STRASSER v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant, Elfriede Strasser, is an Austrian national, born in 1947 and living in Salzburg. She is represented before the Court by Mr F. Hitzenbichler, a lawyer practising in Salzburg. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 June 1989, the applicant filed an action with the Salzburg District Court (Bezirksgericht) requesting the repayment of rent and of capital expenditure (Investitionskostenaufwand) from her lessor. In these and the subsequent proceedings the applicant was represented by counsel. On 18 December 1991, the District Court dismissed the action. The applicant appealed against this decision on 6 February 1992. On 4 May 1992, the Salzburg Court of Appeal (Oberlandesgericht) referred the case back to the Salzburg District Court requesting that additional evidence be taken. As regards the capital expenditure the applicant appealed against this decision on 4 June 1992. On 31 August 1992, the Supreme Court dismissed the appeal and confirmed the Court of Appeal’s decision to refer the case back to the Salzburg District Court for the taking of additional evidence. The District Court held hearings on 16 March and 7 June 1993. An expert was appointed on 17 August 1993, who submitted his opinion on 28 September 1994. Following a change of the competent judge a further hearing was held on 2 May 1995 where the expert was present and orally explained his opinion. On 7 July 1995, the District Court, having regard to the submissions of the parties, the witnesses, and the experts, rendered a partial judgment granting the applicant’s claim for repayment of certain sums which she had paid in rent. Her claim for repayment of capital expenditure was admitted in substance, the precise amount remaining to be fixed after the taking of further evidence. On 27 November 1995, the Salzburg Court of Appeal dismissed the applicant’s appeal as far as the claim for capital expenditure was concerned. The defendant filed a further appeal on points of law on 6 February 1996. Thereupon, on 25 October 1996, the Supreme Court confirmed the Court of Appeal’s decision as to the claim for repayment of rent, but agreeing with the defendant dismissed the applicant’s claim for compensation for capital expenditure finding that the Court of Appeal had wrongly applied the law in this respect. The decision was served on 2 December 1996. 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."