AS TO THE ADMISSIBILITY OF
Application No. 26632/95
by Ulrike MAYER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 25 January 1995
by Ulrike MAYER against Austria and registered on 3 March 1995 under
file No. 26632/95;
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 citizen, born in 1960 and residing
in Dornbirn. Before the Commission she is represented by Mr. E. Hagen,
a lawyer practising in Dornbirn.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
In 1986 the applicant's father J.G., who at that time ran a
butcher's shop, had considerable debts. In order to continue his
business, he took a loan of ATS 250.000 and, as security, signed as
guarantor a bill of exchange (Wechselbürge) in the amount of
DEM 50.000. Three months later J.G. received money from the
applicant's husband in order to pay back the loan.
In autumn 1989 J.G. was again in financial difficulties. The
applicant decided to sell real property belonging to her in order to
enable J.G. to settle his debts. With the help of J.G. she drew up a
list of J.G.'s creditors. The applicant's real estate was sold, the
proceeds of the sale given to J.G. and his creditors, according to the
list, were paid. It was further agreed that upon his retirement J.G.
would assign his pension payments to the applicant.
On 6 January 1991 J.G. retired. On 23 February 1991 the
applicant and J.G. concluded a written agreement by which J.G. assigned
a part of his pension to the applicant. The Old Age Pension Authority
for the Self Employed (Sozialversicherungsanstalt der Gewerblichen
Wirtschaft) was informed of this agreement and subsequently transferred
parts of J.G.'s pension to the applicant.
Meanwhile, the bill of exchange which J.G. had signed as
guarantor in 1986 was passed on to the R. Savings Bank in Germany. On
3 April 1987 the Savings Bank filed an action on the bill of exchange
against J.G. with the Feldkirch Regional Court (Landesgericht). On
20 December 1989 the Regional Court found against J.G. and this
decision entered into force. On 28 February 1990 the Savings Bank
requested the enforcement of the judgment of 20 December 1989.
Subsequently, a seizure in enforcement (Pfändung) of the furniture at
J.G.'s apartment took place. Since property claims by third persons
(J.G.'s wife and the sister of the applicant) were raised with regard
to the objects seized, the enforcement proceedings were discontinued.
On 12 June 1990 J.G. made an oath of disclosure of his assets
(Offenbarungseid). It appears that J.G. did not inform the applicant
of these developments.
On 24 July 1992 the Old Age Pension Authority for the Self
Employed was served an order of the Enforcement Court
(Exekutionsgericht) by which it was ordered to pay J.G.'s pension to
the Savings Bank. The Pension Authority informed the Savings Bank of
the agreement between J.G. and the applicant concerning the assignment
of the pension payments.
On 15 December 1992 the Savings Bank filed an action under
Section 2 para. 3 of the Debtors Voidable Dispositions Act
(Anfechtungsordnung) against the applicant. The Savings Bank requested
the court to find that the assignment of J.G.'s pension claims to the
applicant was invalid.
On 24 June 1993 the Regional Court dismissed the action. It
found that under Section 2 para. 3 of the Debtors Voidable Dispositions
Act, the plaintiff had to prove that within two years before the action
had been filed the challenged transaction had taken place and that the
persons involved in the transaction were close relatives. The
plaintiff was not required to prove that the debtor had acted with the
intention to cause him damage, nor that the person against whom the
action was directed had any knowledge of the debtor's intention, nor
that this person had acted in negligent ignorance (schuldhafte
Unkenntnis) of the debtor's intention. It was up to the defendant to
prove that he had acted in good faith and any remaining uncertainties
had to be interpreted against him.
In the present case the applicant had succeeded in proving that
there had been no intention to cause damage to the Savings Bank by the
challenged transaction. When the list of J.G.'s creditors had been
drawn up in 1989 she had examined J.G.'s balance sheets and had asked
him about the existence of any other debts not mentioned therein. In
the list finally drawn up, the Savings Bank was not mentioned as
creditor. Also when assigning his pension claims to the applicant,
J.G. did not mention to her the debt he had with the Savings Bank.
Other enquiries she could not have been expected to undertake. The
fact that in 1990 enforcement proceedings against J.G. were pending was
not relevant as the applicant had not been informed of them.
The Savings Bank appealed. It submitted that the applicant had
acted negligently, as she had failed to make enquiries with the
Enforcement Court. If she would have done so, she would have found out
about J.G.'s debt with the Savings Bank.
On 29 October 1993 the Innsbruck Court of Appeal
(Oberlandesbgericht) dismissed the appeal. It found that the applicant
had acted with the necessary diligence. The Court of Appeal noted that
J.G. had assigned orally his pension claim to the applicant in 1989.
At that time no enforcement proceedings had been pending against J.G.,
so that any enquiries with the Enforcement Court would have been
superfluous.
The Savings Bank lodged an extraordinary appeal on points of law
(außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster
Gerichtshof).
On 22 June 1994 the Supreme Court granted the extraordinary
appeal. It noted that according to the Court of Appeal J.G. had orally
assigned his future pension payments to the applicant already in 1989.
The Supreme Court found however that under the Social Security Act
pension payments could only be validly assigned to third persons with
the consent of the Pension Institution. The pension authority had
given its consent only after it had received a written statements of
assignment by J.G. on 11 March 1991. At that time the applicant could
easily have found out the existence of J.G.'s debts by enquiring with
the Enforcement Court. There was nothing to show that it would have
been unreasonable to expect her to make such enquiries. According to
her own statement the purpose of the assignment was to avoid J.G.
having to incur new debts. Thus, the unreliability of J.G. had been
clear to the applicant. Also the development of J.G.'s financial
situation, in particular the fact that in the past numerous enforcement
proceedings had been brought against him, showed him as a person who
had lost sight of all his different financial obligations. In such
circumstances the applicant should not have trusted the word of J.G.
Applying an average measure of diligence the applicant should have made
enquiries with the Enforcement Court before concluding a transaction
with J.G. Therefore, the applicant did not act with the necessary
diligence.
The Supreme Court also found that there were no doubts about the
constitutionality of the reversal of burden of proof under Section 2
para. 3 of the Debtors Voidable Dispostions Act. It was justified to
impose a heavier onus of proof on close relatives than on other persons
who conclude transactions with a debtor, as close relatives have in
general an easier and better access to information about the financial
situation of a debtor. The purpose of the reversal of proof was
therefore to make up for the disadvantage in the obtaining of
information by persons who were not in such a close relationship.
B. Relevant domestic law
Under Section 2 para. 3 of the Debtors Voidable Disposition Act
(Anfechtungsordnung) creditors may apply to set aside a transaction
which has been concluded between the debtor and close relatives, unless
the other party at the time of the transaction did not know, or was not
bound to know about the debtor's intention to cause prejudice to the
creditor. The time limit for filing such an action is two years.
Close relatives are defined in Section 4 of the Act and include
spouses, persons living with the debtor in an extramarital relation and
persons who are related to the debtor in lineal consanguinity or
collateral consanguinity up to the fourth degree.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
about the Supreme Court's judgment, given in the proceedings under the
Debtors Voidable Dispositions Act against her and the alleged
unfairness of these proceedings. She submits that the distribution of
the onus of proof in these proceedings rendered the proceedings unfair
and violated the principle of equality of arms. The general rule of
onus of proof, namely that the party asserting a claim had to prove
that the conditions for the granting of the claim were fulfilled, was
reversed to the disadvantage of the defendant merely on the ground that
the defendant had a family relationship with a debtor of the plaintiff.
2. The applicant further complains under Article 14 in conjunction
with Article 6 para.1 of the Convention that the provisions of the
Debtors Voidable Dispositions Act were discriminatory, as there was no
reason why the reversal of the onus of proof was only imposed on close
relatives while other persons, like former spouses or persons who have
a close private and business relationship with the debtor are, not
subject to this onus of proof.
3. Lastly, the applicant complains that the provisions of the
Debtors Voidable Dispositions Act violate the right to respect for
family life under Article 8 of the Convention, as they prevent close
relatives from helping those members of their family in financial
difficulties.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the Supreme Court's judgment in the proceedings under
the Debtors Voidable Dispositions Act against her and the alleged
unfairness of these proceedings.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal established by law."
Insofar the applicant complains about the Supreme Court's
judgment, 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 to 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 (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 p. 81; Eur. Court
H.R., Van de Hurk v. the Netherlands judgment of 19 April 1994,
Series A no. 288, p. 20, para. 61; Klaas v. Germany judgment of
22 September 1993, Series A no. 269, p. 17, para. 29).
The applicant submits that the distribution of the onus of proof
in these proceedings rendered the proceedings unfair and violated the
principle of equality of arms.
The Commission recalls that the principle of equality of arms is
only one feature of a wider concept of a fair trial and implies that
each party shall have a reasonable opportunity of presenting his case
to the court under conditions which do not place him at a substantial
disadvantage vis-a-vis his opponent (see, Eur. Court HR, Dombo Beheer
B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274,
p. 19, para. 33; Stran Greek Refineries S.A. and Stratis Andreadis v.
Greece judgment of 9 December 1994, Series A no. 301-B, para. 46).
The Commission recalls further that Article 6 para. 1
(Art. 6-1) of the Convention does not, as such, regulate the allocation
of the burden of proof. A provision laying down, in the context of a
civil dispute, a presumption of responsibility may therefore be
regarded as infringing the fairness of a trial only if and insofar as
it can result in an imbalance between the parties (No. 11941/86, Dec.
5.10.88, D.R. 57 p. 100). In the context of criminal proceedings
Article 6 (Art. 6) requires Contracting States to confine presumptions
of fact or law provided for in their criminal law within reasonable
limits which take into account the importance of what is at stake and
maintain the rights of the defence. In particular a presumption so
established by law must not be an irrebuttable one (Eur. Court HR, Pham
Hoang v. France judgment of 25 September 1992, Series A no. 243, pp.
21-22, paras. 33-34).
The Commission observes that the Debtors Voidable Dispositions
Act imposes on the plaintiff in proceedings thereunder the obligation
to prove that a transaction of his debtor has occurred which was to his
detriment, that the other person involved in the transaction was a
close relative, and that the transaction had taken place within two
years of the challenge of the transaction. If a creditor has succeeded
in establishing these issues it is presumed that the other party had
the intention to cause him damage. However, this presumption is
rebuttable, as the defendant may prove that he had no knowledge of any
such intent of the debtor, in particular by showing that he had acted
in good faith. The defendant succeeds in proving this, if he shows
that he has made the necessary enquiries into the financial situation
of the debtor and has verified that the intended transaction could not
cause damage to any existing creditor.
In the present case, in the view of the Supreme Court, the
applicant failed to prove that she had acted in good faith as she had
failed to undertake the specific enquiries referred to by the Supreme
Court. Having regard to the careful examination of this issue by the
Supreme Court on the basis of all the material in the file, the
Commissions cannot find that its decision was arbitrary, or that the
applicant, who was represented by counsel in the proceedings, could not
properly argue her case and rebut the presumption of law operated under
the Debtors Voidable Dispositions Act. The Commission therefore finds
that, in the circumstances of the present case, the principle of
equality of arms was not infringed as the applicant was not placed at
a substantial disadvantage vis-a-vis her opponent.
The Commission therefore finds that there is no appearance of a
violation of the applicant's right to a fair hearing under Article 6
para. 1 (Art. 6-1) of the Convention.
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.
2. The applicant further complains under Article 14 in conjunction
with Article 6 para. 1 (Art. 14+6-1) of the Convention that the
provisions of the Debtors Voidable Dispositions Act were
discriminatory, as there was no reason why the reversal of the onus of
proof was only imposed on close relatives while other persons, like
former spouses or persons who had a close private and business
relationship with the debtor are, not subject to this onus of proof.
The Commission, assuming that the reversal of the burden of proof
in the proceedings against the applicant under the Debtors Voidable
Dispositions Act raises an issue which comes within the ambit of
Article 6 para. 1 (Art. 6-1) of the Convention, has examined her
complaint under Article 14 in conjunction with Article 6 para. 1
(Art. 14+6-1) of the Convention.
Article 14 (Art. 14) of the Convention reads as follows:
"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."
The Commission recalls that for the purpose Article 14 (Art. 14)
of the Convention a difference in treatment is discriminatory only if
it has no objective and reasonable justification (Eur. Court HR,
Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no.
291-B, p. 32, para. 24).
In the present case, the provisions of the Debtors Voidable
Dispositions Act were applied to the applicant as she was the daughter
of the debtor, and thus a close relative within the meaning of the Act.
Having regard the findings of the Supreme Court, according to which it
is justified to treat close relatives differently from other persons
who conclude transactions with a debtor as the former have in general
an easier and better access to information about the financial
situation of a debtor, the Commission finds that this difference in
treatment is based on an objective and reasonable criterion.
Accordingly, the applicant has not been discriminated against in her
right to a fair trial as guaranteed by Article 6 para. 1
(Art. 6-1) of the Convention.
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. Lastly, the applicant complains that the provisions of the
Debtors Voidable Dispositions Act violate the right to respect for
family life under Article 8 (Art. 8) of the Convention, as they prevent
close relatives from helping those members of their family in financial
difficulties.
The Commission, having examined the applicant's remaining
complaint as it has been submitted by her, finds that it does not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention.
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