EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 21944/93
Georg Rudofsky
against
Austria
REPORT OF THE COMMISSION
(adopted on 18 October 1995)
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. 16-20)3
III.OPINION OF THE COMMISSION
(paras. 21-32)4
A.Complaint declared admissible
(para. 21)4
B.Point at issue
(para. 22)4
C.Article 6 of the Convention
(paras. 23-31)4
CONCLUSION
(para. 32)5
APPENDIX:DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION6
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 applicant is an Austrian citizen, born in 1930, and formerly was
ambassador in Finland. He is currently residing in Vienna.
3.The application is directed against the Republic of Austria. The
respondent Government are 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 divorce proceedings. The applicant
invokes Article 6 of the Convention.
B.The proceedings
5.The application was introduced on 31 March and registered on 28 May 1993.
6.On 11 May 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 28 July 1994. The
applicant replied on 10 September 1994.
8.On 22 February 1995 the Commission declared the application admissible.
9.The text of the Commission's decision on admissibility was sent to the
parties on 8 March 1995 and they were invited to submit such further information
or observations on the merits as they wished. The applicant submitted further
observations on 24 April 1994.
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:
MM.C.L. ROZAKIS, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
12.The text of this Report was adopted on 18 October 1995 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.By letter of 28 November 1985 the applicant brought an action for divorce
with the Vienna Regional Court (Landesgericht), which was registered on 5
December 1985.
17.On 4 February and on 16 September 1986 the Vienna Regional Court held
hearings in the presence of the parties' representatives.
18.The Vienna Regional Court conducted further hearings on 11 May and 25
November 1988, on 15 March, 17 and 18 July 1989, on 25 January, 3 and 4 July and
11 October 1990, on 15 and 16 January 1991, on 8 May, 12 June, 4 and 11
September, 6 October, 24 November 1992, on 29 March and 31 August 1993, 3 May
1994 and 7 April 1995. The proceedings are still pending at first instance.
19.The Regional Court heard numerous witnesses, who had to a considerable
extent been named by the applicant in 1988. The hearing of the witnesses inter
alia necessitated proceedings under letters rogatory. In March 1993 the Court
also ordered the taking of psychiatric expert evidence. Moreover, the Regional
Court made several unsuccessful attempts to secure an arrangement between the
parties on the matters related to the divorce action.
20.In the context of the divorce proceedings, the Vienna Regional Court also
conducted seven interim injunction proceedings, which were partly only
terminated following appeal proceedings before the Vienna Court of Appeal
(Oberlandesgericht) and the Supreme Court (Oberster Gerichtshof). The
injunction proceedings concerned the applicant's repeated requests to order the
defendant to leave the embassy in Helsinki (first set of proceedings between May
1986 and March 1987, second set between April and December 1987, third set
between May 1988 and April 1992), the defendant's request for the payment of
alimonies (proceedings between July 1986 and November 1991), the defendant's
request regarding the matrimonial household (lodged on 11 December 1986 and
withdrawn the next day), the defendant's request relating to the spouses'
apartment and their savings (proceedings between February 1987 and May 1987),
and finally the defendant's request for the payment of advanced court fees
(proceedings between May 1987 and December 1987).
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
21.The Commission has declared admissible the applicant's complaint that his
divorce action has not been determined within a reasonable time.
B.Point at issue
22.The point at issue is whether there has been a violation of Article 6
para. 1 (Art. 6-1) of the Convention.
C.Article 6 (Art. 6) of the Convention
23.The applicant submits that the divorce proceedings before the Vienna
Regional Court have exceeded a reasonable time. He invokes Article 6 para. 1
(Art. 6-1) of the Convention which 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 ..."
24.The Commission finds that the period to be taken into consideration
started on 28 November 1985 when the applicant filed his divorce action. The
case is still pending, i.e. after almost ten years.
25.The Government submit that the case was of particular complexity, taking
into account the necessity to hear numerous witnesses as well as the interim
injunction proceedings. They consider that the applicant contributed to the
length of the proceedings in that he did not name all witnesses when filing his
divorce action and generally did not ensure that the proceedings be duly
furthered. According to the Government, no avoidable delays were imputable to
the Austrian courts. In particular the provisional injunction proceedings could
not be dissociated from the main divorce proceedings, and their conduct had to
be regarded as a continuation of the divorce proceedings.
26.The applicant disputes the Government's views.
27.The Commission considers that the divorce action was as such not
particularly complex. However, the requests lodged by the parties for interim
injunctions, the majority of which was of relatively minor importance, could on
the whole be regarded as complicating to some extent the main divorce
proceedings and putting an extra burden of work upon the court.
28.The Commission finds that the parties to the divorce proceedings
contributed to the length of the proceedings by lodging these various requests.
However, their conduct cannot explain the overall length. In particular the
Government did not show the extent to which the applicant, in the circumstances
of his case, had effective judicial means to ensure the due furthering of the
proceedings. As regards the Government's argument that the applicant could have
named numerous witnesses before October 1988, the Commission, assuming that the
applicant could have done so, finds no indication that his failure to do so was
the source of substantial delay in the proceedings.
29.Turning to the conduct of the Vienna Regional Court, the Commission finds
that the Government failed to explain the complete inactivity as regards the
main divorce action which lasted from September 1986 until May 1988, i.e. for
one year and eight months. The respondent Government did not show that this
delay was inevitable as a result of either the allegedly belated submissions of
the applicant on the question of witnesses or the parties' requests for interim
injunctions. The Commission observes that, having regard to the summary nature
of injunction proceedings concerning matters related to a divorce case, the
length of part of these proceedings, such as the proceedings concerning the
applicant's third request to order the defendant to leave the embassy in
Helsinki (between May 1988 and April 1992) and the defendant's request for the
payment of alimonies (proceedings between July 1986 and November 1991) appears
in itself unreasonable and cannot, therefore, justify the length of the main
divorce proceedings.
30.The further conduct of the proceedings by the Regional Court is
characterised by numerous hearings in sometimes rather lengthy intervals in
order to hear the parties and witnesses, and also to attempt a settlement of the
divorce action. Taking a global approach to this part of the domestic
proceedings, the Commission finds that the Government's explanations as to the
due course of action taken by the Regional Court are not sufficient.
31.In the present case, the Commission considers that the fact that divorce
proceedings have not yet been terminated after almost ten years amounts to a
breach of the applicant's right to a hearing "within a reasonable time" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, in particular as
special diligence is required in proceedings relating to civil status and
capacity (cf., Eur. Court H.R., Bock judgment of 29 March 1989, Series A no.
150, p. 23, para. 49; Maciariello judgment of 27 February 1992, Series A no.
230-A, p. 10, para. 18).
CONCLUSION
32.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