CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mai 1991

.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. 16103/90                       by H.                       against Austria             The European Commission of Human Rights (First Chamber) sitting in private on 31 May 1991 , the following members being present:                 MM. J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   J.-C. SOYER                   H. DANELIUS              Sir   Basil HALL              MM.   C.L. ROZAKIS                   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 30 November 1989 by H. against Austria and registered on 30 January 1990 under file No. 16103/90;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to:        -   the Commission's decision of 2 July 1990 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on the         admissibility and merits of the complaint on the length         of proceedings;        -   the observations submitted by the respondent Government on         15 October 1990 and the observations in reply submitted         by the applicant on 28 November 1990;        -   the Commission's decision of 26 February 1991 that the         application should be referred to the First Chamber;           Having deliberated;           Decides as follows: THE FACTS           The applicant is an Austrian citizen, born in 1942 and living in St.   Pölten.   He is represented by Mr.   R. Wandl, a lawyer practising in St.   Pölten.           By action of 21 November 1978 the applicant claimed a divorce with the finding that the defendant was the guilty party.   He alleged that his wife ill-treated him, neglected their home and their two children and did not run the household in an economic manner.   After extensive taking of evidence - inter alia more than ten witnesses were heard, the premises were inspected and documentary evidence was obtained - the St.   Pölten Regional Court (Kreisgericht) pronounced the divorce on 10 October 1983 stating that both parties were guilty.           Both parties appealed and on 27 February 1984 the Vienna Court of Appeal (Oberlandesgericht) granted these appeals, quashed the judgment appealed from and sent the case back to the first instance court as further evidence had, in the appellate court's opinion, to be obtained.           On 26 November 1984 the Regional Court, having taken further evidence - inter alia it heard three witnesses and the parties - again pronounced the divorce stating that both parties were guilty.   The judgment was again set aside on 29 April 1985 by the Court of Appeal which thereby granted the defendant's appeal and sent the case back to be reconsidered by the first instance court.   The appellate court stated, inter alia, that detailed fact-finding directives it had given to the lower court in its previous judgment had been complied with in an insufficient manner.           On 1 July 1988 the Regional Court, having obtained information about the applicant's income situation and other documentary evidence and having heard two further witnesses and the parties again, pronounced the divorce finding both parties guilty of the failure of the marriage.           Both parties appealed, but on 12 December 1988 the Court of Appeal confirmed the first instance decision with the amendment that the applicant's guilt was predominant.           Pleas of nullity (Nichtigkeitsbeschwerden) lodged by both parties were rejected by the Supreme Court (Oberster Gerichtshof) on 20 April 1989.     COMPLAINTS           The applicant complains of the length of his divorce proceedings, instituted on 21 November 1978 and terminated on 20 April 1989.   He also complains that the appeal courts did not grant him a fair hearing in that they disregarded his arguments.   He invokes Article 6 of the Convention. PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 30 November 1989 and registered on 30 January 1990.           On 2 July 1990 the Commission decided to communicate the application to the Government and to invite them to submit written observations on the admissibility and merits of the application.           The observations of the Government were submitted on 15 October 1990 and the applicant's reply on 28 November 1990.           On 26 February 1991 the Commission decided to refer the application to the First Chamber.     THE LAW   1.       The applicant mainly complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of his divorce proceedings which he instituted on 21 November 1978.   The proceedings were terminated on 20 April 1989 when the Supreme Court rejected the parties' pleas of nullity against the divorce judgment.           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 admit that the proceedings in question have lasted a considerable time and that certain delays cannot be explained.   However, so they argue, the case was complex and time-consuming because of the necessity to hear ten witnesses and take other evidence.   Furthermore the question of maintenance payments had to be decided.   It was very controversial and the parties lodged appeals against all first instance decisions.   The applicant could have avoided delays had he accepted not to repeat the trial when the presiding judge was replaced.   In addition the proceedings were repeatedly suspended with the parties' consent in view of ongoing friendly settlement efforts.   The applicant also failed to request a partial judgment pronouncing the divorce leaving the determination as to who was the guilty party to a later decision.           The applicant submits that the necessary evidence could have been obtained in less time.   He questions the reasonableness of the two replacements of the presiding judge and considers that it was unacceptable for the parties to have a new judge decide the case on the basis of the contents of the file only.   He also denies that time could have been saved had he requested a partial judgment.           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.   This part of 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.   2.       The applicant has further complained that he was not given a fair hearing in that his arguments were disregarded by the appeal courts.   However, he has not shown that any decisive allegations or arguments that would have resulted in another final decision in his case have arbitrarily been disregarded by these courts.   There is consequently no appearance of a violation of the right to a fair hearing as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention and to this extent the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously           DECLARES ADMISSIBLE, without prejudging the merits of         the case, the complaint about the length of the divorce         proceedings;           DECLARES INADMISSIBLE the remaining complaint.         Secretary to the First Chamber           President of the First Chamber              (M. de SALVIA)                               (J.A. FROWEIN)