EUROPEAN COMMISSION OF HUMAN RIGHTS

                               FIRST CHAMBER

                         Application No. 12883/87

                                   L.K.

                                  against

                                  Austria

                         REPORT OF THE COMMISSION

                          (adopted on 5 May 1993)

                             TABLE OF CONTENTS

                                                                      Page

I.    INTRODUCTION

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

II.   ESTABLISHMENT OF THE FACTS

      (paras. 6-31) . . . . . . . . . . . . . . . . . . . . . . . . . . .2

      1.    The Austrian divorce proceedings. . . . . . . . . . . . . . .2

      2.    The Canadian divorce proceedings. . . . . . . . . . . . . . .2

      3.    The exequatur proceedings . . . . . . . . . . . . . . . . . .3

      4.    Continuation of the Austrian divorce proceedings

            subsequent to the Canadian judgment . . . . . . . . . . . . .4

      5.    Separate proceedings related to maintenance claims. . . . . .7

III.  OPINION OF THE COMMISSION

      (paras. 32-44). . . . . . . . . . . . . . . . . . . . . . . . . . .8

      A.    Complaint declared admissible

            (para. 32). . . . . . . . . . . . . . . . . . . . . . . . . .8

      B.    Point at issue

            (para. 33). . . . . . . . . . . . . . . . . . . . . . . . . .8

      C.    Compliance with Article 6 para. 1 of the Convention

            (paras. 34-45). . . . . . . . . . . . . . . . . . . . . . . .8

      CONCLUSION

      (para. 46). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

APPENDIX I :      HISTORY OF PROCEEDINGS. . . . . . . . . . . . . . . . 11

APPENDIX II :     DECISION ON THE ADMISSIBILITY OF

                  THE APPLICATION . . . . . . . . . . . . . . . . . . . 12

APPENDIX III :    TIME-TABLE OF EVENTS IN THE PROCEEDINGS IN

                  QUESTION AND THE PROCEEDINGS INTERRELATED . . . . . . 23

I.    INTRODUCTION

1.    The present Report concerns Application No. 12883/87 by L.K.

against Austria, introduced on 26 February 1986 and registered on

1 April 1987.

      The applicant is an Austrian national of Jordanian origin born

in 1939 and resident in Bonn.

      The applicant was first represented before the Commission by

Mr. Rudolf F. Graf Logothetti, a lawyer practising in Salzburg, and

is now represented by her daughter, Maja K., who resides in

Innsbruck.

      The Austrian Government were represented by their Agent,

Mr. Helmut Türk, Federal Ministry for Foreign Affairs.

2.    The application was communicated to the Government on

6 June 1990.  Following an exchange of memorials, the complaint

relating to the length of maintenance proceedings (Article 6 para. 1

of the Convention) was declared admissible on 14 October 1991,

whereas the remainder of the application was declared inadmissible.

The decision on admissibility is appended to this Report.

3.    Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 5 May 1993 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

            MM.  E. BUSUTTIL, Acting President of the First Chamber

                 A.S. GÖZÜBÜYÜK

            Sir  Basil HALL

            Mr.  C.L. ROZAKIS

            Mrs. J. LIDDY

            MM.  M. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

4.    In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Austria.

5.    The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with

Article 31 para. 1 of the Convention.

II.   ESTABLISHMENT OF THE FACTS

6.    The applicant was of Jordanian nationality until 1964 when she

married an Austrian mining engineer and thereby automatically

acquired Austrian nationality.  Proceedings concerning her divorce

were the subject of her previous application No. 7593/76 which the

Commission rejected on 7 October 1977, partly for non-exhaustion of

the domestic remedies, partly as being manifestly ill-founded, and

partly as being incompatible with the provisions of the Convention.

7.    In her present application, the applicant complains of the

length of maintenance proceedings before the Austrian courts, which

were connected to her divorce proceedings and developed as follows

(see also Appendix II):

      1. The Austrian divorce proceedings

8.    In 1968 divorce proceedings were brought by the applicant's

husband in Austria.  On 17 February 1977 the applicant filed a

counteraction.  On 30 November 1977 the Regional Civil Court

(Landesgericht für Zivilrechtssachen) of Vienna, rejecting a request

by the applicant for adjournment in view of pending criminal

proceedings, pronounced the divorce, finding that the breakdown of

the marriage had been the fault of both spouses.  It also adjudicated

maintenance to the applicant in the amount of 18% of her husband's

salary.  Upon the appeal of both parties this judgment was quashed by

the Vienna Court of Appeal (Oberlandesgericht) on 6 April 1978.  On

27 March 1979 the Regional Court again pronounced the divorce, this

time on the exclusive fault of the applicant's husband. It considered

itself incompetent to determine the applicant's maintenance claim.

The applicant's appeal against this decision was upheld on

25 June 1979 by the Court of Appeal which referred the case back to

the Regional Court both as regards the parties' divorce petitions and

the applicant's maintenance claim.  On 6 March 1980 an interlocutory

order was issued according to which the applicant's husband had to

pay maintenance in the amount of 27% of his monthly net income.  The

applicant had claimed 33%.  She lodged an appeal insofar as her claim

had been dismissed.  On 8 May 1980 the appeal was rejected by the

Vienna Court of Appeal subsequent to the taking of evidence on

16 April 1980.  (As to further details see Annex II to this Report.)

      2. The Canadian divorce proceedings

9.    In the meantime, the applicant's husband, resident in Canada,

sought a divorce from the applicant before a Canadian court, the

Queen's Bench Division at Regina, Saskatchewan.  Due to a long postal

strike in Canada communications between this court and the applicant

were difficult. The petition and a summons to attend the court's

hearing were communicated to the applicant in Germany by a lawyer of

her husband's firm.  The applicant applied for legal aid and for a

hearing, in Germany, by means of letters rogatory, of herself and

certain witnesses.   The Canadian court rejected these requests.  The

Queen's Bench Division held its hearing in the absence of the

applicant on 14 October 1981.  Under the law of Saskatchewan, which

provides for a divorce in case of a separation of the spouses for

more than five years, it issued a "decree nisi", pronouncing the

divorce conditionally "unless sufficient cause be shown ... within

three months ... why this decree should not be made absolute".  The

applicant wrote to the court on 18 November 1981, apparently without

knowing of the decree nisi. She appealed against the summons,

referring inter alia to the fact that it had not been served upon her

through official channels and that divorce proceedings were pending

in Austria.  Apparently the Canadian court did not receive this

letter, or did not consider it as a relevant objection to the decree

nisi.  A "decree absolute" was issued by the Queen's Bench Division

on 10 February 1982.  The applicant's subsequent attempts to appeal

and to be granted legal aid for this purpose failed.  The divorce

thus became final in Canada.

      3. The exequatur proceedings

10.   In order to have the Canadian decision recognised in Austria,

the applicant's husband applied for a writ of execution ("exequatur")

to the Austrian Federal Ministry of Justice.  The applicant was

invited to comment on the application. She stated that divorce

proceedings were still pending before the Austrian courts and that

she had not been heard in the Canadian proceedings.  She also

referred to her letter of 18 November 1981 to the Canadian court.

11.   On 4 June 1982 the Ministry recognised the validity of the

Canadian divorce under Section 24 of the Fourth Decree on the

Implementation of the Marriage Act (4. Durchführungsverordnung zum

Ehegesetz) in conjunction with Section 328 of the German Code of

Civil Procedure (Zivilprozessordnung) still applicable in Austria by

virtue of that provision.  It noted that the Canadian court was

competent as one of the spouses, the applicant's husband, was

resident in Canada.  The divorce of Austrians in a foreign country

was to be recognised if the law of the husband's home country

provided for recognition unless the defendant party, being Austrian,

had refused to accept the jurisdiction of the foreign court and to

respond to the action in question (Einlassung) after being duly

informed of it either in the foreign State concerned or by legal

assistance of the Austrian authorities.  The applicant had recognised

the Canadian jurisdiction by requesting legal aid and a hearing in

Germany by letters rogatory.  The petition had actually reached her

in Germany; therefore it was irrelevant that it had not been served

upon her in Canada or by Austrian legal assistance.  It was also

irrelevant that neither the applicant nor the witnesses proposed by

her had been heard by the Canadian court.  It was true that the

Canadian court had failed to apply Austrian law as required by the

Austrian rules on the conflict of laws when both spouses were

Austrians, but no disadvantage could follow from this because a

divorce would also have been pronounced under Austrian law if the

spouses had not lived together for more than six years (Section 55

para. 3 of the Marriage Act).  The Ministry was not competent to

review the Canadian court's findings in this respect. Finally, there

was no obstacle to the recognition of the divorce resulting from the

Austrian ordre public.

12.   The applicant lodged a complaint against this decision with the

Austrian Administrative Court (Verwaltungsgerichtshof) requesting the

grant of suspensive effect.  This was refused by the Administrative

Court on 1 December 1982 on the ground that the applicant's husband

had re-married in Austria and that therefore his interests in

upholding the Ministry's decision prevailed over those of the

applicant in being granted suspensive effect.

13.   By a decision of 11 September 1985, which was served on the

applicant in the Federal Republic of Germany on 24 December 1985, the

Administrative Court rejected the applicant's complaints on the

merits.

14.   It held that the case was not one of exclusive Austrian

jurisdiction because it did not concern two Austrian spouses resident

in Austria.  The fact that divorce proceedings were pending in

Austria did not prevent the recognition of a foreign divorce judgment

as the preservation of the Austrian jurisdiction was not part of the

Austrian ordre public in such a case.  Insofar as the applicant now

claimed that the action and summons had not duly been served upon her

in Germany, and that because of a postal strike in Canada her mail

had not reached the Canadian court until after the issuing of the

decree nisi, her submissions were inadmissible because they had not

been raised in the administrative proceedings.  The applicant had

accepted Canadian jurisdiction as found by the Ministry.  This was

sufficient for the recognition of the divorce.  Insofar as the

applicant contested the Ministry's finding that the non-application

of Austrian law had not caused any damages to her, the Administrative

Court recognised that a disadvantage could arise for the applicant's

maintenance claim as her husband's fault for the breakdown of the

marriage had not been established.  However, if the Canadian court

had applied Austrian law it could have made a finding in this respect

only at the applicant's request, and the applicant had not submitted

such a request.  The Administrative Court further observed that this

issue could still be pursued before the Austrian civil courts.

Finally, the fact that the applicant had not been heard in the

Canadian proceedings did not violate the Austrian ordre public as the

law expressly stated the procedural principles whose non-application

provided a ground for non-recognition of the foreign judgment and

these principles did not include a hearing by means of letters

rogatory as requested by the applicant.

15.   The applicant did not challenge the Ministry's decision before

the Constitutional Court (Verfassungsgerichtshof) as she had been

advised that this court did not have competence to decide in her

matter.

      4. Continuation of the Austrian divorce and maintenance

         proceedings subsequent to the Canadian judgment

16.   In the meantime the divorce proceedings in Austria had been

resumed.  The applicant's husband invoked the recognition of the

Canadian divorce by the Federal Ministry of Justice claiming that the

Austrian courts no longer had jurisdiction in the case.  The

applicant observed that the recognition of the Canadian divorce had

been challenged before the Administrative Court as being unlawful.

In any event, she requested the court to state that the breakdown of

the marriage had been her husband's fault.  Such a finding was

important under Austrian law for her maintenance claims, which had

first been raised in her counteraction of 17 February 1977 (see

para. 8 above).

17.   In the resumed divorce proceedings , the Regional Court, noting

the Administrative Court's refusal to order the suspensive effect of

the Ministry's decision, refused to suspend the proceedings and, by

a partial decision (Teilurteil) of 14 July 1983, found that it was

bound by the Ministry's decision to recognise the Canadian divorce.

For this reason the Canadian judgment had to be considered as the

final decision in the case, and therefore both parties' claims for

divorce, and the applicant's claim to establish the fault of her

husband, had to be rejected on the ground of res iudicata.

18.   On 26 September 1983 the Vienna Regional Court ordered that the

interlocutory order of 6 March 1980 (see above para. 8 in fine)

granting the applicant maintenance in the amount of 27% of her ex-

husband's net income  continued to be valid until final settlement of

the dispute.

19.   On 24 November 1983 the Court of Appeal confirmed the partial

decision of 14 July 1983 (see para. 17), while observing that the

Austrian proceedings following the recognition of the Canadian

divorce were null and void and that the parties' claims should

therefore have been rejected as being inadmissible.  It further

expressed the view that the Canadian judgment could not be

supplemented by a finding of fault under Section 61 of the Austrian

Marriage Act as Canadian law had been applied.

20.   On 12 July 1984 the applicant's further appeal was in part

upheld by the Supreme Court (Oberster Gerichtshof).  The Supreme

Court noted that the Court of Appeal had confirmed the Regional

Court's decision concerning the validity of the Canadian divorce.  A

further remedy to the Supreme Court on this issue was therefore

inadmissible. However, the applicant could still request the

establishment of her husband's fault.  The Canadian judgment had not

determined this issue.  Even if such a claim could not be raised

independently in respect of a foreign divorce judgment, she had a

legitimate interest in the Austrian proceedings being continued on

this issue.

21.   On 19 October 1984 the Court of Appeal made a finding that the

breakdown of the marriage had been the exclusive fault of the

applicant's husband, who had misled the Canadian court about the fact

that divorce proceedings were pending in Austria.  The consequences

of the divorce were, in principle, governed by Austrian law,

notwithstanding that the divorce had been pronounced under Canadian

law.  It was necessary to prevent the applicant's husband from

profiting from the application of the more favourable Canadian law

concerning his maintenance obligation.  Under Austrian law this was

dependent on a finding of fault, which the court now made in response

to the applicant's original claim, without thereby amending the

Canadian judgment.

22.   On 25 July 1986 the Supreme Court confirmed this decision,

rejecting an appeal by the applicant's husband.  It held that the

Austrian courts were only bound by the divorce pronounced in Canada,

but were not bound to apply Canadian law to the consequences of the

divorce.  Under the rules on the conflict of laws Austrian law

governed the applicant's maintenance claim.

23.   On 13 June 1987 a hearing took place before the Regional Court.

On 11 July 1987 the applicant was granted legal aid to assert this

claim.  Difficulties arose concerning the determination of the salary

of the applicant's ex-husband in Canada.  According to the applicant

he was still employed and paid by a German firm.  A representative of

that firm was summoned to a hearing of the Regional Court of Vienna

on 14 June 1988 but did not appear.  At the same hearing the

competent judge allegedly prevented the applicant and her daughter,

who had travelled to Vienna, from making statements on the case.

24.   The applicant's ex-husband, whom the Court had ordered to be

examined in Canada by means of letters rogatory, did not pay the

necessary consular fees and subsequently refused to accept the

jurisdiction of the Austrian courts, stating that he had in the

meantime acquired Canadian nationality (letter to the Regional Court

of 2 September 1988).

25.   At the next hearing on 17 October 1988 neither the applicant's

ex-husband nor his lawyer appeared.  The applicant claimed that he

was foreclosed from making any further submissions.  The Court

decided to have two representatives of the firm in which he was

allegedly still employed heard on letters rogatory in Germany.  The

applicant subsequently claimed that this decision was unlawful

because it had not been based on a request by either party.

26.   The result of the hearing of the firm's representatives in

Germany was read out at a court hearing on 21 March 1989 when the

applicant also submitted a number of documents concerning the income

of her ex-husband.  They were partly in English and the applicant's

request to have them translated in the framework of legal aid was

rejected on the ground that the request had been made in order to

delay the proceedings.  The Court decided not to take any further

evidence finding that the case was ready for decision; it decided,

however, to obtain information from the Austrian embassy in Ottawa on

the tax paid by the applicant's ex-husband in Canada.

27.    A complaint by the applicant against the competent judge of the

Regional Court, alleging that he had suppressed documents in the file

and manipulated the transcript of the hearing of 21 March 1989, was

rejected by the President of the Vienna Court of Appeal on

9 June 1989.  Her challenge of the same judge, based on the alleged

manipulation of the said transcript, was rejected by the Regional

Court on 19 December 1989 as being inadmissible for having been

lodged out of time.  On 4 September 1990 an appeal against this

decision was rejected by the Vienna Court of Appeal.  Leave to appeal

on points of law was denied by the same court.

28.   On 27 December 1990 the Vienna Regional Court gave judgment in

the maintenance proceedings ordering the applicant's ex-husband to

pay arrears on maintenance as from 1982 until December 1988 as well

as DM 1,800 a month from January 1989 onwards.  The applicant's

appeal against this judgment was rejected by the Vienna Court of

Appeal and leave to appeal on points of law refused on 23 May 1991.

It follows from the decisions that the applicant had repeatedly

altered her requests.

      5. Separate proceedings related to maintenance claims

29.   In connection with the above proceedings, the applicant and her

daughter also introduced a number of further court proceedings both

in Austria and in the Federal Republic of Germany.

30.   In particular, they sought to satisfy their maintenance claims,

insofar as they had been recognised by orders of the Austrian courts.

31.   However, as enforcement proceedings against the husband's

employer in Germany (cf. Application No. 13494/88) failed, the

applicant and her daughter brought actions in 1987 against the sons

of the applicant's ex-husband from his first marriage, seeking the

revocation of gifts which he had made to them, in order to satisfy

their claims in this way.

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

32.   The Commission has declared admissible the applicant's complaint

that her claim for maintenance was not heard within a reasonable

time.

B.    Point at issue

33.   The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" referred to in Article 6

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

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

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

35.   The proceedings in question concern a claim for maintenance and

consequently a dispute over "civil rights and obligations".  They

accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of

the Convention.

36.   The applicant argues that the proceedings started in 1968 when

her husband filed the divorce action.  However, the applicant did not

raise her maintenance claim before the Austrian court until

17 February 1977 when she filed a counter-action.  The period in

question consequently started on that date and ended on 23 May 1991

when the final decision in the proceedings in question was given (see

para. 28 above).  The period to be considered thus amounts to

fourteen years and three months.

37.   The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of

the case, the conduct of the applicant and the conduct of the

authorities dealing with the case (see Eur. Court H.R., Vernillo

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

this instance the circumstances call for an overall assessment (see

Eur. Court H.R., Ficara judgment of 4 February 1991, Series A

no. 196, p.9, para. 17).

38.   According to the Government, the length of the period in

question is due to the complexity of the case and the applicant's

conduct.  The applicant considers that the proceedings were

deliberately delayed which caused her damages as she could not

enforce the interlocutory order granting her maintenance.

39.   The Commission first notes that in principle maintenance

proceedings are of particular urgency.  However the applicant was

granted on 6 March 1980 an interim order fixing a certain amount of

maintenance to be paid by her ex-husband (see para. 18 above).  If

the latter avoided execution of this order on account of his

residence abroad this consequence is unrelated to the length of the

proceedings concerning the determination of the claim and is not

imputable to the respondent State.

40.   The Commission further notes that the case was extremely complex

in view of the implications of the parallel divorce proceedings in

Canada, of the rogatory requests which the Austrian courts had to

address to authorities abroad and an apparent obstructive attitude of

the defendant party living abroad.  Nevertheless a period exceeding

fourteen years cannot be explained solely by the complexity of the

matter.

41.   The Commission further considers that the applicant's conduct

is not in itself sufficient to explain the full length of the

proceedings.

42.   The Commission next notes the existence of periods of inactivity

between 25 July 1986 when the Supreme Court gave judgment rejecting

the appeal of Mr. K. and 13 June 1987 when the next oral hearing took

place.  Furthermore the important time-spans between this hearing and

the further ones on 14 June 1988, 17 October 1988 and 21 March 1989

are not sufficiently explained merely by the necessity to make

rogatory requests in the Federal Republic of Germany.

43.   It follows that judged as a whole, and in particular in view of

the delays mentioned above, the proceedings in question have exceeded

a reasonable time.

44.   The Commission also reaffirms that it is for Contracting States

to organise their legal systems in such a way that their courts can

guarantee the right of everyone to obtain a final decision on

disputes  relating to civil rights and obligations within a

reasonable time (cf. Eur. Court H.R. Martins Moreira judgment of

26 October 1988, Series A no. 143, p. 21 para. 60).

45.   In the light of the criteria established by case-law and having

regard to all the information in its possession, the Commission finds

that the length of the proceedings complained of exceeded the

"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the

Convention.

CONCLUSION

46.   The Commission concludes, unanimously, that there has been a

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

Secretary to the First Chamber  Acting President of the First Chamber

       (M.F. BUQUICCHIO)                        (E. BUSUTTIL)

                                APPENDIX I

                          HISTORY OF PROCEEDINGS

Date                                Item

_________________________________________________________________

26 February 1986                    Introduction of the application

1 April 1987                        Registration of the application

Examination of Admissibility

6 June 1990                         Commission's deliberations and

                                    decision to invite the Government

                                    to submit observations on the

                                    admissibility and merits of the

                                    application

5 November 1990                     Government's observations

27 February 1991                    Applicant's observations in reply

14 October 1991                     Commission's deliberations and

                                    decision to declare the application

                                    in part admissible and in part

                                    inadmissible; decision to refer

                                    case to First Chamber

Examination of the merits

13 November 1991                    Parties invited to submit

                                    observations on merits

12 January 1993                     Commission's consideration of the

                                    state of proceedings

5 May 1993                          Commission's deliberations on the

                                    merits, final vote and adoption of

                                    the Report