by Gabriela MARKL
The European Court of Human Rights (First Section), sitting on 17 September 2009 as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 12 July 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Gabriela Markl, is an Austrian national who lives in Gänserndorf. She was represented before the Court by Prunbauer, Themmer & Toth, lawyers practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for European and International Affairs.
On 16 December 2002 the applicant filed a divorce petition with the Gänserndorf District Court (“the District Court”). The divorce decree was pronounced on 8 January 2004. The District Court held that the failure of the marriage had been predominantly the fault of the applicant’s husband. The latter appealed all the way up to the Supreme Court, which upheld the judgment on 24 October 2004. It was served on the applicant on 19 November 2004.
A. Proceedings for maintenance payments pending divorce
On 16 December 2002, the applicant also filed a claim with the District Court for maintenance payments pending divorce and an interim injunction for maintenance payments. Since the applicant needed money urgently, she agreed to an extrajudicial settlement concerning parts of those claims.
On 23 May 2003 the applicant tried to speed up the proceedings informally. She applied to the District Court to set the date for a hearing but did not call her submissions an application for acceleration of the proceedings (Fristsetzungsantrag) under section 91 of the Courts Act (Gerichtsorganisationsgesetz) or make explicit reference to that provision. The applicant received a note from the President of the District Court saying that there was currently no judge in charge of the department dealing with family law. The applicant wrote a letter to complain about this to the Ministry of Justice.
By the time the first hearing took place on 19 January 2005, the divorce decree had become final, so the claim was modified to take account of unpaid maintenance payments.
A further hearing was scheduled for 28 April 2005, then postponed to 16 June 2005, then postponed to 6 July 2005. During the hearing on 6 July 2005 the judge pronounced the oral hearing closed, finding that it was not necessary to take evidence.
On 12 October 2005 the applicant lodged an application for acceleration of the proceedings under section 91 of the Courts Act. By a decision of 28 October 2005 the judge reopened the oral hearing and a new hearing was scheduled for 26 January 2006.
The District Court delivered its judgment on 8 May 2006.
An appeal by the respondent was dismissed by the Korneuburg Regional Court in a decision of 27 March 2007. The decision was served on the applicant’s counsel on 19 April 2007 and became final on that date.
B. Division of matrimonial property
On 14 April 2004 the applicant lodged an application for division of the matrimonial property (Aufteilung des ehelichen Gebrauchsvermögens).
The respondent successfully applied for a two-week extension of the deadline by which to reply.
On 28 June 2004, when the proceedings were at a standstill, the applicant lodged an informal application for a hearing to be scheduled, and for an expert’s opinion to be taken on the value of the real estate in question. On 24 September 2004, the applicant lodged another application, identical to the one of 28 June 2004. A hearing was subsequently scheduled for 19 January 2005. It appears that on 21 April 2005 the applicant was asked to submit comments regarding legal aid.
On 12 October 2005 the applicant lodged an application for acceleration of the proceedings under section 91 of the Courts Act.
On 11 November 2005 a real-estate expert was appointed. A hearing was scheduled for 7 July 2006. On 21 December 2006 the applicant lodged another application for acceleration of the proceedings under section 91 of the Courts Act. A hearing was subsequently scheduled for 19 March 2007, during which witnesses were heard and negotiations were conducted for a settlement agreement.
On 25 April 2007 another hearing was held. During the hearing a settlement agreement was entered into by the parties. The court also took a decision on future payments of outstanding loans, and a decision reinstating the applicant’s obligation to pay certain costs from which she had been temporarily exempted as she had been granted legal aid.
The applicant contested the obligation to reimburse some of the legal costs, but the appeal was rejected by the Regional Court in its decision of 29 November 2007.
C. Maintenance payments after divorce
The applicant sued her former husband for maintenance payments on 21 December 2004. On 2 March 2005 she lodged an informal application for a hearing to be scheduled.
A hearing was subsequently scheduled for 28 April 2005. The respondent asked for it to be postponed to 16 June 2005. Since the judge in charge of family law at the court had changed, the hearing was rescheduled for 6 July 2005.
On 12 October 2005 the applicant lodged an application for acceleration of the proceedings under section 91 of the Courts Act. A hearing was subsequently scheduled for 24 January 2006. Another hearing was scheduled for 15 May 2006.
On 12 April 2006 the respondent asked the court to postpone the hearing. The applicant, who was given the opportunity to comment, objected on 13 April 2006. The hearing was held on 2 October 2006.
On 21 December 2006, the applicant filed a request for acceleration of the proceedings under section 91 of the Courts Act. A hearing was subsequently scheduled for and held on 19 March 2007. At a further hearing on 25 April 2007 the applicant and her ex-husband entered into a settlement agreement.
The applicant complained under Article 6 of the Convention about the length of the above proceedings. She submitted in particular that the frequent change of judges had led to considerable delays. She also asserted that her maintenance claims had been of great importance to her since she depended on them for her subsistence. Finally, she claimed that the length of the proceedings had, in practical terms, forced her to enter into a settlement with her former husband.
On 5 May 2009 the Court received the following declaration from the Government:
“The Agents of the Austrian Government ... recognise that the duration of the three proceedings covered by the ECHR’s questions was not in compliance with Article 6 of the Convention. They therefore unilaterally declare that they are always prepared to compensate the applicant for that violation of the Convention and for the procedural costs incurred by her as a result (costs of representation at the domestic level and before the ECHR) and to pay her a total amount of EUR 5,000 free of any tax or other burden.
The Agents of the Government therefore suggest
that the ECHR take this information as a reason to strike the present application off the register pursuant to Article 37 § 1 (c) of the Convention in accordance with its constant practice ...”
By letter dated 26 May 2009 the applicant stated that the sum proposed by the Government was not acceptable.
The Court reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. Article 37 of the Convention provides that the Court may at any stage of the proceedings strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under points (a), (b) or (c) of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
Article 37 § 1 in fine states:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
deciding whether or not it should strike the present case out of its
list, the Court will have regard to the criteria emerging from its
case-law (see Tahsin Acar v. Turkey (preliminary objection)
[GC], no. 26307/95,
§§ 75-76, ECHR 2003 VI; Meriakri v. Moldova (striking out), no. 53487/99, §§ 31-32, 1 March 2005; Van Houten v. the Netherlands (striking out), no. 25149/03, §§ 33-35, ECHR 2005 IX; and Hassdenteufel v. Germany (dec.), no. 21214/03, 6 November 2007).
The Court notes that the present case raises the issue whether the length of the proceedings was “reasonable” within the meaning of Article 6 of the Convention.
It notes that it has already specified in various judgments and decisions, including in respect of the Republic of Austria, the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time” (see, for instance, Richter v. Austria, no. 4490/06, 18 December 2008; Gierlinger v. Austria, no. 38032/05, 29 November 2007; Bösch v. Austria, no. 17912/05, 3 May 2007; Brunnthaler v. Austria, no. 45289/99, 29 June 2006; and Sylvester v. Austria (no. 2), no. 54640/00, 3 February 2005).
The Government’s declaration contains an acknowledgment that the length of the proceedings in the instant case was not in compliance with Article 6. Furthermore the Court finds that the sum of 5,000 euros, covering non-pecuniary damage and costs and expenses, is consistent with the amounts awarded in similar cases.
Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). The Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine). Accordingly, the Court considers that the application should be struck out of the list.
For these reasons, the Court by a majority
Takes note of the terms of the respondent Government’s unilateral declaration;
Decides to strike the application out of its list of cases.
André Wampach Nina
Deputy Registrar President