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FIRST
SECTION
CASE OF EIGENSTILLER v. AUSTRIA
(Application
no. 42205/06)
JUDGMENT
STRASBOURG
14 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Eigenstiller v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 23 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42205/06) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Hans Eigenstiller
(“the applicant”), on 11 October 2006.
- The
applicant was represented by Mr G. Egger, a lawyer practising in
Innsbruck. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal
Ministry for Foreign Affairs.
- On
17 November 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
- The
applicant was born in 1943 and lives in Innsbruck.
- On
23 September 1997 the applicant instituted divorce proceedings
against his wife, A., before the Innsbruck District Court
(Bezirksgericht).
- On
16 January 1998 the District Court dismissed A.’s request for
legal aid (Verfahrenshilfe).
- Hearings
were held in the divorce proceedings on 4 and 27 February 1998.
- On
6 November 1998 a further hearing was held in the divorce
proceedings, in the course of which A.’s lawyer asked the court
to adjourn the hearing in order to examine whether a guardian should
be appointed to represent A. He considered that there were strong
indications that she was mentally ill and lacked full legal capacity.
Subsequently, in separate proceedings, a guardian was appointed for
her.
- A
further hearing in the divorce proceedings was fixed for 7 April 1999
and, at the request of A.’s lawyer, postponed until 21 April
1999. During the hearing on 21 April 1999 A.’s guardian stated
that he was unable to approve the previous steps taken in the
proceedings.
- In
order to establish how long A. had lacked legal capacity and to what
extent this had affected the previous proceedings, the District
Court, on 12 May 1999, appointed Dr H., a psychiatrist, as an expert.
On 7 October 1999 the expert submitted his report. On 26 November
1999 this report was discussed by the parties before the District
Court.
- On
7 January 2000 the District Court declared the proceedings void
because A. had been incapable of following the proceedings conducted
so far. The applicant appealed against this decision. On 3 March 2000
the Regional Court (Landesgericht) dismissed his appeal.
- On
11 April 2000 the applicant requested the District Court to serve the
petition for divorce on A.’s guardian.
- On
7 June 2000 the District Court scheduled a hearing in the fresh
proceedings. The hearing was postponed and eventually took place on
20 September 2000. In the course of that hearing the District
Court decided what evidence was to be taken. The applicant objected
to the appointment of Dr H. as the expert as he considered him
biased.
- A
further hearing was fixed for 21 November 2000 but, at the
applicant’s request, was adjourned until 1 December 2000.
- Meanwhile,
in August 2000, A. requested an interim injunction on the payment of
maintenance. The District Court stayed these proceedings pending the
receipt of expert opinions on A.’s legal capacity. Proceedings
were resumed in December 2003. The request was eventually refused at
second instance by the Regional Court on 30 April 2004.
- A.,
represented by her guardian, also requested an interim measure to
prevent the applicant from selling parts of the real property that he
had acquired during their marriage. This request was partly granted
by the District Court on 7 December 2000. On 23 March 2001 the
Regional Court dismissed an appeal by A. against that decision.
- Meanwhile,
on 9 January 2001, the applicant had requested the District Court to
hear witnesses in the main proceedings.
- On
27 February 2001 Dr H. commented on the applicant’s allegation
of bias. On 18 June 2001 the District Court appointed another expert,
Dr K., to prepare a report on the legal capacity of A. prior to 1996.
- Between
19 April 2002 and 4 November 2002 the expert was repeatedly urged by
the District Court to submit his report. Although the AKH hospital,
where Dr K. had worked until the summer of 2002, repeatedly told the
District Court that the file, together with the expert report, had
already been sent to the court, the court had not received it.
Enquiries with the post office were also to no avail. Eventually, on
13 November 2002, Dr K.’s report, dated 13 February 2002,
arrived at the District Court.
- Following
comments made by the parties on Dr. K.’s report, the District
Court returned the report to him on 15 January 2003, ordering him to
supplement it.
- On
28 April 2003 the applicant filed a request for the acceleration of
the proceedings (Fristsetzungantrag) under Section 91 of the
Court Act, because the expert had not yet submitted his new report.
The applicant also challenged the judge, alleging bias.
- On
18 June 2003 the expert, Dr K., submitted his supplemented report
attesting that A. had lacked legal capacity at the relevant time. On
the same day the District Court dismissed the applicant’s
challenge concerning the judge.
- On
31 July 2003 the applicant requested the District Court to issue an
injunction prohibiting A. from selling, encumbering or mortgaging
real estate without his agreement. On 29 August 2003 the District
Court dismissed that request.
- On
25 September 2003 a further hearing took place in the divorce
proceedings. At the applicant’s request, the District Court
appointed a further expert (Obergutachter), Dr N. from Munich
(Germany). The expert report by Dr N., dated 22 January 2004, was
served on the applicant on 18 March 2004.
- Thereupon
the applicant requested that this expert also supplement his report
on certain points. Dr N. submitted his supplementary opinion on
16 December 2004.
- On
9 August 2004 the case was assigned to a new judge.
- On
3 February 2005 a further hearing took place, at which A. requested
the hearing of twenty-two witnesses. On 8 August 2005 the applicant
requested the hearing of a further ten witnesses. The District Court
heard witnesses on 21 April 2005, 14 July 2005, 24 November 2005,
1 December 2005, 15 December 2005, and 4 July 2006. In addition,
four witnesses were heard by other courts on letters rogatory between
29 September 2005 and 11 May 2006.
- After
the parties had already been heard by the District Court on
15 December 2005, the applicant, on 23 March 2006, requested to
be heard once more. This hearing took place on 4 July 2006. Thereupon
the District Court closed the taking of evidence and decided that the
judgment was to be given in writing.
- On
12 October 2006 the District Court dissolved the marriage between the
applicant and A. on grounds of mutual fault, while holding that A.’s
fault prevailed.
- On
29 March 2007 the Regional Court dismissed an appeal by A. against
the divorce judgment.
- On
26 June 2007 the Supreme Court rejected an extraordinary appeal
(außerordentliche Revision) by A. This decision was
served on the applicant’s counsel on 31 July 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the length of the divorce proceedings had
been incompatible with the “reasonable time” requirement
laid down in Article 6 § 1 of the Convention, which 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 ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant submitted that the case had been dealt with very slowly by
the District Court. Practically no evidence had been taken in the
first phase of the proceedings by 7 January 2000, when the District
Court declared them null and void. He also considered that the later
proceedings had not been conducted as expeditiously as the subject
matter required. The District Court had decided to obtain an expert
report at a hearing on 20 September 2000 but had appointed Dr K.
only on 18 June 2001, and his report had been submitted to the court
only on 19 November 2002. No hearing had taken place between 20
September 2000 and 22 October 2003 and, while the applicant had asked
for the hearing of witnesses in January 2001, the District Court
was still hearing witnesses as late as 2005.
- The
Government emphasised that the proceedings at issue had been
extremely difficult and complex. Besides dealing with the divorce
proceedings themselves, various other issues, such as maintenance
claims and injunction proceedings concerning the disposal of property
had had to be decided by the Austrian courts. In all these
proceedings the mental condition of the defendant A. had been a
decisive issue. However, since she had not been receiving regular
medical treatment, this was a particularly difficult question for the
experts to determine. They had arrived at divergent results, which
had made it necessary for them to supplement their reports and to
appoint additional experts. In order to obtain these reports as
quickly as possible the District Court had made considerable efforts
to urge the experts to expedite their reports. The applicant himself
had repeatedly asked for the supplementing of expert reports and the
appointment of further experts, which had further delayed the
proceedings. Another element which had prolonged the proceedings and
which could not be blamed on the Austrian courts was the refusal of
A’s guardian to approve the previous procedural steps at the
advanced stage of the proceedings, so that part of the proceedings
had to be repeated.
- The
Court notes that the proceedings began on 23 September 1997, when the
applicant filed his action for divorce, and ended on 31 July 2007
when the Supreme Court’s judgment was served on the applicant.
Thus, the proceedings took nine years and ten months at three levels
of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court considers that the case was quite complex because of questions
concerning the issue of mental health and the legal capacity of A.,
which necessitated the taking of extensive evidence and, in
particular, the obtaining of expert reports by psychiatrists.
However, this cannot, in the Court’s view, account for the
entire length of the proceedings, which lasted for more than nine
years at first instance.
- As
regards the conduct of the parties, the Court observes that the
applicant, and also A., made numerous requests for the taking of
evidence which contributed to the length of the proceedings, but most
of these requests were accepted by the District Court. As regards the
conduct of the Austrian courts, the Court observes that on 7 January
2000 the District Court had to declare the previous proceedings null
and void because the applicant’s opponent, A., lacked legal
capacity. This cannot be blamed on the District Court, but even after
that the taking of evidence, in particular the obtaining of expert
reports on A’s legal capacity, proceeded particularly slowly
and lasted for another six years and six months. In this respect the
Court observes that the District Court made considerable efforts to
obtain the expert report of Dr K. which had been commissioned on 18
June 2001. However, these efforts date only from 19 April 2002. Thus
it took one year and five months to obtain this report and even then
it had to be supplemented, which the expert eventually did on 18 June
2003. As regards the hearing of witnesses, the Court notes that the
applicant first made his request for the District Court to hear
witnesses on 9 January 2001, and reiterated it on 3 February 2005.
The District Court started to hear witnesses on 21 April 2005 and
only completed the taking of evidence on 4 July 2006, that is,
approximately eight years and ten months after the initial petition
for divorce had been filed. It is true that the proceedings at second
and third instance were particularly speedy, but this could not make
up for the extraordinary length of the proceedings at first instance.
- Having
regard to these elements, the Court cannot find that the above
proceedings complied with the “reasonable time”
requirement of Article 6 § 1 of the Convention. There has
accordingly been a violation of Article 6 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the claim was excessive.
- The
Court finds that the applicant has sustained non-pecuniary damage
which cannot be compensated by the finding of a violation. Assessing
the claim on an equitable basis, it awards EUR 6,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 5,084.70 for the costs and expenses
incurred before the domestic courts and for those incurred before the
Court. This amount included Turnover Tax.
- The
Government did not dispute this claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 4,200, covering costs
under all heads, plus any tax that may be chargeable to the
applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros) plus any tax that may be chargeable, in respect of
non-pecuniary damage and EUR 4,200 (four thousand two hundred
euros) plus any tax that may be chargeable to the applicant in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
