THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28702/95

by Gebhard FIDLER

against Austria

The European Court of Human Rights ( Third Section) sitting on 23 February 1999 as a Chamber composed of

Sir Nicolas Bratza, President ,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mr W. Fuhrmann,

Mr K. Jungwiert

Mrs H.S. Greve,

Mr K. Traja, Judges ,

with 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 18 March 1995 by Gebhard Fidler against Austria and registered on 20 September 1995 under file no. 28702/95;

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

Having regard to the observations submitted by the respondent Government on 25 August 1997 and the observations in reply submitted by the applicant on 3 January 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1956, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. Bruckschwaiger, a lawyer practising in Vienna.

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

The applicant is the father of two children, who were born out of wedlock in 1986 and 1988, respectively.

On 27 January 1992 the Office for Youth and Family ( Amt für Jugend und Familie ), acting on behalf of the applicant’s children, filed a request with the Favoriten District Court ( Bezirksgericht ) that the monthly amount of maintenance to be paid by the applicant be raised from Austrian schillings (ATS) 2,500 to ATS 3,300 per child as of 1 January 1992. The applicant made a number of submissions opposing this request.

On 19 October 1992 the applicant requested that the monthly amount of maintenance be reduced to ATS 1,000 per child as of 1 November 1992. He also requested legal aid. Subsequently, he requested that the amount be reduced to ATS 700 per child. On 8 March 1993 the applicant requested that he be released from his maintenance obligations for January to March 1993.

According to the Government the applicant was heard in an informal manner on 5 February 1993. According to the applicant no such informal questioning took place. He submits that on that date he only handed in documents relating to his legal aid request.

On 26 April 1993 the Favoriten District Court decided that the applicant had to pay ATS 3,300 in monthly maintenance per child for 1992. It reserved its decision as regards 1993, noting that further examination was necessary.

On 11 May 1993 the applicant filed an appeal. He submitted that the District Court had disregarded his submissions and had failed to hear him. In particular, it had failed to take into account that, following his separation from the mother of his children, he had moved to an apartment which he had to renovate. The costs for this renovation had to be deducted from his income when calculating his maintenance obligations. Further, transport costs for reaching his work place, a newspaper publisher, which could during night shifts only be reached by taxi, also had to be deducted.

On 29 June 1993 the Vienna Regional Civil Court (Landesgericht für Zivil-rechtssachen ) quashed the District Court’s decision and referred the case back to it.

The Regional Court noted that, according to constant case-law, necessary costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations, if one parent, upon separation, had left the common apartment and its furniture to the other parent and the children. It appeared from the file that the applicant and the mother of his children had lived together until February 1991. The applicant’s submissions that, subsequently, he had moved to another apartment which he had to renovate, thus, needed to be examined. In this respect the Regional Court ordered the District Court to hear the applicant in person and to request him to submit documentary evidence in support of his submissions. Further, it ordered the District Court to establish whether the applicant was unable to reach his workplace by public transport and, if so, what extra costs he incurred.

On 30 August 1993 the District Court ordered the applicant to submit the said evidence.

On 1 October 1993 the applicant handed in documents including, inter alia , the tenancy agreement relating to the apartment at issue. According to the Government he was informally questioned by a court clerk ( Rechtspfleger ) on that occasion. The applicant submits that no such questioning took place.

On 18 November 1993 the District Court heard the mother of the children and the applicant’s father as witnesses. According to the Government the latter was heard at the applicant’s request. The applicant submits that his father was heard at the request of the children’s mother.

On 19 November 1993 the District Court appointed Mr. H. as expert and ordered him to file an opinion as regards the monthly income the applicant could have achieved as of 1 January 1993.

On 28 January 1994 the expert submitted his opinion, whereupon the District Court on 1 February 1994 requested to applicant to make comments, which he submitted on 10 March 1994.

On 8 March and again on 29 March 1994 the Vienna Regional Civil Court dismissed the applicant’s applications for a time-limit to be set for the District Court’s decision ( Fristsetzungsanträge ). It noted that, according to the file, the District Court had not yet heard the applicant on the question whether he had to acquire and to furnish an apartment following his separation from the mother of the children concerned and as to the costs incurred. The Regional Court also noted the applicant’s submissions that he had on 1 October 1993 handed in the required documents and had been heard by a court clerk. However, there were no minutes in the file. In any case, such an informal hearing could not serve as a basis for establishing the relevant facts and could, therefore, not substitute a formal hearing. The applicant should in fact have applied for a time-limit to be set for his being summoned to a hearing. As this hearing was necessary for the examination of the case, the matter was not yet ready for decision. Thus, his requests for a time-limit to be set for the taking of a decision could not be granted. In any case, the Regional Court noted that, in view of the duration of the proceedings, the District Court was called upon to summon the applicant speedily to a hearing and to give a decision without further delay.

On 13 October 1994 the District Court issued a new decision. It upheld its decision of 26 April 1993 as regards the applicant’s maintenance obligations for 1992 and further ordered him to pay varying amounts of maintenance for 1993 and the first trimester of 1994 as well as from 1 April 1994 onwards. All these amounts exceeded the monthly amount of ATS 2,500 per child which the applicant had had to pay previously.

The District Court noted that it based its findings relating to the applicant’s actual or potential income on the file, the submissions of the parties and the expert opinion. The children’s maintenance claims had to be calculated as a certain percentage of the applicant’s income. It dismissed the applicant’s submissions that the costs for renovating his apartment had to be deducted from his income. In this respect the Court relied on the statements of the witnesses heard, namely the children’s mother and the applicant’s father, whom it considered to be credible. It noted that, according to them, the apartment in which the applicant was now living, had been transferred to the applicant’s mother upon her divorce from his father. It had been fully equipped and had not necessitated renovation. Moreover, the applicant had already used this apartment since 1988. As regards his income for 1992, when he had worked at a newspaper publisher, the District Court accepted that an amount of ATS 1,000 per month had to be deducted as extraordinary transport costs for reaching his workplace.

Finally, the District Court, referring to the Regional Court’s decision of 29 June 1993, which had ordered it to hear the applicant and to request further documentary evidence, noted that the applicant had presented himself in court and had, after discussion of the factual and legal issues of the case, handed in the required documents.

On 31 October 1994 the applicant filed an appeal. He complained in particular that the District Court had failed to summon or hear him. Further, he contested, in general terms, the credibility of the witnesses heard by the Court. He claimed he had lived with the mother of his children until February 1991. Following their separation he had moved to his present apartment, which had been in an extremely bad state, not even having the necessary sanitary equipment, and he was thus bound to carry out considerable renovation works.

On 20 December 1994 the Vienna Regional Civil Court, sitting in camera in the absence of the applicant, partly upheld his appeal. It confirmed the applicant’s maintenance obligations for 1992, but reduced his maintenance obligations for 1993 and the first trimester of 1994 on the ground that he had been either on sick leave or unemployed during this period and had taken up new employment within a reasonable time. His maintenance obligations, thus, could not be based on the potential income established by the expert, but had to be based on the amount of the social security benefits he actually received. Further, the Court confirmed the applicant’s maintenance obligations for April to July 1994, but quashed the decision as regards maintenance from 1 August 1994 onwards and referred the case back to the District Court as the applicant had again become unemployed in July 1994.

The Regional Court dismissed the remainder of the applicant’s appeal. It recalled that costs for acquiring and furnishing an apartment had to be taken into account in calculating maintenance obligations, if one parent, upon separation, had left the common apartment and its furniture to the other parent and the children. The Regional Court found in particular that, according to the results of the second set of proceedings, the applicant had not acquired his present apartment following his separation from the mother of his children. His father had rented the apartment in 1964, had transferred it to the applicant’s mother in 1970 in the course of divorce proceedings and the latter had assigned her rights to the applicant who had the apartment at his disposal at least as of 1988. Costs for the renovation of an apartment which became periodically necessary were, according to the case-law, not deductible from income for the purpose of calculating maintenance obligations. In the present case, the costs for the renovation of the apartment had not been caused exclusively by the applicant’s separation from the mother of his children and by his leaving the common household. As the applicant no longer claimed that he had only acquired the apartment subsequently to this separation, it was not necessary to hear him as regards the costs of renovating the apartment at issue. Moreover, he had presented himself at the District Court and had submitted documentary evidence. In connection with the other results of the proceedings, this evidence formed a sufficient basis for the decision.

On 7 February 1995 the applicant filed an appeal on points of law. He complained in particular that the District Court had, despite explicit orders of the Regional Court, failed to summon or hear him and that the Regional Court had arbitrarily ignored its earlier decisions when dismissing his appeal.

On 27 February 1995 the Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s appeal on points of law, finding that it did not raise any important legal issue within the meaning of S. 14 § 1 of the Non-Contentious Proceedings Act ( Ausserstreitgesetz ).

In further proceedings, the applicant requested on 2 July 1996 that his maintenance obligations be reduced retroactively as of 1 July 1993 to ATS 700 monthly per child. Later, he requested further reductions. He invoked again the costs of renovating his apartment, as well as a change in his financial situation. In a first decision of 3 March 1997 the Favoriten District Court fixed the applicant’s maintenance obligations as of 1 November 1996. On 3 November 1997 the Favoriten District Court changed its decision and reduced the applicant’s maintenance obligations as fixed by the decisions of 20 December 1994 and 3 March 1997 for July 1993 onwards. The amounts fixed for the different periods varied according to the applicant’s financial situation. Further, without giving any specific reasons, the court found that an amount of ATS 2,200 per month for renovating the applicant’s apartment had to be deducted from his income when calculating his maintenance obligations. It does not appear from the file whether these proceedings are still pending.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings relating to his maintenance obligations for January 1992 to July 1994 were unfair. He alleges that the courts acted arbitrarily and, in particular, denied him a hearing.

2. The applicant further complains under Article 6 § 1 that these proceedings lasted unreasonably long.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 18 March 1995 and registered on 20 September 1995.

On 21 May 1997, the Commission decided to communicate to the respondent Government the applicant’s complaint concerning the courts’ failure to hear him in maintenance proceedings.

The Government’s written observations were submitted on 25 August 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 3 January 1998, after two extensions of the time-limit.

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

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings relating to his maintenance obligations from January 1992 to July 1994 were unfair in that the courts denied him a hearing.

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

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

The Government, referring to the case-law of the Convention organs, submit that, in civil proceedings, Article 6 does not guarantee an absolute right to appear before the court in person unless the personal impression of the party concerned is relevant for the decision. They argue that the main contentious issue in the present case concerned a question of law, namely whether the costs claimed by the applicant were by their nature to be included in the calculation of his maintenance obligations. Thus, the courts were not required to get a personal impression of the applicant and Article 6 § 1 would not even have been violated if the applicant had not been summoned at all. However, he was questioned twice in an informal manner, namely on 5 February 1993 and on 1 October 1993. Moreover, he had ample opportunity to submit his arguments and to reply to the opponent’s factual statement. He availed himself of this opportunity for instance in his requests for a reduction of his maintenance obligations, in his comments on the expert opinion and in his various appeals against the decisions of the District Court and the Regional Court, respectively. In conclusion, the Government submit that the applicant could present his case under conditions which did not place him in a less favourable position than his opponents and that, thus, the requirements of a fair hearing within the meaning of Article 6 § 1 were met.

The applicant contests the Government’s submissions. In particular, he considers that the case required his personal appearance in court. He points out that despite the Vienna Regional Civil Court’s decisions of 29 June 1993 and of 29 March 1994, the courts failed to summon or hear him. He also denies that informal hearings as claimed by the Government took place. Further, he contests the Government’s view that he had sufficient opportunity to comment on his opponent’s submissions. In particular, he points out that he could not put questions to the witnesses heard by the court.

The Court notes that the applicant complains in essence about the courts’ failure to hear him in person. The Court recalls at the outset that the requirements inherent in the concept of a “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (Eur. Court HR, Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 32).

Nevertheless, certain principles concerning the notion of a fair hearing in cases concerning civil rights and obligations emerge from the Court’s case-law. For instance, it is clear that the requirement of equality of arms, in the sense of a fair balance between the parties, applies in principle to such cases as well as to criminal cases. As regards litigation involving opposing private interests equality of arms implies that each party must be afforded a reasonable opportunity to present the case - including their evidence - under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Dombo Beheer B.V. judgment, op. cit., § 33). The Court further recalls that the concept of fair trial also includes the right that proceedings should be adversarial, giving the parties an opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party (Ruiz Mateos v. Spain judgment of 23 June 1993, Series A no. 262, p. 25, § 63).

The right to appear in person in a civil case is not, as such guaranteed by the Convention but may, in particular circumstances be implied in the right to a fair hearing (Muyldermans v. Belguim, Comm. Report, 2.10.90, §§ 62-64, Eur. Court HR, Series A no. 214-A, p. 17, relating to a case where the applicant’s liability was at stake; Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 17, § 38, relating to private prosecution proceedings for defamation joined with an action for damages, where the Court found that, despite an oral hearing at first instance, the matter could not properly be determined upon appeal without a direct assessment of the evidence given in person by the applicant and by the defendants whose personal responsibility for the defamatory statements was at stake).

In the present case, the dispute which was before the domestic courts concerned the extent of the applicant’s maintenance obligations. This is, as such, a matter which is decided mainly on the basis of documentary evidence relating to the income of the person concerned.

It is true that the Vienna Regional Civil Court, by decision of 29 June 1993, set aside the Favoriten District Court’s first decision, ordering it to take further documentary evidence and to hear the applicant in person as regards the main contentious issue, namely whether or not costs for renovating the applicant’s apartment had to be deducted when calculating his maintenance obligations. According to the case-law applied by the courts, such costs were relevant if one parent had to acquire an apartment when leaving the common apartment to the other parent and the children upon separation. The District Court supplemented its proceedings. Upon its request the applicant submitted documentary evidence, including the tenancy agreement for the apartment at issue. Further, the court heard the children’s mother and the applicant’s father as witnesses. Whether or not it heard the applicant in an informal manner is disputed between the parties. It is uncontested however, that no formal hearing took place. In its new decision the District Court again found that the costs for renovating the applicant’s apartment were not to be taken into account. The Regional Court confirmed that view by decision of 20 December 1994. Having regard to the evidence now before it and taking into account that the applicant himself no longer claimed that he had only acquired the apartment upon separation from the mother of his children, the Court found that a personal hearing of the applicant was dispensable. The applicant’s further appeal to the Supreme Court was to no avail.

The Court finds that the matter to be decided by the courts was not of such a nature as to require a personal impression of the applicant. Therefore, the question whether or not the courts did at least hear the applicant in an informal manner is not decisive. What is more important is that the applicant had an opportunity to submit his arguments and to present evidence, as well as to comment on the submissions of his opponents. As regards in particular the statements of the witnesses heard, the applicant could, and in fact did, comment on them in his appeal to the Regional Court (see mutatis mutandis No. 8893/80, Dec. 5.3.83, D.R. 31, p. 66). In conclusion, the Court finds that the applicant could present his case including his evidence under conditions which did not put him at a substantial disadvantage vis-à-vis his opponent. Thus, there is no indication that the applicant did not have a fair hearing within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains under Article 6 § 1 that the proceedings relating to his maintenance obligations from January 1992 to July 1994 lasted unreasonably long.

The proceedings at issue started on 27 January 1992 and were terminated on 27 February 1995. Thus, they lasted three years and one month. The Court notes that the applicant, in July 1996, requested a retroactive reduction of his maintenance obligations as of July 1993 onwards. However, the Court finds that, unlike in cases were a request for reopening is granted (Poiss v. Austria judgment of 23 April 1987, Series A no. 117-C, p. 103, §§ 51-54), the ensuing proceedings have to the considered as a new set of proceedings, the duration of which is not to be added to the length of the proceedings at issue in the present case.

The Court recalls that the reasonableness of the length of proceedings must be determined with reference to the criteria laid down in the Court’s case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment (Cesarini v. Italy judgment of 12 October 1992, Series A no. 245-B, p. 26, § 17).

The Court finds that the proceedings were of a certain complexity as the applicant’s financial situation, on which the calculation of his maintenance obligations depended, changed several times while the proceedings were pending. Further, having regard to the fact that the case came before three instances in little more than three years, the Court finds that their overall duration can still be regarded as reasonable within the meaning of Article 6 § 1.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

S Dollé N. Bratza

Registrar    President