CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 25818/94                       by Alfred BAUMANN                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 30 July 1993 by Alfred BAUMANN against Austria and registered on 1 December 1994 under file No. 25818/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of the Commission;   -     the observations submitted by the respondent Government on 20 December 1996 and the observations in reply submitted by the applicant on 26 February 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1945, is an Austrian national residing in Vienna. In the proceedings before the Commission he is represented by Mr. D. Böhmdorfer, a lawyer practising in Vienna.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The first set of proceedings        On 4 December 1987, following his divorce, the applicant applied to the Döbling District Court (Bezirksgericht) for a partition of matrimonial property. He requested in particular that the plot of land and the house in Vienna, which he and his divorced wife owned jointly, be transferred to him against payment of adequate compensation to his divorced wife. He submitted inter alia that he had been awarded guardianship for their son and that it was in the interest of the child to remain in the house. On 15 December 1987 his divorced wife made a similar request. Both, the applicant and his former wife filed a number of written submissions with the District Court.        On 20 January, 16 March, 11 May, 22 June, 3 August and 16 November 1988, as well as on 1 March 1989 the Döbling District Court held hearings.        On 13 March 1989 the Döbling District Court partitioned the matrimonial property. It ordered that the applicant's title concerning the land and the house be transferred to his former wife and ordered the latter to pay ATS 2,876,000 as compensation to the applicant. The Court considered that, for reasons of equity, the title was to be transferred to the party who was willing to pay the higher amount of compensation, i.e. the applicant's former wife. Further, the Court found that the former spouses were entitled to equal portions of the property as they had contributed equally to its purchase, the applicant by working full-time in his hairdresser's shop, his former wife by working part-time there and taking care of the household and their son.        Subsequently, on 7 and 10 April 1989, both parties filed an appeal (Rekurs) against this decision.        On 31 August 1989 the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) upheld both appeals and quashed the District Court's decision. It found that the court had failed to take evidence as regards the objective value of the land and house at issue, it had not taken the interest of the child into account and had failed to properly establish the extent to which the applicant's former wife had contributed to the purchase of matrimonial property.        Both parties filed an appeal on points of law (Revisionsrekurs) on 27 September 1989.        On 29 January 1991 the Supreme Court (Oberster Gerichtshof) dismissed the appeals on points of law of both parties as being unfounded.        The second set of proceedings        Subsequently, on 25 March, 17 April and 27 May 1991, the Döbling District Court held hearings. It heard the applicant and his former wife as well as three witnesses on the distribution of work between the former spouses in order to establish their respective contribution to the purchase of their property. It also ordered an expert, P., to file an opinion as regards the value of the plot of land and the house.        On 24 July 1991 the Döbling District Court issued a new decision partitioning the matrimonial property. It ordered the applicant's former wife to transfer her title concerning the land and the house to the applicant against a payment of compensation of ATS 3,358,200. Having regard to the evidence before it, the court found that the property had to be divided in a proportion of 40 to 60 percent between the applicant and his former wife.        Subsequently, on 19 and 20 August 1991, both parties appealed against this decision.        On 18 March 1992 the Vienna Regional Civil Court dismissed the applicant's appeal. Upon the appeal of his former wife, the court quashed the decision and referred the case back to the District Court. It found in particular that the court had dismissed her submissions challenging the expert opinion, on the ground that they had been made belatedly with the intention to delay the proceedings. However, the relevant procedural law did not provide a basis for such a ruling.        The third set of proceedings        On 19 May 1992 the Döbling District Court held a hearing and on 25 May 1992 it appointed a second expert, C., who submitted his opinion as regards the value of the house at issue on 7 July 1992. A further hearing was held on 22 July 1992 at which two witnesses were heard at the applicant's request. The expert opinions were discussed.        Meanwhile, the competent tax authorities had introduced proceedings relating to the applicant's business, i.e. the hairdresser's shop, in order to establish whether he had duly declared all profits between 1981 and 1989. On 29 July 1992, the Tax Office (Finanzamt) issued tax assessment notices for 1981 to 1989 in respect of turnover, income and trade tax, against which the applicant appealed.        On 23 October 1992 the Döbling District Court issued a partial decision (Teilbeschluß). It ordered the applicant's former wife to transfer her title concerning the land and the house to the applicant against a payment of compensation of ATS 4,000,000. Referring to its earlier decision the court found that the property had to be divided in a proportion of 40 to 60 percent between the applicant and his wife. As regards the value of the land and the house, the Court noted that the two expert opinions differed substantially. It argued that the average value had to be taken as a basis. The Court adjourned the proceedings as regards possible further compensation to the applicant's wife for her contribution to his business. It noted that such a decision could not be taken until the termination of the tax proceedings. At first instance the applicant had been ordered to pay additional taxes of ATS 980,000 for 1981 to 1986, i.e. the period when the former spouses were still married. The proceedings which were pending at the appeal stage were relevant, as debts which were connected to the marital property had to be taken into account.        Subsequently, on 17 November 1992, both parties appealed against this decision.    On 10 March 1993 the Vienna Regional Civil Court upheld both appeals and quashed the District Court's partial decision on the ground that the court had not properly established the value of the plot of land and the house at issue. It had failed to hear the two experts on the discrepancies between their opinions. Eventually it should have ordered a further expert opinion.        The fourth set of proceedings        Subsequently, the applicant and his divorced wife filed requests for the taking of evidence. On 16 July 1993 the applicant requested an extension of three weeks of a time-limit and on 31 August 1993 he challenged expert C. for bias. However, his motion remained unsuccessful. On 27 September 1993 the Döbling District Court held a hearing.        By submissions of 14 October, 3 November and 17 November 1993 the applicant requested extensions of two and three weeks, respectively, of the time-limit to file further documentary evidence. He submitted the evidence on 24 November 1993.        On 19 January 1994 the Döbling District Court held a further hearing.        On 12 August 1994 the Döbling District Court again issued a partial decision. It ordered the applicant's former wife to transfer her title concerning the land and the house to the applicant against a payment of compensation of ATS 4,300,000. Again, it adjourned the proceedings as regards a possible further compensation to the applicant's wife for her contribution to his business until the termination of the relevant tax proceedings.        Subsequently, on 2 and 8 September 1994, both parties appealed against this decision.        On 22 February 1995 the Vienna Regional Civil Court confirmed the decision. It partly dismissed the appeal of the applicant's divorced wife as being unfounded but partly upheld it as regards interest to be paid on the compensation. It rejected the applicant's appeal as being lodged out of time. The applicant's request for reinstatement remained unsuccessful.        On 20 September 1995 the Supreme Court rejected the applicant's appeal on points of law. Thereby, the proceedings were terminated as regards the transfer of the land and the house and the related compensation payment.        As regards possible further compensation to the applicant's wife for her contribution to his business, the proceedings are pending until termination of the tax assessment proceedings. On 14 November 1994 the Regional Tax Office (Finanzlandesdirektion) gave its appeal decision. On 18 January 1995 the applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof), which has not yet given judgment.     COMPLAINT        The applicant complains under Article 6 of the Convention about the duration of the proceedings relating to the partition of matrimonial property.PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 30 July 1993 and registered on 1 December 1994.        On 4 September 1996 the Commission decided to communicate the application.        The Government's written observations were submitted on 20 December 1996 after an extension of the time-limit fixed for that purpose. The applicant replied on 26 February 1997.     THE LAW        The applicant complains under Article 6 (Art. 6) of the Convention about the duration of the proceedings relating to the partition of matrimonial property.        Article 6 para. 1 (Art. 6-1), so far as relevant, 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 established by law. ..."        The Government submit that the proceedings were extremely complex, in that they necessitated extensive taking of evidence. The District Court held altogether fourteen hearings. It had to order expert opinions from real estate experts, which had to be supplemented and discussed at the hearings. Moreover, the Government point out that there have so far been four rounds of proceedings, two of which went through all three instances available. The opening of tax assessment proceedings concerning the applicant's business further complicated the matter, as their outcome has to be taken into account when deciding on the compensation due to the applicant's former wife for contributing to his business. Nevertheless, the main issue, namely the transfer of the house, was decided by the District Court's partial decision of 12 August 1994, which became final with the Supreme Court's judgment of 20 September 1995. Moreover, the tense atmosphere between the parties and the fact that they made use of all available remedies made the courts' work even more difficult.        As to the conduct of the authorities, the Government submit that there was never an actual standstill in the proceedings. According to the Government the appellate courts' repeated setting aside of the District Court's decisions did not contribute to the length of the first instance proceedings as they merely required the District Court to supplement its investigations. As to the conduct of the applicant, the Government argue that the applicant did nothing to expedite the proceedings. In particular, he failed to make use of the possibility, available since 1 January 1990, of filing an application for fixing a time-limit (Fristsetzungsantrag) under S. 91 of the Court Organisation Act. This provision allows the parties, whenever a court fails to take a specific procedural measure - such as setting a date for a hearing or obtaining an expert opinion - in due time, to file with that court an application directed to the higher court requesting it to fix an adequate time-limit for taking the procedural measure at issue. Finally, the applicant contributed to the length of the proceedings in that he filed a number of requests for the extension of time-limits.   The applicant firstly claims that the proceedings, concerning mainly the transfer of the house in which he is living with his son over whom he has been awarded custody, required particular diligence. Further, the applicant argues that the proceedings were not particularly complex. That the assessment of the value of the house at issue necessitated the repeated taking of expert evidence was partly caused by the duration of the proceedings and the rise in real estate prices, which occurred meanwhile. The applicant contests in particular the Government's argument that the authorities did not contribute to the length of the proceedings. As the first instance court repeatedly failed to carry out the necessary investigations, time-consuming appeal proceedings were necessary, which ended with orders by the appellate court to the first instance court to supplement its proceedings. Thus, considerable delays are attributable to the defective conduct of the proceedings by the District Court. Finally, the applicant contests that any delays are attributable to him.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber