EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 21836/93
Alexander and Florian Hüttenmayer
against
Austria
REPORT OF THE COMMISSION
(adopted on 28 February 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 31-42) . . . . . . . . . . . . . . . . . . . . .5
A. Complaint declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . .5
B. Point at issue
(para. 32). . . . . . . . . . . . . . . . . . . . .5
C. Article 6 para. 1 of the Convention
(paras. 33-41). . . . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 42). . . . . . . . . . . . . . . . . . . . .6
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . .7
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are Austrian citizens, born in 1984 and 1986 and
resident in Pinneberg (Germany). They were represented before the
Commission by Mr. W. Lenneis, a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Ambassador F. Cede, Head
of the International Law Department at the Federal Ministry of Foreign
Affairs.
4. The case concerns the length of civil proceedings concerning
maintenance payments. The applicants invoke Article 6 para. 1 of the
Convention.
B. The proceedings
5. The application was introduced on 3 February 1993 and registered
on 12 May 1993.
6. On 29 June 1994 the Commission (First Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 14 October 1994.
The applicants replied on 3 November 1994.
8. On 17 May 1995 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 31 May 1995 and they were invited to submit such
further information or observations on the merits as they wished. No
observations were submitted.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
12. The text of this Report was adopted on 28 February 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 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.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full 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
16. On 21 October 1987 the marriage of the applicants' parents was
dissolved.
17. On 18 November 1987 the applicants, represented by their mother,
filed a request with the Favoriten District Court (Bezirksgericht) in
Vienna that their father, who lived and worked in Austria, be ordered
to increase their maintenance payments to 3,750 AS each.
18. On 21 December 1987 the applicants' mother requested the District
Court to transfer custody over the applicants to her and claimed
maintenance payments for herself. On 1 February 1988 the District
Court granted the applicants' mother custody over them.
19. On 24 March 1988 the District Court, in the maintenance
proceedings of the applicants' mother, appointed an expert and
instructed him to prepare a report on the financial situation of the
applicants' father. The District Court found that for practical
reasons evidence on the financial situation of the applicants' father
which was relevant for both maintenance proceedings should only be
taken in the mother's proceedings. On 13 September 1988 the expert
submitted his report which was discussed by the parties in a court
hearing on 2 November 1988. In the course of this hearing the expert
was requested to amend his report. On 1 August 1989, after having been
urged twice by the District Court, the expert submitted his amended
report. On 25 October 1989 this report was discussed at a court
hearing and the expert was instructed to make further amendments.
These amendments were submitted on 21 March 1990. On 29 May 1990 a
further court hearing took place in which the applicants' mother and
father concluded a settlement concerning their mother's claim to
maintenance payments.
20. On 29 May 1990 proceedings in the applicants' maintenance case
were resumed. The applicants requested the taking of further evidence
concerning their father's income and supplemented this request on
8 June 1990. On 13 August 1990 their father submitted further
information concerning his income.
21. On 14 January 1991 the District Court dismissed the applicants'
request. It considered that their father, taking into account his
income as assessed by a court-appointed expert, already made more
maintenance payments than he could afford.
22. On 29 May 1991 the Vienna Regional Court (Landesgericht) upheld
the applicants' appeal and referred the case back to the District
Court. It noted, inter alia, that despite the extreme length of the
proceedings, the applicants' father's ability to make maintenance
payments had not been sufficiently evaluated.
23. Proceedings were resumed before the District Court which on
29 August 1991 summoned the applicants' father for a court hearing on
8 October 1991. Since the applicants' father was untraceable the
District Court, after having been given a new address by the applicants
in October 1991, issued a new summons for 13 January 1992.
24. On 4 December 1991 the applicants complained about the undue
length of the proceedings and requested the Regional Court to set the
District Court a short time limit for deciding on their maintenance
claim. On 29 January 1992 the Regional Court dismissed this request.
The Regional Court found that the District Court dealt particularly
slowly with the applicants' case. It acted without sufficient
determination and there were long intervals between the single steps
taken in the proceedings which could not be explained by the time
necessary for having decisions written. Only on one occasion, when it
investigated the whereabouts of the applicants' father, the District
Court acted promptly. The Regional Court found, however, that for the
time being the elements for taking a decision were so incomplete that
no time limit could be fixed. Nevertheless, in order to relieve the
applicants' intolerable situation at least a partial decision on their
claim should be taken.
25. On 17 April 1992 the District Court, in a partial decision,
granted an increase of the maintenance payments and reserved a final
decision on the applicants' claim for a later stage. On the same day
the District Court decided to appoint another expert in order to assess
the financial situation of the applicants' father and whether his
professional activities could produce benefits.
26. On 16 June 1992 the appointed expert requested an extension of
the time limit for submitting his report until 30 September 1992.
Furthermore, he requested the District Court's assistance in obtaining
the necessary documents, inter alia, by granting him access to the tax
files of the applicants' father. On 15 October 1992 and on
9 November 1992 the District Court urged the expert to submit his
report. On 27 January 1993 the President of Vienna Regional Court was
informed about the delays in submitting the expert report. On
8 March 1993 the expert finally submitted his report.
27. On 21 May 1993 the District Court, in a final decision, granted
a further increase of the maintenance payments.
28. On 18 June 1993 the applicants' father appealed against the
District Court's decision.
29. On 24 June 1993 the Regional Court requested the expert to amend
again his report, which the latter did on 30 August 1993.
30. On 5 October 1993 the Regional Court dismissed the appeal. No
further appeal has been lodged against that decision.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
31. The Commission has declared admissible the applicants' complaint
that the civil proceedings for maintenance payments instituted by them
were not concluded within a reasonable time.
B. Point at issue
32. The only point at issue is whether there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
33. Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, provides as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law."
34. The Commission finds that the period to be taken into
consideration started on 18 November 1987, when the applicants brought
their request with the Favoriten District Court, and ended on
5 October 1993 with the Regional Court's decision on appeal. Thus the
proceedings lasted for approximately 5 years and 11 months.
35. The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to its complexity, the
conduct of the parties and the conduct of the authorities dealing with
the case. In this instance the circumstances call for an overall
assessment (see e.g. Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30).
36. The applicants submit that the maintenance payment proceedings
were not concluded within a reasonable time. They refer to the
evaluation of the proceedings by the Regional Court which found that
the District Court had dealt with the case in a particularly slow way.
They also submit that the case was not particularly complex and that
the unreasonable length of the proceedings had to be attributed to the
Austrian courts.
37. The Government submit that the proceedings were complex as they
involved the preparation of extensive expert reports. Furthermore,
parallel to the maintenance proceedings of the applicants, maintenance
proceedings of their mother were conducted before the District Court.
These proceedings were to some extent interrelated which contributed
to the length of the proceedings at issue. Moreover, both parties to
the proceedings made numerous requests for supplementing the expert's
report. This and also the fact that the applicants' father was for a
certain period untraceable contributed to the length of the
proceedings. Also considerable delays had to be attributed to the
court experts.
38. The Commission finds that the present case, though requiring the
taking of expert opinions, was not particularly complex.
39. As regards the conduct of the parties, the Commission finds that
some delays have to be attributed to the defendant who caused
difficulties in taking the necessary evidence in that he refused to
submit documents. The applicants also contributed to the length of the
proceedings by various requests for taking of evidence and amendments
to the expert's report. These delays are, however, not sufficient to
explain their total length.
40. As regards the conduct of the authorities the Commission notes
that the Regional Court, on two occasions, criticised the District
Court for its slow handling of the case. Furthermore the Commission
notes that delays were caused by court experts. In the first set of
the proceedings the District Court had to urge the expert twice to
submit amendments to his report and between the court's instruction to
the expert and his submission of the amended report almost one year
passed (2 November 1988 - 25 October 1989). Also in the second set of
the proceedings the expert submitted his report after having been urged
by the District Court to do so several times and almost one year after
his appointment (17 April 1992 - 8 March 1993). The Commission recalls
that the courts are responsible for the delays caused by the expert
(see Cialdea v. Italy, Comm. Report 12.10.94, para. 20; Eur. Court
H.R., Capuano judgment of 25 June 1987, Series A no. 119, p. 13,
para. 30).
41. Having regard to the overall length, the Commission finds that
the proceedings were not concluded within a reasonable time (see Eur.
Court H.R., Boddaert judgment of 12 October 1992, Series A no. 235-D,
p. 82, para. 36).
CONCLUSION
42. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy