CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)