AS TO THE ADMISSIBILITY OF

                      Application No. 12883/87

                      by Leila KIRCHNER

                      against Austria

        The European Commission of Human Rights sitting in private

on 14 October 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

                  B. MARXER

             Mr.  J. RAYMOND, Deputy 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 26 February 1986

by Leila Kirchner against Austria and registered on 1 April 1987 under

file No. 12883/87;

        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 5 November 1990 and the observations in reply submitted

by the applicant on 27 February 1991;

        Having deliberated,

        Decides as follows:

THE FACTS

        The applicant was born in 1939 and resides at St.  Augustin,

Germany.  She is represented by her daughter, Maja Kirchner, who

resides in Innsbruck, Austria.

        The facts as agreed between the parties may be summarised as

follows.

        The applicant was of Jordanian nationality until 1964 when

she married an Austrian mining engineer and thereby automatically

acquired Austrian nationality.  She complains of various proceedings

in connection with her divorce.  The divorce proceedings were the

subject of her previous application No. 7593/76 which the Commission

rejected on 7 October 1977 partly for non-exhaustion of the domestic

remedies, partly as being manifestly ill-founded, and partly as being

incompatible with the provisions of the Convention.  In the present

case the applicant complains of subsequent developments in the case.

        1.  The Austrian divorce proceedings

        The divorce proceedings were brought by the applicant's

husband in 1968.  On 17 February 1977 the applicant filed a

counteraction.  On 30 November 1977 the Regional Civil Court

(Landesgericht für Zivilrechtssachen) of Vienna pronounced the

divorce, finding that the breakdown of the marriage had been the fault

of both spouses.  It also adjudicated maintenance to the applicant in

the amount of 18% of her husband's salary.  Upon the appeal of both

parties this judgment was quashed by the Vienna Court of Appeal

(Oberlandesgericht) on 6 April 1978.  On 27 March 1979 the Regional

Court again pronounced the divorce, this time on the exclusive fault

of the applicant's husband.  It considered itself incompetent to

determine the applicant's maintenance claim.  The applicant's appeal

against this decision was upheld on 25 June 1979 by the Court of

Appeal which referred the case back to the Regional Court both as

regards the parties' divorce petitions and the applicant's maintenance

claim.

        2.  The Canadian divorce proceedings

        In the meantime, the applicant's husband sought a divorce from

the applicant before a Canadian court, the Queen's Bench Division at

Regina, Saskatchewan.  Due to a long postal strike in Canada

communications between this court and the applicant were difficult.

The petition and a summons to attend the court's hearing were

communicated to the applicant in Germany by a lawyer of her husband's

firm.  The applicant applied for the grant of legal aid and for a

hearing, in Germany, by means of letters rogatory, of herself and

certain witnesses.  However, the Canadian court rejected these

requests.  The Queen's Bench Division held its hearing in the absence

of the applicant on 14 October 1981.  Under the law of Saskatchewan,

which provides for a divorce in case of a separation of the spouses

for more than five years, it issued a "decree nisi", pronouncing the

divorce conditionally "unless sufficient cause be shown ... within

three months ... why this decree should not be made absolute".  The

applicant wrote to the court on 18 November 1981, apparently without

knowing of the decree nisi.  She appealed against the summons,

referring inter alia to the fact that it had not been served upon her

through official channels and that divorce proceedings were pending in

Austria.  However, the Canadian court apparently did not receive this

letter, or did not consider it as a relevant objection to the decree

nisi.  A "decree absolute" was therefore issued by the Queen's Bench

Division on 10 February 1982.  The applicant's subsequent attempts to

appeal and to be granted legal aid for this purpose failed.  The

divorce thus became final in Canada.

        3.  The exequatur proceedings

        In order to have the Canadian decision recognised in Austria,

the applicant's husband applied for a writ of execution ("exequatur")

to the Austrian Federal Ministry of Justice.  The applicant was

invited to comment on the application.  She referred, in particular, to

the fact that divorce proceedings were still pending before the

Austrian courts and that she had not been heard in the Canadian

proceedings.  She also referred to her letter of 18 November 1981 to

the Canadian court.

        However, on 4 June 1982 the Ministry recognised the validity

of the Canadian divorce under Section 24 of the Fourth Decree on the

Implementation of the Marriage Act (4.  Durchführungsverordnung zum

Ehegesetz) in conjunction with Section 328 of the German Code of Civil

Procedure (Zivilprozessordnung) applicable in Austria by virtue of

that provision.  It noted that the Canadian court was competent as one

of the spouses, the applicant's husband, was resident in Canada.  The

divorce of Austrians in a foreign country was to be recognised if the

law of the husband's home country provided for recognition unless the

defendant party, being Austrian, had refused to accept the

jurisdiction of the foreign court and to respond to the action in

question (Einlassung) after being duly informed of it either in the

foreign State concerned or by legal assistance of the Austrian

authorities.  In the present case the applicant had recognised the

Canadian jurisdiction by requesting legal aid and a hearing in Germany

by letters rogatory.  The petition had actually reached her in

Germany; therefore it was irrelevant that it had not been served upon

her in Canada or by Austrian legal assistance.  It was also irrelevant

that neither the applicant nor the witnesses proposed by her had been

heard by the Canadian court.  It was true that the Canadian court had

failed to apply Austrian law as required by the Austrian rules on the

conflict of laws when both spouses were Austrians, but no disadvantage

could follow from this because a divorce would also have been

pronounced under Austrian law if the spouses had not lived together

for more than six years (Section 55 para. 3 of the Marriage Act).  The

Ministry was not competent to review the Canadian court's findings in

this respect.  Finally, there was no obstacle to the recognition of the

divorce resulting from the Austrian ordre public.

        The applicant lodged a complaint against this decision with

the Austrian Administrative Court (Verwaltungsgerichtshof) requesting

the grant of suspensive effect.  This was refused by the

Administrative Court on 1 December 1982 on the ground that the

applicant's husband had re-married in Austria in July 1972 and that

therefore his interests in upholding the Ministry's decision

prevailed over those of the applicant in being granted suspensive

effect.

        By a decision of 11 September 1985, which was served on the

applicant in the Federal Republic of Germany on 24 December 1985, the

Administrative Court rejected the applicant's complaints on the

merits.

        It held that the case was not one of exclusive Austrian

jurisdiction because it did not concern two Austrian spouses resident

in Austria.  The fact that divorce proceedings were pending in Austria

did not prevent the recognition of a foreign divorce judgment as the

preservation of the Austrian jurisdiction was not part of the Austrian

ordre public in such a case.  Insofar as the applicant now claimed

that the action and summons had not duly been served upon her in

Germany, and that because of a postal strike in Canada her mail had

not reached the Canadian court until after the issuing of the decree

nisi, her submissions were inadmissible because they had not been

raised in the administrative proceedings.  The applicant had actually

accepted Canadian jurisdiction as found by the Ministry.  This was

sufficient for the recognition of the divorce.  Insofar as the

applicant contested the Ministry's finding that the non-application of

Austrian law had not caused any damages to her, the Administrative

Court recognised that a disadvantage could arise for the applicant's

maintenance claim as her husband's fault for the breakdown of the

marriage had not been established.  However, if the Canadian court had

applied Austrian law it could have made a finding in this respect only

at the applicant's request, and the applicant had not submitted such a

request.  The Administrative Court further observed that this issue

could still be pursued before the Austrian civil courts.  Finally, the

fact that the applicant had not been heard in the Canadian proceedings

did not violate the ordre public as the law expressly stated the

procedural principles whose non-application provided a ground for

non-recognition of the foreign judgment and these principles did not

include a hearing by means of letters rogatory as requested by the

applicant.

        The applicant did not challenge the Ministry's decision before

the Constitutional Court (Verfassungsgerichtshof).  She states that

she could not do so because the lawyer who represented her in the

Administrative Court's proceedings was a judge of the Constitutional

Court and advised her that the Constitutional Court was incompetent.

        4.  Continuation of the Austrian divorce proceedings

           subsequent to the Canadian judgment

        In the meantime the divorce proceedings in Austria had been

resumed.  The applicant's husband invoked the recognition of the

Canadian divorce by the Federal Ministry of Justice claiming that the

Austrian courts no longer had jurisdiction in the case.  The applicant

observed that the recognition of the Canadian divorce had been

challenged before the Administrative Court as being unlawful.  In any

event, she requested the court to state that the breakdown of the

marriage had been her husband's fault.  Such a finding was also

important under Austrian law for determinating her maintenance claims.

        A maintenance claim had first been raised by the applicant in

her counteraction of 17 February 1977 in the Austrian divorce

proceedings (see above under 1).

        On 6 March 1980 an interim order had been given in her favour

stipulating that her ex-husband pay maintenance during the divorce

proceedings in the amount of 27% of his net income.  The applicant had

claimed 33%.  She had lodged an appeal insofar as her claim had not

been fully granted.  On 8 May 1980 the appeal had been rejected by

the Vienna Court of Appeal subsequent to the taking of evidence on

16 April 1980. (As to further details see attached timetable of events.)

        As regards the resumed divorce proceedings, the Regional

Court, noting the Administrative Court's refusal to order the

suspensive effect of the Ministry's decision, refused to suspend the

proceedings and, by a partial decision (Teilurteil) of 14 July 1983,

found that it was bound by the Ministry's decision to recognise the

Canadian divorce.  For this reason the Canadian judgment had to be

considered as the final decision in the case, and therefore both

parties' claims for divorce, and the applicant's claim to establish

the fault of her husband, had to be rejected on the ground of res

iudicata.

        On 24 November 1983 the Court of Appeal in substance confirmed

this decision, while observing that the Austrian proceedings following

the recognition of the Canadian divorce were null and void and that

the parties' claims should therefore have been rejected as being

inadmissible.  It further expressed the view that the Canadian judgment

could not be supplemented by a finding of fault under Section 61 of

the Austrian Marriage Act as Canadian law had been applied.

        On 12 July 1984 the applicant's further appeal was in part

upheld by the Supreme Court (Oberster Gerichtshof).  The Court noted

that concerning the validity of the Canadian divorce the Court of

Appeal had in substance confirmed the Regional Court's decision.  A

further remedy to the Supreme Court on this issue was therefore

inadmissible.  However, this did not apply to the applicant's request

to establish her husband's fault.  The Canadian judgment had not

determined this issue, and therefore there could be no res iudicata in

this respect, in particular as the applicant had raised her claim in

the Austrian proceedings before the Canadian proceedings had been

instituted.  Even if such a claim could not be raised independently in

respect of a foreign divorce judgment, the applicant had a legitimate

interest in the Austrian proceedings being continued on this issue.

        On 19 October 1984 the Court of Appeal made a finding that

the breakdown of the marriage had been the exclusive fault of the

applicant's husband, who had misled the Canadian court about the fact

that divorce proceedings were pending in Austria.  The consequences of

the divorce were, in principle, governed by Austrian law,

notwithstanding that the divorce had been pronounced under Canadian

law.  It was necessary to prevent the applicant's husband from

profiting from the application of the more favourable Canadian law

concerning his maintenance obligation.  Under Austrian law this was

dependent on a finding of fault, which the court now made in response

to the applicant's original claim, without thereby amending the

Canadian judgment.

        On 10 July 1986 The Supreme Court confirmed this decision,

rejecting an appeal by the applicant's husband.  It held that the

Austrian courts were only bound by the divorce pronounced in Canada,

but were not bound to apply Canadian law to the consequences of the

divorce.  Under the rules on the conflict of laws Austrian law

governed the applicant's maintenance claim.

        On 11 July 1987 the applicant was granted legal aid to assert

this claim.  Difficulties arose concerning the determination of the

salary of the applicant's ex-husband in Canada.  According to the

applicant he was still employed and paid by a German firm.  A

representative of that firm was summoned to a hearing of the Regional

Court of Vienna on 14 June 1988 but did not appear.  At the same

hearing the competent judge allegedly prevented the applicant and her

daughter, who had travelled to Vienna, from making statements on the

case.

        The applicant's ex-husband, whom the Court had ordered to be

examined in Canada by means of letters rogatory, did not pay the

necessary consular fees and subsequently refused to accept the

jurisdiction of the Austrian courts, stating that he had in the

meantime acquired Canadian nationality (letter to the Regional Court

of 2 September 1988).

        At the next hearing on 17 October 1988 neither the applicant's

ex-husband nor his lawyer appeared.  The applicant claimed that he was

foreclosed from making any further submissions.  The Court decided to

have two representatives of the firm in which he was allegedly still

employed heard on letters rogatory in Germany.  The applicant

subsequently claimed that this decision was unlawful because it had

not been based on a request by either party.

        The result of the hearing of the firm's representatives in

Germany was read out at a court hearing on 21 March 1989 when the

applicant also submitted a number of documents concerning the income

of her ex-husband.  They were partly in English and the applicant's

request to have them translated in the framework of legal aid was

rejected on the ground that the request had been made in order to

delay the proceedings.  The Court decided not to take any further

evidence finding that the case was ready for decision; it decided,

however, to obtain information from the Austrian embassy in Ottawa on

the tax paid by the applicant's ex-husband in Canada.

        It appears that no decision has been taken so far in this

case.  A complaint against the competent judge of the Regional Court,

in which the applicant alleged that he had suppressed documents in the

file and manipulated the transcript of the hearing of 21 March 1989,

was rejected by the President of the Vienna Court of Appeal on 9 June

1989.  A challenge of the same judge, in which she again alleged a

manipulation of the said transcript, was rejected by the Regional

Court on 19 December 1989 as being inadmissible for having been lodged

out of time.  On 4 September 1990 an appeal against this decision was

rejected by the Vienna Court of Appeal.  It appears that the first

instance judge is now preparing a judgment.

        5.  Separate proceedings related to maintenance claims

        In connection with the above proceedings, the applicant and

her daughter also introduced a number of further court proceedings

both in Austria and the Federal Republic of Germany.

        In particular, they sought to satisfy their maintenance claims,

insofar as they had been recognised by orders of the Austrian courts

(in the applicant's case by a preliminary injunction of the Regional

Court of Vienna of 6 March 1980, renewed on 26 September 1983, awarding

her 27% of her husband's salary), by enforcement proceedings against

the husband's employer in Germany (cf.  Application No. 13494/88).

        When this failed, the applicant and her daughter brought

actions in 1987 against the sons of the applicant's ex-husband from

his first marriage, seeking the revocation of gifts which he had made

to them, in order to satisfy their claims in this way.  The applicant

encountered difficulties with the granting of legal aid for this

purpose, because the court considered that the matter was related to

her maintenance claims (decision of the Regional Court of Vienna of

6 August 1987).  On 18 April 1989, the applicant's daughter

subsequently asked for the two cases to be joined.  This request was

granted on 31 May 1989 and both cases are still pending.

        Finally the applicant applied for her legal aid to be extended

to the issue of the division of her husband's property following the

divorce, which she claimed was also covered by the Supreme Court's

decision of 12 July 1984.  However, on 26 June 1989 the District Court

of Vienna City (Bezirksgericht Wien-Innere Stadt) refused legal aid on

the ground that in fact the applicant sought to introduce a new action

which had no prospects because the time-limit for requesting a

division of property had expired one year after the divorce had become

final.  This decision was confirmed by the Regional Court of Vienna on

30 August 1989.

COMPLAINTS

        The applicant complains that her right under Article 6 para. 1

of the Convention to a determination of her civil rights and

obligations by an independent and impartial tribunal has been violated

by the fact that, despite the judicial proceedings pending in Austria,

an administrative authority recognised the Canadian divorce judgment

that had resulted from proceedings which were irregular in many

respects and in which she had not been heard.  She also complains that

the Administrative Court's proceedings in which she sought to

challenge the Ministry's decision was conducted in an unfair manner:

she was not heard with the assistance of an interpreter and the court

wrongly assumed that she had not raised the irregularity of the

Canadian court proceedings in the administrative proceedings in

Austria.

        The applicant further considers it as unfair and an

infringement of her right to access to court that, after the

recognition of the Canadian divorce, the Austrian courts considered

themselves bound by this decision and limited the further proceedings

to the question of her maintenance claims.  In this context she also

complains of the non-admission of her claim for the division of her

ex-husband's property.

        As regards the subsequent proceedings, the applicant complains

that the courts were generally biased against her because of her

foreign origin.  She further claims that the proceedings were

conducted in an unfair manner, in particular because in the

maintenance case transcripts of court hearings were manipulated on two

occasions (13 January 1987 and 21 March 1989).  The Regional Court

wrongly recorded that the applicant claimed 25% (and not 27% or even

33% of her husband's salary) and failed to recognise the foreclosure

of the husband from further submissions.  The Court further contacted

a lawyer of her ex-husband whose power of attorney had long been

withdrawn, it ordered the taking of evidence which neither party had

requested, and it took various measures to protect the ex-husband's

interests although he had himself declared that he did not wish to

take part in the proceedings.  It also unfairly imposed certain costs

of the ex-husband on the applicant, refused to accept certain

documents submitted by the applicant and have them translated in the

framework of legal aid, and wrongly accused the applicant of delaying

the proceedings instead of pronouncing a judgment in default.  The

applicant finally complains that the case was not decided within a

reasonable time.

        The applicant raises similar complaints concerning the other

related proceedings.  She considers that the Austrian authorities are

responsible for the negative result of the enforcement proceedings in

the Federal Republic of Germany.  The proceedings against the

husband's sons were dealt with in a manner which the applicant

describes as chicanery (she is particularly aggrieved by the

revocation of legal aid in this respect) and also those proceedings

were unreasonably delayed.  Finally, the applicant considers it as

unfair that her claim for division of the ex-husband's property was

not accepted and that she was refused legal aid to pursue this claim.

        Apart from Article 6 para. 1 of the Convention the applicant

also invokes her property rights and Article 14 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 26 February 1986 and

registered on 1 April 1987.

        On 6 June 1990 the Commission decided to communicate the

complaint concerning the length of the Austrian civil proceedings

relating to the applicant's claim for a finding that her husband was

the guilty party and should be ordered to pay maintenance, as well as

the proceedings relating to maintenance claims which the applicant and

her daughter tried to pursue by suing the sons of the applicant's

ex-husband.  The respondent Government were invited to submit observations

on the admissibility and merits of this part of the application.

        After an extension of the time-limit, the Austrian Government

submitted their observations on 5 November 1990.  The applicant's

reply dated 27 February 1991 was received on 3 March 1991.

THE LAW

1.      The applicant mainly complains of the length of the

maintenance proceedings and alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention, which provides:

        "In the determination of his civil rights and

        obligations everyone is entitled to a ... hearing

        within a reasonable time by ... [a] tribunal."

        The Commission first observes that uncontestedly the applicant

raised a claim for maintenance for the first time with her counteraction

of 17 February 1977, while this alleged civil right has still not been

determined by a final decision.

        The Commission has taken into account the parties'

observations as to the reasonableness of this time.  A preliminary

examination of the application does not disclose sufficient

justification for the delays that occurred in the proceedings.  The

Commission therefore considers that the question of whether the length

of the proceedings in the present case exceeded the reasonable time

provided for in Article 6 para. 1 (Art. 6-1) of the Convention raises

serious points of fact and law which cannot be resolved without a

thorough examination of the merits of the case.

        The Commission further observes that there are no other

grounds for considering this complaint inadmissible.

2.      The Commission has examined the applicant's remaining

complaints, but finds that, even supposing that domestic remedies are

exhausted, they are unsubstantiated and do not, as a whole, disclose

any appearance of a violation of the Convention.

        It follows that to this extent the application has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

        For these reasons, the Commission

        unanimously

        DECLARES THE APPLICATION ADMISSIBLE INSOFAR AS

        IT CONCERNS THE LENGTH OF THE CIVIL PROCEEDINGS

        RELATING TO THE APPLICANT'S MAINTENANCE CLAIMS,

        without prejudging the merits;

        by a majority

        DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Deputy Secretary to the Commission       President of the Commission

          (J. RAYMOND)                          (C.A. NØRGAARD)