Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21836/93

Alexander and Florian Hüttenmayer

against

Austria

REPORT OF THE COMMISSION

(adopted on 28 February 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 31-42) . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 32). . . . . . . . . . . . . . . . . . . . .5

C. Article 6 para. 1 of the Convention

(paras. 33-41). . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 42). . . . . . . . . . . . . . . . . . . . .6

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .7

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicants are Austrian citizens, born in 1984 and 1986 and

resident in Pinneberg (Germany). They were represented before the

Commission by Mr. W. Lenneis, a lawyer practising in Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador F. Cede, Head

of the International Law Department at the Federal Ministry of Foreign

Affairs.

4. The case concerns the length of civil proceedings concerning

maintenance payments. The applicants invoke Article 6 para. 1 of the

Convention.

B. The proceedings

5. The application was introduced on 3 February 1993 and registered

on 12 May 1993.

6. On 29 June 1994 the Commission (First Chamber) decided, pursuant

to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 14 October 1994.

The applicants replied on 3 November 1994.

8. On 17 May 1995 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 31 May 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

observations were submitted.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 28 February 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

16. On 21 October 1987 the marriage of the applicants' parents was

dissolved.

17. On 18 November 1987 the applicants, represented by their mother,

filed a request with the Favoriten District Court (Bezirksgericht) in

Vienna that their father, who lived and worked in Austria, be ordered

to increase their maintenance payments to 3,750 AS each.

18. On 21 December 1987 the applicants' mother requested the District

Court to transfer custody over the applicants to her and claimed

maintenance payments for herself. On 1 February 1988 the District

Court granted the applicants' mother custody over them.

19. On 24 March 1988 the District Court, in the maintenance

proceedings of the applicants' mother, appointed an expert and

instructed him to prepare a report on the financial situation of the

applicants' father. The District Court found that for practical

reasons evidence on the financial situation of the applicants' father

which was relevant for both maintenance proceedings should only be

taken in the mother's proceedings. On 13 September 1988 the expert

submitted his report which was discussed by the parties in a court

hearing on 2 November 1988. In the course of this hearing the expert

was requested to amend his report. On 1 August 1989, after having been

urged twice by the District Court, the expert submitted his amended

report. On 25 October 1989 this report was discussed at a court

hearing and the expert was instructed to make further amendments.

These amendments were submitted on 21 March 1990. On 29 May 1990 a

further court hearing took place in which the applicants' mother and

father concluded a settlement concerning their mother's claim to

maintenance payments.

20. On 29 May 1990 proceedings in the applicants' maintenance case

were resumed. The applicants requested the taking of further evidence

concerning their father's income and supplemented this request on

8 June 1990. On 13 August 1990 their father submitted further

information concerning his income.

21. On 14 January 1991 the District Court dismissed the applicants'

request. It considered that their father, taking into account his

income as assessed by a court-appointed expert, already made more

maintenance payments than he could afford.

22. On 29 May 1991 the Vienna Regional Court (Landesgericht) upheld

the applicants' appeal and referred the case back to the District

Court. It noted, inter alia, that despite the extreme length of the

proceedings, the applicants' father's ability to make maintenance

payments had not been sufficiently evaluated.

23. Proceedings were resumed before the District Court which on

29 August 1991 summoned the applicants' father for a court hearing on

8 October 1991. Since the applicants' father was untraceable the

District Court, after having been given a new address by the applicants

in October 1991, issued a new summons for 13 January 1992.

24. On 4 December 1991 the applicants complained about the undue

length of the proceedings and requested the Regional Court to set the

District Court a short time limit for deciding on their maintenance

claim. On 29 January 1992 the Regional Court dismissed this request.

The Regional Court found that the District Court dealt particularly

slowly with the applicants' case. It acted without sufficient

determination and there were long intervals between the single steps

taken in the proceedings which could not be explained by the time

necessary for having decisions written. Only on one occasion, when it

investigated the whereabouts of the applicants' father, the District

Court acted promptly. The Regional Court found, however, that for the

time being the elements for taking a decision were so incomplete that

no time limit could be fixed. Nevertheless, in order to relieve the

applicants' intolerable situation at least a partial decision on their

claim should be taken.

25. On 17 April 1992 the District Court, in a partial decision,

granted an increase of the maintenance payments and reserved a final

decision on the applicants' claim for a later stage. On the same day

the District Court decided to appoint another expert in order to assess

the financial situation of the applicants' father and whether his

professional activities could produce benefits.

26. On 16 June 1992 the appointed expert requested an extension of

the time limit for submitting his report until 30 September 1992.

Furthermore, he requested the District Court's assistance in obtaining

the necessary documents, inter alia, by granting him access to the tax

files of the applicants' father. On 15 October 1992 and on

9 November 1992 the District Court urged the expert to submit his

report. On 27 January 1993 the President of Vienna Regional Court was

informed about the delays in submitting the expert report. On

8 March 1993 the expert finally submitted his report.

27. On 21 May 1993 the District Court, in a final decision, granted

a further increase of the maintenance payments.

28. On 18 June 1993 the applicants' father appealed against the

District Court's decision.

29. On 24 June 1993 the Regional Court requested the expert to amend

again his report, which the latter did on 30 August 1993.

30. On 5 October 1993 the Regional Court dismissed the appeal. No

further appeal has been lodged against that decision.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

31. The Commission has declared admissible the applicants' complaint

that the civil proceedings for maintenance payments instituted by them

were not concluded within a reasonable time.

B. Point at issue

32. The only point at issue is whether there has been a violation of

Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

33. Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, provides as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law."

34. The Commission finds that the period to be taken into

consideration started on 18 November 1987, when the applicants brought

their request with the Favoriten District Court, and ended on

5 October 1993 with the Regional Court's decision on appeal. Thus the

proceedings lasted for approximately 5 years and 11 months.

35. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to its complexity, the

conduct of the parties and the conduct of the authorities dealing with

the case. In this instance the circumstances call for an overall

assessment (see e.g. Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

36. The applicants submit that the maintenance payment proceedings

were not concluded within a reasonable time. They refer to the

evaluation of the proceedings by the Regional Court which found that

the District Court had dealt with the case in a particularly slow way.

They also submit that the case was not particularly complex and that

the unreasonable length of the proceedings had to be attributed to the

Austrian courts.

37. The Government submit that the proceedings were complex as they

involved the preparation of extensive expert reports. Furthermore,

parallel to the maintenance proceedings of the applicants, maintenance

proceedings of their mother were conducted before the District Court.

These proceedings were to some extent interrelated which contributed

to the length of the proceedings at issue. Moreover, both parties to

the proceedings made numerous requests for supplementing the expert's

report. This and also the fact that the applicants' father was for a

certain period untraceable contributed to the length of the

proceedings. Also considerable delays had to be attributed to the

court experts.

38. The Commission finds that the present case, though requiring the

taking of expert opinions, was not particularly complex.

39. As regards the conduct of the parties, the Commission finds that

some delays have to be attributed to the defendant who caused

difficulties in taking the necessary evidence in that he refused to

submit documents. The applicants also contributed to the length of the

proceedings by various requests for taking of evidence and amendments

to the expert's report. These delays are, however, not sufficient to

explain their total length.

40. As regards the conduct of the authorities the Commission notes

that the Regional Court, on two occasions, criticised the District

Court for its slow handling of the case. Furthermore the Commission

notes that delays were caused by court experts. In the first set of

the proceedings the District Court had to urge the expert twice to

submit amendments to his report and between the court's instruction to

the expert and his submission of the amended report almost one year

passed (2 November 1988 - 25 October 1989). Also in the second set of

the proceedings the expert submitted his report after having been urged

by the District Court to do so several times and almost one year after

his appointment (17 April 1992 - 8 March 1993). The Commission recalls

that the courts are responsible for the delays caused by the expert

(see Cialdea v. Italy, Comm. Report 12.10.94, para. 20; Eur. Court

H.R., Capuano judgment of 25 June 1987, Series A no. 119, p. 13,

para. 30).

41. Having regard to the overall length, the Commission finds that

the proceedings were not concluded within a reasonable time (see Eur.

Court H.R., Boddaert judgment of 12 October 1992, Series A no. 235-D,

p. 82, para. 36).

CONCLUSION

42. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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HÜTTENMAYER v. AUSTRIA

HÜTTENMAYER v. AUSTRIA

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