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AS TO THE ADMISSIBILITY OF

Application No. 21944/93

by Georg RUDOFSKY

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 22 February 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

B. MARXER

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 31 March 1993 by

Georg Rudofsky against Austria and registered on 28 May 1993 under file

No. 21944/93;

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 28 July 1994 and the observations in reply submitted by

the applicant on 10 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant is an Austrian citizen, born in 1930, and formerly

was ambassador in Finland. He is currently residing in Vienna.

A. Particular circumstances of the case

By letter of 28 November 1985 the applicant brought an action for

divorce with the Vienna Regional Court (Landesgericht), which was

registered on 5 December 1985.

On 4 February and on 16 September 1986 the Vienna Regional Court

held hearings in the presence of the parties' representatives.

The Vienna Regional Court conducted further hearings on 11 May

and 25 November 1988, on 15 March, 17 and 18 July 1989, on 25 January,

3 and 4 July and 11 October 1990, on 15 and 16 January 1991, on 8 May,

12 June, 4 and 11 September, 6 October, 24 November 1992, on 29 March

and 31 August 1993, 3 May 1994. The proceedings are still pending at

first instance.

The Regional Court heard numerous witnesses, who had to a

considerable extent been named by the applicant in 1988. The hearing

of the witnesses inter alia necessitated proceedings under letters

rogatory. In March 1993 the Court also ordered the taking of

psychiatric expert evidence. Moreover, the Regional Court made several

unsuccessful attempts to secure an arrangement between the parties on

the matters related to the divorce action.

In the context of the divorce proceedings, the Vienna Regional

Court also conducted seven interim injunction proceedings, which were

partly only terminated following appeal proceedings before the Vienna

Court of Appeal (Oberlandesgericht) and the Supreme Court (Oberster

Gerichtshof). The injunction proceedings concerned the applicant's

repeated requests to order the defendant to leave the embassy in

Helsinki (first set of proceedings between May 1986 and March 1987,

second set between April and December 1987, third set between May 1988

and April 1992), the defendant's request for the payment of alimonies

(proceedings between July 1986 and November 1991), the defendant's

request regarding the matrimonial household (lodged on 11 December 1986

and withdrawn the next day), the defendant's request relating to the

spouses' apartment and their savings (proceedings between February 1987

and May 1987), the defendant's request for the payment of advanced

court fees (proceedings between May 1987 and December 1987).

B. Relevant domestic law

S. 91 of the Austrian Court Organisation Act (Gerichts-

organisationsgesetz), as in force from 1 January 1990, 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, such as

the conduct of a hearing, the taking of expert evidence or the passing

of a decision.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings before the Vienna Regional Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 March and registered on

28 May 1993.

On 11 May 1994 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 28 July 1994 the Government submitted their observations. The

applicant's observations in reply were submitted on 10 September 1994.

THE LAW

The applicant complains about the length of the civil proceedings

instituted by him.

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".

a. The Government contend that the applicant failed to exhaust, as

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

remedies available to him under Austrian law on the ground that he did

not lodge a request with the superior court for fixing a time limit,

pursuant to S. 91 of the Court Organisation Act.

The applicant disputes the view that the said request could be

regarded as an effective remedy to be exhausted in his case.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a 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 applicant's divorce proceedings were already pending for several

years. The Regional Court was then dealing with the case, inter alia,

numerous hearings were held between January 1990 and May 1994.

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, the request under S. 91 of the

Court Organisation Act cannot be considered an effective remedy to

ensure, regarding the divorce 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.

b. As regards the length of the divorce proceedings, the Government

submit that the case was of particular complexity, taking into account

the necessity to hear numerous witnesses as well as the interim

injunction proceedings. They consider that the applicant contributed

to the length of the proceedings in that he did not name all witnesses

when filing his divorce action and generally did not ensure that the

proceedings be duly furthered. According to the Government, no

avoidable delays were imputable to the Austrian courts. In particular

the provisional injunction proceedings could not be dissociated from

the main divorce proceedings, and their conduct had to be regarded as

a continuation of the divorce proceedings.

The applicant disputes the Government's views.

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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RUDOFSKY v. AUSTRIA

RUDOFSKY v. AUSTRIA

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