Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18643/91

by Josefa BENES

against Austria

The European Commission of Human Rights sitting in private on

6 January 1992, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

SirBasil HALL

Mr.F. MARTINEZ

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 July 1991 by

Josefa BENES against Austria and registered on 7 August 1991 under file

No. 18643/91;

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

applicant, may be summarised as follows:

The applicant, born in 1919, is a national of the Czech and

Slovak Federal Republic and resident in Graz, Austria. Before the

Commission she is represented by Ms. B. Sautter, resident in

Strasbourg.

On 11 October 1980 the applicant married an Austrian national in

Czechoslovakia. Subsequently, she acquired the Austrian nationality.

In March 1981 the applicant, having received an exit visa, came to

Austria.

On 11 July 1986 the Vienna Public Prosecutor's Office (Staats-

anwaltschaft) instituted proceedings before the Vienna Regional Court

(Landesgericht), competent in civil matters, requesting that the

applicant's marriage be nullified on the ground that it had only been

contracted in order to enable her to acquire Austrian nationality. It

appears that the applicant's husband, in the context of divorce

proceedings instituted by him in 1983, had stated that the marriage had

been concluded for that purpose. Thereupon, the divorce proceedings

were not pursued.

The Vienna Regional Court held a hearing on 5 January 1987 with

the parties and witnesses.

On 16 February 1987 the Vienna Regional Court nullified the

applicant's marriage in accordance with S. 23 of the Austrian Marriage

Act (Ehegesetz). The Court found in particular that in 1975 the

applicant had met the witness Ms. E., who later had assisted her in

arranging a marriage with an Austrian national securing her a right to

enter Austria, and in order to keep the witness E. company. Following

the wedding the applicant's husband had returned to Austria, where he

had a life companion. When the applicant came to Austria, she took up

residence with the witness E. Three months later, upon difficulties

with E., the applicant returned to Czechoslovakia. When she returned

to Austria, she again lived at the residence of the witness E. The

applicant and her husband never had a common household. The applicant

never attempted to lead a conjugal life with her husband who had

refused such a community from the very beginning. The Court proceeded

in particular from the testimony of the witness E. as well as from the

statements of the applicant and her husband. It found that the

applicant's statements were not credible insofar as she alleged to have

tried to lead a conjugal life with her husband. In this respect, the

Court referred to the fact that she had arranged with the witness E.

to live at her place, and that her husband had already declared in

Czechoslovakia that he did not intend to take up a matrimonial

community.

According to S. 23 para. 1 of the Marriage Act, a marriage is

null and void if it was contracted for the sole or main purpose of

enabling the wife to acquire her husband's family name or the Austrian

nationality without intention of founding a matrimonial community.

The applicant, represented by counsel, lodged an appeal

(Berufung) with the Vienna Court of Appeal (Oberlandesgericht).

On 6 April 1987 the applicant's former husband died. The Vienna

Court of Appeal, therefore, suspended the appeal proceedings on

30 July 1987.

On 19 August 1987 the applicant applied for a widow's pension.

The competent Social Insurance Office (Sozialversicherungsanstalt der

gewerblichen Wirtschaft) did not decide upon the request pending the

nullity proceedings.

On 8 November 1990 the applicant requested the Vienna Court of

Appeal to continue the proceedings. She submitted in particular that

she faced problems as to the grant of social security benefits and the

payment of a widow's pension.

On 16 April 1991 the Vienna Court of Appeal, following a hearing

in camera where the applicant was represented by her counsel, dismissed

the applicant's appeal. The Court of Appeal referred in particular to

the facts as stated in the Regional Court's judgment of 16 February

1987, and confirmed the Regional Court's legal reasoning. The Court

of Appeal found that the applicant's further submissions, especially

several letters written by her former husband, did not show that, upon

and after their wedding, he had ever intended to found a common

matrimonial life with the applicant. The Regional Court's assessment

and evaluation of evidence could not be objected to. Furthermore,

there was no indication that the Regional Court had not duly advised

the applicant, who had not been represented by counsel at that stage

of the proceedings. The Court of Appeal also stated that an appeal on

points of law was excluded under SS. 500 para. 2 (2), 502 paras. 1 and

3 (1) of the Code of Civil Procedure (Zivilprozeßordnung).

The judgment was served on 6 May 1991. On 13 May 1991 counsel

informed the applicant about the judgment, one of its consequences

being that she was not entitled to a widow's pension.

COMPLAINTS

The applicant complains about the Austrian court decisions to

declare her marriage null and void. She submits that these decisions

deprived her of her widow's pension. She also complains that the court

proceedings concerned lasted unreasonably long. Furthermore, she

submits that the proceedings concerned were unfair, in particular, that

she was not summoned for the hearing before the Court of Appeal and

that a witness was not heard. The applicant invokes Article 6 para. 1

and Article 8 of the Convention.

THE LAW

1.The applicant complains that the Austrian court decisions to

declare her marriage null and void violated her right under Article 8

(Art. 8) of the Convention. Article 8 (Art. 8) provides as follows:

"1.Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a

democratic society in the interests of national

security, public safety or the economic well-being of

the country, for the prevention of disorder or crime,

for the protection of health or morals, or for the

protection of the rights and freedoms of others."

The Austrian court decisions to nullify the applicant's marriage

had implications on her legal status and in general on her private

life. There was thus an interference with her right to respect for her

private life under Article 8 (Art. 8) of the Convention.

Such an interference amounts to a violation of Article 8

(Art. 8), unless it is justified under paragraph 2 of Article 8

(Art. 8-2) as being in accordance with Austrian law and necessary in

a democratic society for the protection of one of the aims set forth

in this provision.

The Austrian courts nullified the applicant's marriage in

accordance with S. 23 of the Austrian Marriage Act. They considered

the marriage as fictitious, concluded for the sole purpose of providing

the applicant with Austrian nationality. The interference was thus in

accordance with Austrian law.

The proceedings to nullify a marriage of convenience served the

prevention of disorder and the protection of the rights and interests

of others.

As regards the question whether or not the Austrian court

decisions to declare the applicant's marriage null and void were

necessary in a democratic society for the above-mentioned aims, the

Commission finds that it is for the national legislation to lay down

the rules according to which a marriage is not valid and to draw the

legal consequences, including proceedings to have the marriage

concerned declared null and void. The Commission notes that, in the

present case, the Austrian courts carefully considered that the spouses

never had a common conjugal life, and that the applicant's former

husband had admitted that the marriage had been concluded for the

purpose of allowing the applicant to acquire the Austrian nationality

and he had never intended to take up a common life.

In these circumstances the Austrian court decisions to declare

the applicant's marriage null and void do not appear disproportionate,

and can be regarded as necessary in a democratic society for the

prevention of disorder and the protection of the rights of others.

Consequently there is no appearance of a violation of the applicant's

right under Article 8 (Art. 8) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention that the nullity proceedings lasted unreasonably

long.

The proceedings lasted from 11 July 1986 until 6 May 1991, i.e.

almost five years.

The Commission has assessed the reasonableness of the length of

the proceedings in the light of the criteria established by the

case-law of the Convention organs, namely the complexity of the case,

the applicant's conduct and that of the national authorities.

The case concerned the question of nullity of a marriage under

S. 23 para. 1 of the Marriage Act, and did not raise complex issues.

The applicant did not cause any delays.

As regards the conduct of the Austrian judicial authorities, the

Commission finds that the nullity proceedings, as a whole, did not last

extraordinarily long. It is true that a delay occurred in the course

of the appeal proceedings. On 30 July 1987 the Court of Appeal,

following the death of the applicant's husband, suspended the

proceedings. The Public Prosecutor's Office, as plaintiff, did not

request the continuation of the proceedings which, upon the applicant's

request, were not continued until in April 1991. In the particular

circumstances, however, the continued suspension of the nullity

proceedings does not appear as failure to expedite the proceedings in

a reasonable manner.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.Finally the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention that, in the nullity proceedings

concerned, she did not receive a fair hearing. She submits in

particular that she was not summoned for a hearing before the Vienna

Court of Appeal, and that a particular witness was not heard.

The Commission finds no indication that, in the nullity

proceedings, the applicant, who was at the appeal stage represented by

counsel, could not properly present her arguments or that the case was

otherwise dealt with in an unfair manner. In particular, the applicant

was represented by her counsel at the hearing before the Vienna Court

of Appeal, and she failed to show that her personal presence was

indispensable for a proper conduct of the proceedings. Furthermore,

the taking and assessment of evidence do not disclose any unfairness.

It does not follow from the applicant's submissions, in particular the

domestic court decisions, that she had requested to hear a particular

witness and that any request of this kind had been refused.

The applicant's complaint about the alleged unfairness of the

nullity proceedings is, therefore, manifestly ill-founded within the

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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