AS TO THE ADMISSIBILITY OF
Application No. 13713/88
by J.M., F.M.,
H.M. and F.W.
against Austria
The European Commission of Human Rights sitting in private
on 8 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
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.M., F.M., H.M. and F.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 deliberated;
Decides as follows:
THE FACTS
The applicants are all Austrian citizens. The first applicant
was born in 1944 and lives in G., the second applicant was born in
1934 and lives in P., the third applicant was born in 1933 and lives
in G. S. and the fourth applicant was born in 1928 and lives in K.
All applicants are represented by the first applicant.
The facts submitted 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 M.'s intestacy that they were the heirs to the
estate. The first applicant's appeal (Rekurs) against this decision
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 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"). On 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 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
N., the brother of 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 N. (brother of 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 proceedings at an end, 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 at an end. The St. Pölten
Regional Court (Landesgericht) 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 N., 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 rejected the fourth applicant's further appeal as
neither of the grounds for such an appeal had been alleged or
established.
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.
THE LAW
1. The applicants allege a violation of Article 6 (Art. 6) of the
Convention in respect of the proceedings under the 1958 Act. 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 or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Commission notes that F.M., the uncle of the applicants,
died on 6 November 1975 and the first procedural step was taken by the
Mank District Court on or before 11 December 1975. The proceedings
continued at least until 1986. The Commission considers that it
cannot, on the basis of the file, determine whether there has been a
violation of Article 6 (Art. 6) as regards the length of the proceedings
without the observations of both parties.
The Commission therefore adjourns this part of the
application.
2. The applicants also allege a violation of Article 6 (Art. 6)
of the Convention in that the St. Pölten Regional Court on 4 December
1985 found that the Mank District Court judge should not take any
further decision in the case, but did not annul prior decisions he had
taken.
However, under Article 26 (Art. 26) of the Convention, the
Commission can only deal with this complaint after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law.
The Commission notes that the Supreme Court, in its judgment
of 26 March 1987, found that the applicants had failed to appeal
against the failure of the St. Pölten Regional Court to consider the
question of nullity of prior decisions.
Accordingly, the applicants have not exhausted the remedies
available to them under Austrian law in this respect. Moreover, an
examination of the case as it has been submitted does not disclose the
existence of any special circumstances which might have absolved the
applicants, according to the generally recognised rules of
international law, from exhausting the domestic remedies at their
disposal.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies in this respect,
and this part of the application must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
3. The applicants also allege violations of Article 1 of Protocol
No. 1 (P1-1) alone and taken together with Article 14 (Art. 14) of the
Convention. These provisions provide as follows:
Article 1 of Protocol No. 1 (P1-1):
"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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties."
Article 14 (Art. 14) of the Convention:
"The enjoyment of the rights and freedoms set forth in
this Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social
origin, association with a national minority, property,
birth or other status."
As to the complaint that the applicants were disregarded in
favour of a less appropriate candidate for succession to the farm, the
Commission recalls that, in accordance with Article 19 (Art. 19) of the
Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its established
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
As to the complaint under Article 14 (Art. 14) in connection
with Article 1 of Protocol No. 1 (P1-1) that the successor to the farm
was entitled to work it and keep the profits for the period whilst the
case was pending, whereas the applicants received no interest on their
entitlement, the Commission refers to its admissibility decision in
the Inze case (No. 8695/79, Dec. 5.12.84, D.R. 39 p. 26; cf. Eur.
Court H.R. judgment of 28 October 1987, Series A no. 126). The
Commission found that the system established by the Carinthian
equivalent of the 1958 Act "manifestly serves the public interest to
maintain viable farms ... It is ... inevitable for achieving the
basic aim of the legislation that the financial compensation to be
paid to the ceding heirs must be calculated in such a manner that it
does not encroach on the viability of the farm ...".
This reasoning applies not only to questions of calculation of
the transfer price, but also to other terms of the transfer, including
the payment of interest from the date of death. The Commission finds
that if the heir to the farm were required to pay interest, the
situation could arise where he would not be able to afford the
payments to the other heirs. Conversely, if he were required to
account for profits on the farm since his succession, he could be in a
position which made the farm no longer viable.
As to the complaint that the length of the proceedings was in
itself a violation of Article 1 of Protocol No. 1 (P1-1), the Commission
recalls that it has adjourned the substantive issue of the length
of the proceedings. Moreover, the question of loss accruing to
applicants through the length of proceedings is a question of damage
sustained in the context of Article 6 (Art. 6) of the Convention
rather than a substantive claim in its own right under Article 1 of
Protocol No. 1 (P1-1) (cf. Eur. Court H.R., Zanghi judgment of 19
February 1991, Series A no. 194 para. 22).
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.
For these reasons, the Commission unanimously
DECIDES TO ADJOURN its examination of the complaint
under Article 6 (Art. 6) of the Convention as to the length
of proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy