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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21944/93

Georg Rudofsky

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

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. 16-20) 3

III. OPINION OF THE COMMISSION

(paras. 21-32) 4

A. Complaint declared admissible

(para. 21) 4

B. Point at issue

(para. 22) 4

C. Article 6 of the Convention

(paras. 23-31) 4

CONCLUSION

(para. 32) 5

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 6

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 applicant is an Austrian citizen, born in 1930, and formerly was

ambassador in Finland. He is currently residing in Vienna.

3. The application is directed against the Republic of Austria. The

respondent Government are 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 divorce proceedings. The applicant

invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 31 March and registered on 28 May 1993.

6. On 11 May 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 28 July 1994. The

applicant replied on 10 September 1994.

8. On 22 February 1995 the Commission declared the application admissible.

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

parties on 8 March 1995 and they were invited to submit such further information

or observations on the merits as they wished. The applicant submitted further

observations on 24 April 1994.

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:

MM. C.L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

12. The text of this Report was adopted on 18 October 1995 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. By letter of 28 November 1985 the applicant brought an action for divorce

with the Vienna Regional Court (Landesgericht), which was registered on 5

December 1985.

17. On 4 February and on 16 September 1986 the Vienna Regional Court held

hearings in the presence of the parties' representatives.

18. The Vienna Regional Court conducted further hearings on 11 May and 25

November 1988, on 15 March, 17 and 18 July 1989, on 25 January, 3 and 4 July and

11 October 1990, on 15 and 16 January 1991, on 8 May, 12 June, 4 and 11

September, 6 October, 24 November 1992, on 29 March and 31 August 1993, 3 May

1994 and 7 April 1995. The proceedings are still pending at first instance.

19. The Regional Court heard numerous witnesses, who had to a considerable

extent been named by the applicant in 1988. The hearing of the witnesses inter

alia necessitated proceedings under letters rogatory. In March 1993 the Court

also ordered the taking of psychiatric expert evidence. Moreover, the Regional

Court made several unsuccessful attempts to secure an arrangement between the

parties on the matters related to the divorce action.

20. In the context of the divorce proceedings, the Vienna Regional Court also

conducted seven interim injunction proceedings, which were partly only

terminated following appeal proceedings before the Vienna Court of Appeal

(Oberlandesgericht) and the Supreme Court (Oberster Gerichtshof). The

injunction proceedings concerned the applicant's repeated requests to order the

defendant to leave the embassy in Helsinki (first set of proceedings between May

1986 and March 1987, second set between April and December 1987, third set

between May 1988 and April 1992), the defendant's request for the payment of

alimonies (proceedings between July 1986 and November 1991), the defendant's

request regarding the matrimonial household (lodged on 11 December 1986 and

withdrawn the next day), the defendant's request relating to the spouses'

apartment and their savings (proceedings between February 1987 and May 1987),

and finally the defendant's request for the payment of advanced court fees

(proceedings between May 1987 and December 1987).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The Commission has declared admissible the applicant's complaint that his

divorce action has not been determined within a reasonable time.

B. Point at issue

22. The point at issue is whether there has been a violation of Article 6

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

C. Article 6 (Art. 6) of the Convention

23. The applicant submits that the divorce proceedings before the Vienna

Regional Court have exceeded a reasonable time. He invokes Article 6 para. 1

(Art. 6-1) of the Convention which includes the following provision:

"In the determination of his civil rights and obligations ..., everyone is

entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

24. The Commission finds that the period to be taken into consideration

started on 28 November 1985 when the applicant filed his divorce action. The

case is still pending, i.e. after almost ten years.

25. The Government submit that the case was of particular complexity, taking

into account the necessity to hear numerous witnesses as well as the interim

injunction proceedings. They consider that the applicant contributed to the

length of the proceedings in that he did not name all witnesses when filing his

divorce action and generally did not ensure that the proceedings be duly

furthered. According to the Government, no avoidable delays were imputable to

the Austrian courts. In particular the provisional injunction proceedings could

not be dissociated from the main divorce proceedings, and their conduct had to

be regarded as a continuation of the divorce proceedings.

26. The applicant disputes the Government's views.

27. The Commission considers that the divorce action was as such not

particularly complex. However, the requests lodged by the parties for interim

injunctions, the majority of which was of relatively minor importance, could on

the whole be regarded as complicating to some extent the main divorce

proceedings and putting an extra burden of work upon the court.

28. The Commission finds that the parties to the divorce proceedings

contributed to the length of the proceedings by lodging these various requests.

However, their conduct cannot explain the overall length. In particular the

Government did not show the extent to which the applicant, in the circumstances

of his case, had effective judicial means to ensure the due furthering of the

proceedings. As regards the Government's argument that the applicant could have

named numerous witnesses before October 1988, the Commission, assuming that the

applicant could have done so, finds no indication that his failure to do so was

the source of substantial delay in the proceedings.

29. Turning to the conduct of the Vienna Regional Court, the Commission finds

that the Government failed to explain the complete inactivity as regards the

main divorce action which lasted from September 1986 until May 1988, i.e. for

one year and eight months. The respondent Government did not show that this

delay was inevitable as a result of either the allegedly belated submissions of

the applicant on the question of witnesses or the parties' requests for interim

injunctions. The Commission observes that, having regard to the summary nature

of injunction proceedings concerning matters related to a divorce case, the

length of part of these proceedings, such as the proceedings concerning the

applicant's third request to order the defendant to leave the embassy in

Helsinki (between May 1988 and April 1992) and the defendant's request for the

payment of alimonies (proceedings between July 1986 and November 1991) appears

in itself unreasonable and cannot, therefore, justify the length of the main

divorce proceedings.

30. The further conduct of the proceedings by the Regional Court is

characterised by numerous hearings in sometimes rather lengthy intervals in

order to hear the parties and witnesses, and also to attempt a settlement of the

divorce action. Taking a global approach to this part of the domestic

proceedings, the Commission finds that the Government's explanations as to the

due course of action taken by the Regional Court are not sufficient.

31. In the present case, the Commission considers that the fact that divorce

proceedings have not yet been terminated after almost ten years amounts to a

breach of the applicant's right to a hearing "within a reasonable time" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, in particular as

special diligence is required in proceedings relating to civil status and

capacity (cf., Eur. Court H.R., Bock judgment of 29 March 1989, Series A no.

150, p. 23, para. 49; Maciariello judgment of 27 February 1992, Series A no.

230-A, p. 10, para. 18).

CONCLUSION

32. 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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RUDOFSKY v. AUSTRIA

RUDOFSKY v. AUSTRIA

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