Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21985/93

by Elisabeth GIRARDI

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 10 April 1993 by

Elisabeth Girardi against Austria and registered on 7 June 1993 under

file No. 21985/93;

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 31 October 1994, after an extension of the time-limit and

the observations in reply submitted by the applicant on

8 December 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant, an Austrian citizen, born in 1951, is living in

Vienna. The applicant is the mother of three children born in wedlock

in 1973, 1974 and 1976, respectively. The spouses separated in 1982.

The custody over the children born in 1973 and 1974 was assigned to the

applicant, the custody over the child born in 1976 to his father.

Since April 1977 proceedings relating to custody and other

matters concerning the children are pending before the Floridsdorf

District Court (Bezirksgericht).

On 31 December 1988 the applicant, on behalf of her children born

in 1973 and 1974, applied with the Floridsdorf District Court that her

divorced husband be ordered to increase his maintenance payments by

AS 600 per month and per child, as from 1 January 1989, as compared

with the amount of AS 4550 per child fixed by the Court on

12 August 1986. Her request was received at the Court on

3 January 1989.

On 16 February 1989 the applicant challenged the judicial officer

(Rechtspfleger) at the Floridsdorf District Court dealing with her case

for bias, which she withdrew on 5 May 1989.

On 10 August 1989 the Floridsdorf District Court took a decision

on various earlier requests of the applicant regarding the increase of

the maintenance payments in respect of periods in 1987 and 1988, and

other financial matters. The amounts of increase for these periods

varied between AS 200 and AS 1100 per month. The Court also stated

that the applicant's request regarding the maintenance payments as from

1 January 1989 would be dealt with following further investigations.

On 25 August 1989 the applicant appealed against the decision of

10 August 1989 with the Vienna Regional Court (Landesgericht).

On 1 September 1989 the applicant amended her claims regarding

the period as from January 1989 to amounts of increase between AS 950

and AS 2000 per month.

On 29 November 1989 the Vienna Regional Court (Landesgericht),

upon the applicant's appeal (Rekurs), amended the District Court's

decision, granting a higher increase in respect of four months in 1987,

and dismissed the remainder of the appeal. The decision and the files

were received at the District Court on 28 December 1989.

In the beginning of 1990 the files were forwarded to the Vienna

Juvenile Court (Jugendgerichtshof) in the context of proceedings to

withdraw the applicant's custody in respect of her child born in 1973.

The applicant's custody was withdrawn in April 1990, the proceedings

were disposed of by declaring the child of full age in January 1991,

decision which became final in October 1992. Proceedings regarding

further financial matters, in particular the applicant's obligation to

pay maintenance for the child concerned, continued to be pending before

the Vienna Juvenile Court. In May 1993, the Juvenile Court returned

the files.

On 22 October 1993 the Floridsdorf District Court partly granted

the applicant's request of 31 December 1988 as amended in September

1989, to the extent that it concerned the child born in 1974. The

Court granted an increase which varied between AS 200 and AS 1550 per

month and dismissed the remainder of her claims.

On 7 December 1993 the Vienna Regional Court rejected the

applicant's appeal on behalf of her child, born in 1974, meanwhile an

adult, and dismissed the appeal brought by this child on its own.

COMPLAINTS

The applicant complains that her request relating to a rise of

maintenance payments for her children as from 1 January 1989 was not

dealt with within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 April 1993 and registered

on 7 June 1993.

On 29 June 1994 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 31 October 1994, after an extension of the time-limit, the

Government submitted their observations. The observations in reply by

the applicant were submitted on 8 December 1994.

THE LAW

1. The applicant complains about the length of the proceedings

regarding her request of 31 December 1988 for an increase of

maintenance payments in respect of two of her children.

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

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

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

2. The proceedings at issue concerned maintenance claims and fall

to be examined under Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission notes that the applicant brought the proceedings on

behalf of her children, who were minor at the relevant time. The

Commission, taking into account the applicant's position in these

proceedings and the impact of their outcome on her own financial

situation, finds that the applicant is entitled to complain about the

length of the proceedings.

3. The Government maintain that the applicant failed to exhaust, as

required by Article 26 (Art. 26) of the Convention, the remedies

available to her under Austrian law. They submit that the applicant

failed to complain about the length in the course of the domestic court

proceedings and did not lodge a request under S. 91 of the Court

Organisation Act 1990 (Gerichtsverfassungsgesetz) that, in view of the

alleged delay, the superior court should fix an appropriate time-limit

for the conduct of the court proceedings.

According to Article 26 (Art. 26), the "Commission may only deal

with the matter after all domestic remedies have been exhausted,

according to the generally recognised rules of international law".

The Commission notes that S. 91 of the Austrian Court

Organisation Act, which entitles the parties to court proceedings to

lodge a request with the superior court to fix a time limit in respect

of a delayed procedural step, entered into force on 1 January 1990 when

the proceedings in question were already pending for one year. At that

stage, the District Court had already been dealing with the applicant's

request of December 1988 and, in its decision of 10 August 1989,

postponed the examination thereof, and the Regional Court had decided

on the applicant's appeal on 29 November 1989.

The Commission finds that it is thus not faced with the issue of

an alleged absence of any reaction of the competent court to a

procedural request (cf. No. 19369/92, Dec. 8.1.93, not published). In

the circumstances of the present case, a request under S. 91 of the

Court Organisation Act cannot be considered as an effective remedy to

ensure, regarding the proceedings as a whole, a determination of the

applicant's civil rights and obligations within a "reasonable time"

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

The application cannot, therefore, be rejected for non-compliance

with the condition as to the exhaustion of domestic remedies under

Article 26 (Art. 26) of the Convention.

4. As regards the merits of the complaint, the Government, referring

to the case-law of the Convention organs, argue that the length of the

proceedings was mainly due to the complexity of the case. In this

respect, they refer to the numerous other matters related to the

proceedings at issue, and the proceedings before the Vienna Juvenile

Court. They consider that no substantial delays were imputable to the

Austrian authorities. According to the Government, the applicant

herself was responsible for the delays in that she filed numerous

submissions and thereby caused difficulties to survey the file and to

decide upon all of her requests in due time.

The Commission considers, in the light of the criteria

established by the case-law of the Convention institutions on the

question of "reasonable time" (the complexity of the case, the

applicant's conduct and that of the competent authorities), and having

regard to all the information in its possession, that a thorough

examination of this complaint is required, both as to the law and as

to the facts.

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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GIRARDI v. AUSTRIA

GIRARDI v. AUSTRIA

LEXI