AS TO THE ADMISSIBILITY OF
Application No. 29989/96
by Brigitte BEKERT
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 February 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
M. VILA AMIGÓ
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 12 June 1995 by
Brigitte BEKERT against Austria and registered on 26 January 1996 under
file No. 29989/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national, born in 1947 and residing
in Micheldorf (Austria). In the proceedings before the Commission she
is represented by Messrs. Themmer, Prunbauer and Toth, lawyers
practising in Vienna.
The facts, as submitted by the applicant, may be summarised as
follows.
The applicant is the sole statutory heir of her aunt, who had
been the owner of an apartment in Vienna. J.G., the defendant in the
first proceedings, obtained from the aunt before her death a special
power of attorney (Vollmacht) authorising him to conclude on her behalf
a sales contract in respect of the apartment. On 6 February 1982 the
aunt died. On 30 December 1982 the contract on the sale of the
apartment was concluded and J.G. was soon thereafter registered as its
owner in the land register (Grundbuch).
Meanwhile, the applicant had instituted proceedings to have the
sales contract declared null and void, to have cancelled the
registration of J.G. as the owner in the land register, to have herself
registered as the owner and to obtain the factual power to dispose of
the apartment (Verfügungsgewalt).
On 14 August 1990 she was registered in the land register as the
owner of the apartment after having been put as statutory heir into the
possession of the estate. Nevertheless, litigation between the
applicant and J.G. continued, as the later refused to accept the
applicant's rights.
In the following the different procedural steps taken by or
against the applicant are set out.
a. The proceedings to have cancelled the registration of J.G. as the
owner in the land register
In October 1983 the applicant brought an action against J.G. to
cancel the registration of J.G. as the owner of the apartment in the
land register (Löschungsklage) on the ground that her aunt had lacked
legal capacity when she had signed the special power of attorney
authorising J.G. to conclude sales contracts on her behalf. The
applicant claimed that the sales contract of her aunt's apartment was
consequently null and void.
On 21 December 1984 and 15 March 1985 hearings took place before
the Vienna District Court (Bezirksgericht). On 30 December 1985 the
applicant was put into the possession of the estate. Between
31 April 1986 and 30 June 1987 further hearings took place before the
District Court.
On 19 July 1987 the District Court declared J.G.'s ownership of
the apartment null and void and ordered that his registration as the
owner in the land register be cancelled.
On 12 April 1988 the Vienna Regional Court (Landesgericht)
dismissed J.G.'s appeal.
On 8 February 1990 the Supreme Court (Oberster Gerichtshof)
rejected J.G.'s extraordinary appeal on points of law
(außerordentlicher Revisionsrekurs).
On 14 August 1990 the Vienna District Court, acting as Land
Register Court (Grundbuchsgericht) registered the applicant as the
owner of the apartment in the land register (grundbücherliche
Einverleibung des Eigentumsrechtes).
b. Re-opening of the proceedings for having J.G. cancelled as owner
On 2 April 1990 J.G. brought an action for the re-opening of the
proceedings by which his registration had been cancelled as the owner
of the apartment in the land register (Wiederaufnahmsklage). He
submitted that he was in the possession of new evidence which he had
not been able to use in the previous proceedings.
On 27 June 1990 the Vienna District Court rejected this action
as it considered that J.G. had not given sufficient reason for his
request for the re-opening of the proceedings.
On 23 April 1991 the Vienna Regional Court dismissed J.G.'s
appeal.
On 26 September 1991 the Supreme Court granted J.G.'s
extraordinary appeal on points of law (außerordentlicher
Revisionsrekurs), quashed the Regional Court's decision and ordered the
District Court to take evidence. It found that contrary to the view
of the lower courts the witnesses proposed by J.G. had to be heard in
order to get a full picture of the legal capacity of the aunt at the
relevant time.
Subsequently the District Court heard six witnesses as well as
the parties and obtained a further court expert report by a
psychiatrist. On 29 December 1992 it dismissed J.G.'s action as it
found that there were no sufficient reasons for re-opening the
proceedings.
On 6 July 1993 the Vienna Regional Court dismissed J.G.'s appeal
and on 21 October 1993 the Supreme Court rejected J.G.'s further
extraordinary appeal on points of law.
c. Eviction proceedings against J.G.
On 7 June 1990, after the proceedings to cancel the registration
of J.G. as the owner of the apartment had been terminated, the
applicant brought an action for eviction (Räumungsklage) against J.G.
who had rented out the apartment to a third person and was still in
possession. In these proceedings J.G. claimed that a tacit tenancy
contract had been concluded between the applicant and himself, since
the applicant had not previously requested him to leave the apartment.
On 21 December 1990 and 21 January 1991 two hearings took place
before the Vienna District Court.
On 22 April 1991 the applicant approached the tenant of the
apartment and requested him to move out and to hand the keys over to
her. The tenant agreed, left the apartment and gave her the keys.
In the court hearing of 14 May 1991 the applicant confined her
claim to the costs incurred in the eviction proceedings, because she
had, due to the moving out of the tenant, succeeded in obtaining
possession of the apartment. This initiative, however, lead to further
sets of proceedings against her (see d. and g. below).
On 3 October 1991 the applicant amended her claim and now
requested the Court to declare that J.G had no right to be in the
possession of the apartment or to dispose of it.
On 21 April 1992 the District Court decided to suspend the
proceedings for eviction until the final decision haad been taken in
the application to re-opening the proceedings (see b. above). In its
decision the Court found that the outcome of the re-opening proceedings
was essential for the eviction proceedings, as the latter proceedings
presupposed that the applicant was actually the owner of the apartment.
On 25 May 1992 the applicant appealed against this decision.
On 28 July 1992 the Vienna Regional Court dismissed the appeal.
After the District Court, on 8 September 1995, had discontinued
enforcement proceedings instituted by J.G. against the applicant (see
g. below), she requested, at an unspecified date, that the proceedings
be resumed and subsequently concluded a settlement with J.G. concerning
the costs of the proceedings.
d. Proceedings for interference with possession
As the applicant had obtained the possession of the apartment by
getting the keys from the tenant, J.G., in May 1991, lodged an action
against the applicant for interference with his possession
(Besitzstörungsklage). He claimed that the applicant's initiative was
unlawful. On 12 July 1991 the applicant commented on the action and
on 13 August 1991 the Vienna District Court held a hearing.
On 8 October 1991 the District Court dismissed the action.
On 11 November 1991 J.G. appealed and on 20 December 1991 the
applicant commented on the appeal.
On 17 February 1992 the Regional Court dismissed J.G.'s appeal.
It found that J.G. lacked a serious interest in receiving legal
protection and that he had exercised his right for the sole purpose of
causing prejudice to the applicant.
e. Re-opening of the proceedings for interference with possession
On 27 April 1992 J.G. brought an action for the re-opening of the
proceedings for interference with his possession. He submitted that
the Regional Court had not taken into consideration that the
proceedings in his action to re-open the proceedings relating to the
cancelling of his registration as the owner of the apartment in the
land register (see b. above) had not yet become final. On 3 September
1992 the applicant commented on J.G.'s action.
On 28 September 1992 the Vienna Regional Court decided to re-open
the proceedings for interference with possession and found that the
applicant had interfered with J.G.'s possession. It ordered the
applicant to restore J.G.'s possession by transferring the apartment
to him.
Subsequently J.G. instituted enforcement proceedings against the
applicant as she refused to transfer the apartment to him
(see g. below).
f. Proceedings for a declaratory judgment that J.G. had no right to
possession
In response to the enforcement proceedings instituted by J.G.
against the applicant on the basis of the Regional Court's decision of
28 September 1992 (see e. above and g. below), the applicant, on
21 April 1993, filed an action for a declaratory judgment
(Feststellungsklage) that J.G. had no right to possession of the
apartment.
On 12 September 1993 the Regional Court decided to suspend the
proceedings for a declaratory judgment until a final decision had been
given in the application to re-open of the proceedings to cancel J.G.'s
registration as owner in the land register (see b.).
On 23 December 1993 the applicant, referring to the Supreme
Court's decision of 21 October 1993 (see b. above), the applicant
requested that the proceedings be resumed.
On 29 September 1994 the Regional Court gave a declaratory
judgment finding that J.G. had no right to possession of the apartment.
It further decided that the applicant had the exclusive right to
possession of the apartment.
On 28 February 1995 the Vienna Court of Appeal (Oberlandes-
gericht) dismissed J.G.'s appeal. J.G. lodged a further extraordinary
appeal on points of law (außerordentliche Revision) with the Supreme
Court.
On 27 June 1995 the Supreme Court rejected the extraordinary
appeal. The Supreme Court found that the applicant had a valid
interest in a declaratory judgment since the protection of possession
by the law also included protection of the factual possessor (Natural-
besitzer) against persons who had a right to possession. Since the
applicant had already been the factual possessor of the apartment the
only avenue for her had been an action for a declaratory judgment. The
effect of the findings of a court in such proceedings went beyond any
finding in enforcement proceedings, as a declaratory judgment finally
settled who was the lawful possessor of a given object. Moreover, the
applicant had not been prevented from filing an action for a
declaratory judgment by the fact that proceedings for eviction had also
been instituted because after the claim had been reduced to one for
procedural costs such proceedings could no longer determine the issue
of lawful possession.
g. Enforcement proceedings against the applicant
After the Regional Court, on 28 September 1992, had found that
the applicant had interfered with J.G.'s possession and as she refused
to comply with this decision, J.G., at an unspecified date, instituted
enforcement proceedings against her.
On 23 December 1993 the applicant, referring to the Supreme
Court's decision of 21 October 1993 finally rejecting J.G.'s claim for
re-opening the ownership proceedings (see b. above), requested that the
enforcement proceedings against her be discontinued.
On 29 April 1994 the Vienna District Court discontinued the
enforcement proceedings against the applicant.
On 26 July 1994 the Regional Court, granted J.G.'s appeal against
the District Court's decision and dismissed the applicant's request to
discontinue the enforcement proceedings against her. It found that the
decision establishing the applicant's ownership did not automatically
grant her a right to evict J.G. This issue had to be settled in the
eviction proceedings which were still pending (see c. above). Since
J.G. had claimed in the eviction proceedings that he had a right to
retention due to the investments made by him (Zurückbehaltungsrecht)
there was no reason to deny him legal protection.
On 30 November 1994 the Supreme Court confirmed the Regional
Court's decision. The Supreme Court also stated that the applicant's
allegation that J.G. had introduced enforcement proceedings for the
sole purpose of causing prejudice to her could not be taken into
consideration in proceedings for discontinuation of enforcement
proceedings. Rather, this issue should be raised in an action for
opposing enforcement (Oppositionsklage). The Supreme Court's decision
was served on the applicant on 22 February 1995.
In April 1995 the applicant brought an action against J.G. in the
District Court opposing enforcement of the Regional Court's decision
of 28 September 1992 (see e. above).
On 26 May 1995 the District Court decided to suspend the
proceedings until the termination of the proceedings for a declaration
that J.G. had no right to possession (see f.).
Following the Supreme Court's decision of 27 June 1995
(see f. above), the applicant requested again that the enforcement
proceedings against her be discontinued.
On 8 September 1995 the Vienna District Court discontinued the
enforcement proceedings.
COMPLAINTS
The applicant complains that the above proceedings had not been
terminated within a reasonable time as required by Article 6 para. 1
of the Convention.
She further complains that several decisions given by the
Austrian courts in the proceedings for interference with possession and
the ensuing enforcement proceedings deprived her of her right to
possession and violated her right under Article 1 of Protocol No. 1 to
peaceful enjoyment of her possessions.
THE LAW
1. The applicant complains that the proceedings for obtaining
ownership and possession over an apartment which she had inherited from
her aunt had not been terminated within a reasonable time as required
by Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention provides, as far
as relevant, as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time
..."
The Commission considers that the applicant's complaint about the
length of the proceedings refer to seven sets of proceedings. The
subject matters in the various proceedings instituted by and against
the applicant were different. The first set of proceedings, which had
been instituted by the applicant, concerned the cancelling of J.G.'s
registration as owner of an apartment in the land register and its
purpose was to bring about the registration of the applicant as owner
of that apartment in the land register (see a. of "The Facts"). The
second set of proceedings, instituted by J.G., concerned the reopening
of these proceedings (see b. of "The Facts"). The third set of
proceedings, eviction proceedings instituted by the applicant against
J.G., had the purpose of confering on her the right of possession of
the apartment (see c. of "The Facts"). Since the applicant had
meanwhile obtained possession of the apartment J.G. instituted a fourth
set of proceedings, namely proceedings for interference with
possession, which had the purpose of having possession of the apartment
retransferred to him (see d. of "The Facts"). The fifth set of
proceedings concerned the re-opening of these proceedings (see e. of
"The Facts"). The sixth set of proceedings concerned the applicant's
action for a declaratory judgment and its purpose was to have her de
facto possession of the apartment recognised in law (see f. of "The
Facts"). Lastly, J.G. introduced proceedings for the enforcement of
the decision taken in the proceedings for interference with possession
(see g. of "The Facts").
The Commission finds that it has to examine the above mentioned
different sets of proceedings separately.
a. As regards the proceedings tor cancel the registration of J.G.
in the land register as owner of the apartment at issue (see a. of "The
Facts") and the proceedings instituted by J.G. for their re-opening
(see b. of "The Facts"), the Commission observes that these proceedings
ended with the Supreme Court's decision of 8 February 1990 and the
Supreme Court's decision of 21 October 1993 respectively.
However, the applicant introduced her application with the
Commission on 12 June 1995 and the Commission, under Article 26
(Art. 26) of the Convention, may only deal with the matter after all
domestic remedies have been exhausted and within a period of six months
from the date on which the final decision was taken.
It follows that in this respect the applicant has not complied
with the time limit stipulated by Article 26 (Art. 26) of the
Convention. This part of the application must, therefore, be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
b. As regards the remaining sets of proceedings the Commission
observes that the proceedings for interference with possession were
terminated on 17 February 1992, the re-opening proceedings relating
thereto on 28 September 1992, the proceedings for a declaratory
judgment on 27 June 1995 and the enforcement proceedings on
8 September 1995. As regards the eviction proceedings against J.G.,
the Commission observes that these proceedings, after they had been
suspended on 21 April 1992, did not lead to a final court decision but
merely to settlement between the parties regarding the costs of the
proceedings which took place at an unspecified date after
8 September 1995.
However, the Commission need not determine whether or not the
applicant has complied in this respect with the six months' time-limit
under Article 26 (Art. 26) of the Convention because, for the following
reasons the application is, in any event, manifestly ill-founded.
2. The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see Eur. Court HR, Vernillo
v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30).
a. As regards the proceedings for interference with possession and
the ensuing enforcement proceedings, the Commission finds that these
proceedings started in May 1991, when J.G. filed an action for
interference with possession, and - assuming that the enforcement
proceedings constituted a second stage and natural extension of
them - ended on 8 September 1995, when the District Court discontinued
the enforcement proceedings against the applicant. Thus, they lasted
for approximately four years and four months. The Commission finds,
however, that the period from 17 February 1992, when the Regional Court
dismised J.G.'s appeal, to 27 April 1992, when J.G. brought an action
for re-opening of the proceedings, has to be subtracted (see Eur. Court
HR, Poiss v. Austria judgment of 23 April 1987, Series A no. 117-C,
p. 103, paras. 51-53). The period relevant under Article 6 para. 1
(Art. 6-1) of the Convention was therefore approximately four years and
one month.
The Commission finds that the case was not particularly complex.
As regards the conduct of the authorities, the Commission
observes that the action was filed in May 1991, the District Court
decided on 8 October 1991 and the Regional Court on 17 February 1992.
After having decided to re-open the case, the Regional Court, on
28 September 1992, decided again. The Commission therefore finds that
the authorities have dealt speedily with the case.
The applicant, however, did not comply with the Regional Court's
decision and J.G. therefore requested the enforcement of the Regional
Court's decision. The Commission finds that the enforcement
proceedings were brought about by the applicant's conduct and their
length is entirely attributable to her.
The Commission therefore finds that in the above proceedings
there is no appearance of a violation of the applicant's right under
Article 6 para. 1 (Art. 6-1) to a hearing within a reasonable time.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
b. As regards the proceedings for a declaratory judgment, the
Commission notes that these proceedings started on 21 April 1993 when
the applicant filed her action and ended on 27 June 1995, when the
Supreme Court rejected J.G.'s extraordinary appeal on points of law.
Thus, the proceedings lasted for two years and three months.
The Commission finds that these proceedings were rather complex
as they involved difficult questions of law, in particular whether the
applicant in view of the different proceedings pending had a valid
interest in a declaratory judgment.
As regards the conduct of the authorities and parties, the
Commission notes that the applicant filed her action on 21 April 1993,
the Regional Court, on 12 September 1993, decided to suspend
proceedings pending the outcome of another set of proceedings, on
23 December 1993 the applicant requested that proceedings be resumed
and on 23 September 1994 the Regional Court gave its judgment. On
28 February 1995 the Vienna Court of Appeal dismissed J.G.'s appeal and
on 27 June 1995 the Supreme Court rejected his extraordinary appeal.
The Commission finds that the Austrian courts dealt speedily with
the case, in particular, the suspension of the proceedings ordered by
the Regional Court did not lead to any unreasonable delay.
The Commission therefore finds that in the above proceedings
there is no appearance of a violation of the applicant's right under
Article 6 para. 1 (Art. 6-1) to a hearing within a reasonable time.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
c. As regards the eviction proceedings against J.G., the Commission
observes that these proceedings started on 7 June 1990, when the
applicant filed her action. As regards the date of the termination of
the proceedings the Commission observes that they did not lead to a
final judgment but were terminated by a settlement between the parties
concluded at an unspecified date after 8 September 1995. The
Commission finds that the proceedings at issue lasted some five years
and three months.
In assessing the reasonableness of this duration, the Commission,
however, cannot overlook that the eviction proceedings became devoid
of their purpose after the applicant, on 22 April 1991, had obtained
possession of the apartment. Thus, the purpose of these proceedings
was no longer having J.G. evicted but merely the question who had to
bear the costs incurred in these proceedings. Moreover, on
21 April 1992 these proceedings had been suspended in order to await
the outcome of other proceedings. Although the latter proceedings were
terminated on 21 October 1993, the applicant waited at least until
8 September 1995 before requesting the continuation of the eviction
proceedings.
In these circumstances the Commission finds that there is no
appearance of a violation of the applicant's right under Article 6
para. 1 (Art. 6-1) to a hearing within a reasonable time in the above
proceedings.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
convention.
3. The applicant further complains that several decisions given by
the Austrian courts in the proceedings for interference with possession
and the ensuing enforcement proceedings deprived her of her right to
possession and violated her right under Article 1 of Protocol No. 1
(P1-1) to peaceful enjoyment of her possessions.
Article 1 paragraph 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law."
The Commission recalls that the mere fact that an individual was
the unsuccessful party to private litigation concerning the possession
or ownership of a thing is not sufficient to engage State
responsibility for an alleged violation of Article 1 of Protocol No. 1
(P1-1) (No. 11949/86, Dec. 1.12.86, D.R. 51, p. 195).
The Commission observes that in the various proceedings
instituted by the applicant against J.G. or by the latter against her
the Austrian courts had to determine which of the two parties was the
lawful possessor of an apartment and once this question had been
settled, to grant enforcement of the court decision so reached.
Moreover, after the applicant had obtained possession of the apartment
at issue she remained in possession although, due to the fact that she
had obtained possession without having recourse to the assistance of
the law enforcing authorities, the lawfulness of this possession
remained doubtful for some time.
In these circumstances the Commission finds that there is no
appearance of a violation of the applicant's right to peaceful
enjoyment of her possessions under Article 1 of Protocol No. 1 (P1-1).
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy