Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 12628/87

F.

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 31 May 1991)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 17) ....................................... 1

A. The application

(paras. 2 - 5) ................................. 1

B. The proceedings

(paras. 6 - 12) ................................ 1

C. The present Report

(paras. 13 - 17) ............................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18 - 36) ....................................... 3

A. The particular circumstances of the case

(paras. 18 - 33) .............................. 3

B. Relevant domestic law

(paras. 34 - 36) .............................. 5

III. OPINION OF THE COMMISSION

(paras. 37 - 57) ...................................... 7

A. Complaint declared admissible

(para. 37) ........................................ 7

B. Point at issue

(para. 38) ........................................ 7

C. As to the alleged violation of Article 6

para. 1 of the Convention

1. General considerations

(paras. 39 - 41) ............................... 7

2. Determination and assessment of

the length of proceedings

(paras. 42 - 56) ............................... 7

Conclusion

(para. 57) ....................................... 9

Dissenting Opinion by Mr. H. Danelius

joined by MM. C.L. Rozakis and L. Loucaides ............ 10

Dissenting Opinion by Mr. E. Busuttil .................. 11

APPENDIX I : HISTORY OF THE PROCEEDINGS .................. 12

APPENDIX II : DECISION ON THE ADMISSIBILITY ............... 13

I. INTRODUCTION

1. A summary of the facts of the case is set out below, together

with a description of the proceedings.

A. The application

2. The applicant, F., is a German university professor born in

1920 and residing in Linz, Austria. He is represented by Mr. B.

Binder, a barrister practising in Linz.

3. The respondent Government are represented by their Agent,

Mr. Helmut Türk, Head of the International Law Division of the Federal

Ministry of Foreign Affairs.

4. The application concerns the length of divorce proceedings

introduced by the applicant on 30 June 1983 and concluded on

15 February 1990 by a decision of the Supreme Court (Oberster

Gerichtshof) which was served on applicant's counsel on 1 August 1990.

5. Before the Commission, the applicant complains of the length

of the proceedings and alleges a violation of Article 6 para. 1 of

the Convention.

B. The proceedings

6. The application was introduced on 10 December 1986 and

registered on 18 December 1986.

7. On 8 September 1988 the Commission decided to communicate the

application to the Austrian Government and invite them to present

their observations in writing on its admissibility and merits.

8. The Government presented their observations on 7 November

1988 and the applicant replied on 19 January 1989.

9. On 7 September 1990 the Commission declared the application

admissible.

10. After consulting the parties the Commission, by decision of

7 November 1990, referred the application to the First Chamber.

11. On 15 November 1990 the parties were invited, should they so

desire, to submit further evidence and observations regarding the

merits of the application. They did not avail themselves of

this possibility.

12. After declaring the case admissible the Commission, acting

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

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

friendly settlement of the case. Consultations with the parties took

place between 18 November 1990 and 4 January 1991. In the light of the

parties' reaction, the Commission now finds that there is no basis on

which a friendly settlement can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

14. The text of this Report was adopted on 31 May 1991 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 para. 1 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.

16. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I, and the Commission's

decision on the admissibility of the application forms Appendix II.

17. The 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

A. The particular circumstances of the case

18. On 30 June 1983 the applicant lodged a divorce action before

the Regional Court (Landesgericht) in Linz. His wife submitted her

observations on 12 August 1983. The first hearing took place on

27 September 1983 and mainly served to discuss the possibilities

of reaching a friendly settlement. Another hearing was held on

12 December 1983 and dealt again primarily with friendly settlement

discussions.

19. At a third oral hearing on 12 March 1984 the applicant was

heard as a party. At a hearing on 13 June 1984 the possibilities of

a friendly settlement were again discussed. The hearing of the

applicant as a party was continued on 24 August 1984. After this

hearing the Court decided to hear several witnesses.

20. On 4 October 1984 the applicant's wife lodged a counter-action.

21. A hearing fixed for 9 November 1984 was postponed with the

parties' consent to 22 January 1985 and then, at the applicant's

counsel's request, to 8 February 1985. At the hearing of 8 February

1985 the case was taken over by another judge, who decided to start

the case anew (Neudurchführung der Verhandlung). The applicant's wife

was heard as a party and the former decision to take further evidence

was maintained.

22. On 27 February 1985 the applicant's observations in reply to

the counter-action were submitted.

23. On 8 May 1985 a witness was heard, by rogatory commission,

before the Munich District Court (Amtsgericht).

24. On 17 and 18 June 1985 the Court heard the defendant as a

party as well as five witnesses. The minutes of this hearing comprise

66 pages. Subsequent to this hearing yet another judge took over the

case.

25. A hearing which had been fixed on 18 June 1985 for 19 December

1985 was adjourned because the judge was reported ill from 18 November

1985 to 15 December 1985 and subsequently took leave for a cure.

26. On 2 June 1986 the new judge decided to start the case anew.

The possibilities of a friendly settlement were again discussed. The

former decision to hear several witnesses was maintained. According

to the minutes of the hearing the parties expressed their intention to

continue friendly settlement discussions out of court and therefore

the date for a further hearing was provisionally left open.

27. On 19 September 1986 the judge fixed a new hearing for

8 January 1987. On that day two witnesses were heard and the

possibility of a friendly settlement was again discussed. A third

witness, who had been summoned, was reported to have died. A further

hearing fixed for 9 March 1987 was adjourned at the defendant

counsel's request. On 13 March another counsel, namely Mr. Binder,

took over the applicant's representation. A hearing fixed for

9 April 1987 was adjourned on account of illness of the judge.

28. A further hearing took place on 28 September 1987. Good

progress was made in the friendly settlement discussions and the

divorce proceedings were again adjourned with the agreement of the

parties without fixing a new date. As no request to fix another

hearing in the divorce case was made before the end of 1987 the judge

considered the parties had no longer any interest in pursuing the case

and decided on 31 December 1987 under S. 391 No. 7 (d) of the Internal

Rules of Procedure (Geschäftsordnung - Geo) to strike the case off the

list of cases.

29. On 26 August 1988 the applicant's counsel requested a date for

another hearing and complained to the Regional Court's President of

the length of the proceedings. The judge dealing with the case was

thereupon requested by the President to submit his observations on

this complaint.

30. These were submitted on 22 September 1988. The judge in

question stated inter alia that having had to cancel the hearing of

19 December 1985 on account of illness his time-table then did not

allow a hearing before 2 June 1986. Subsequent to this hearing he did

not receive any information from the parties about the progress of

their friendly settlement discussions. Therefore he eventually decided

on 19 September 1986 to hold another hearing on 8 January 1987. The

judge further referred to parallel proceedings (No. 2 Cg 422/82)

involving the parties to the divorce proceedings and the applicant's

children by his first marriage. In these proceedings a hearing had

been held on 17 December 1987 and there again the possibility of a

global friendly settlement (Generalbereinigung) had been discussed.

An agreement had been reached, although not expressly mentioned in

the minutes but recorded in a judge's note, to suspend the divorce

proceedings and to continue them only at the parties' request. The

judge concluded that in the light of the circumstances described by

him he considered to have conducted the divorce proceedings in a

correct and adequate manner. He added that in view of the highly

complex nature of the case and in view of the parties' advanced age and

affected state of health he thought it to be his duty under S. 460

No. 7 of the Code of Civil Procedure (Zivilprozessordnung - ZPO) to try

throughout the proceedings to reach a friendly settlement between the

parties. No objections had ever been raised by them, on the contrary

they had always shown a great interest in reaching a settlement.

31. Following the applicant counsel's complaint of 26 August 1988 a

final hearing was held on 12 January 1989.

32. On 24 May 1989 the Regional Court pronounced the divorce holding

both parties guilty of the break-up of the marriage. The judgment

comprises 56 pages. According to the judgment nine witnesses and the

parties had been heard and other documentary evidence had been obtained.

33. Both parties appealed. The appeal hearing took place on 15

February 1990 before the Linz Court of Appeal (Oberlandesgericht). A

decision was given on the same day. Its detailed contents have not been

communicated but it is clear that the Court of Appeal confirmed the

divorce. An appeal on points of law (ausserordentliche Revision)

lodged by the defendant was rejected by the Supreme Court (Oberster

Gerichtshof) on 28 June 1990 as offering no prospects of success. This

judgment was served on the applicant's counsel on 1 August 1990.

B. Relevant domestic law

34. The following provisions of the Austrian Code of Civil

Procedure (Zivilprozeßordnung - ZPO) as in force on 1 January 1988,

and of the Internal Rules of Procedure (Geschäftsordnung - Geo) are

of relevance in the present case:

35. Code of Civil Procedure

First Part, Third Chapter, Fourth Title:

Friendly settlement (Vergleich)

S. 204 (1)

"The Court may at an oral hearing and each

stage of the proceedings try, at the parties' request, or

ex officio, to reach a friendly settlement of the

case or of particular issues."

...

Second Part, First Chapter, First Title

...

First hearing (Erste Tagsatzung)

...

S. 239 (2)

"The first hearing serves to make the

attempt at a friendly settlement ..."

Second Part, Second Chapter, First Title

...

Decision-making, pronouncement and service of

judgment

S. 412

"(1) Judgment can only be given by those

judges who participated in the oral hearings on

which the judgment is based.

(2) If before judgment can be given the presiding

judge or any other judge has to be replaced, the

trial has to be started anew before the newly composed

chamber using the introductory memorial, the

evidence contained in the court file and the minutes

(... ist die mündliche Verhandlung vor dem geänderten

Senat mit Benützung der Klage, der zu den Akten

gebrachten Beweise und des Verhandlungsprotokolls von

neuem durchzuführen)."

Second Part, Third Chapter

Special provisions for proceedings in matrimonial

matters (Ehesachen)

...

S. 460 No. 7:

"In divorce proceedings the trial must

start with an attempt at reconciliation

between the parties (Versöhnungsversuch) and

in addition reconciliation has to be attempted

at any stage of the proceedings if this

appears to be indicated (soweit tunlich)"

36. Internal Rules of Procedure (Geschäftsordnung-Geo)

S. 391 Strike off (Abstreichen)*

"(1) A matter has to be struck off the list of cases

(ist abzustreichen)

...

No. 7: at the end of the year:

...

d) if the continuation of the proceedings depends

on a request by the parties, for example in the

cases of Sec. 279 (1), Sec. 261 (4) of the Code of

Civil Procedure, and no such request was made until

the year's end."

...

_________

* The provisions of the Code on Civil Proceedings referred to

in Sec. 391 (1) No. 7d Geo give the parties a right to request the

fixing of a hearing in case an objection a limine was rejected by

separate decision or in case the taking of certain evidence appears

to be impossible.

________

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

37. The Commission has declared admissible the applicant's

complaint that the length of his divorce proceedings violated

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

B. Point at issue

38. Accordingly the issue to be determined is whether there has

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

C. As to the alleged violation of Article 6 para. 1 (Art. 6-1) of

the Convention

1. General considerations

39. Under the terms of Article 6 para. 1 (Art. 6-1) of the

Convention, "In the determination of his civil rights and obligations

... everyone is entitled to a ... hearing within a reasonable time by

a ... tribunal ...".

40. The Commission notes, firstly, the civil nature, within the

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

right involved in the proceedings in question, i.e. the applicant's

right to be divorced.

41. Secondly, it recalls that, in civil matters, the

reasonableness of the length of proceedings must be assessed according

to the circumstances of the case and with reference to the following

criteria: the complexity of the case, the conduct of the parties

and the conduct of the authorities dealing with the case (see Eur.

Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A

no. 66, p. 11, para. 24). In civil cases the right to a hearing within

a reasonable time is subject to diligence being shown by the parties

concerned (see Eur. Court H.R., Pretto and Others judgment of 8

December 1983, Series A no. 71, p. 14 et seq., paras. 33 et seq.).

However, this principle does not absolve the judge from the

responsibility of ensuring that the requirement of speediness is

complied with (Eur. Court H.R., Martins Moreira judgment of

26 October 1988, Series A no. 143, p. 17, para. 46).

2. Determination and assessment of the length of proceedings

42. Regarding the period to be considered, the Commission notes

that the divorce action marking the commencement of the proceedings

dated from 30 June 1983.

43. The proceedings were concluded by decision of the Supreme Court

given on 28 June 1990 and served on applicant's counsel on

1 August 1990. The proceedings before three instances consequently

lasted about seven years.

44. According to the applicant, this lapse of time cannot be deemed

to be "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention. He submits that the divorce proceedings did not

raise difficult factual or legal issues. Pressure was exerted by the

Regional Court on the parties to reach a friendly settlement and

thereby the proceedings were unduly protracted. Under S. 460 No. 7 of

the Code of Civil Procedure the Court only had to try to reconcile the

parties at the beginning of the proceedings. Such an effort was

however never made and in any event the divorce could not have been

reached by way of a friendly settlement. Therefore the Court did have

to decide on his claim for a divorce within a reasonable time even if

the parties had an interest in reaching a friendly settlement on all

related matters. He contests having agreed in the parallel

proceedings No. 2 Cg 422/82 to suspend the divorce proceedings. In

any event there was no provision in the Code of Civil Procedure

providing that pending proceedings could be ended simply by mutual

agreement of the parties.

45. In the applicant's view another factor delaying the proceedings

was the fact that the presiding judge was replaced twice. The

proceedings could and should have been terminated in three instead of

more than seven years. The length of the proceedings affected the

applicant both morally and physically and caused him material damage

as during the four years in question he had to pay maintenance in the

amount of AS 1,400,000 to his ex-wife.

46. The Government consider that the factual complexity of the case

and correlated proceedings as well as the continuous efforts to reach

a friendly settlement account for the length of the proceedings. The

efforts to reach a settlement were made with the parties' consent and

in their best interest. Therefore they repeatedly agreed to adjourn

the proceedings sine die. On 17 December 1987 agreement was even reached

to suspend the proceedings. The parties having subsequently failed to

request another hearing it was correct to strike the case off the list.

47. Furthermore, the Government submit that the necessity to start

the case anew after the replacement of the judge was an inevitable

consequence provided for by law. The repeated hearing of witnesses

only became necessary where the parties did not accept to have the

minutes on the prior hearing of these witnesses read out.

48. The Government add that the periods of inactivity between

19 December 1985 and 2 June 1986 as well as from 9 April 1987 to

28 September 1987 were caused by sick leave of the judges dealing with

the matter. It could not be expected that every judge on sick leave

was immediately replaced.

49. The Commission first considers that the divorce case was in

fact controversial and raised complex issues of a factual nature.

50. It further notes that the divorce proceedings were, in first

instance, twice taken over by another judge. However, it cannot be

found that this and the resulting necessity to start the case anew

caused considerable and avoidable delays.

51. There are, however, three significant periods of inactivity

during which neither an oral hearing nor any other investigatory or

preparatory activity took place, namely between the hearings of

18 June 1985 and 2 June 1986, between the hearings of 8 January 1987

and 28 September 1987 and between the hearing of 28 September 1987 and

the final hearing of 12 January 1989.

52. The first period is explained by the fact that the judge

dealing with the case was reported ill and subsequently went on a

cure. The judicial authorities could not have been expected, nor

would it have been practical, to replace the judge simply on account

of a temporary absence from work due to illness.

53. The second period of inactivity was due to a request made by

the defendant party to adjourn a hearing fixed for 9 March 1987, while

the next hearing of 9 April 1987 had to be adjourned on account of

temporary illness of the judge. In these circumstances, the

Commission again cannot find any unreasonable delay in the fact that

no hearing took place until 28 September 1987.

54. Finally, as regards the period of inactivity after the hearing

of 28 September 1987, it is uncontested that the date for a further

hearing had been left open and friendly settlement discussions between

the parties to the divorce proceedings were still in progress.

Leaving the question open whether the parties had expressly agreed to

the divorce proceedings being suspended, as is stated in the report of

the judge dealing with the divorce matter at that time (see para. 30

above), applicant's counsel could and, in the circumstances, should

have made a request to fix another hearing but did so only on

26 August 1988.

55. The Commission considers that under the specific circumstances

of the present case the applicant has shown by his behaviour in

1987/88 that he was not interested in receiving a judgment on the

divorce case speedily. Rather, he agreed to a postponement of about

one year. The Commission concludes that for this reason it cannot now

find a violation based on earlier periods of inactivity of the

Austrian Regional Court.

56. The applicant does not criticise the time it took the

following two instances to decide on the parties' appeals and the

Commission cannot find that the periods in question (from 24 May 1989

to 15 February 1990 and then to 28 June 1990) were in any way too long.

Conclusion

57. The Commission concludes by six votes to four, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

Dissenting Opinion by Mr. H. Danelius

joined by MM. C.L. Rozakis and L. Loucaides

I consider that in the years 1985-1987 there were delays in

the proceedings for which the State must to a large degree be

held responsible. I note, in particular, the following facts.

On 8 February 1985 the case was taken over by a new judge who

decided to start the case anew. After the hearing on 17 and 18 June

1985 yet another judge took over the case. On 2 June 1986 the new

judge decided to start the case anew.

Some unavoidable delays were caused by the illness of the

responsible judge in 1985 and again in 1987. However, it does not

appear that adequate measures were taken to reduce the negative

effects on the length of the proceedings caused by the temporary

absence of the judge.

The decision on 31 December 1987 to strike the case off the

list of cases was not based on any agreement between the parties or on

any withdrawal of their claims, and the applicant's counsel was

apparently not even informed of the decision until, on 26 August 1988,

he had requested a date for a hearing and complained about the length

of the proceedings.

It is true that by engaging in friendly settlement discussions

at other times during the proceedings the parties may be considered to

have indicated that on such occasions they were not anxious to obtain

a speedy judgment in the case. However, this cannot prevent the

Commission from finding a violation of Article 6 para. 1 of the

Convention on the basis of delays which occurred during other parts of

the proceedings and for which the State can be held responsible.

I therefore conclude that Article 6 para. 1 of the Convention

has been violated in the present case.

Dissenting Opinion by Mr. E. Busuttil

I find myself unable to subscribe to the opinion of the

majority that there has been no breach of Article 6 para. 1 in the

present case.

The overall length of the proceedings - a period of some seven

years - cannot, to my mind, be justified by the complexity of the

case, which was no more complex than divorce cases usually are.

Furthermore, as the majority recognise in paragraph 51 of the

Report, there were "significant periods of inactivity" during which no

oral hearing or any other ostensible activity took place.

The divorce proceedings were initiated on 30 June 1983. On

8 February 1985 the case was assigned to a second judge, who decided

to hear the case all over again. On 2 June 1986 a third judge took

over and also decided to hear the case anew, but no hearing actually

took place before 8 January 1987. No explanation has been forthcoming

as to why the judge dealing with the case was replaced twice. At all

events, a period of one and a half years elapsed between 18 June 1985

and 8 January 1987 with nothing much taking place.

Again, there was a further period of protracted inactivity

between the hearing of 28 September 1987 and the final hearing of

12 January 1989, during which time friendly settlement discussions

were supposedly in progress between the parties. The latter may or

may not have conducted those discussions with diligence (it could also

be that they were not conducted with too much friendliness!), but this

did not in the ultimate analysis absolve the judge from the

responsibility of ensuring a speedy trial. Indeed, this proposition

finds ample confirmation in the case-law of the European Court.

In these circumstances, I am of the opinion that the

respondent State was responsible for at least some of the considerable

delay which occurred in this case. This in itself is a sufficient

ground for finding a breach of Article 6 para. 1 of the Convention in

a case which was not unduly complex.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

10 December 1986 Introduction of the application

18 December 1986 Registration of the application

Examination of Admissibility

8 September 1988 Commission's decision to invite

the Government to submit

observations on the

admissibility and merits of the

application

7 November 1988 Government's observations

19 January 1989 Applicant's observations in reply

7 September 1990 Commission's decision to declare

the application admissible

Examination of the merits

3 October 1990 Decision on admissibility communicated

to the parties

7 November 1990 Application referred to First Chamber

5 March 1991 Commission's consideration of the

state of proceedings

31 May 1991 Commission's deliberations on the

merits, final vote and adoption of

the Report

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F. v. AUSTRIA

F. v. AUSTRIA

LEXI