Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16103/90

by H.

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 31 May 1991 , the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

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 30 November 1989

by H. against Austria and registered on 30 January 1990

under file No. 16103/90;

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

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 2 July 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on the

admissibility and merits of the complaint on the length

of proceedings;

- the observations submitted by the respondent Government on

15 October 1990 and the observations in reply submitted

by the applicant on 28 November 1990;

- the Commission's decision of 26 February 1991 that the

application should be referred to the First Chamber;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1942 and

living in St. Pölten. He is represented by Mr. R. Wandl, a lawyer

practising in St. Pölten.

By action of 21 November 1978 the applicant claimed a divorce

with the finding that the defendant was the guilty party. He alleged

that his wife ill-treated him, neglected their home and their two

children and did not run the household in an economic manner. After

extensive taking of evidence - inter alia more than ten witnesses were

heard, the premises were inspected and documentary evidence was

obtained - the St. Pölten Regional Court (Kreisgericht) pronounced the

divorce on 10 October 1983 stating that both parties were guilty.

Both parties appealed and on 27 February 1984 the Vienna Court

of Appeal (Oberlandesgericht) granted these appeals, quashed the

judgment appealed from and sent the case back to the first instance

court as further evidence had, in the appellate court's opinion, to be

obtained.

On 26 November 1984 the Regional Court, having taken further

evidence - inter alia it heard three witnesses and the parties - again

pronounced the divorce stating that both parties were guilty. The

judgment was again set aside on 29 April 1985 by the Court of Appeal

which thereby granted the defendant's appeal and sent the case back to

be reconsidered by the first instance court. The appellate court

stated, inter alia, that detailed fact-finding directives it had given

to the lower court in its previous judgment had been complied with in

an insufficient manner.

On 1 July 1988 the Regional Court, having obtained information

about the applicant's income situation and other documentary evidence

and having heard two further witnesses and the parties again,

pronounced the divorce finding both parties guilty of the failure of

the marriage.

Both parties appealed, but on 12 December 1988 the Court of

Appeal confirmed the first instance decision with the amendment that

the applicant's guilt was predominant.

Pleas of nullity (Nichtigkeitsbeschwerden) lodged by both

parties were rejected by the Supreme Court (Oberster Gerichtshof) on

20 April 1989.

COMPLAINTS

The applicant complains of the length of his divorce

proceedings, instituted on 21 November 1978 and terminated on

20 April 1989. He also complains that the appeal courts did not

grant him a fair hearing in that they disregarded his arguments. He

invokes Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 30 November 1989 and

registered on 30 January 1990.

On 2 July 1990 the Commission decided to communicate the

application to the Government and to invite them to submit written

observations on the admissibility and merits of the application.

The observations of the Government were submitted on

15 October 1990 and the applicant's reply on 28 November 1990.

On 26 February 1991 the Commission decided to refer the

application to the First Chamber.

THE LAW

1. The applicant mainly complains under Article 6 para. 1

(Art. 6-1) of the Convention of the length of his divorce proceedings

which he instituted on 21 November 1978. The proceedings were

terminated on 20 April 1989 when the Supreme Court rejected the

parties' pleas of nullity against the divorce judgment.

Article 6 para. 1 (Art. 6-1) first sentence provides:

"In the determination of his civil rights and obligations

or of any criminal charge against him, everyone is

entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established

by law."

The Government admit that the proceedings in question have

lasted a considerable time and that certain delays cannot be

explained. However, so they argue, the case was complex and

time-consuming because of the necessity to hear ten witnesses and take

other evidence. Furthermore the question of maintenance payments had

to be decided. It was very controversial and the parties lodged

appeals against all first instance decisions. The applicant could

have avoided delays had he accepted not to repeat the trial when the

presiding judge was replaced. In addition the proceedings were

repeatedly suspended with the parties' consent in view of ongoing

friendly settlement efforts. The applicant also failed to request a

partial judgment pronouncing the divorce leaving the determination as

to who was the guilty party to a later decision.

The applicant submits that the necessary evidence could have

been obtained in less time. He questions the reasonableness of the

two replacements of the presiding judge and considers that it was

unacceptable for the parties to have a new judge decide the case on

the basis of the contents of the file only. He also denies that time

could have been saved had he requested a partial judgment.

The Commission considers that the complaint concerning the

length of the proceedings raises difficult questions of fact and law

which are of such complexity that their determination should depend on

an examination of the merits. This part of the application is

therefore not manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention and no other grounds for

declaring it inadmissible have been established.

2. The applicant has further complained that he was not given a

fair hearing in that his arguments were disregarded by the appeal

courts. However, he has not shown that any decisive allegations or

arguments that would have resulted in another final decision in his

case have arbitrarily been disregarded by these courts. There is

consequently no appearance of a violation of the right to a fair

hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the

Convention and to this extent the application is therefore manifestly

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

the Convention.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits of

the case, the complaint about the length of the divorce

proceedings;

DECLARES INADMISSIBLE the remaining complaint.

Secretary to the First Chamber President of the First Chamber

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

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