Judicial Procedures, Undue Length of

• Author: International Law Group

In August 1999, Thomas R. Sylvester (applicant) filed an action in the European Court of Human Rights (ECHR) against the Republic of Austria (government). It alleged that the government's long drawn out procedures prejudicially delayed the Austrian recognition and enforcement of his U.S. divorce and custody judgment in violation of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR).

The applicant was a citizen and resident of Ohio when he married an Austrian woman in April of 1994 in the United States. The couple settled in Michigan where their daughter was born in September 1994. In October 1995, his wife took the daughter with her to live in Austria without applicant's consent. Applicant promptly petitioned for divorce in a Michigan court.

He also began proceedings in Austria to secure his daughter's return pursuant to the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670] [See Sylvester v. Austria, 2003 International Law Update 162 (Austrian courts' improper reliance on their own delayed enforcement of U.S. husband's rights to return of daughter wrongfully abducted to Austria by its mother breached Article 8, ECPHR).].

In April 1996, the Michigan court confirmed a default decree previously issued against the wife. The court pointed out that the wife had failed to properly move to set aside the default. It also granted the applicant sole custody over the daughter. Two months later, the applicant lodged a request with the Austrian Federal Ministry of Justice (FMJ) to recognize the Michigan decree.

Five months later, the FMJ turned the request down because the wife, having defaulted, had not been heard on the merits in the Michigan domestic proceeding. "Referring to Section 24(1) of the Fourth Implementing Regulation to the Marriage Act (FIRMA), 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 [Michigan] Court, had not been heard as she was considered to be in default, despite the fact that the applicant's petition for divorce had been duly served on her." [¶ 13]

In November 1996, the applicant filed a complaint with the Austrian Administrative Court (AC) which launched preliminary proceedings later that month. During January 1997, the AC received the observations of the FMJ and of the wife as a third party.

Almost two years...