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S. v. AUSTRIA

Doc ref: 19783/92 • ECHR ID: 001-1373

Document date: September 2, 1992

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S. v. AUSTRIA

Doc ref: 19783/92 • ECHR ID: 001-1373

Document date: September 2, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 19783/92

by A.S.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1992, the following members being present:

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

F. ERMACORA

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 25 November 1991

by A.S. against Austria and registered on 30 March 1992 under file No.

19783/92;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1939. He lives in

Vienna.

On 7 March 1990 the Klagenfurt District Court (Bezirksgericht)

made an interlocutory injunction against the applicant providing for

monthly payments to his wife, from whom he was separated. On

26 May 1991 the applicant requested a reduction in the maintenance

payments on the ground that his monthly income had fallen because he

was now unemployed. In accordance with procedural instructions

received from the court, on 6 June 1991 the applicant made a formal

application (Oppositionsklage) under Section 35 of the Enforcement Act

(Exekutionsordnung) for termination of the payments as the underlying

claim no longer subsisted. On 5 July 1991 the applicant, who had also

applied for legal aid, was invited to submit a declaration of means.

He received the invitation on 1 August 1991 and submitted a declaration

of means on the same day. Legal aid was granted on 8 November 1991.

Since the grant of legal aid, a lawyer was appointed by the Bar

Association (Rechtsanwaltskammer) on 28 November 1991 and on 12

December 1991 the applicant informed the court that he would not be

able to attend a hearing in Klagenfurt for financial reasons, but

otherwise the case has not progressed.

COMPLAINTS

The applicant alleges violation of Article 6 para. 1 of the

Convention by virtue of the length of time it has taken to process his

application for termination of the maintenance payments he is required

to make. He points out that since June 1991 he has been unemployed

and, if he were not able to live with his parents, he would be unable

to survive.

THE LAW

The applicant complains of the length of the proceedings in which

he has applied under Section 35 of the Enforcement Act for termination

of maintenance payments he is required to make to his wife under an

interlocutory injunction. He alleges violation of Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission is not required to determine whether the

applicant's application to the Austrian courts determined his civil

rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention as, even if it did, the application is in

any event inadmissible for the following reasons.

The Commission notes that no procedural steps have been taken in

the case since legal aid was granted to the applicant and a lawyer was

appointed in November 1991. The Commission also notes that there is

no indication that the applicant has made any request to the Austrian

courts to proceed with the case.

Having regard to the criteria established by the case-law of the

Convention organs on the question of "reasonable time" within Article

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

finds that the length of the proceedings to date does not exceed the

"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the

Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

For these reasons the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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