AS TO THE ADMISSIBILITY OF
Application No. 12462/86
by Hans MAIRITSCH
against Austria
The European Commission of Human Rights sitting in private
on 13 July 1987 the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 9 October 1986
by Hans Mairitsch against Austria and registered on 13 October 1986
under file N° 12462/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian national born in 1941, is a
self-employed painter residing in Völkermarkt. He is represented
before the Commission by Dr. G. Seeber, a lawyer practising in
Klagenfurt.
On 20 January 1984 the applicant's marriage, concluded in
1972, was dissolved by the Klagenfurt Regional Court (Landesgericht).
Thereupon the applicant's former wife requested the partition
of the matrimonial property and savings (Aufteilung des ehelichen
Gebrauchsvermögens und der ehelichen Ersparnisse) in accordance with
SS. 81 et seq. of the Marriage Act (Ehegesetz) and SS. 98 et seq. of
the Civil Code (Allgemeines Bürgerliches Gesetzbuch).
The two spouses, inter alia, jointly owned a piece of land
and a house in Völkermarkt where they had lived together until 1983.
The applicant also used one room as office and parts of the cellar as
a store room for his business.
On 21 August 1985 the Klagenfurt District Court
(Bezirksgericht) partitioned the matrimonial property. Apart from
dividing the movable property the Court decided to transfer the
applicant's title to the premises to his former wife, who was ordered
to pay to the applicant the sum of 450.000 AS by way of compensation.
Upon the applicant's appeal (Rekurs), the Klagenfurt Regional Court
partly modified this decision on 11 October 1985 and assessed the sum
to be paid by the applicant's former wife at 500,000 AS; the
remainder of the appeal was dismissed.
The applicant's further appeal (Revisionsrekurs) was
dismissed by the Supreme Court (Oberster Gerichtshof) on 13 February
1986.
COMPLAINT
The applicant complains that he was deprived of his
co-ownership of the piece of land concerned in violation of Article 1
of Protocol No. 1 providing that no one shall be deprived of his
possessions except in the public interest. However, as the title to
the land was transferred to his former wife he claims that he was in
fact expropriated not in the public interest but for the benefit of a
private person.
THE LAW
The applicant complains that his share of formerly
jointly-owned premises was transferred to his former wife in the
course of the partition of the matrimonial property.
Article 1 of Protocol No. 1 (P1-1) to the Convention provides:
"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 contribrutions or penalties."
The Commission first observes that, although the actual
transfer of ownership was in the present case enforced by a court
order and thus by an act of a State organ, it is based on the
provisions of the Austrian Marriage Act governing relations between
(former) spouses in case of a dissolution of marriage. However, as
the Commission noted earlier, in all States Parties to the Convention,
the legislation governing private law relations between individuals
includes rules which determine the effects of these legal relations
with respect to property and, in some cases, compel a person to
surrender a possession to another. An example referred to by the
Commission in this context was precisely the division of matrimonial
estates. The Commission found that this type of rule cannot in
principle be considered contrary to Article 1 of the First Protocol
(P1-1) and, more precisely, that in such cases the passing of property,
resulting from legal limitations inherent in particular property
rights, should not be considered as constituting a deprivation of possessions
for the purposes of the second sentence of Article 1 (Art. 1) (Nos. 8588/79 and
8589/79, Dec. 12.10.82, D.R. 29 p. 64 [82]).
The Commission maintains this view. Even if the transfer of
title to movable or immovable property in case of a dissolution of
marriage may not be effected by way of a private transaction between
the former spouses but by a decision of a court or another State
organ, the transfer as such continues to be the result of obligations
stemming from general private law rules governing the conclusion and
dissolution of marriages and their legal consequences. An obligation,
resulting from such rules, to transfer property to the other spouse
cannot be considered contrary to Article 1 of Protocol No. 1 (P1-1) as such.
The Commission must nevertheless make sure that in determining
the effects on property of legal relations between individuals the law
does not create such irregularity that one person could be arbitrarily
and unjustly deprived of property in favour of another (Nos. 8588/79
and 8859/79, supra, p. 82; see also, mutatis mutandis, Eur.
Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,
Series A No. 52, p. 26, para. 69).
With respect to partition of matrimonial estates the
Commission notes that S. 21 para. 2 and S. 82 of the Austrian Marriage
Act provide only for the partition of movable or immovable tangible
property having served for the use of both spouses during the time of
marriage, including household effects and the matrimonial home
("eheliches Gebrauchsvermögen"). On the other hand, property brought
into the marriage or acquired by one spouse by way of succession or
gift is not normally subject to partition, nor is the property serving
for the use of one spouse only. These rules reflect the idea
underlying the Austrian matrimonial property regime that property
acquired during the marriage for serving the purposes of both spouses
shall be divided equitably between the spouses when marriage is
dissolved, as normally both spouses will have contributed to its
acquisition although ownership might be vested in one of them only.
They cannot therefore be generally considered as disregarding the
right of either spouse to the peaceful enjoyment of his or her
possessions even if the partition of the matrimonial estate may
necessitate the transfer of ownership from one spouse to the other in
order to award to each spouse an equitable share of the matrimonial
property.
It is true that in the present case the partition of the
matrimonial estate included the transfer of title to immovable
property which according to S. 90 of the Marriage Act shall be ordered
in exceptional cases only. However, the Commission's only task is to
ensure the observance of the obligations undertaken by the parties in
the Convention and it is in principle not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts. The Commission finds no indication that the
assumption of the Austrian courts, that exceptional circumstances
justifying the transfer also of immovable property existed in the
instant case, was based on arbitrary or unreasonable considerations.
Moreover, the Commission notes that the Austrian courts took into
account the value of the property thus transferred to the applicnt's
former wife and ordered her to pay compensation to the applicant.
The Commission accordingly does not find that there has been
any infringement of the applicant's right to the peaceful enjoyment of
his possessions or that he has been deprived of his possessions in
violation of Article 1 of Protocol No. 1 (P1-1).
It follows that 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)