THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28868/95 by Günter TEWS against Austria

The European Court of Human Rights ( Third Section ) sitting on 30 November 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 September 1995 by Günter Tews against Austria and registered on 5 October 1995 under file no. 28868/95;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 20 May 1996 and the observations in reply submitted by the applicant on 3 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1956 and residing in Linz. He is a la w yer by profession.

A. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 April 1991 the Linz District Court ( Bezirksgericht ) dissolved the applicant’s marriage with C.T. The District Court based its decision on an agreement the applicant and his wife had concluded the same day in court which, inter alia, provided that custody of the two children, E.T. and R.T., be granted to her.

On 17 May 1991 the applicant remarried.

On 11 November 1991 the applicant introduced a request with the Linz District Court for reduction of the maintenance payments for E.T. and R.T. These proceedings are the subject of application No. 25903/94.

On 14 October 1992 the applicant introduced court proceedings with the Linz District Court against his divorced wife for transfer to him of the custody of E.T. and R.T.

On 3 November 1992 the District Court heard C.T.

On 10 November 1992 C.T. requested the District Court to hear three witnesses. On 12 and 25 November the applicant requested the District Court to hear altogether nine witnesses and to obtain the opinion of a medical expert.

On 27 November 1992 the District Court appointed an expert child psychologist.

On 9 January 1993 Judge A.E. who had been dealing with the applicant’s case was replaced by Judge H.K.

On 10 January 1993 the applicant requested the District Court to transfer custody provisionally to him and to hear further three witnesses.

On 22 January 1993 the expert submitted his report to the District Court. On 2 February 1993 the expert’s report was transmitted to the parties. On 15 February 1993 the applicant requested the District Court to order the expert to amend his report. He also requested that a hearing be held in order to discuss the report.              On 24 and 25 February 1993 C.T. commented on the expert’s report. On 15 March 1993 the applicant made further submissions. He also requested that he and one more witness be heard.

On 6 July 1993 the Braunau District Court heard one witness on letters rogatory .

On 21 July 1993 a hearing took place before the Linz District Court. The case had meanwhile been assigned to Judge K.L. In the course of the hearing the District Court heard three witnesses. On 29 July 1993 the applicant requested the District Court to hear a further seven witnesses. He also withdrew a previous request for the hearing of one witness.

On 11 and 17 August 1993 hearings took place before the District Court in which the court heard the applicant and six witnesses. On 27 August and 1 September 1993 the applicant requested the District Court to hear a further fourteen witnesses and to instruct the expert to amend his report of 22 January 1993.

On 28 September 1993 and 11 October 1993 the parties made further submissions to the District Court.

On 13 October 1993 the District Court summoned the parties to a hearing scheduled for 29 October 1993. This hearing was postponed to 3 November 1993, on the request of C.T, when the District Court heard three witnesses and distributed an amended expert report.

On 21 December and 29 December 1993 the District Court heard two witnesses in the absence of the parties.              On 22 February 1994 the applicant requested the District Court to hear a further seven witnesses.

On 11 April 1994 the applicant filed a request with the Regional Court ( Landesgericht ) to set the District Court a time limit for holding a hearing. He submitted that since 3 November 1993 no hearing had taken place, and that the transcript of this court hearing had not yet been transmitted to the parties.

On 27 April 1994 a hearing took place before the District Court, which heard C.T. and decided that the appointed expert should, after an examination of the parties and the children, prepare a new report. This report was submitted on 13 May 1994.

On 6, 7, 13, 14, 18, and 21 July 1994 the District Court heard eleven witnesses in the absence of the parties.              On 12 September 1994 the applicant made further submissions to the District Court. On 15 September 1994 the District Court heard one witness, already heard on 7 July 1994, in the absence of the parties.

On 20 September 1994 the applicant requested the District Court to grant the transmission to the parties of the material upon which the expert had based his report of 13 May 1994.

On 23 December 1994 the District Court heard four witnesses, already heard on 7, 13 and 21 July 1994, in the absence of the parties.

On 28 December 1994 a hearing took place before the District Court in which the expert’s report of 13 May 1994 was discussed. The applicant requested amendments to the report and the hearing of further witnesses.

On 31 December 1994 the Judge K.L. left the Linz District Court. On 8 February 1995 the applicant requested the District Court to resume the taking of evidence because of the change in judge.

On 14 February 1995 the President of the District Court assigned the applicant’s case to Judge A.E. (who had previously dealt with the case in 1992).

On 10 April 1995 the District Court heard C.T., E.T. and R.T. and C.T.’s companion in the absence of the applicant. On 11 April 1995 the applicant requested the District Court to hear two further witnesses. On 13 April and 5 May 1995 the District Court heard the applicant and his second wife in the absence of C.T. On 24 May 1995 the District Court heard C.T. in the absence of the applicant. On 3 July 1995 the applicant requested the District Court to re-hear in his presence all previous witnesses.

On 12 July 1995 Judge A.E. declared that she felt bias against the applicant.

On 11 September 1995 the applicant filed an application for a time-limit to be set for a decision on this declaration. On 19 September 1995 the President himself requested that he be withdrawn from the case for bias. Both requests were dismissed. Judge A.E.’s appeal of 21 November 1995 was rejected on 7 D e cember 1995.

Meanwhile, on 11 October 1995 the applicant had filed a motion challenging the probable substitute Judge G. for bias. And on 10 November 1995, the applicant had filed a m o tion challenging Judge A.E. for bias. On 19 January 1996 he filed an application for a time-limit to be set for the delivery of a decision on his latter request.

His applications were dismissed on 6 November 1995 and 17 January 1996, respe c tively. On 22 March 1996 the Linz Regional Court ( Landesgericht ), following the applicant’s appeal, wit h drew Judge A.E. from the case.

On 11 April 1996 Judge K.S. was appointed to deal with the case but was also cha l lenged for bias by the applicant on 17 April 1996. On 29 April 1996 Judge R.K. was a p pointed to deal with the case.

On 23 July 1996 the court heard C.T. and C.T.’s companion. On 29 August 1996 the applicant made further submissions. On 6 November 1996 the court heard the applicant and his second wife. On 12 November 1996 an expert was appointed. On 18 November 1996 the court heard C.T. and her father. On 26 November 1996 another expert was appointed.

On 9 December 1996 the applicant’s children were granted legal aid. The applicant appealed against this decision on 18 December 1996.

On 13 March 1997 the expert submitted his report to the court. On 18 March 1997 the applicant requested the court to hold a hearing in which the expert opinion be discussed in the presence of the expert.

On 21 March 1997 the hearing was scheduled for 17 April 1997. Following the applicant’s request for an adjournment, the hearing was postponed until 20 May 1997. Granting the defendants’ motion for an adjournment, the court further postponed the hearing until 26 May 1997. Following another request for an adjournment by the applicant, the hearing was eventually held on 9 June 1997.

On 4 September 1997 the Linz District Court dismissed the applicant’s request for the transfer of custody and withdrew his right of access. Having regard to the submissions of the parties, the evidence of more than 30 witnesses, several expert opinions, documentary evidence and the case files of more than 10 related cases, the District Court found that the children were well cared for by their mother and that continuity in exercising custody was important for the children’s well-being. Furthermore, the children’s feelings towards their father were negative or at best ambivalent. Therefore the court found no reason to transfer their custody from their mother to the applicant. As to the withdrawal of the right of access, the court noted that the right of access  like the right of custody  must not harm the children’s well-being. Given the circumstances of the case, especially the fact that the relations between the applicant and his former wife had irretrievably broken down and that they needed therapy to re-establish normal relations, the court found that, for the time being, the further exercise of the applicant’s right of access was negatively affecting the children’s well-being.

On 15 September 1997 the applicant lodged an appeal, which was dismissed on 27 November 1997 by the Linz Regional Court for essentially the same reasons as those given by the District Court.

On 2 January 1998 the applicant lodged a further appeal, which was dismissed on 24 February 1998 by the Supreme Court, whose decision was served on 6 March 1998.

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the transfer of custody proceedings.

PROCEDURE

The application was introduced on 25 September 1995 and registered on 5 October 1995.

On 28 February 1996 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 20 May 1996. The applicant replied on 3 June 1996.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains under Article 6 of the Convention about the length of civil proceedings.

Article 6 § 1, in so far as relevant, reads as follows:

“In determination of civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time ... .”

The Government submit that the case was extremely complex as there were eleven parallel sets of proceedings, some of them closely connected, and 41 applications of an a d ministrative nature. Numerous witnesses and experts had to be heard in these proceedings. The child custody proceedings alone had produced four volumes of files plus a maintenance sub-file. The Government submit that at no stage did the proceedings come to a real stan d still. The length of the proceedings at issue was essentially caused by the applicant’s conduct: he continually filed civil actions, motions, requests for taking of evidence, challenges, allegations of criminal conduct and requests for time-limits to be set, which made it frequently necessary for the presidents of the courts concerned to obtain the files and for the various judges to e x change files.

This is disputed by the applicant. In his view the case was not complex at all. He also submits that the extensive exchange of files had not been necessary, and in any event had not caused any delays. As to his own conduct, the applicant submits that he cannot be held r e sponsible for the delays which occurred. On the contrary he had always filed his appeals b e fore the expiry of the time-limit. The number of appeals that he had filed, as such, could not justify the length of proceedings, and most of the administrative decisions had nothing to do with the concrete proceedings.

The Court notes that the proceedings started on 14 October 1992 when the applicant requested the transfer of the custody of his two children to him. The proceedings lasted until 6 March 1998 when the decision of the Supreme Court was served on the applicant. Thus they lasted for 5 years, 4 months and 23 days.

The Court recalls that the reasonableness of the length of proceedings must be a s sessed in the light of the particular circumstances of the case, namely the complexity, the conduct of the applicant and the authorities . In this instance the circumstances call for an overall assessment (see the Ficara v. Italy judgment of 19 February 1991, Series A no. 196-A, p. 9, § 17).

The Court finds that the proceedings were rather complex: The applicant, his former wife, his children and more than 30 witnesses had to be heard and several expert opinions had to be taken. The Court had to study a large volume of documentary evidence as well as the case files of more than 10 other related proceedings. Finally, more than 25 court hearings were held.

As regards the conduct of the applicant, the Court observes that he made numerous submissions and requested the hearing of a large number of witnesses. These requests were not made from the outset, but on nine separate occasions between 10 January 1993 and 11 April 1995, culminating in a request on 3 July 1995 for a re-hearing of them all in his presence. The Court considers that due to this conduct the applicant is at least partly responsible for the length of the proceedings.

As to the conduct of the Austrian courts, the Court notes that the case was dealt with at three levels of jurisdiction. The second and third instances each acted quickly, as the Regional Court and the Supreme Court gave their respective judgments within slightly more than two months after they had been seized, whereas the first instance proceedings took substantially longer.

Insofar as the first instance proceedings are concerned, the Court observes that in this set of proceedings the court had to consider voluminous evidence which consisted in the statements of more than 30 witnesses and experts, extensive documentary evidence and more than ten files from related court proceedings. The Court further notes that the proceedings maintained an acceptable rhythm with no substantial intervals between the 25 court hearings which took place. It is true that some delays may have resulted from the fact that several different judges dealt with the applicant’s case and were required to familiarise themselves with the files. However, the Court observes that such delays were not substantial and did not lead to a standstill in the proceedings since during these periods expert opinions were obtained, a witness was heard on letters rogatory and the parties made further submissions.

Having regard to these particular circumstances, and looking at the proceedings as a whole, the Court finds that there is no appearance of a violation of the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time.

It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President