{"id":18030,"date":"2022-02-10T10:24:35","date_gmt":"2022-02-10T10:24:35","guid":{"rendered":"https:\/\/laweuro.com\/?p=18030"},"modified":"2022-02-10T10:24:35","modified_gmt":"2022-02-10T10:24:35","slug":"case-of-kilches-v-austria-european-court-of-human-rights-51683-19","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=18030","title":{"rendered":"CASE OF KILCHES v. AUSTRIA (European Court of Human Rights) 51683\/19"},"content":{"rendered":"

FOURTH SECTION
\nCASE OF KILCHES v. AUSTRIA<\/strong>
\n(Application no. 51683\/19)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n10 February 2022<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Kilches v. Austria,<\/strong><\/p>\n

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n

Armen Harutyunyan, President,
\nJolien Schukking,
\nAna Maria Guerra Martins, judges,
\nand Viktoriya Maradudina, Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 20 January 2022,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1. The case originated in an application against Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 25\u00a0September\u00a02019.<\/p>\n

2. The Austrian Government (\u201cthe\u00a0Government\u201d) were given notice of the application.<\/p>\n

THE FACTS<\/strong><\/p>\n

3. The applicant\u2019s details and information relevant to the application are set out in the appended table.<\/p>\n

4. The applicant complained of the excessive length of civil proceedings.<\/p>\n

THE LAW<\/strong><\/p>\n

I. ALLEGED VIOLATION OF ARTICLE\u00a06 \u00a7 1 OF THE CONVENTION<\/p>\n

5. The applicant complained that the length of the civil proceedings in question had been incompatible with the \u201creasonable time\u201d requirement. He relied on Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n

Article\u00a06\u00a0\u00a7\u00a01<\/p>\n

\u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n

6. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see Frydlender v.\u00a0France [GC], no.\u00a030979\/96, \u00a7\u00a043, ECHR 2000-VII).<\/p>\n

7. In the leading cases of Rambauske v. Austria, no. 45369\/07, \u00a7\u00a7\u00a021-23, 28\u00a0January 2010, and Holzinger v. Austria (no. 2), no. 28898\/95, \u00a7\u00a7\u00a026-29, 30\u00a0January 2001, the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n

8. Having examined all the material submitted to it, the Court has not found any fact or argument capable of justifying the overall length of the proceedings at the national level. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement.<\/p>\n

9. The Court recognises that the delay in the civil proceedings as well as in the guardianship proceedings was to a large part caused by the defendant\u2019s conduct. In this regard, the Court has held that even if the domestic authorities cannot be held responsible for the conduct of a respondent, the dilatory methods used by one of the parties do not relieve them of their obligation to ensure that the proceedings are conducted within a reasonable time (see Mincheva v.\u00a0Bulgaria, no. 21558\/03, \u00a7 68, 2 September 2010; and Kartcheva and Chtarbova v. Bulgaria, no. 60939\/00, \u00a7 47, 28 September 2006). The Government could not provide sufficient explanations for the fact that it took the Vienna Inner City District Court three years in the guardianship proceedings to hold an initial hearing of the defendant. From the appointment of a temporary guardian for urgent matters it took another two years for the Vienna Regional Civil Court (Landesgericht f\u00fcr Zivilrechtssachen Wien) to resume the civil proceedings. Despite the fact that the applicant has contributed to a certain extent to the delay in the civil proceedings by lodging requests for an extension of time limits and by agreeing to adjourn the hearing for settlement talks, the Court notes that the regional court in the civil proceedings took more than six months to issue a decision on the defendant\u2019s default to pay an advance on costs for the expert report she had requested herself. Overall, the Government\u2019s submissions could not justify the length of the proceedings, which are still pending in the first instance after more than nine years.<\/p>\n

10. These complaints are therefore admissible and disclose a breach of Article\u00a06 \u00a7 1 of the Convention.<\/p>\n

II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n

11. Article\u00a041 of the Convention provides:<\/p>\n

\u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n

12. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Rambauske, cited above, \u00a7\u00a7\u00a016 and\u00a032) the Court considers it reasonable to award the sum indicated in the appended table. This amount takes into account the applicant\u2019s contribution to the delay.<\/p>\n

13. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the application admissible;<\/p>\n

2. Holds that this application discloses a breach of Article 6 \u00a7 1 of the Convention concerning the excessive length of civil proceedings;<\/p>\n

3. Holds<\/p>\n

(a) that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.<\/p>\n

Done in English, and notified in writing on 10 February 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Viktoriya Maradudina \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Armen Harutyunyan
\nActing Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

___________<\/p>\n

APPENDIX<\/strong>
\nApplication raising complaints under Article 6 \u00a7 1 of the Convention
\n(excessive length of civil proceedings)<\/p>\n\n\n\n\n\n
Application no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Year of birth<\/strong><\/td>\n

Start of proceedings<\/strong><\/td>\nEnd of proceedings<\/strong><\/td>\nTotal length<\/strong><\/p>\n

Levels of jurisdiction<\/strong><\/td>\n

Type of procedure<\/strong><\/td>\nAmount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant<\/strong><\/p>\n

(in euros)[1]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

51683\/19<\/p>\n

25\/09\/2019<\/td>\n

Ralph KILCHES<\/strong><\/p>\n

1974<\/td>\n

20\/09\/2012<\/td>\npending<\/td>\nMore than 9\u00a0year(s) and 4\u00a0month(s)<\/p>\n

1 level(s) of jurisdiction<\/td>\n

civil<\/td>\n8,400<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1]<\/a> Plus any tax that may be chargeable to the applicant.<\/p>\n