CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 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. 12883/87                       by Leila KIRCHNER                       against Austria             The European Commission of Human Rights sitting in private on 14 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   J. RAYMOND, Deputy 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 26 February 1986 by Leila Kirchner against Austria and registered on 1 April 1987 under file No. 12883/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the observations submitted by the respondent Government on 5 November 1990 and the observations in reply submitted by the applicant on 27 February 1991;           Having deliberated,           Decides as follows: THE FACTS           The applicant was born in 1939 and resides at St.   Augustin, Germany.   She is represented by her daughter, Maja Kirchner, who resides in Innsbruck, Austria.           The facts as agreed between the parties may be summarised as follows.           The applicant was of Jordanian nationality until 1964 when she married an Austrian mining engineer and thereby automatically acquired Austrian nationality.   She complains of various proceedings in connection with her divorce.   The divorce proceedings were the subject of her previous application No. 7593/76 which the Commission rejected on 7 October 1977 partly for non-exhaustion of the domestic remedies, partly as being manifestly ill-founded, and partly as being incompatible with the provisions of the Convention.   In the present case the applicant complains of subsequent developments in the case.           1.   The Austrian divorce proceedings           The divorce proceedings were brought by the applicant's husband in 1968.   On 17 February 1977 the applicant filed a counteraction.   On 30 November 1977 the Regional Civil Court (Landesgericht für Zivilrechtssachen) of Vienna pronounced the divorce, finding that the breakdown of the marriage had been the fault of both spouses.   It also adjudicated maintenance to the applicant in the amount of 18% of her husband's salary.   Upon the appeal of both parties this judgment was quashed by the Vienna Court of Appeal (Oberlandesgericht) on 6 April 1978.   On 27 March 1979 the Regional Court again pronounced the divorce, this time on the exclusive fault of the applicant's husband.   It considered itself incompetent to determine the applicant's maintenance claim.   The applicant's appeal against this decision was upheld on 25 June 1979 by the Court of Appeal which referred the case back to the Regional Court both as regards the parties' divorce petitions and the applicant's maintenance claim.           2.   The Canadian divorce proceedings           In the meantime, the applicant's husband sought a divorce from the applicant before a Canadian court, the Queen's Bench Division at Regina, Saskatchewan.   Due to a long postal strike in Canada communications between this court and the applicant were difficult. The petition and a summons to attend the court's hearing were communicated to the applicant in Germany by a lawyer of her husband's firm.   The applicant applied for the grant of legal aid and for a hearing, in Germany, by means of letters rogatory, of herself and certain witnesses.   However, the Canadian court rejected these requests.   The Queen's Bench Division held its hearing in the absence of the applicant on 14 October 1981.   Under the law of Saskatchewan, which provides for a divorce in case of a separation of the spouses for more than five years, it issued a "decree nisi", pronouncing the divorce conditionally "unless sufficient cause be shown ... within three months ... why this decree should not be made absolute".   The applicant wrote to the court on 18 November 1981, apparently without knowing of the decree nisi.   She appealed against the summons, referring inter alia to the fact that it had not been served upon her through official channels and that divorce proceedings were pending in Austria.   However, the Canadian court apparently did not receive this   letter, or did not consider it as a relevant objection to the decree nisi.   A "decree absolute" was therefore issued by the Queen's Bench Division on 10 February 1982.   The applicant's subsequent attempts to appeal and to be granted legal aid for this purpose failed.   The divorce thus became final in Canada.           3.   The exequatur proceedings           In order to have the Canadian decision recognised in Austria, the applicant's husband applied for a writ of execution ("exequatur") to the Austrian Federal Ministry of Justice.   The applicant was invited to comment on the application.   She referred, in particular, to the fact that divorce proceedings were still pending before the Austrian courts and that she had not been heard in the Canadian proceedings.   She also referred to her letter of 18 November 1981 to the Canadian court.           However, on 4 June 1982 the Ministry recognised the validity of the Canadian divorce under Section 24 of the Fourth Decree on the Implementation of the Marriage Act (4.   Durchführungsverordnung zum Ehegesetz) in conjunction with Section 328 of the German Code of Civil Procedure (Zivilprozessordnung) applicable in Austria by virtue of that provision.   It noted that the Canadian court was competent as one of the spouses, the applicant's husband, was resident in Canada.   The divorce of Austrians in a foreign country was to be recognised if the law of the husband's home country provided for recognition unless the defendant party, being Austrian, had refused to accept the jurisdiction of the foreign court and to respond to the action in question (Einlassung) after being duly informed of it either in the foreign State concerned or by legal assistance of the Austrian authorities.   In the present case the applicant had recognised the Canadian jurisdiction by requesting legal aid and a hearing in Germany by letters rogatory.   The petition had actually reached her in Germany; therefore it was irrelevant that it had not been served upon her in Canada or by Austrian legal assistance.   It was also irrelevant that neither the applicant nor the witnesses proposed by her had been heard by the Canadian court.   It was true that the Canadian court had failed to apply Austrian law as required by the Austrian rules on the conflict of laws when both spouses were Austrians, but no disadvantage could follow from this because a divorce would also have been pronounced under Austrian law if the spouses had not lived together for more than six years (Section 55 para. 3 of the Marriage Act).   The Ministry was not competent to review the Canadian court's findings in this respect.   Finally, there was no obstacle to the recognition of the divorce resulting from the Austrian ordre public.           The applicant lodged a complaint against this decision with the Austrian Administrative Court (Verwaltungsgerichtshof) requesting the grant of suspensive effect.   This was refused by the Administrative Court on 1 December 1982 on the ground that the applicant's husband had re-married in Austria in July 1972 and that therefore his interests in upholding the Ministry's decision prevailed over those of the applicant in being granted suspensive effect.         By a decision of 11 September 1985, which was served on the applicant in the Federal Republic of Germany on 24 December 1985, the Administrative Court rejected the applicant's complaints on the merits.           It held that the case was not one of exclusive Austrian jurisdiction because it did not concern two Austrian spouses resident in Austria.   The fact that divorce proceedings were pending in Austria did not prevent the recognition of a foreign divorce judgment as the preservation of the Austrian jurisdiction was not part of the Austrian ordre public in such a case.   Insofar as the applicant now claimed that the action and summons had not duly been served upon her in Germany, and that because of a postal strike in Canada her mail had not reached the Canadian court until after the issuing of the decree nisi, her submissions were inadmissible because they had not been raised in the administrative proceedings.   The applicant had actually accepted Canadian jurisdiction as found by the Ministry.   This was sufficient for the recognition of the divorce.   Insofar as the applicant contested the Ministry's finding that the non-application of Austrian law had not caused any damages to her, the Administrative Court recognised that a disadvantage could arise for the applicant's maintenance claim as her husband's fault for the breakdown of the marriage had not been established.   However, if the Canadian court had applied Austrian law it could have made a finding in this respect only at the applicant's request, and the applicant had not submitted such a request.   The Administrative Court further observed that this issue could still be pursued before the Austrian civil courts.   Finally, the fact that the applicant had not been heard in the Canadian proceedings did not violate the ordre public as the law expressly stated the procedural principles whose non-application provided a ground for non-recognition of the foreign judgment and these principles did not include a hearing by means of letters rogatory as requested by the applicant.           The applicant did not challenge the Ministry's decision before the Constitutional Court (Verfassungsgerichtshof).   She states that she could not do so because the lawyer who represented her in the Administrative Court's proceedings was a judge of the Constitutional Court and advised her that the Constitutional Court was incompetent.           4.   Continuation of the Austrian divorce proceedings            subsequent to the Canadian judgment           In the meantime the divorce proceedings in Austria had been resumed.   The applicant's husband invoked the recognition of the Canadian divorce by the Federal Ministry of Justice claiming that the Austrian courts no longer had jurisdiction in the case.   The applicant observed that the recognition of the Canadian divorce had been challenged before the Administrative Court as being unlawful.   In any event, she requested the court to state that the breakdown of the marriage had been her husband's fault.   Such a finding was also important under Austrian law for determinating her maintenance claims.           A maintenance claim had first been raised by the applicant in her counteraction of 17 February 1977 in the Austrian divorce proceedings (see above under 1).           On 6 March 1980 an interim order had been given in her favour stipulating that her ex-husband pay maintenance during the divorce proceedings in the amount of 27% of his net income.   The applicant had claimed 33%.   She had lodged an appeal insofar as her claim had not been fully granted.   On 8 May 1980 the appeal had been rejected by the Vienna Court of Appeal subsequent to the taking of evidence on 16 April 1980. (As to further details see attached timetable of events.)           As regards the resumed divorce proceedings, the Regional Court, noting the Administrative Court's refusal to order the suspensive effect of the Ministry's decision, refused to suspend the proceedings and, by a partial decision (Teilurteil) of 14 July 1983, found that it was bound by the Ministry's decision to recognise the Canadian divorce.   For this reason the Canadian judgment had to be considered as the final decision in the case, and therefore both parties' claims for divorce, and the applicant's claim to establish the fault of her husband, had to be rejected on the ground of res iudicata.           On 24 November 1983 the Court of Appeal in substance confirmed this decision, while observing that the Austrian proceedings following the recognition of the Canadian divorce were null and void and that the parties' claims should therefore have been rejected as being inadmissible.   It further expressed the view that the Canadian judgment could not be supplemented by a finding of fault under Section 61 of the Austrian Marriage Act as Canadian law had been applied.           On 12 July 1984 the applicant's further appeal was in part upheld by the Supreme Court (Oberster Gerichtshof).   The Court noted that concerning the validity of the Canadian divorce the Court of Appeal had in substance confirmed the Regional Court's decision.   A further remedy to the Supreme Court on this issue was therefore inadmissible.   However, this did not apply to the applicant's request to establish her husband's fault.   The Canadian judgment had not determined this issue, and therefore there could be no res iudicata in this respect, in particular as the applicant had raised her claim in the Austrian proceedings before the Canadian proceedings had been instituted.   Even if such a claim could not be raised independently in respect of a foreign divorce judgment, the applicant had a legitimate interest in the Austrian proceedings being continued on this issue.           On 19 October 1984 the Court of Appeal made a finding that the breakdown of the marriage had been the exclusive fault of the applicant's husband, who had misled the Canadian court about the fact that divorce proceedings were pending in Austria.   The consequences of the divorce were, in principle, governed by Austrian law, notwithstanding that the divorce had been pronounced under Canadian law.   It was necessary to prevent the applicant's husband from profiting from the application of the more favourable Canadian law concerning his maintenance obligation.   Under Austrian law this was dependent on a finding of fault, which the court now made in response to the applicant's original claim, without thereby amending the Canadian judgment.           On 10 July 1986 The Supreme Court confirmed this decision, rejecting an appeal by the applicant's husband.   It held that the Austrian courts were only bound by the divorce pronounced in Canada, but were not bound to apply Canadian law to the consequences of the divorce.   Under the rules on the conflict of laws Austrian law governed the applicant's maintenance claim.           On 11 July 1987 the applicant was granted legal aid to assert this claim.   Difficulties arose concerning the determination of the salary of the applicant's ex-husband in Canada.   According to the applicant he was still employed and paid by a German firm.   A representative of that firm was summoned to a hearing of the Regional Court of Vienna on 14 June 1988 but did not appear.   At the same hearing the competent judge allegedly prevented the applicant and her daughter, who had travelled to Vienna, from making statements on the case.           The applicant's ex-husband, whom the Court had ordered to be examined in Canada by means of letters rogatory, did not pay the necessary consular fees and subsequently refused to accept the jurisdiction of the Austrian courts, stating that he had in the meantime acquired Canadian nationality (letter to the Regional Court of 2 September 1988).           At the next hearing on 17 October 1988 neither the applicant's ex-husband nor his lawyer appeared.   The applicant claimed that he was foreclosed from making any further submissions.   The Court decided to have two representatives of the firm in which he was allegedly still employed heard on letters rogatory in Germany.   The applicant subsequently claimed that this decision was unlawful because it had not been based on a request by either party.           The result of the hearing of the firm's representatives in Germany was read out at a court hearing on 21 March 1989 when the applicant also submitted a number of documents concerning the income of her ex-husband.   They were partly in English and the applicant's request to have them translated in the framework of legal aid was rejected on the ground that the request had been made in order to delay the proceedings.   The Court decided not to take any further evidence finding that the case was ready for decision; it decided, however, to obtain information from the Austrian embassy in Ottawa on the tax paid by the applicant's ex-husband in Canada.           It appears that no decision has been taken so far in this case.   A complaint against the competent judge of the Regional Court, in which the applicant alleged that he had suppressed documents in the file and manipulated the transcript of the hearing of 21 March 1989, was rejected by the President of the Vienna Court of Appeal on 9 June 1989.   A challenge of the same judge, in which she again alleged a manipulation of the said transcript, was rejected by the Regional Court on 19 December 1989 as being inadmissible for having been lodged out of time.   On 4 September 1990 an appeal against this decision was rejected by the Vienna Court of Appeal.   It appears that the first instance judge is now preparing a judgment.         5.   Separate proceedings related to maintenance claims           In connection with the above proceedings, the applicant and her daughter also introduced a number of further court proceedings both in Austria and the Federal Republic of Germany.           In particular, they sought to satisfy their maintenance claims, insofar as they had been recognised by orders of the Austrian courts (in the applicant's case by a preliminary injunction of the Regional Court of Vienna of 6 March 1980, renewed on 26 September 1983, awarding her 27% of her husband's salary), by enforcement proceedings against the husband's employer in Germany (cf.   Application No. 13494/88).           When this failed, the applicant and her daughter brought actions in 1987 against the sons of the applicant's ex-husband from his first marriage, seeking the revocation of gifts which he had made to them, in order to satisfy their claims in this way.   The applicant encountered difficulties with the granting of legal aid for this purpose, because the court considered that the matter was related to her maintenance claims (decision of the Regional Court of Vienna of 6 August 1987).   On 18 April 1989, the applicant's daughter subsequently asked for the two cases to be joined.   This request was granted on 31 May 1989 and both cases are still pending.           Finally the applicant applied for her legal aid to be extended to the issue of the division of her husband's property following the divorce, which she claimed was also covered by the Supreme Court's decision of 12 July 1984.   However, on 26 June 1989 the District Court of Vienna City (Bezirksgericht Wien-Innere Stadt) refused legal aid on the ground that in fact the applicant sought to introduce a new action which had no prospects because the time-limit for requesting a division of property had expired one year after the divorce had become final.   This decision was confirmed by the Regional Court of Vienna on 30 August 1989.     COMPLAINTS           The applicant complains that her right under Article 6 para. 1 of the Convention to a determination of her civil rights and obligations by an independent and impartial tribunal has been violated by the fact that, despite the judicial proceedings pending in Austria, an administrative authority recognised the Canadian divorce judgment that had resulted from proceedings which were irregular in many respects and in which she had not been heard.   She also complains that the Administrative Court's proceedings in which she sought to challenge the Ministry's decision was conducted in an unfair manner: she was not heard with the assistance of an interpreter and the court wrongly assumed that she had not raised the irregularity of the Canadian court proceedings in the administrative proceedings in Austria.         The applicant further considers it as unfair and an infringement of her right to access to court that, after the recognition of the Canadian divorce, the Austrian courts considered themselves bound by this decision and limited the further proceedings to the question of her maintenance claims.   In this context she also complains of the non-admission of her claim for the division of her ex-husband's property.           As regards the subsequent proceedings, the applicant complains that the courts were generally biased against her because of her foreign origin.   She further claims that the proceedings were conducted in an unfair manner, in particular because in the maintenance case transcripts of court hearings were manipulated on two occasions (13 January 1987 and 21 March 1989).   The Regional Court wrongly recorded that the applicant claimed 25% (and not 27% or even 33% of her husband's salary) and failed to recognise the foreclosure of the husband from further submissions.   The Court further contacted a lawyer of her ex-husband whose power of attorney had long been withdrawn, it ordered the taking of evidence which neither party had requested, and it took various measures to protect the ex-husband's interests although he had himself declared that he did not wish to take part in the proceedings.   It also unfairly imposed certain costs of the ex-husband on the applicant, refused to accept certain documents submitted by the applicant and have them translated in the framework of legal aid, and wrongly accused the applicant of delaying the proceedings instead of pronouncing a judgment in default.   The applicant finally complains that the case was not decided within a reasonable time.           The applicant raises similar complaints concerning the other related proceedings.   She considers that the Austrian authorities are responsible for the negative result of the enforcement proceedings in the Federal Republic of Germany.   The proceedings against the husband's sons were dealt with in a manner which the applicant describes as chicanery (she is particularly aggrieved by the revocation of legal aid in this respect) and also those proceedings were unreasonably delayed.   Finally, the applicant considers it as unfair that her claim for division of the ex-husband's property was not accepted and that she was refused legal aid to pursue this claim.           Apart from Article 6 para. 1 of the Convention the applicant also invokes her property rights and Article 14 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 26 February 1986 and registered on 1 April 1987.           On 6 June 1990 the Commission decided to communicate the complaint concerning the length of the Austrian civil proceedings relating to the applicant's claim for a finding that her husband was the guilty party and should be ordered to pay maintenance, as well as the proceedings relating to maintenance claims which the applicant and her daughter tried to pursue by suing the sons of the applicant's ex-husband.   The respondent Government were invited to submit observations on the admissibility and merits of this part of the application.           After an extension of the time-limit, the Austrian Government submitted their observations on 5 November 1990.   The applicant's reply dated 27 February 1991 was received on 3 March 1991.   THE LAW   1.       The applicant mainly complains of the length of the maintenance proceedings and alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which provides:           "In the determination of his civil rights and         obligations everyone is entitled to a ... hearing         within a reasonable time by ... [a] tribunal."           The Commission first observes that uncontestedly the applicant raised a claim for maintenance for the first time with her counteraction of 17 February 1977, while this alleged civil right has still not been determined by a final decision.           The Commission has taken into account the parties' observations as to the reasonableness of this time.   A preliminary examination of the application does not disclose sufficient justification for the delays that occurred in the proceedings.   The Commission therefore considers that the question of whether the length of the proceedings in the present case exceeded the reasonable time provided for in Article 6 para. 1 (Art. 6-1) of the Convention raises serious points of fact and law which cannot be resolved without a thorough examination of the merits of the case.           The Commission further observes that there are no other grounds for considering this complaint inadmissible.   2.       The Commission has examined the applicant's remaining complaints, but finds that, even supposing that domestic remedies are exhausted, they are unsubstantiated and do not, as a whole, disclose any appearance of a violation of the Convention.           It follows that to this extent the application has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.             For these reasons, the Commission           unanimously         DECLARES THE APPLICATION ADMISSIBLE INSOFAR AS         IT CONCERNS THE LENGTH OF THE CIVIL PROCEEDINGS         RELATING TO THE APPLICANT'S MAINTENANCE CLAIMS,         without prejudging the merits;           by a majority         DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.     Deputy Secretary to the Commission        President of the Commission                 (J. RAYMOND)                           (C.A. NØRGAARD)