OGH: No change of jurisdiction in case of phobia of a court building

Jun 17, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) examined the question of whether the fear of a courthouse allows a change of jurisdiction of a court according to Section 31 of the Jurisdiction Code (Jurisdiktionsnorm, JN).

The plaintiff sought payment of approximately EUR 35,000.00 on the grounds that his mother - the defendant - had made unauthorised use of the car owned by the plaintiff, sold it and kept the proceeds of the sale. In response, the defendant filed a motion pursuant to Sec. 31 JN requesting the court to transfer the case to another regional court in the Higher Regional Court district of Vienna. Due to several proceedings between the defendant and her former partner, she was unable to enter the Vienna Regional Court for Civil Matters or the building in Austria where the OGH sits (Justizpalast) due to agoraphobia (an anxiety disorder).

The Vienna Higher Regional Court dismissed the application because - without the consent of the opposing party - there was no reason for a delegation according to Sec. 31 JN. Moreover, such a delegation would result in higher procedural costs.

The OGH confirmed:

Pursuant to Sec. 31 para 1 JN, an application may be made to the competent court for reasons of expediency that another court of the same class be appointed to hear and decide the case. Expediency is, however, only given if the proceedings can be settled more quickly and at lower costs. The fact that a party is prevented from visiting the competent trial court does not constitute a reason for delegation according to Sec. 31 JN. It was also submitted in the appeal on the merits that the capacity of the defendant to stand trial was questionable. In this regard, the OGH ruled that being prevented from attending for health reasons does not constitute partial incapacity to stand trial. Even whether the alleged and medically proven fears could expand is irrelevant here.

The appeal of the defendant was therefore not upheld.

OGH 1 Ob 42/22s (23.03.2022)