Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21836/93

by Alexander and Florian HÜTTENMAYER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 1995, 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 3 February 1993

by Alexander and Florian HÃœTTENMAYER against Austria and registered on

12 May 1993 under file No. 21836/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 14 October 1994 and the observations in reply submitted

by the applicant on 3 November 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens, living in Pinneberg

(Germany) and were born in 1984 and 1986, respectively. Before the

Commission they are represented by Mr. W. Lenneis, a lawyer practising

in Vienna.

The facts, as they have been submitted by the parties, may be

summarised as follows.

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

dissolved.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

a further increase of the maintenance payments.

On 18 June 1993 the applicants' father appealed against the

District Court's decision.

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

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

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

further appeal has been lodged against that decision.

COMPLAINTS

The applicants complain that the maintenance payments proceedings

before the Austrian Courts were not concluded within a reasonable time

as required by Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 February 1993 and registered

on 12 May 1993.

On 29 June 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

14 October 1994. The applicants replied on 3 November 1994.

THE LAW

The applicants complain that the maintenance payments proceedings

before the Austrian Courts were not concluded within a reasonable time

as required by Article 6 para. 1 (Art. 6-1) of the Convention which,

as far as relevant, provides as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

The Government submit that the proceedings were complex as they

involved the preparation of extensive expert reports on the applicants'

fathers financial situation. 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.

The above is disputed by the applicants who refer to the

evaluation of the proceedings by the Regional Court which found that

the District Court had not dealt speedily with the case.

The Commission finds that the application raises questions of

fact and law which require an examination of the merits. The

application therefore cannot be declared manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

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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