AS TO THE ADMISSIBILITY OF
Application No. 11918/86
by Helmuth and Margarethe PACHOLIK
against Austria
The European Commission of Human Rights sitting in private
on 5 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRUGER, Deputy 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 6 December 1985
by Helmuth and Margarethe PACHOLIK against and registered
on 26 January 1986 under file No. 11918/86;
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 facts of the case as they have been submitted by the
applicants may be summarised as follows:
The applicants, Austrian citizens, are employees resident at
Dornbirn, Austria. Before the Commission they are represented by Dr.
Weh, a lawyer practising in Bregenz, Austria.
In 1984 the applicants were renting an apartment belonging to
VOGEWOSI, a co-operative of the Federal Land Vorarlberg. On
17 December 1984, upon application of VOGEWOSI, the Dornbirn District
Court (Berzirksgericht) issued judicial notice (gerichtliche
Kündigung) on the applicants as from 31 January 1985 on the ground
that they were in arrear of payment of rent to the amount of 10,403 AS.
The notice contained the information to the applicants that, if they
did not vacate the apartment within 14 days as from that date, the
notice would be executed, and that they could raise objections against
the notice within 14 days.
On 19 December 1984 the postman unsuccessfully attempted to
serve on each applicant a letter containing the judicial notice. A
second unsuccessful attempt occurred on 20 December 1984. On either
occasion no reasons were marked on the notification paper. However
the postman marked with a cross under the further headline "refusal to
accept" one of two possible messages, i.e. that the letters could be
picked up at the post office, though later this cross was itself
crossed out. The applicants did not fetch the letters at the post
office and the notice was returned to the Court as not having been
served. On 29 January 1985 the District Court therefore stated that
the decision of 17 December 1984 could be executed.
On 19 April 1985 the District Court granted VOGEWOSI's request
to execute the judicial notice, though the applicants were given the
possibility to file a complaint (Rekurs) within 14 days.
On 14 May 1985 the applicants filed objections (Einwendungen)
against the decision of 17 December 1985 in which they explained that
they had not paid the rent on account of deficiencies in the
apartment. In the same letter they filed, in order to raise these
submissions, a request for reinstitution into the proceedings. They
also raised a complaint (Rekurs) against the execution of the judicial
notice on the ground that the latter had not been served properly.
On 2 July 1985 the Feldkirch Regional Court (Landesgericht),
after having heard the postman, dismissed the applicants' complaint
(Rekurs). It found that the postman, who had put the notification
paper in the applicants' letter box, had erroneously not ticked the
reasons for not serving the letters, and that the cross made had later
again been crossed out by him or another official since there had
been no refusal to accept the notice.
On 4 October 1985 the Dornbirn District Court dismissed the
applicants' request for a reinstitution into the proceedings in order
to present the objections (Einwendungen); it referred to the findings
in the previous decision of the Feldkirch Regional Court of 2 July 1985.
The Court noted that the notification had been dropped into the
applicants' letter box. It stated that the applicants had been
strikingly careless by not considering the postal instructions. In
the applicants' view the Court thereby implied that the objections
were out of time since they should have been filed after judicial
notice had been given.
The applicants filed an appeal (Rekurs) against this decision,
complaining, inter alia, that they had not been heard in the previous
proceedings. The appeal was dismissed on 4 November 1985 by the
Feldkirch Regional Court.
On 11 November 1985 the Dornbirn District Court permitted
VOGEWOSI forcibly to vacate the applicants' apartment.
COMPLAINTS
The applicants complain under Article 6 paras. 1 and 3 (d) of
the Convention that in the proceedings before the Dornbirn District
Court and the Feldkirch Regional Court they were not heard, as opposed
to the postman himself. They submit that the judicial notice had not
been served properly and that therefore they had had a considerable
interest in questioning the postman before these courts. They also
complain that on 14 October 1985 the Dornbirn Court regarded itself as
being bound by the decision of the Feldkirch Regional Court on
2 July 1985.
In respect of the applicability of Article 6 the applicants
submit, inter alia, that the objection (Einwendung) of 14 May 1985
concerned the manner in which the judicial notice had been served and
thus the issue of lease itself, rather than other proceedings. In any
event, execution proceedings also fall under Article 6 of the
Convention.
THE LAW
1. The applicants complain under Article 6 (Art. 6) of the Convention that
in the proceedings in which the Dornbirn District Court gave its
decision on 4 October 1985, and the Feldkirch Regional Court its
decisions on 2 July and 4 November 1985, they were not heard and that
on 4 October 1985 the Dornbirn District Court regarded itself as being
bound by the decision of the Feldkirch Regional Court of 2 July 1985.
2. The Commission considers that those proceedings concerned the
question whether the judicial notice had been served properly by the
postman on the applicants and that the Austrian Courts were deciding
on the execution of the decision of the Dornbirn District Court of
17 December 1984 as well as on the applicants' subsequent request for
reinstitution into the proceedings.
The Commission finds that those proceedings did not relate to a
criminal charge within the meaning of Article 6 para. 1 (Art. 6-1). Moreover,
neither enforcement proceedings following a civil court decision nor
proceedings in which it is decided whether or not to reinstitute a person into
previous proceedings come within the scope of Article 6 para. 1 (Art. 6-1)
since such proceedings do not themselves determine a dispute relating to civil
rights.
It follows that this part of the application must be rejected
as being incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants may be understood as directing their complaints under
Article 6 para. 1 (Art. 6-1) of the Convention also against the proceedings in
which the Dornbirn District Court,on 17 December 1984 issued judicial notice on
the applicants and on 29 January 1985 stated that the decision could be
executed.
However, the Commission is not required to decide whether or
not the facts alleged by the applicants disclose any appearance of a violation
of this provision as, under Article 26 (Art. 26) of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted according to
the generally recognised rules of international law.
The Commission which notes that the applicants did not deny
that they received the notification paper considers, on the one hand,
that both the Feldkirch Regional Court on 2 July 1985 and the Dornbirn
District Court on 4 October 1985 concluded that the postman had in
fact put a notification of the judicial notice in the applicants'
letter box, though the applicants failed to pick up the letters
concerned at the post office.
On the other hand, the Commission notes that the applicants
could have raised objections within 14 days against the judicial
notice of 17 December 1984. Thereupon, court proceedings would have
ensued in which a court would have decided on the termination of the
applicants' lease. The applicants have not shown that they raised such
objections available to them under Austrian law. Moreover, an
examination of the case 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 and their
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) 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)