CEDH · CASELAW;REPORTS;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 }    EUROPEAN COMMISSION OF HUMAN RIGHTS   FIRST CHAMBER   Application No. 12628/87   F.   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 31 May 1991)   TABLE OF CONTENTS                                                                  Page   I.       INTRODUCTION         (paras.   1 - 17) .......................................    1           A.       The application                 (paras. 2 - 5) .................................    1           B.       The proceedings                 (paras. 6 - 12) ................................    1           C.       The present Report                 (paras. 13 - 17) ...............................    2     II.      ESTABLISHMENT OF THE FACTS         (paras. 18 - 36) .......................................    3           A.       The particular circumstances of the case                 (paras. 18 - 33)   ..............................    3           B.       Relevant domestic law                 (paras. 34 - 36)   ..............................    5   III.     OPINION OF THE COMMISSION         (paras.   37 - 57) ......................................    7           A.    Complaint declared admissible              (para. 37) ........................................    7           B.    Point at issue              (para. 38) ........................................    7           C.    As to the alleged violation of Article 6              para. 1 of the Convention                1.   General considerations                 (paras. 39 - 41) ...............................    7                2.   Determination and assessment of                 the length of proceedings                 (paras. 42 - 56) ...............................    7                Conclusion              (para. 57)   .......................................    9           Dissenting Opinion by Mr.   H. Danelius         joined by MM. C.L. Rozakis and L. Loucaides ............   10           Dissenting Opinion by Mr.   E. Busuttil ..................   11   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................   12   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............   13   I.     INTRODUCTION     1.       A summary of the facts of the case is set out below, together with a description of the proceedings.     A.       The application   2.       The applicant, F., is a German university professor born in 1920 and residing in Linz, Austria.   He is represented by Mr.   B. Binder, a barrister practising in Linz.   3.       The respondent Government are represented by their Agent, Mr.   Helmut Türk, Head of the International Law Division of the Federal Ministry of Foreign Affairs.   4.       The application concerns the length of divorce proceedings introduced by the applicant on 30 June 1983 and concluded on 15 February 1990 by a decision of the Supreme Court (Oberster Gerichtshof) which was served on applicant's counsel on 1 August 1990.   5.       Before the Commission, the applicant complains of the length of the proceedings and alleges a violation of Article 6 para. 1 of the Convention.   B.       The proceedings   6.       The application was introduced on 10 December 1986 and registered on 18 December 1986.   7.       On 8 September 1988 the Commission decided to communicate the application to the Austrian Government and invite them to present their observations in writing on its admissibility and merits.   8.       The Government presented their observations on 7 November 1988 and the applicant replied on 19 January 1989.   9.       On 7 September 1990 the Commission declared the application admissible.   10.      After consulting the parties the Commission, by decision of 7 November 1990, referred the application to the First Chamber.   11.      On 15 November 1990 the parties were invited, should they so desire, to submit further evidence and observations regarding the merits of the application.   They did not avail themselves of this possibility.   12.      After declaring the case admissible the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a   friendly settlement of the case.   Consultations with the parties took place between 18 November 1990 and 4 January 1991.   In the light of the parties' reaction, the Commission now finds that there is no basis on which a friendly settlement can be effected.     C.       The present Report   13.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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               C.L. ROZAKIS               L. LOUCAIDES               A.V. ALMEIDA RIBEIRO               B. MARXER   14.      The text of this Report was adopted on 31 May 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   16.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I, and the Commission's decision on the admissibility of the application forms Appendix II.   17.      The text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II.    ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   18.      On 30 June 1983 the applicant lodged a divorce action before the Regional Court (Landesgericht) in Linz.   His wife submitted her observations on 12 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 dealt again primarily with friendly settlement discussions.   19.      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.   20.      On 4 October 1984 the applicant's wife lodged a counter-action.   21.      A hearing fixed for 9 November 1984 was postponed with the parties' consent to 22 January 1985 and then, at the applicant's counsel's request, to 8 February 1985.   At the hearing of 8 February 1985 the case was taken over by another judge, who decided to start the case anew (Neudurchführung der Verhandlung).   The applicant's wife was heard as a party and the former decision to take further evidence was maintained.   22.      On 27 February 1985 the applicant's observations in reply to the counter-action were submitted.   23.      On 8 May 1985 a witness was heard, by rogatory commission, before the Munich District Court (Amtsgericht).   24.      On 17 and 18 June 1985 the Court heard the defendant as a party as well as five witnesses.   The minutes of this hearing comprise 66 pages.   Subsequent to this hearing yet another judge took over the case.   25.      A hearing which had been fixed on 18 June 1985 for 19 December 1985 was adjourned because the judge was reported ill from 18 November 1985 to 15 December 1985 and subsequently took leave for a cure.   26.      On 2 June 1986 the new judge decided to start the case anew. The possibilities of a friendly settlement were again discussed.   The former decision to hear several witnesses was maintained.   According to the minutes of the hearing the parties expressed their intention to continue friendly settlement discussions out of court and therefore the date for a further hearing was provisionally left open.   27.      On 19 September 1986 the judge fixed a new hearing for 8 January 1987.   On that day two witnesses were heard and the possibility of a friendly settlement was again discussed.   A third   witness, who had been summoned, was reported to have died.   A further hearing fixed for 9 March 1987 was adjourned at the defendant counsel's request.   On 13 March another counsel, namely Mr.   Binder, took over the applicant's representation.   A hearing fixed for 9 April 1987 was adjourned on account of illness of the judge.   28.      A further hearing took place on 28 September 1987.    Good progress was made in the friendly settlement discussions and the divorce proceedings were again adjourned with the agreement of the parties without fixing a new date.   As no request to fix another hearing in the divorce case was made before the end of 1987 the judge considered the parties had no longer any interest in pursuing the case and decided on 31 December 1987 under S. 391 No. 7 (d) of the Internal Rules of Procedure (Geschäftsordnung - Geo) to strike the case off the list of cases.   29.      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.   The judge dealing with the case was thereupon requested by the President to submit his observations on this complaint.   30.      These were submitted on 22 September 1988.   The judge in question stated inter alia that having had to cancel the hearing of 19 December 1985 on account of illness his time-table then did not allow a hearing before 2 June 1986.   Subsequent to this hearing he did not receive any information from the parties about the progress of their friendly settlement discussions.   Therefore he eventually decided on 19 September 1986 to hold another hearing on 8 January 1987.    The judge further referred to parallel proceedings (No. 2 Cg 422/82) involving the parties to the divorce proceedings and the applicant's children by his first marriage.   In these proceedings a hearing had been held on 17 December 1987 and there again the possibility of a global friendly settlement (Generalbereinigung) had been discussed. An agreement had been reached, although not expressly mentioned in the minutes but recorded in a judge's note, to suspend the divorce proceedings and to continue them only at the parties' request.   The judge concluded that in the light of the circumstances described by him he considered to have conducted the divorce proceedings in a correct and adequate manner.   He added that in view of the highly complex nature of the case and in view of the parties' advanced age and affected state of health he thought it to be his duty under S. 460 No. 7 of the Code of Civil Procedure (Zivilprozessordnung - ZPO) to try throughout the proceedings to reach a friendly settlement between the parties.   No objections had ever been raised by them, on the contrary they had always shown a great interest in reaching a settlement.   31.      Following the applicant counsel's complaint of 26 August 1988 a final hearing was held on 12 January 1989.   32.      On 24 May 1989 the Regional Court pronounced the divorce holding both parties guilty of the break-up of the marriage.   The judgment comprises 56 pages.   According to the judgment nine witnesses and the parties had been heard and other documentary evidence had been obtained.   33.      Both parties appealed.   The appeal hearing took place on 15 February 1990 before the Linz Court of Appeal (Oberlandesgericht).   A decision was given on the same day.   Its detailed contents have not been communicated but it is clear that the Court of Appeal confirmed the divorce.   An appeal on points of law (ausserordentliche Revision) lodged by the defendant was rejected by the Supreme Court (Oberster Gerichtshof) on 28 June 1990 as offering no prospects of success.   This judgment was served on the applicant's counsel on 1 August 1990.     B.       Relevant domestic law   34.      The following provisions of the Austrian Code of Civil Procedure (Zivilprozeßordnung - ZPO) as in force on 1 January 1988, and of the Internal Rules of Procedure (Geschäftsordnung - Geo) are of relevance in the present case:   35.      Code of Civil Procedure   First Part, Third Chapter, Fourth Title:           Friendly settlement (Vergleich)           S. 204 (1)           "The Court may at an oral hearing and each         stage of the proceedings try, at the parties' request, or         ex officio, to reach a friendly settlement of the         case or of particular issues."         ...   Second Part, First Chapter, First Title         ...           First hearing (Erste Tagsatzung)         ...           S. 239 (2)           "The first hearing serves to make the         attempt at a friendly settlement ..."   Second Part, Second Chapter, First Title         ...           Decision-making, pronouncement and service of         judgment           S. 412           "(1) Judgment can only be given by those         judges who participated in the oral hearings on         which the judgment is based.           (2)   If before judgment can be given the presiding         judge or any other judge has to be replaced, the         trial has to be started anew before the newly composed           chamber using the introductory memorial, the         evidence contained in the court file and the minutes         (... ist die mündliche Verhandlung vor dem geänderten         Senat mit Benützung der Klage, der zu den Akten         gebrachten Beweise und des Verhandlungsprotokolls von         neuem durchzuführen)."   Second Part, Third Chapter           Special provisions for proceedings in matrimonial         matters (Ehesachen)         ...           S. 460 No. 7:           "In divorce proceedings the trial must         start with an attempt at reconciliation         between the parties (Versöhnungsversuch) and         in addition reconciliation has to be attempted         at any stage of the proceedings if this         appears to be indicated (soweit tunlich)"   36.      Internal Rules of Procedure (Geschäftsordnung-Geo)           S. 391 Strike off (Abstreichen)*           "(1) A matter has to be struck off the list of cases         (ist abzustreichen)         ...           No. 7:   at the end of the year:         ...           d) if the continuation of the proceedings depends         on a request by the parties, for example in the         cases of Sec. 279 (1), Sec. 261 (4) of the Code of         Civil Procedure, and no such request was made until         the year's end."         ... _________ * The provisions of the Code on Civil Proceedings referred to in Sec. 391 (1) No. 7d Geo give the parties a right to request the fixing of a hearing in case an objection a limine was rejected by separate decision or in case the taking of certain evidence appears to be impossible. ________ III.     OPINION OF THE COMMISSION     A.       Complaint declared admissible   37.      The Commission has declared admissible the applicant's complaint that the length of his divorce proceedings violated Article 6 para. 1 (Art. 6-1) of the Convention.   B.       Point at issue   38.      Accordingly the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.       As to the alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention   1.       General considerations   39.      Under the terms of Article 6 para. 1 (Art. 6-1) of the Convention, "In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...".   40.      The Commission notes, firstly, the civil nature, within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, of the right involved in the proceedings in question, i.e. the applicant's right to be divorced.   41.      Secondly, it recalls that, in civil matters, the reasonableness of the length of proceedings must be assessed according to the circumstances of the case and with reference to the following criteria:   the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, p. 11, para. 24).   In civil cases the right to a hearing within a reasonable time is subject to diligence being shown by the parties concerned (see Eur.   Court H.R., Pretto and Others judgment of 8 December 1983, Series A no. 71, p. 14 et seq., paras. 33 et seq.). However, this principle does not absolve the judge from the responsibility of ensuring that the requirement of speediness is complied with (Eur.   Court H.R., Martins Moreira judgment of 26 October 1988, Series A no. 143, p. 17, para. 46).   2.      Determination and assessment of the length of proceedings   42.     Regarding the period to be considered, the Commission notes that the divorce action marking the commencement of the proceedings dated from 30 June 1983.   43.     The proceedings were concluded by decision of the Supreme Court given on 28 June 1990 and served on applicant's counsel on 1 August 1990.   The proceedings before three instances consequently lasted about seven years.   44.     According to the applicant, this lapse of time cannot be deemed to be "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   He submits that the divorce proceedings did not raise difficult factual or legal issues.   Pressure was exerted by the Regional Court on the parties to reach a friendly settlement and thereby the proceedings were unduly protracted.   Under S. 460 No. 7 of the Code of Civil Procedure the Court only had to try to reconcile the parties at the beginning of the proceedings.   Such an effort was however never made and in any event the divorce could not have been reached by way of a friendly settlement.   Therefore the Court did have to decide on his claim for a divorce within a reasonable time even if the parties had an interest in reaching a friendly settlement on all related matters.   He contests having agreed in the parallel proceedings No. 2 Cg 422/82 to suspend the divorce proceedings.   In any event there was no provision in the Code of Civil Procedure providing that pending proceedings could be ended simply by mutual agreement of the parties.   45.     In the applicant's view another factor delaying the proceedings was the fact that the presiding judge was replaced twice.   The proceedings could and should have been terminated in three instead of more than seven years.   The length of the proceedings affected the applicant both morally and physically and caused him material damage as during the four years in question he had to pay maintenance in the amount of AS 1,400,000 to his ex-wife.   46.    The Government consider that the factual complexity of the case and correlated proceedings as well as the continuous efforts to reach a friendly settlement account for the length of the proceedings.   The efforts to reach a settlement were made with the parties' consent and in their best interest.   Therefore they repeatedly agreed to adjourn the proceedings sine die.   On 17 December 1987 agreement was even reached to suspend the proceedings.   The parties having subsequently failed to request another hearing it was correct to strike the case off the list.   47.    Furthermore, the Government submit that the necessity to start the case anew after the replacement of the judge was an inevitable consequence provided for by law.   The repeated hearing of witnesses only became necessary where the parties did not accept to have the minutes on the prior hearing of these witnesses read out.   48.     The Government add that the periods of inactivity between 19 December 1985 and 2 June 1986 as well as from 9 April 1987 to 28 September 1987 were caused by sick leave of the judges dealing with the matter.   It could not be expected that every judge on sick leave was immediately replaced.   49.      The Commission first considers that the divorce case was in fact controversial and raised complex issues of a factual nature.   50.      It further notes that the divorce proceedings were, in first instance, twice taken over by another judge.   However, it cannot be found that this and the resulting necessity to start the case anew caused considerable and avoidable delays.   51.      There are, however, three significant periods of inactivity during which neither an oral hearing nor any other investigatory or preparatory activity took place, namely between the hearings of 18 June 1985 and 2 June 1986, between the hearings of 8 January 1987 and 28 September 1987 and between the hearing of 28 September 1987 and the final hearing of 12 January 1989.   52.      The first period is explained by the fact that the judge dealing with the case was reported ill and subsequently went on a cure.   The judicial authorities could not have been expected, nor would it have been practical, to replace the judge simply on account of a temporary absence from work due to illness.   53.      The second period of inactivity was due to a request made by the defendant party to adjourn a hearing fixed for 9 March 1987, while the next hearing of 9 April 1987 had to be adjourned on account of temporary illness of the judge.   In these circumstances, the Commission again cannot find any unreasonable delay in the fact that no hearing took place until 28 September 1987.   54.      Finally, as regards the period of inactivity after the hearing of 28 September 1987, it is uncontested that the date for a further hearing had been left open and friendly settlement discussions between the parties to the divorce proceedings were still in progress. Leaving the question open whether the parties had expressly agreed to the divorce proceedings being suspended, as is stated in the report of the judge dealing with the divorce matter at that time (see para. 30 above), applicant's counsel could and, in the circumstances, should have made a request to fix another hearing but did so only on 26 August 1988.   55.      The Commission considers that under the specific circumstances of the present case the applicant has shown by his behaviour in 1987/88 that he was not interested in receiving a judgment on the divorce case speedily.   Rather, he agreed to a postponement of about one year.   The Commission concludes that for this reason it cannot now find a violation based on earlier periods of inactivity of the Austrian Regional Court.   56.      The applicant does not criticise the time it took the following two instances to decide on the parties' appeals and the Commission cannot find that the periods in question (from 24 May 1989 to 15 February 1990 and then to 28 June 1990) were in any way too long.   Conclusion   57.      The Commission concludes by six votes to four, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.            Secretary to the First Chamber    President of the First Chamber                  (M. de SALVIA)                  (J.A. FROWEIN)   Dissenting Opinion by Mr.   H. Danelius joined by MM. C.L. Rozakis and L. Loucaides                 I consider that in the years 1985-1987 there were delays in the proceedings for which the State must to a large degree be held responsible.   I note, in particular, the following facts.           On 8 February 1985 the case was taken over by a new judge who decided to start the case anew.   After the hearing on 17 and 18 June 1985 yet another judge took over the case.   On 2 June 1986 the new judge decided to start the case anew.           Some unavoidable delays were caused by the illness of the responsible judge in 1985 and again in 1987.   However, it does not appear that adequate measures were taken to reduce the negative effects on the length of the proceedings caused by the temporary absence of the judge.           The decision on 31 December 1987 to strike the case off the list of cases was not based on any agreement between the parties or on any withdrawal of their claims, and the applicant's counsel was apparently not even informed of the decision until, on 26 August 1988, he had requested a date for a hearing and complained about the length of the proceedings.           It is true that by engaging in friendly settlement discussions at other times during the proceedings the parties may be considered to have indicated that on such occasions they were not anxious to obtain a speedy judgment in the case.   However, this cannot prevent the Commission from finding a violation of Article 6 para. 1 of the Convention on the basis of delays which occurred during other parts of the proceedings and for which the State can be held responsible.           I therefore conclude that Article 6 para. 1 of the Convention has been violated in the present case.       Dissenting Opinion by Mr.   E. Busuttil               I find myself unable to subscribe to the opinion of the majority that there has been no breach of Article 6 para. 1 in the present case.           The overall length of the proceedings - a period of some seven years - cannot, to my mind, be justified by the complexity of the case, which was no more complex than divorce cases usually are.           Furthermore, as the majority recognise in paragraph 51 of the Report, there were "significant periods of inactivity" during which no oral hearing or any other ostensible activity took place.           The divorce proceedings were initiated on 30 June 1983.   On 8 February 1985 the case was assigned to a second judge, who decided to hear the case all over again.   On 2 June 1986 a third judge took over and also decided to hear the case anew, but no hearing actually took place before 8 January 1987.   No explanation has been forthcoming as to why the judge dealing with the case was replaced twice.   At all events, a period of one and a half years elapsed between 18 June 1985 and 8 January 1987 with nothing much taking place.           Again, there was a further period of protracted inactivity between the hearing of 28 September 1987 and the final hearing of 12 January 1989, during which time friendly settlement discussions were supposedly in progress between the parties.   The latter may or may not have conducted those discussions with diligence (it could also be that they were not conducted with too much friendliness!), but this did not in the ultimate analysis absolve the judge from the responsibility of ensuring a speedy trial.   Indeed, this proposition finds ample confirmation in the case-law of the European Court.           In these circumstances, I am of the opinion that the respondent State was responsible for at least some of the considerable delay which occurred in this case.   This in itself is a sufficient ground for finding a breach of Article 6 para. 1 of the Convention in a case which was not unduly complex.   APPENDIX I     HISTORY OF PROCEEDINGS     Date                             Item   ______________________________________________________________________     10 December 1986                 Introduction of the application   18 December 1986                 Registration of the application       Examination of Admissibility   8 September 1988                 Commission's decision to invite                                 the Government to submit                                 observations on the                                 admissibility and merits of the                                 application   7 November 1988                  Government's observations   19 January 1989                  Applicant's observations in reply   7 September 1990                 Commission's decision to declare                                 the application admissible       Examination of the merits   3 October 1990                   Decision on admissibility communicated                                 to the parties   7 November 1990                  Application referred to First Chamber   5 March 1991                     Commission's consideration of the                                 state of proceedings   31 May 1991                      Commission's deliberations on the                                 merits, final vote and adoption of                                 the Report