THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 49455/99
by Maria GOLLNER
against Austria
The European Court of Human Rights (Third Section), sitting on 21 November 2000 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
MrsF. Tulkens,
SirNicolas Bratza,
MrK. Traja,
MrM. Ugrekhelidze, judges,
andMrsS. Dollé, Section Registrar,
Having regard to the above application introduced on 28 June 1999 and registered on 8 July 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Austrian national, born in 1950 and residing in St. Pölten. In the proceedings before the Court she is represented by Mr. Max Urbanek, a lawyer practising in St. Pölten.
The facts as submitted by the parties may be summarised as follows.
On 23 October 1992 the applicant filed a maintenance application with the Herzogenburg District Court (Bezirksgericht) against her husband. On 18 November 1992 a hearing was held. On 22 December 1992 the proceedings were discontinued following an agreement between the parties. They were resumed on 2 December 1993 and on 16 February 1994 a hearing was held. On 7 November 1994 the applicant requested to be placed under the care of a guardian as far as the maintenance proceedings were concerned. This motion was granted by the St. Pölten Regional Court (Landesgericht) on 27 February 1995.
On 9 November 1994 a hearing was held and an expert was appointed to assess the income of the applicant’s husband. On 7 December 1994 the expert asked to be discharged. On 9 January 1995 the court appointed a new expert who on 27 January 1995 submitted his opinion. On 8 August, 27 September 1995 and 21 March 1996 further hearings were held. On 2 April 1996 the applicant lodged an application for the preservation of evidence (Beweissicherungsantrag). On 27 June 1996 the hearing was closed for the delivery of a written judgment.
On 14 August 1996 the District Court partly dismissed the applicant’s claim. Following her appeal, the St. Pölten Regional Court quashed the decision and referred the case back to the District Court. On 25 February 1997 the applicant appealed from the St. Pölten Regional Court’s decision.
On 27 November 1997 the Supreme Court (Oberster Gerichtshof) confirmed the decision of the St. Pölten Regional Court, by which it had quashed the District Court’s decision of 14 August 1996.
Meanwhile, on 20 and 24 February 1997, the applicant lodged requests for provisional maintenance (vorläufiger Unterhalt) and for the preservation of evidence .with the District Court. On 18 March 1997 the District Court dismissed the applicant’s motions. On 28 March 1997 the applicant appealed from this decision and filed a motion challenging the judge for bias.
On 13 February 1998 the bias motion was dismissed by the St. Pölten Regional Court. It noted that the complaint concerned alleged procedural errors and the length of the proceedings, which matters had no bearing on a challenge for bias. On 24 March 1998 the applicant’s appeal, dated 3 March 1998, was dismissed by the Vienna Court of Appeal (Oberlandesgericht).
On 30 April 1998 the St. Pölten Regional Court dismissed the appeal concerning a motion for the preservation of evidence, but quashed the District Court’s refusal of the motions for provisional maintenance and referred the case back.
On 22 June and 17 September 1998 the District Court held hearings. On 24 September 1998 it partly dismissed the applicant’s maintenance claim.
On 22 October 1998 the applicant appealed from this decision and requested that a time-limit be fixed for the decision on the motions for provisional maintenance.
On 29 October 1998 the motions for provisional maintenance were partly dismissed by the District Court. On 23 November 1998 the applicant appealed against this decision.
On 3 March 1999 the St. Pölten Regional Court quashed the District Court’s judgment of 24 September 1998 and referred the case back. The appeal concerning the motions for provisional maintenance was partly dismissed. On 15 April 1999 the applicant therefore lodged a further appeal and requested that it be given suspensive effect to preserve the status quo before the Regional Court’s decision. On 27 April 1999 the District Court granted this request. On 23 June 1999 the St Pölten Regional Court dismissed the further appeal against its decision of 3 March 1999 concerning the motions for provisional maintenance.
In the main proceedings a hearing scheduled for 17 August 1999 was postponed upon the applicant’s request. It was held on 30 September 1999. A further hearing scheduled for 1 December 1999 was cancelled due to the judge’s illness and was postponed for an indefinite period of time. Hearings were held on 3 May 2000 and 15 June 2000.
On 25 August 2000 the Herzogenburg District Court rejected the applicant’s maintenance claim. Due to the applicant’s appeal against this decision, the proceedings are still pending.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the length of the civil proceedings and the alleged partiality of a judge.
THE LAW
1. The applicant’s first complaint relates to the length of the maintenance proceedings, which began on 23 October 1992 and are still pending. They have therefore already lasted over eight years.
According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
2. The applicant further complains under Article 6 § 1 of the Convention about the alleged partiality of the judge. She alleges that he committed a number of procedural errors. However, the Court finds that such allegations do not of themselves disclose any lack of impartiality and there is no evidence in the case-file which might substantiate the applicant’s claim. It follows that this part of the application has to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant’s complaint relating to the length of the proceedings;
DECLARES INADMISSIBLE the remainder of the application.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy