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
Full & Egal Universal Law Academy