Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25818/94

by Alfred BAUMANN

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 July 1993 by

Alfred BAUMANN against Austria and registered on 1 December 1994 under

file No. 25818/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 December 1996 and the observations in reply submitted by the

applicant on 26 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1945, is an Austrian national residing in

Vienna. In the proceedings before the Commission he is represented by

Mr. D. Böhmdorfer, a lawyer practising in Vienna.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The first set of proceedings

On 4 December 1987, following his divorce, the applicant applied

to the Döbling District Court (Bezirksgericht) for a partition of

matrimonial property. He requested in particular that the plot of land

and the house in Vienna, which he and his divorced wife owned jointly,

be transferred to him against payment of adequate compensation to his

divorced wife. He submitted inter alia that he had been awarded

guardianship for their son and that it was in the interest of the child

to remain in the house. On 15 December 1987 his divorced wife made a

similar request. Both, the applicant and his former wife filed a number

of written submissions with the District Court.

On 20 January, 16 March, 11 May, 22 June, 3 August and

16 November 1988, as well as on 1 March 1989 the Döbling District Court

held hearings.

On 13 March 1989 the Döbling District Court partitioned the

matrimonial property. It ordered that the applicant's title concerning

the land and the house be transferred to his former wife and ordered

the latter to pay ATS 2,876,000 as compensation to the applicant. The

Court considered that, for reasons of equity, the title was to be

transferred to the party who was willing to pay the higher amount of

compensation, i.e. the applicant's former wife. Further, the Court

found that the former spouses were entitled to equal portions of the

property as they had contributed equally to its purchase, the applicant

by working full-time in his hairdresser's shop, his former wife by

working part-time there and taking care of the household and their son.

Subsequently, on 7 and 10 April 1989, both parties filed an

appeal (Rekurs) against this decision.

On 31 August 1989 the Vienna Regional Civil Court (Landesgericht

für Zivilrechtssachen) upheld both appeals and quashed the District

Court's decision. It found that the court had failed to take evidence

as regards the objective value of the land and house at issue, it had

not taken the interest of the child into account and had failed to

properly establish the extent to which the applicant's former wife had

contributed to the purchase of matrimonial property.

Both parties filed an appeal on points of law (Revisionsrekurs)

on 27 September 1989.

On 29 January 1991 the Supreme Court (Oberster Gerichtshof)

dismissed the appeals on points of law of both parties as being

unfounded.

The second set of proceedings

Subsequently, on 25 March, 17 April and 27 May 1991, the Döbling

District Court held hearings. It heard the applicant and his former

wife as well as three witnesses on the distribution of work between the

former spouses in order to establish their respective contribution to

the purchase of their property. It also ordered an expert, P., to file

an opinion as regards the value of the plot of land and the house.

On 24 July 1991 the Döbling District Court issued a new decision

partitioning the matrimonial property. It ordered the applicant's

former wife to transfer her title concerning the land and the house to

the applicant against a payment of compensation of ATS 3,358,200.

Having regard to the evidence before it, the court found that the

property had to be divided in a proportion of 40 to 60 percent between

the applicant and his former wife.

Subsequently, on 19 and 20 August 1991, both parties appealed

against this decision.

On 18 March 1992 the Vienna Regional Civil Court dismissed the

applicant's appeal. Upon the appeal of his former wife, the court

quashed the decision and referred the case back to the District Court.

It found in particular that the court had dismissed her submissions

challenging the expert opinion, on the ground that they had been made

belatedly with the intention to delay the proceedings. However, the

relevant procedural law did not provide a basis for such a ruling.

The third set of proceedings

On 19 May 1992 the Döbling District Court held a hearing and on

25 May 1992 it appointed a second expert, C., who submitted his opinion

as regards the value of the house at issue on 7 July 1992. A further

hearing was held on 22 July 1992 at which two witnesses were heard at

the applicant's request. The expert opinions were discussed.

Meanwhile, the competent tax authorities had introduced

proceedings relating to the applicant's business, i.e. the

hairdresser's shop, in order to establish whether he had duly declared

all profits between 1981 and 1989. On 29 July 1992, the Tax Office

(Finanzamt) issued tax assessment notices for 1981 to 1989 in respect

of turnover, income and trade tax, against which the applicant

appealed.

On 23 October 1992 the Döbling District Court issued a partial

decision (Teilbeschluß). It ordered the applicant's former wife to

transfer her title concerning the land and the house to the applicant

against a payment of compensation of ATS 4,000,000. Referring to its

earlier decision the court found that the property had to be divided

in a proportion of 40 to 60 percent between the applicant and his wife.

As regards the value of the land and the house, the Court noted that

the two expert opinions differed substantially. It argued that the

average value had to be taken as a basis. The Court adjourned the

proceedings as regards possible further compensation to the applicant's

wife for her contribution to his business. It noted that such a

decision could not be taken until the termination of the tax

proceedings. At first instance the applicant had been ordered to pay

additional taxes of ATS 980,000 for 1981 to 1986, i.e. the period when

the former spouses were still married. The proceedings which were

pending at the appeal stage were relevant, as debts which were

connected to the marital property had to be taken into account.

Subsequently, on 17 November 1992, both parties appealed against

this decision. On 10 March 1993 the Vienna Regional Civil Court

upheld both appeals and quashed the District Court's partial decision

on the ground that the court had not properly established the value of

the plot of land and the house at issue. It had failed to hear the two

experts on the discrepancies between their opinions. Eventually it

should have ordered a further expert opinion.

The fourth set of proceedings

Subsequently, the applicant and his divorced wife filed requests

for the taking of evidence. On 16 July 1993 the applicant requested an

extension of three weeks of a time-limit and on 31 August 1993 he

challenged expert C. for bias. However, his motion remained

unsuccessful. On 27 September 1993 the Döbling District Court held a

hearing.

By submissions of 14 October, 3 November and 17 November 1993 the

applicant requested extensions of two and three weeks, respectively,

of the time-limit to file further documentary evidence. He submitted

the evidence on 24 November 1993.

On 19 January 1994 the Döbling District Court held a further

hearing.

On 12 August 1994 the Döbling District Court again issued a

partial decision. It ordered the applicant's former wife to transfer

her title concerning the land and the house to the applicant against

a payment of compensation of ATS 4,300,000. Again, it adjourned the

proceedings as regards a possible further compensation to the

applicant's wife for her contribution to his business until the

termination of the relevant tax proceedings.

Subsequently, on 2 and 8 September 1994, both parties appealed

against this decision.

On 22 February 1995 the Vienna Regional Civil Court confirmed the

decision. It partly dismissed the appeal of the applicant's divorced

wife as being unfounded but partly upheld it as regards interest to be

paid on the compensation. It rejected the applicant's appeal as being

lodged out of time. The applicant's request for reinstatement remained

unsuccessful.

On 20 September 1995 the Supreme Court rejected the applicant's

appeal on points of law. Thereby, the proceedings were terminated as

regards the transfer of the land and the house and the related

compensation payment.

As regards possible further compensation to the applicant's wife

for her contribution to his business, the proceedings are pending until

termination of the tax assessment proceedings. On 14 November 1994 the

Regional Tax Office (Finanzlandesdirektion) gave its appeal decision.

On 18 January 1995 the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof), which has not yet given

judgment.

COMPLAINT

The applicant complains under Article 6 of the Convention about

the duration of the proceedings relating to the partition of

matrimonial property.PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 July 1993 and registered on

1 December 1994.

On 4 September 1996 the Commission decided to communicate the

application.

The Government's written observations were submitted on

20 December 1996 after an extension of the time-limit fixed for that

purpose. The applicant replied on 26 February 1997.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention about the duration of the proceedings relating to the

partition of matrimonial property.

Article 6 para. 1 (Art. 6-1), so far as relevant, reads as

follows:

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

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

by [a] ... tribunal established by law. ..."

The Government submit that the proceedings were extremely

complex, in that they necessitated extensive taking of evidence. The

District Court held altogether fourteen hearings. It had to order

expert opinions from real estate experts, which had to be supplemented

and discussed at the hearings. Moreover, the Government point out that

there have so far been four rounds of proceedings, two of which went

through all three instances available. The opening of tax assessment

proceedings concerning the applicant's business further complicated the

matter, as their outcome has to be taken into account when deciding on

the compensation due to the applicant's former wife for contributing

to his business. Nevertheless, the main issue, namely the transfer of

the house, was decided by the District Court's partial decision of

12 August 1994, which became final with the Supreme Court's judgment

of 20 September 1995. Moreover, the tense atmosphere between the

parties and the fact that they made use of all available remedies made

the courts' work even more difficult.

As to the conduct of the authorities, the Government submit that

there was never an actual standstill in the proceedings. According to

the Government the appellate courts' repeated setting aside of the

District Court's decisions did not contribute to the length of the

first instance proceedings as they merely required the District Court

to supplement its investigations. As to the conduct of the applicant,

the Government argue that the applicant did nothing to expedite the

proceedings. In particular, he failed to make use of the possibility,

available since 1 January 1990, of filing an application for fixing a

time-limit (Fristsetzungsantrag) under S. 91 of the Court Organisation

Act. This provision allows the parties, whenever a court fails to take

a specific procedural measure - such as setting a date for a hearing

or obtaining an expert opinion - in due time, to file with that court

an application directed to the higher court requesting it to fix an

adequate time-limit for taking the procedural measure at issue.

Finally, the applicant contributed to the length of the proceedings in

that he filed a number of requests for the extension of time-limits. The

applicant firstly claims that the proceedings, concerning mainly the

transfer of the house in which he is living with his son over whom he

has been awarded custody, required particular diligence. Further, the

applicant argues that the proceedings were not particularly complex.

That the assessment of the value of the house at issue necessitated the

repeated taking of expert evidence was partly caused by the duration

of the proceedings and the rise in real estate prices, which occurred

meanwhile. The applicant contests in particular the Government's

argument that the authorities did not contribute to the length of the

proceedings. As the first instance court repeatedly failed to carry out

the necessary investigations, time-consuming appeal proceedings were

necessary, which ended with orders by the appellate court to the first

instance court to supplement its proceedings. Thus, considerable delays

are attributable to the defective conduct of the proceedings by the

District Court. Finally, the applicant contests that any delays are

attributable to him.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint is

required.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BAUMANN v. AUSTRIA

BAUMANN v. AUSTRIA

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