CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 septembre 2017

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AUSTRIA   (Application no. 6822/12)                             JUDGMENT       STRASBOURG   7 September 2017       This judgment is final but it may be subject to editorial revision. In the case of Goldnagl v. Austria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Erik Møse, President,   Yonko Grozev,   Gabriele Kucsko-Stadlmayer, judges, and Anne-Marie Dougin, Acting Deputy Section Registrar, Having deliberated in private on 11 July 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 6822/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mrs Ingrid Goldnagl (“the applicant”), on 26 January 2012. 2.     The applicant was represented by W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Department at the Federal Ministry for Europe, Integration and International Affairs. 3.     On 12 May 2015 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1939 and lives in Vienna. 5.     On 28 July 1965 the applicant married T.G. They have two children, born in 1968 and 1977. In 1987 the applicant learned that T.G. had a relationship with another woman and in October 1990 T.G. left their common home. On 29   February 1996 the applicant sued for a divorce. On 28   November 1996 the couple was divorced due to the sole fault of T.G. by the Hietzing District Court ( Bezirksgericht ). This judgment became final. 6.     On 19 September 2005 the Hietzing District Court, after having held several hearings, divided the matrimonial property. This decision became final on 11 July 2006. A.     The maintenance proceedings before the Döbling District Court 7 .     On 2 August 1991 the applicant lodged a claim for spousal maintenance with the Döbling District Court (hereinafter “the District Court”) and requested an interim order ( einstweilige Verfügung ) for provisional maintenance pending the conclusion of the main proceedings. T.G. objected. 8.     On 15 February 1992 the District Court issued an interim order requiring T.G. to pay the applicant provisional maintenance. T.G. appealed. On 23 February 1992 the District Court appointed an expert to assess T.G.’s income. 9.     On 16 June 1992 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen ; hereinafter “the Regional Court”) confirmed the interim order, which became binding and enforceable. As T.G. did not comply with the interim order, the applicant instituted enforcement proceedings with the District Court. The enforcement was granted on 23   July 1992. 10.     On 9 November 1992 and on 18 January 1993 hearings were held. On 1 October 1993 the expert submitted his report to the court. On 13   June and 15 September 1994, 23 October 1995, 5   and 26   February 1996 further hearings took place. 11.     On 26 March 1997 the District Court issued a judgment partly granting and partly dismissing the maintenance claim. Both parties appealed. 12.     On 1 October 1997 the Regional Court quashed the District Court’s judgment. 13.     The District Court held further hearings on 23 February and 27   April 1998. On the latter date it appointed a second expert to supplement the first expert’s report. The second expert submitted his report on 11   March 1999. 14.     On 29 December 1998 T.G. requested that the enforcement proceedings be stopped, which was granted by the District Court. On 29   April 1999 the Regional Court dismissed the applicant’s appeal. 15 .     On 7 May 1999 the applicant requested a fresh interim order for provisional maintenance and an interim order to prohibit the pay-out of money from T.G.’s pension fund and the redundancy money ( Abfertigung ) he had received after retiring in April 1999. T.G. objected to this request. 16 .     On 9 June 1999 the District Court ordered T.G. to pay the applicant 20,000 Austrian Schillings per month. It also barred T.G. and his former employers from drawing out money from T.G.’s pension fund. T.G.’s objection was dismissed on 19 December 1999. On 26 January 2000 the Regional Court dismissed T.G.’s appeal. 17 .     On 28 January 2000 T.G. requested a reduction of his provisional maintenance payment because of his retirement. On 25   May 2000 the District Court rejected this request. The Regional Court quashed the decision upon T.G.’s appeal. On 19   October 2000 the District Court held a hearing. 18.     In the main maintenance proceedings the District Court held further hearings in May 1999, September 2001 and January 2002 and heard further witnesses. On 13 February 2002 the District Court asked the expert to supplement his report concerning T.G.’s income for the years 1999, 2000 and 2001. The expert submitted his report on 1 April 2003. 19 .     On 10 July 2003 private insolvency proceedings against T.G. were opened by the Salzburg Regional Court (see paragraph 33 below) and the liquidator requested the lifting of the interim order of 9   June 1999 concerning the maintenance payments (see paragraph 16 above). Thereupon, the maintenance proceedings were suspended. The applicant requested the acknowledgement of her claim of 632,253.65 euros (EUR) for maintenance payments in the insolvency proceedings. The liquidator refused to acknowledge that claim. 20.     On 14 October 2003 the District Court lifted the ban on the pay-out of money from T.G.’s pension fund and his redundancy money, but dismissed the liquidator’s request to lift the order of provisional maintenance payments. The liquidator appealed against this decision. 21.     On 23 November 2003 the applicant requested the continuation of the main maintenance proceedings. 22.     On 10 March 2004 the Regional Court rejected the liquidator’s appeal. On 28   July 2004 the Supreme Court ( Oberster Gerichtshof ) partly granted the liquidator’s extraordinary appeal on points of law. 23.     On 16 September 2004 T.G. requested a reduction of the provisional maintenance payments because of the private insolvency proceedings pending against him. The applicant opposed this request. On 21 June 2005 the District Court dismissed T.G.’s request, and on 13 September 2005 the Regional Court confirmed the decision. 24.     On 20 September 2005 the applicant filed a request for the acceleration of the main maintenance proceedings ( Fristsetzungsantrag ) under Section 91 of the Court Act ( Gerichtsorganisationsgesetz ). On 7   November 2005 the Regional Court partly granted the request and ordered the District Court to hold a hearing within four weeks. 25 .     On 9 January 2006 the District Court held a hearing. The applicant did not appear because she was in hospital. Her representative informed the court that she would be fit for questioning as of March 2006. On 24   April 2006 a hearing was held and the proceedings subsequently adjourned in order to obtain the statement of witnesses by means of letters of request from the Zürich District Court. On 11 September 2006 the applicant asked to address further letters of request to the Zürich District Court regarding more witnesses. 26.     On 21 March 2007 the applicant filed a second request for the acceleration of the proceedings. 27 .     On 15 September 2007 the Zürich District Court submitted a large number of documents containing T.G.’s bank data. The questioning of three further witnesses took place on 2 February 2009. 28 .     On 11 May 2009 the applicant asked the District Court to suspend the proceedings concerning maintenance payments as from the date when the insolvency proceedings were opened (see paragraph 19 above). On 17   August 2009 the District Court held another hearing and granted this request. 29.     On 30 March 2010 the District Court partly dismissed and partly refused the applicant’s claim regarding maintenance until the opening of the insolvency proceedings on 10 July 2003 by partial judgment ( Teilurteil ). The applicant appealed. 30.     On 11 January 2011 the Regional Court confirmed this judgment. On 29 June 2011 the Supreme Court rejected the applicant’s extraordinary appeal on points of law ( außerordentlicher Revisionsrekurs ), thus the partial judgment entered into force. 31 .     On 27 October 2011 the applicant requested the continuation of the maintenance payments proceedings concerning the period starting from 10   July 2003 (see paragraph 28 above). 32 .     On 23   June and 5   September 2014, further hearings in the main maintenance proceedings took place before the District Court. After several hearings were postponed, another one took place on 27 November 2015. As no information to the contrary has been given by the parties, the proceedings are apparently still pending. B.     T.G.’s Private Insolvency Proceedings before the Salzburg District Court 33 .     On 20 May 2003 T.G. applied for the opening of private insolvency proceedings ( Schuldenregulierungsverfahren ), which were opened by the Salzburg Regional Court (file no. 8 S 44/03y) on 10 July 2003 (see above paragraph 19). 34 .     The private insolvency proceedings of T.G. are still pending. C.     The maintenance proceedings before the Salzburg District Court 35 .     On 28 December 2011 the applicant filed a fresh maintenance claim with the Salzburg District Court ( Bezirksgericht ) against the liquidator as he had refused to acknowledge the applicant’s claim in the insolvency proceedings. 36.     On 16 February 2012 the Salzburg District Court rejected the application after having held a hearing on 2 February 2012 because of res iudicata . On 25 April 2012 the Salzburg Regional Court quashed the District Court’s decision. 37 .     Several hearings were held between 10 September 2013 and 16   September 2014. On 24 August 2015 the Salzburg District Court partly granted the applicant’s appeal. However, the applicant appealed, therefore these proceedings are apparently still pending. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 38.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...” 39.     The period to be taken into consideration began on 2 August 1991, when the applicant lodged a claim for spousal maintenance (see paragraph 7 above) and the proceedings are still pending (see paragraph 32 and 37 above). Therefore the proceedings so far have lasted for twenty-five years and more than eleven months for three levels of jurisdiction, including remittals. A.     Admissibility 40.     The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 41.     The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 42.     The applicant maintained that the length of proceedings was in breach of the “reasonable time” requirement laid down in Article 6 of the Convention. She contended that the proceedings had been delayed by the domestic courts as they could have estimated T.G.’s income and, on that basis, fixed an amount of maintenance from the very beginning of the proceedings. 43.     The Government contended that the length of proceedings has not yet violated the applicant’s right to an adequate procedural duration due to the complexity of the proceedings. They argued that the maintenance proceedings were so comprehensive, because T.G.’s complex income and property situation made it necessary to hold numerous hearings, to question thirty witnesses, to obtain three expert opinions and several supplements and to request information from the Swiss authorities by means of letters of request. The fact that the applicant had amended her claim several times, requested suspension of the proceedings for more than two years and the postponement of several hearings due to her health significantly contributed to the length and complexity of the proceedings. In addition, T.G. challenged several interim decisions, which further contributed to their duration. 44.     The Court finds that the proceedings at issue were quite complex, in particular because there were a number of sets of proceedings running simultaneously. Apart from the main maintenance proceedings before the District Court and the parallel pending provisional maintenance proceedings there were also T.G.’s private insolvency proceedings (see paragraph 33 above) and later further maintenance proceedings at the Salzburg District Court against T.G.’s liquidator (see paragraph 35-37 above). Some of the delays in the main maintenance proceedings were caused by T.G.’s and his liquidator’s requests (see paragraphs 17 and 19 above) and others by necessary procedural steps (see paragraph 19 above). The applicant, who modified her claim several times and requested the questioning of further witnesses by means of letters (see paragraphs 15, 25 and 27 above), further contributed to delays. However, the fact that T.G. made use of all legal remedies available in order to oppose the applicant’s claim cannot be held against either of the parties. Even though some of the delays in the proceedings, such as the interruption of the main maintenance proceedings for more than two years, can be attributed to the applicant (see paragraphs   28 and 31 above), the Court does not lose sight of the overall duration of the proceedings. Moreover, it appears that major delays occurred because of long periods of inactivity by the domestic courts. The Court therefore takes the view that the complexity of the proceedings and the conduct of the parties are insufficient to explain an overall duration of the proceedings of twenty-five years and more than eleven months. 45.     The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see among many other authorities Baumann v. Austria , no. 76809/01, §   45, 7   October 2004; Eigenstiller v. Austria , no.   42205/06, §   38 et seq, 14   October 2010; and Hauptmann v. Austria [Committee], no. 61708/12, §   30, 24 April 2014). 46.     Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 47.     There has accordingly been a breach of Article 6 § 1. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 48.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 49.     The applicant claimed 500,000 euros (EUR) in respect of pecuniary damage, including an unspecified amount for non-pecuniary damage. 50.     The Government contested the claim. 51.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court finds that the applicant must have sustained non ‑ pecuniary damage, which cannot be compensated by the finding of a violation. Assessing the claim on an equitable basis, it awards the applicant EUR 17,000 under this head. B.     Costs and expenses 52.     The applicant also claimed EUR 215,175.84 for the costs and expenses incurred before the domestic courts and EUR 9,600 for those incurred before the Court. 53.     The Government contested these claims and pointed out that only costs incurred in an attempt to prevent a violation of the Convention could be reimbursed, namely the two applications under section 91 of the Court Act in the maintenance proceedings before the District Court, which would amount to approximately EUR 616 (without value-added tax (VAT)) each. 54.     According to the Court’s case-law, an applicant is entitled to the reimbursement of such costs and expenses only in so far as it has been shown that these costs have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR   1,232 for the costs and expenses incurred in the domestic proceedings. As the applicant did not submit any evidence for the costs incurred in the Convention proceedings, this claim has to be rejected. C.     Default interest 55.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months, the following amounts: (i)     EUR 17,000 (seventeen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,232 (one thousand two hundred and thirty-two euros), plus any tax that may be chargeable, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Anne-Marie Dougin   Erik Møse Acting Deputy Registrar   President