Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12628/87

by F.

against Austria

The European Commission of Human Rights sitting in private on

7 September 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H. DANELIUS

Sir Basil HALL

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. H.C. KRÜGER, 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 10 December

1986 by F. against Austria and registered on 18 December 1986 under

file No. 12628/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 8 September 1988 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

11 November 1988 and the observations in reply submitted

by the applicant on 19 January 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German university professor born in 1920

and living in Linz, Austria. He is represented by Dr. B. Binder, a

lawyer in Linz.

It follows from the applicant's statements and the documents

submitted by him that on 30 June 1983 he lodged a divorce action

before the Regional Court (Landesgericht) in Linz. The applicant's

wife submitted her observations on 16 August 1983. The first hearing

took place on 27 September 1983 and mainly served to discuss the

possibilities of reaching a friendly settlement. Another hearing was

held on 12 December 1983 and was again primarily concentrated on

friendly settlement discussions.

At a third oral hearing on 12 March 1984 the applicant was

heard as a party. At a hearing on 13 June 1984 the possibilities of a

friendly settlement were again discussed. The hearing of the

applicant as a party was continued on 24 August 1984. After this

hearing the Court decided to hear several witnesses.

On 4 October 1984 the applicant's wife lodged a counter-action.

A hearing fixed for 22 January 1985 was adjourned to

8 February 1985 at the applicant's counsel's request. Meanwhile the

case had been taken over by another judge, who decided on 8 February

1985 to start the case anew (Neudurchführung der Verhandlung). On

that date the applicant's wife was heard as a party and the former

decision to take further evidence was maintained.

On 27 February 1985 the applicant's observations in reply to

the counter-action were submitted.

On 8 May 1985 a witness was heard, by rogatory commission,

before the Munich District Court (Amtsgericht).

On 17 and 18 June 1985 the defendant was heard as a party as

well as several witnesses.

A hearing fixed for 9 December 1985 was adjourned on account

of other business that occupied the Court.

On 2 June 1986 again another judge took over the case and

decided to start the case anew. The possibilities of a friendly

settlement were again discussed. The Court maintained the former

decision to hear several witnesses.

On 8 January 1987 two witnesses were heard and the possibility

of a friendly settlement was again discussed. A further hearing

fixed for 9 March 1987 was adjourned at the defendant counsel's

request. A hearing fixed for 9 April 1987 was also adjourned on

account of illness of the judge. A further hearing took place on 28

September 1987 and on 31 December 1987 the case was struck off the

list of the cases.

On 26 August 1988 the applicant's counsel requested a date for

another hearing and complained to the Regional Court's President of

the length of the proceedings.

It appears that a further hearing was held on 12 January 1989.

On 24 May 1989 the Regional Court pronounced the divorce

holding both parties guilty of the break-up of the marriage. Both

parties appealed. The appeal hearing took place on 15 February 1990

before the Linz Court of Appeal (Oberlandesgericht).

COMPLAINTS

The applicant complains of the length of the divorce

proceedings (Article 6 para. 1 of the Convention).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 December 1986 and

registered on 18 December 1986.

On 8 September 1988 the Commission decided to communicate the

application to the Government, pursuant to Rule 42 (2)(b) of its Rules

of Procedure, and to invite them to submit written observations on the

admissibility and merits of the application.

The observations of the Government were submitted on 11

November 1988 and the applicant's reply on 19 January 1989.

THE LAW

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

the Convention of the length of the divorce proceedings which he

instituted on 30 June 1983. The proceedings were pending in first

instance before the Regional Court in Linz until 24 May 1989 and are

now pending before the Court of Appeal.

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 submit that the length of the proceedings is

mainly due to the parties who at nearly all hearings extensively

discussed the possibilities of a friendly settlement and told the

court that those discussions would be continued out of court. The

divorce proceedings were also interrelated with parallel maintenance

proceedings pending between the applicant as defendant and his

children as plaintiffs assisted by their mother (Nebenintervenientin).

In these parallel proceedings the possibility of a friendly settlement

extending also to the divorce issue was likewise discussed in a

hearing of 17 December 1987 and according to a file note the parties'

representatives eventually asked the court in view of the pending

friendly settlement discussions not to continue the proceedings unless

they so requested. Therefore the case was on 31 December 1987 struck

off the role. It was then not until 26 August 1988 that the applicant

requested another hearing. In these circumstances the length of the

proceedings is explained by the continuous efforts of both parties to

these proceedings, who are of advanced age and poor health, to reach

a friendly settlement and to avoid thereby further time and money

consuming proceedings on consequential issues such as the partition of

important properties.

The applicant submits that instead of deciding on both parties'

requests for a divorce the court exerted undue pressure to make them

accept a friendly settlement. He denies that at the hearing of

17 December 1987 in parallel proceedings a request was made by his

lawyer to discontinue the divorce proceedings provisionally and to fix

another hearing only if the parties so requested. He points out that

the judge dealing with the divorce case was twice replaced and argues

that these replacements were unnecessary and caused substantial

delays. Furthermore, a possible important workload of the judges did

not justify unreasonable delays.

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. 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.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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