CEDH · CASELAW;REPORTS;ENG — 5 mai 1993

.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. 12883/87                                      L.K.                                     against                                     Austria                            REPORT OF THE COMMISSION                             (adopted on 5 May 1993)                                TABLE OF CONTENTS                                                                         Page I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6-31) . . . . . . . . . . . . . . . . . . . . . . . . . . .2         1.     The Austrian divorce proceedings. . . . . . . . . . . . . . .2         2.     The Canadian divorce proceedings. . . . . . . . . . . . . . .2         3.     The exequatur proceedings . . . . . . . . . . . . . . . . . .3         4.     Continuation of the Austrian divorce proceedings             subsequent to the Canadian judgment . . . . . . . . . . . . .4         5.     Separate proceedings related to maintenance claims. . . . . .7   III.   OPINION OF THE COMMISSION       (paras. 32-44). . . . . . . . . . . . . . . . . . . . . . . . . . .8         A.     Complaint declared admissible             (para. 32). . . . . . . . . . . . . . . . . . . . . . . . . .8         B.     Point at issue             (para. 33). . . . . . . . . . . . . . . . . . . . . . . . . .8         C.     Compliance with Article 6 para. 1 of the Convention             (paras. 34-45). . . . . . . . . . . . . . . . . . . . . . . .8         CONCLUSION       (para. 46). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10   APPENDIX I :       HISTORY OF PROCEEDINGS. . . . . . . . . . . . . . . . 11   APPENDIX II :      DECISION ON THE ADMISSIBILITY OF                   THE APPLICATION . . . . . . . . . . . . . . . . . . . 12   APPENDIX III :     TIME-TABLE OF EVENTS IN THE PROCEEDINGS IN                   QUESTION AND THE PROCEEDINGS INTERRELATED . . . . . . 23   I.     INTRODUCTION   1.     The present Report concerns Application No. 12883/87 by L.K. against Austria, introduced on 26 February 1986 and registered on 1 April 1987.         The applicant is an Austrian national of Jordanian origin born in 1939 and resident in Bonn.         The applicant was first represented before the Commission by Mr. Rudolf F. Graf Logothetti, a lawyer practising in Salzburg, and is now represented by her daughter, Maja K., who resides in Innsbruck.         The Austrian Government were represented by their Agent, Mr. Helmut Türk, Federal Ministry for Foreign Affairs.   2.     The application was communicated to the Government on 6 June 1990.   Following an exchange of memorials, the complaint relating to the length of maintenance proceedings (Article 6 para. 1 of the Convention) was declared admissible on 14 October 1991, whereas the remainder of the application was declared inadmissible. The decision on admissibility is appended to this Report.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 5 May 1993 in accordance with Article 31 para. 1 of the Convention, the following members being present:               MM.   E. BUSUTTIL, Acting President of the First Chamber                  A.S. GÖZÜBÜYÜK             Sir   Basil HALL             Mr.   C.L. ROZAKIS             Mrs. J. LIDDY             MM.   M. PELLONPÄÄ                  B. MARXER                  G.B. REFFI   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     The applicant was of Jordanian nationality until 1964 when she married an Austrian mining engineer and thereby automatically acquired Austrian nationality.   Proceedings concerning her divorce 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.   7.     In her present application, the applicant complains of the length of maintenance proceedings before the Austrian courts, which were connected to her divorce proceedings and developed as follows (see also Appendix II):         1. The Austrian divorce proceedings   8.     In 1968 divorce proceedings were brought by the applicant's husband in Austria.   On 17 February 1977 the applicant filed a counteraction.   On 30 November 1977 the Regional Civil Court (Landesgericht für Zivilrechtssachen) of Vienna, rejecting a request by the applicant for adjournment in view of pending criminal proceedings, 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.   On 6 March 1980 an interlocutory order was issued according to which the applicant's husband had to pay maintenance in the amount of 27% of his monthly net income.   The applicant had claimed 33%.   She lodged an appeal insofar as her claim had been dismissed.   On 8 May 1980 the appeal was rejected by the Vienna Court of Appeal subsequent to the taking of evidence on 16 April 1980.   (As to further details see Annex II to this Report.)         2. The Canadian divorce proceedings   9.     In the meantime, the applicant's husband, resident in Canada, 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 legal aid and for a hearing, in Germany, by means of letters rogatory, of herself and certain witnesses.    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.   Apparently the Canadian court did not receive this letter, or did not consider it as a relevant objection to the decree nisi.   A "decree absolute" was 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   10.    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 stated 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.   11.    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) still 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.   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.   12.    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 and that therefore his interests in upholding the Ministry's decision prevailed over those of the applicant in being granted suspensive effect.   13.    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.   14.    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 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 Austrian 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.   15.    The applicant did not challenge the Ministry's decision before the Constitutional Court (Verfassungsgerichtshof) as she had been advised that this court did not have competence to decide in her matter.         4. Continuation of the Austrian divorce and maintenance          proceedings subsequent to the Canadian judgment   16.    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 important under Austrian law for her maintenance claims, which had first been raised in her counteraction of 17 February 1977 (see para. 8 above).   17.    In 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.   18.    On 26 September 1983 the Vienna Regional Court ordered that the interlocutory order of 6 March 1980 (see above para. 8 in fine) granting the applicant maintenance in the amount of 27% of her ex- husband's net income   continued to be valid until final settlement of the dispute.   19.    On 24 November 1983 the Court of Appeal confirmed the partial decision of 14 July 1983 (see para. 17), 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.   20.    On 12 July 1984 the applicant's further appeal was in part upheld by the Supreme Court (Oberster Gerichtshof).   The Supreme Court noted that the Court of Appeal had confirmed the Regional Court's decision concerning the validity of the Canadian divorce.   A further remedy to the Supreme Court on this issue was therefore inadmissible. However, the applicant could still request the establishment of her husband's fault.   The Canadian judgment had not determined this issue.   Even if such a claim could not be raised independently in respect of a foreign divorce judgment, she had a legitimate interest in the Austrian proceedings being continued on this issue.   21.    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.   22.    On 25 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.   23.    On 13 June 1987 a hearing took place before the Regional Court. 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.   24.    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).   25.    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.   26.    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.   27.     A complaint by the applicant against the competent judge of the Regional Court, alleging 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.   Her challenge of the same judge, based on the alleged 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.   Leave to appeal on points of law was denied by the same court.   28.    On 27 December 1990 the Vienna Regional Court gave judgment in the maintenance proceedings ordering the applicant's ex-husband to pay arrears on maintenance as from 1982 until December 1988 as well as DM 1,800 a month from January 1989 onwards.   The applicant's appeal against this judgment was rejected by the Vienna Court of Appeal and leave to appeal on points of law refused on 23 May 1991. It follows from the decisions that the applicant had repeatedly altered her requests.         5. Separate proceedings related to maintenance claims   29.    In connection with the above proceedings, the applicant and her daughter also introduced a number of further court proceedings both in Austria and in the Federal Republic of Germany.   30.    In particular, they sought to satisfy their maintenance claims, insofar as they had been recognised by orders of the Austrian courts.   31.    However, as enforcement proceedings against the husband's employer in Germany (cf. Application No. 13494/88) 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.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   32.    The Commission has declared admissible the applicant's complaint that her claim for maintenance was not heard within a reasonable time.   B.     Point at issue   33.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   34.    Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   35.    The proceedings in question concern a claim for maintenance and consequently a dispute over "civil rights and obligations".   They accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   36.    The applicant argues that the proceedings started in 1968 when her husband filed the divorce action.   However, the applicant did not raise her maintenance claim before the Austrian court until 17 February 1977 when she filed a counter-action.   The period in question consequently started on that date and ended on 23 May 1991 when the final decision in the proceedings in question was given (see para. 28 above).   The period to be considered thus amounts to fourteen years and three months.   37.    The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12 para. 30).   In this instance the circumstances call for an overall assessment (see Eur. Court H.R., Ficara judgment of 4 February 1991, Series A no. 196, p.9, para. 17).   38.    According to the Government, the length of the period in question is due to the complexity of the case and the applicant's conduct.   The applicant considers that the proceedings were deliberately delayed which caused her damages as she could not enforce the interlocutory order granting her maintenance.   39.    The Commission first notes that in principle maintenance proceedings are of particular urgency.   However the applicant was granted on 6 March 1980 an interim order fixing a certain amount of maintenance to be paid by her ex-husband (see para. 18 above).   If the latter avoided execution of this order on account of his residence abroad this consequence is unrelated to the length of the proceedings concerning the determination of the claim and is not imputable to the respondent State.   40.    The Commission further notes that the case was extremely complex in view of the implications of the parallel divorce proceedings in Canada, of the rogatory requests which the Austrian courts had to address to authorities abroad and an apparent obstructive attitude of the defendant party living abroad.   Nevertheless a period exceeding fourteen years cannot be explained solely by the complexity of the matter.   41.    The Commission further considers that the applicant's conduct is not in itself sufficient to explain the full length of the proceedings.   42.    The Commission next notes the existence of periods of inactivity between 25 July 1986 when the Supreme Court gave judgment rejecting the appeal of Mr. K. and 13 June 1987 when the next oral hearing took place.   Furthermore the important time-spans between this hearing and the further ones on 14 June 1988, 17 October 1988 and 21 March 1989 are not sufficiently explained merely by the necessity to make rogatory requests in the Federal Republic of Germany.   43.    It follows that judged as a whole, and in particular in view of the delays mentioned above, the proceedings in question have exceeded a reasonable time.   44.    The Commission also reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes   relating to civil rights and obligations within a reasonable time (cf. Eur. Court H.R. Martins Moreira judgment of 26 October 1988, Series A no. 143, p. 21 para. 60).   45.    In the light of the criteria established by case-law and having regard to all the information in its possession, the Commission finds that the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   CONCLUSION   46.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber   Acting President of the First Chamber          (M.F. BUQUICCHIO)                         (E. BUSUTTIL)                                   APPENDIX I                             HISTORY OF PROCEEDINGS   Date                                 Item _________________________________________________________________   26 February 1986                     Introduction of the application   1 April 1987                         Registration of the application   Examination of Admissibility   6 June 1990                          Commission's deliberations and                                     decision to invite the Government                                     to submit observations on the                                     admissibility and merits of the                                     application   5 November 1990                      Government's observations   27 February 1991                     Applicant's observations in reply   14 October 1991                      Commission's deliberations and                                     decision to declare the application                                     in part admissible and in part                                     inadmissible; decision to refer                                     case to First Chamber   Examination of the merits   13 November 1991                     Parties invited to submit                                     observations on merits   12 January 1993                      Commission's consideration of the                                     state of proceedings   5 May 1993                           Commission's deliberations on the                                     merits, final vote and adoption of                                     the Report