Resolution CM/ResDH(2010)37[1]
Execution of the judgment of the European Court of Human Rights
Osinger against Austria
(Application No. 54645/00, judgment of 24 March 2005, final on 24 June 2005)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the lack of a public hearing in proceedings concerning an inheritance (violation of article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)37
Information about the measures to comply with the judgment in the case of
Osinger against Austria
Introductory case summary
The case concerns the lack of a public hearing in succession proceedings lasting from 1989 until 1999 to determine who should inherit a farm which had belonged to the applicant’s brother (violation of Article 6§1).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
-
4 000 EUR
4 000 EUR
Paid on 12/07/2005
b) Individual measures
The European Court considered that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage the applicant may have sustained.
II.General measures
1) Legislative reform: At the material time proceedings on matters concerning inheritance were subject to the Non-Contentious Proceedings Act of 1854 (Ausserstreitgesetz) which did not provide for public hearings. On 01/01/2005 the new Non-Contentious Proceedings Act entered into force, repealing the 1854 Act. Sections 18 and 19 of the 2005 Act now provide that, as a general principle, public and oral hearings should be held. For matters of inheritance, in camera hearings remain the norm (Section 185), except for succession proceedings held to designate an heir as in the present case, in which a public hearing is provided (Section 162).
2) Publication and dissemination: The European Court’s judgment was published in German, not least in the Newsletter of the Austrian Human Rights Institute (NL 2005, p.76(NL05/2/07), available online at (/docs/052/05207). As with all judgments of the Court against Austria concerning a violation before civil courts, the judgment was automatically transmitted to the President of the Higher Regional Court concerned with the request to disseminate it in his area of jurisdiction. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS).
III.Conclusions of the respondent state
The government considers that no individual measure is required, apart from the payment of the costs and expenses, that the general measures taken will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
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