FINAL
SECOND CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 13713/88
by J., F. H. and W.
against Austria
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 October 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 20 October 1987
by J., F., H. and W. against Austria and registered on 29 March 1988
under file No. 13713/88 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the Commission's decision of 8 April 1991 to
declare the application partly inadmissible;
Having regard to the observations submitted by the respondent
Government on 2 July 1991 and the applicants' observations in reply
submitted on 3 September 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are all Austrian citizens. The first applicant
was born in 1944 and lives in Gerersdorf, the second applicant was born
in 1934 and lives in Petzenkirchen, the third applicant was born in
1933 and lives in Gross Sierning and the fourth applicant was born in
1928 and lives in Kilb. The second, third and fourth applicants are
represented by the first applicant.
The facts of the case as submitted by the parties may be
summarised as follows.
F.M., the uncle of the applicants, died on 6 November 1975.
On 11 December 1975 the Mank District Court (Bezirksgericht)
received the declaration by the applicants and the other persons
entitled under F.M.'s intestacy that they were the heirs to the estate.
The first applicant's appeal (Rekurs) against this act was rejected by
the St. Pölten Regional Court (Kreisgericht) on 22 January 1976, the
Court finding that there lay no appeal against the simple receipt of
a declaration. This decision was confirmed by the Supreme Court
(Oberster Gerichtshof) on 29 April 1976. On 13 September 1976 the Mank
District Court found that the farm belonging to the late F.M. did not
fall within the definition of the Agricultural Succession (Appointment
of Heirs) Act 1958 (Bundesgesetz über besondere Vorschriften für die
bäuerliche Erbteilung (Anerbengesetz) - "the 1958 Act"). Upon the
first applicant's appeal, the St. Pölten Regional Court found on 20
October 1976 that the farm did fall within the definition of the 1958
Act, and that it was accordingly an hereditary farm (Erbhof). The
Supreme Court rejected the further appeal (Revisionsrekurs) of the
third and fourth applicants on 2 June 1977, confirming that the farm
was an hereditary farm.
On 7 September 1977 the Mank District Court found inadmissible
as being out of time an application the applicant had made on
17 February 1976 concerning the priority of heirs. On the first
applicant's appeal the St. Pölten Regional Court found on
12 October 1977 that the application was not out of time as, at the
relevant time, it had not been determined that the farm was an
hereditary farm. The Supreme Court, on 16 March 1978, confirmed the
decision of 12 October 1977 and rejected the further appeal
(Revisionsrekurs) made by the third and fourth applicants.
On 23 January 1979 the Mank District Court ordered an expert's
report to establish whether the brother of F.M. was physically a fit
person to take over the hereditary farm. On 18 November 1979,
referring to the medical report of 27 July 1979 and the opinion of the
Lower Austrian Chamber of Agriculture (Niederösterreichische
Landes-Landwirtschaftskammer), the Mank District Court found that J.M.,
the brother of F.M., was the heir for the purposes of the 1958 Act and
the farm was transferred to him. The St. Pölten Regional Court
rejected appeals by the first and second applicants on 2 July 1980.
Further appeals by both applicants were rejected for formal reasons by
the Supreme Court on 1 October 1980. An application by the first
applicant to re-open the proceedings was declared inadmissible by the
Mank District Court on 24 February 1981 on the ground that no such
application could be made. The decision was confirmed by the St. Pölten
Regional Court on 25 November 1981. A further appeal was likewise
rejected by the Supreme Court on 13 January 1982. A further request
by the first applicant for the proceedings to be re-opened was rejected
by the Mank District Court on 16 February 1982.
On 29 November 1982 the Mank District Court appointed two experts
to determine the transfer price (Ubernahmspreis) of the farm. After a
decision of 14 March 1983 by which it blocked the late F.M.'s saving
books, the Mank District Court appointed a third expert on
3 December 1983.
On 29 May 1984 the Mank District Court rejected the first
applicant's challenge to two of the experts and fixed the transfer
price of the farm at AS 2,100,000. Appeals by J.M. (brother of F.M.)
and by the applicants were rejected by the St. Pölten Regional Court
on 13 July 1984.
On 12 October 1984 the St. Pölten Regional Court rejected the
appeals by the third and fourth applicants concerning experts' fees.
On 17 January 1985 the Supreme Court rejected further appeals by
the applicants against the decision of the St. Pölten Regional Court
of 13 July 1984. The transfer price for the farm of AS 2,100,000
thereby became final.
The first, third and fourth applicants and a niece of F.M.
challenged the presiding judge at the Mank District Court on the ground
that he had made inappropriate comments. The St. Pölten Regional Court
rejected the challenge on 27 February 1985. It considered that, apart
from the fact that there was no indication that the judge in question
was biased, the challenge was an attempt to have a further appeal
against the substantive decisions already taken in the proceedings.
An appeal to the Vienna Court of Appeal (Oberlandesgericht) was
rejected by that court on 21 May 1985. A purported further appeal was
refused by the Mank District Court on 17 July 1985 on the ground that
no such remedy existed.
On 4 December 1985, in reply to a further challenge by the
second, third and fourth applicants and a niece of F.M., the St. Pölten
Regional Court accepted that it could appear to an outsider that the
judge of the Mank District Court was not completely impartial in that
he had delayed preparing interlocutory decisions in order to deal with
them at the same time as a final decision. As there had been a
considerable press campaign against the judge, the court found that the
judge should not take any further decisions in the case. Previous
decisions were not affected. The applicants' then representative
received the decision on 17 January 1986.
On 1 April 1986 the new judge (a) ordered the registration of the
transfer of the farm, (b) calculated the shares of each heir and
declared the closure of the above proceedings, and (c) rejected an
application by the applicants for appointment of a new heir to the
farm. The first applicant appealed against all three decisions and the
remaining three applicants appealed against the registration of the
transfer and the declaration that the proceedings were closed. The St.
Pölten Regional Court on 17 December 1986 found that it was no longer
possible to appoint a new successor, but that the question of
apportionment of the profits of the farm had not been properly
considered, and should be remitted to the Mank District Court. On
26 March 1987 the Supreme Court, considering the further appeals of all
four applicants and of J.M., rejected the applicants' appeal and
restored the decisions of the Mank District Court of 1 April 1986. In
connection with the successful challenge to the judge of the Mank
District Court, the Supreme Court found that the applicants could have
appealed against the failure to deal in the decision with the question
of nullity of decisions taken by the judge, but that they had failed
to do so.
On 4 August 1987 the Mank District Court rejected an application
by the fourth applicant for payment of AS 652,987.61 (compared with his
entitlement pursuant to the proceedings of AS 273,285.14). The
difference was made up by interest accrued over the years since the
death of F.M. The fourth applicant's appeal (Rekurs) to the St. Pölten
Regional Court was rejected on 16 September 1987 as there was no
provision in non-contentious proceedings for interest as claimed. Any
claim for interest would have to be made in civil proceedings by way
of a claim on the sum due under the succession. The Supreme Court on
18 December 1977 rejected the fourth applicant's further appeal as
neither of the grounds for such an appeal had been alleged or
established.
On 13 May 1988 the Mank District Court entered J.M. as proprietor
of the farm in the land registry.
COMPLAINTS
The applicants allege a violation of Article 6 of the Convention
based on the length of the proceedings. They see a further violation
of Article 6 of the Convention in that, although the St. Pölten
Regional Court on 4 December 1985 found that the District Court judge
had not been impartial, it failed to annul previous decisions and remit
the case back for further consideration.
The applicants also allege a violation of Article 1 of Protocol
No. 1 in that, although they should have been appointed heirs (Anerben)
to the farm, a person less suitable was appointed. They see a further
violation of the provision in the length of the time taken to determine
the succession for which period they received no interest. In this
connection they also allege a violation of Article 14 of the Convention
in that the heir to the farm was entitled to profits from it while the
proceedings were pending, whereas they received no interest on their
entitlement to the estate.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 October 1987 and registered
on 29 March 1988.
On 8 April 1991 the Commission decided to declare inadmissible
the complaint concerning the alleged violation of the applicants'
property rights, and to communicate to the respondent Government the
complaint concerning the length of the proceedings.
The respondent Government submitted their observations on
2 July 1991, after extension of the time-limit, and the applicants
submitted their observations in reply on 3 September 1991.
On 2 September 1991 the Commission decided to transfer the case
to a Chamber.
THE LAW
The applicants consider that the proceedings under the
Agricultural Succession (Appointment of Heirs) Act 1958 (Bundesgesetz
über besondere Vorschriften für die bäuerliche Erbteilung
(Anerbengesetz)) exceeded a reasonable time within the meaning of
Article 6 (Art. 6) of the Convention. Article 6 para. 1 (Art. 6-1),
so far as relevant, provides:
"In the determination of his civil rights and
obligations ... everyone is entitled to a ...
hearing within a reasonable time ..."
The Government contend that, given the factual and legal
complexity of the case and the applicants' conduct, the application is
manifestly ill-founded or, in the alternative, that there is no
violation of the Convention.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of the reasonableness of the length of proceedings, namely the
complexity of the case, the applicants' conduct and that of the
competent authorities, and having regard to all the information in its
possession, that a thorough examination of this complaint is required,
both as to the law and as to the facts.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicants' complaint about the length of the proceedings.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy