THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25903/94 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 11 October 1994 by Günter Tews against Austria and registered on 12 December 1994 under file no. 25903/94;

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 1 April 1996 and the observations in reply submitted by the applicant on 16 April 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 profe s sion.

A. Particular circumstances of the case

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

I. Proceedings for reduction of maintenance payments

On 29 April 1991 the Linz District Court ( Bezirksgericht ) dissolved the applicant’s marriage. The District Court based its decision on an agreement which the applicant and his wife had concluded the same day in court providing, inter alia, for maintenance payments by the applicant to his two children.

On 17 May 1991 the applicant remarried and subsequently adopted the child of his present wife.

On 11 November 1991 the applicant introduced a request with the Linz District Court for reduction of maintenance payments and referred to his new obligation to maintain his present wife and child.

On 14 November 1991 the District Court dismissed the request. On 3 December 1991 the applicant appealed. On 17 December 1991 the District Court nevertheless appointed a book-keeping expert to assess the applicant’s income. On 7 January 1992 the applicant also appealed against this decision. On 10 and 19 March 1992 the District Court heard the parties at the applicant’s request on the appointment of the expert.

On 9 April 1992 the Linz Regional Court ( Landesgericht ) quashed the District Court’s decision of 14 November 1991 and upheld the District Court’s decision of 17 December 1991 to appoint a book-keeping expert. As regards the decision of 14 November 1991 the Regional Court noted that the issue of the reduction of maintenance payments was closely connected with the provisions in the agreement of 29 April 1991 for the recalculation of maintenance payments. The Guardianship Court ( Vormundschaftsgericht ) had refused to approve part of the agreement but had failed to decide whether it also disapproved of some remaining provisions relevant to the issue. The District Court should therefore have only decided on the applicant’s request once this issue had been clarified.

On 8 May 1992 the District Court found that there was no need to approve the remaining parts of the agreement of 29 April 1991. The applicant appealed against this decision. On 25 June 1992 the Regional Court quashed the District Court’s decision.

On 9 July 1992 the District Court decided not to give its approval to the remaining part of the agreement of 29 April 1991. It found that it was not in the interests of the children to grant them maintenance payments at a fixed percentage of the applicant’s income. Such a method would not take into account any increasing needs of the children. The applicant appealed against this decision.

On 30 July 1992 the Regional Court dismissed the applicant’s appeal but granted an ordinary appeal on points of law ( ordentlicher Revisionsrekurs ) as it considered that there existed no case-law on partial approval of maintenance agreements concluded in the course of divorce proceedings.

On 31 August 1992 the applicant introduced the appeal on points of law, which was dismissed on 22 March 1993 by the Supreme Court ( Oberster Gerichtshof ).

On 18 November 1993 the applicant applied for a time-limit to be fixed for the seeking of the expert opinion. On 9 December 1993 the court file was transmitted to the appointed expert, who submitted his expert opinion to the District Court on 3 February 1994.

On 14 February 1994 the District Court dismissed the applicant’s request for reduction of maintenance payments. The applicant appealed and also challenged the court clerk ( Rechtspfleger ) for bias.

On 15 April 1994 the Regional Court quashed the District Court’s decision of 14 February 1994. On 29 July 1994 the President of Linz District Court rejected the applicant’s challenge for bias.

On 18 August 1994 the District Court again dismissed the applicant’s request for reduction of maintenance payments. The applicant appealed.

On 29 August 1994 the applicant again challenged the court clerk dealing with his case for bias, as well as the President of the District Court who on 29 July 1994 had rejected the applicant’s previous challenge.

On 29 September 1994 the Regional Court decided the applicant’s appeal against the District Court’s decision of 18 August 1994. It partially confirmed the District Court’s decision and partially granted the applicant a reduction of maintenance payments. On the same day it dismissed the applicant’s bias contention.

On 14 December 1994 the applicant introduced an extraordinary appeal on points of law ( außerordentlicher Revisionsrekurs ), which on 25 April 1995 was granted by the Supreme Court insofar as it concerned the partial reduction of maintenance payments, referring the case back to the first instance court. It considered that the extraordinary appeal  granted only if there is insufficient case-law concerning a legal issue  was admissible in the interests of legal certainty and uniformity.

On 11 July 1995 the competent Judge, A.E., requested that the President of the Di s trict Court be withdrawn from the case for bias. On 11 September 1995 the applicant filed an application for a time-limit to be set for the delivery of a decision on that request. 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 further appeal, dated 21 November 1995, was rejected on 7 D e cember 1995.

Meanwhile, on 11 October 1995 the applicant had filed an application challenging the probable substitute Judge G. for bias. Moreover, on 10 November 1995, the applicant filed a motion 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 r e quest.

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 10 July 1996 the court clerk issued a summons for a hearing scheduled for 8 August 1996.

On 22 July 1996 the applicant requested a time-limit to be fixed for the continuation of the proceedings. On 8 August 1996 this application was dismissed because correspondence had crossed.

On 24 July and 23 August 1996 the applicant, and on 14 August 1996 the defendants, filed pleadings with the court.

On 18 September 1996 an expert was appointed in order to establish the applicant’s income and financial position. On the same day the Linz District Court rendered a partial judgment on the maintenance claim, the decision on the remainder being postponed until the d e livery of the expert opinion.

On 7 October 1996 the applicant filed a motion requesting a time-limit to be fixed for the delivery of the decision on the reduction of maintenance payments.

On 14 October 1996 the applicant, as well as the defendant, appealed against the Di s trict Court’s decision of 18 September 1996. On the same day the District Court, deciding on the remainder of the applicant’s claim, refused the reduction of the maintenance payments and, instead, ordered their increase. It noted that an exact evaluation of the applicant’s fina n cial position had not been possible as the applicant had not provided the expert with the ne c essary documents. Therefore it had to be presumed that the applicant could afford the fixed amount of maintenance because otherwise he would have given the relevant documents to the expert.

On 18 October 1996 the applicant appealed. On 13 February 1997 the Linz Regional Court partly granted the appeals of 14 and 18 October 1996. The applicant as well as his children appealed from this decision.

On 25 November 1997 the Supreme Court dismissed the appeals. The decision was served on the applicant in January 1998.

II. Official liability proceedings

The applicant instituted official liability proceedings ( Amtshaftung ) against the State claiming compensation for damages resulting from legal errors and delays caused by the court clerk. His claim related to the written pleadings of 25 August 1993, 23 February 1994, 28 July 1994, 29 August 1994, his motions for a time-limit to be fixed of 18 November 1993 and 23 March 1993, and his appeals of 3 December 1991, 22 May 1992 and 22 February 1994, which had been prompted by the court clerk’s conduct. He argued that the State was also liable for the proper organisation of court proceedings which had failed in his case b e cause a secondary file concerning only the maintenance matters should have been opened much ea r lier due to the complexity of the litigation.

On 8 June 1995 the Linz Regional Court granted compensation in respect of six pleadings and appeals. It noted in particular that the delay of more than two years, as from 11 November 1991, when the applicant had introduced the request for reduction of maintenance payments, until 9 December 1993, when the file finally had been transferred to the expert, had been too long, which engaged the State’s liability and obligation to pay da m ages.

The applicant appealed against this decision insofar as his appeal of 3 December 1991 against the Linz District Court’s decision of 14 November 1991 was concerned. He did not appeal against the remainder of the above decision.

On 5 March 1996 the Linz Court of Appeal granted the applicant’s appeal and awarded further damages.

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the proceedings for reduction of maintenance payments.

PROCEDURE

The application was introduced on 11 October 1994 and registered on 12 December 1994.

On 29 November 1995 the European Commission of Human Rights decided to co m municate the application to the respondent Government.

The Government’s written observations were submitted on 1 April 1996, after an e x tension of the time-limit fixed for that purpose. The applicant replied on 16 April 1996.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Co n vention, 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, 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, alleg a tions of criminal conduct and requests for time-limits to be set, which made it frequently ne c essary 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 11 November 1991 when the appl i cant introduced a request with the Linz District Court for reduction of the maintenance pa y ments. The final judgment was given on 25 November 1997. Thus, the proceedings lasted for 6 years and fourteen 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 (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’s obligation to make maintenance payments and the calculation of the respective amounts was based on a very detailed agreement concluded in the course of the divorce proceedings. The validity of this agreement, which had only been partially approved by the Guardianship Court, was the decisive issue at several instances, including the Supreme Court. In the course of the maintenance proceedings the Austrian courts rendered 16 decisions concerning the maintenance claim. Furthermore, the legal question on how to take into consideration the additional maintenance responsibilities of the applicant was difficult to resolve because there was insufficient Supreme Court case-law. Therefore the Supreme Court itself granted an extraordinary appeal on points of law concerning this issue. The proceedings as a whole must therefore be considered complex.

As regards the conduct of the applicant, the Court observes that he raised numerous appeals which contributed to the length of the proceedings. However, most of these appeals were successful and the applicant cannot be blamed for having lodged them. The Court finds that no delays can be attributed to the applicant.

As regards the conduct of the authorities, the Court notes that in the course of the proceedings seven decisions on the merits were taken by the District Court, six decisions by the Regional Court and three decisions by the Supreme Court. The time in which each of these decisions was given lasted, with one exception, between one week and seven months. The Court further notes that in between these periods more than eight decisions had to be taken on challenges for bias filed by the applicant, or judges’ requests to withdraw from the case. The Court therefore finds that, on the whole, the Austrian courts dealt expeditiously with the applicant’s case.

However, one period between 11 November 1991, when the applicant had introduced his request for a reduction of maintenance payments, and 9 December 1993, when the case files were finally transferred to the expert, requires further examination.

In this respect, the Court recalls that where national authorities have found a violation and their decision constitutes appropriate and sufficient redress thereof, the party involved cannot claim to be a victim within the meaning of Article 34 of the Convention (No. 10259/83, S.p.r.l . ANCA and others v. Belgium, Decision of the European Commission of Human Rights, 10.12.1984, D.R. 40, p. 170). The Linz Regional Court as well as the Linz Court of Appeal considered the delay of more than two years as excessive and granted compensation in the official liability proceedings. The Court therefore finds that the Austrian courts have, implicitly, found a violation of the applicant’s right to expeditious court proceedings and, by awarding him compensation, offered sufficient and appropriate redress. Thus, the applicant can no longer claim to be a victim of a violation of Article 6 § 1 of the Convention in respect of that period.

In conclusion, having regard to the particular circumstances of the case, the Court finds that the length of the proceedings must be regarded as reasonable within the meaning of Article 6 § 1 of the Convention.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President