May 1994 the District Court, without a hearing, dismissed the applicant's request for legal aid and imposed a fine of ATS 30,000 for abuse of process. Referring to the applicant's declaration of means and his further submissions, it found that the applicant had made incomplete or false statements. In particular he had declared that he was without income since 1 October 1993 and only received ATS 200 per week. However, the documents submitted by him showed that he had paid his rent of ATS 1,234 from October 1993 to January 1994. As the total income which he claimed per month was less than this sum, it could not be deduced from his submissions how he had been able to pay his rent. Finally, the Court noted that it had fixed the fine in a relatively modest amount as the applicant had only attempted improperly to obtain legal aid. 40. On 8 May 1994 the applicant appealed against this decision. 41. On 28 February 1995 the Vienna Regional Civil Court, sitting in private, dismissed the applicant's appeal. It found that the District Court had rightly rejected the applicant's request for legal aid. The applicant's submissions that he had savings which allowed him to pay his rent from October 1993 onwards, constituted new facts which were inadmissible in the appeal proceedings. In his request for legal aid he had stated that he had received no income since 1 October 1993 and depended on the support of acquaintances. Upon the Court's request to supplement his submissions, the applicant had specified that he received ATS 200 per week as support. He had not, however, stated that he had any savings to cover his maintenance. The District Court had rightly concluded that he had made incomplete or false statements and had, thus, failed to show that the costs of the proceedings would endanger his means of livelihood. It had also correctly imposed a fine for abuse of process in accordance with section 69 of the Code of Civil Procedure (Zivilprozessordnung). 42. On 28 March 1995 the District Court issued an order for payment of the fine for abuse of process. 43. On 16 August 1995 the District Court, referring to section 220 § 3 of the Code of Civil Procedure, noted that an attempt to collect the fine had been futile, and converted the fine into ten days’ imprisonment. The applicant was informed that he could lodge an appeal against this decision. It appears that the applicant did not do so. 44. Section 69 of the Code of Civil Procedure (Zivilprozeßordnung) provides that a court shall impose a fine for abuse of process of up to ten times the amount provided for in section 220 § 1 of the same Code (namely ATS 400,000) on a litigant who obtains legal aid improperly by making false or incomplete statements. 45. Section 220 provides inter alia that a fine for abuse of process may not exceed ATS 40,000 (paragraph 1). In the event of an inability to pay, the fine shall be converted into imprisonment. The length of imprisonment shall be determined by the court, but may not exceed ten days (paragraph 3). 46. According to section 514 of the Code of Civil Procedure an appeal (Rekurs) lies against any decision of a court, unless it is explicitly excluded. 47. Section 19 of the Penal Code (Strafgesetzbuch) deals with fines (Geldstrafen). It provides that fines shall be expressed as day-fines. They shall not amount to less than two day-fines (paragraph 1). Day-fines shall be fixed according to the offender’s means and personal circumstances at the time of the judgment at first instance. However, they shall not amount to less than ATS 30 or more than ATS 4,500 (paragraph 2). If a fine proves to be irrecoverable, a sentence of imprisonment in default shall be passed. One day’s imprisonment in default shall correspond to two day-fines (paragraph 3).