CASE OF SYLVESTER v. AUSTRIA (NO. 2)
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Christos Rozakis
7. The applicant was born in 1953 and lives in Cincinnati, Ohio. 8. In April 1994 the applicant married an Austrian citizen. The marriage was concluded in the United States of America and the couple set up their common residence in Michigan. On 11 September 1994, their daughter was born. 9. On 31 October 1995, after his wife had left the United States with their daughter without obtaining the applicant’s consent and had set up her residence in Austria, he brought a petition for divorce in the Oakland Circuit Court (Michigan). He also introduced court proceedings in Austria requesting the return of his daughter under the 1980 Hague Convention on the Civil Aspects of Child Abduction. 10. On 2 November 1995 the applicant’s wife brought a petition for divorce in the Graz District Civil Court. 11. On 16 April 1996 the Oakland Circuit Court confirmed a default decree of divorce issued in January 1996, noting that Mrs Sylvester had failed to comply with the requirements for setting aside the default. Further, it awarded the applicant sole custody over the couple’s daughter and ordered that she should reside with him in case of her return. 12. On 5 June 1996 the applicant filed a request for recognition of the divorce decree with the Austrian Federal Ministry of Justice. 13. On 26 September 1996 the Federal Ministry of Justice refused to grant this request. Referring to Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act (4. Durchführungsverordnung zum Ehegesetz), it considered that a recognition of the divorce decree would be contrary to Austrian ordre public as the applicant’s wife, being the defendant in the proceedings before the Oakland Circuit Court, had not been heard as she was considered to be in default, despite the fact that the applicant’s petition for divorce had not been duly served on her. 14. Thereupon, on 15 November 1996 the applicant filed a complaint with the Administrative Court. The latter instituted preliminary proceedings on 25 November 1996. 15. On 9 January 1997 the Administrative Court received the observations of the Federal Ministry of Justice and, on 20 January 1997, it received the observations of Mrs Sylvester as a third party. 16. On 18 December 1998 the Administrative Court referred the case to the Constitutional Court requesting it to review the constitutionality of Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act. 17. It argued that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which has constitutional rank in Austrian law, applied to the proceedings concerning the recognition of foreign divorce decrees as their outcome had a direct effect on the civil law relationship of the persons concerned. However, it was incompatible with that Article that the Federal Ministry of Justice, an administrative authority, decided upon the request for recognition. The subsequent control by the Administrative Court was not sufficient where the subject matter, such as family law relations, fell within the very core of the notion of “civil rights”. 18. The Constitutional Court received the Administrative Court’s request on 19 February 1999. The Administrative Court submitted three further requests raising the same issue, which were received by the Constitutional Court on 13 July, 21 October and 12 November 1999, respectively. The proceedings in these cases were joined to proceedings in the applicant’s case. 19. On 4 February 2000 the Administrative Court supplemented its request in the applicant’s case. 20. On 28 February 2001 it supplemented its requests in the three other cases. 21. On 16 June 2001 the Constitutional Court gave its judgment, finding that Section 24 § 1 of the Fourth Implementing Regulation to the Marriage Act was in conformity with the constitution. 22. The Constitutional Court noted firstly that the proceedings at issue were concerned with the questions whether recognition was compatible with Austrian ordre public. Thus, the recognition of foreign divorce decrees was closely linked to the question whether they could be enforced in Austria. Referring to a number of decisions, in which the European Commission of Human Rights had found that Article 6 did not apply to enforcement proceedings, the Constitutional Court expressed doubts as to the applicability of Article 6. 23. Even assuming that Article 6 applied, referring to the Court’s Zumtobel v. Austria judgment (of 21 September 1993, Series A no. 268-A), the Constitutional Court held that the Administrative Court’s scope of review was sufficient, since proceedings concerning the recognition of foreign divorce decrees involved mainly questions of law. Where an assessment of facts was required, as for instance where the question arose whether an action had been duly served, the Administrative Court was empowered to review whether the administrative authority’s assessment was correctly based on the contents of the file. 24. On 5 October 2001 having resumed its proceedings, the Administrative Court dismissed the applicant’s complaint. The decision was served on the applicant on 29 October 2001.