AS TO THE ADMISSIBILITY OF
Application No. 18960/91
by S.H. and H.V.
against Austria
The European Commission of Human Rights sitting in private on
13 January 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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 13 September 1991
by S.H. and H.V. against Austria and registered on 17 October 1991
under file No. 18960/91;
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 facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants are Austrian citizens born in 1931 and 1918
respectively. Both applicants are retired. They reside at the same
address in Vienna. Before the Commission they are represented by
Mrs. N. Schloter, a lawyer practising in Strasbourg.
The first applicant owns real property in Vienna containing
apartments which the applicants let. Seven tenants introduced
proceedings in 1987 against both applicants, requesting the Vienna
Central City District Court (Bezirksgericht Innere Stadt Wien) to
reduce the rents originally fixed between them and the applicants, and
to order the reimbursement of the excess amounts.
A hearing was first fixed for 27 June 1990 and then for 4 October
1990. The latter date coincided with the first day of the Jewish feast
of Tabernacles (Laubhüttenfest).
On 30 May 1990 the District Court notified the applicants that
the hearing would be held on 4 October 1990.
On 25 September 1990 the first applicant wrote to the District
Court as follows:
"When looking at my commitments I noticed my hearing in the above case on 4 October 1990. I hereby announce that 4 October is a mosaic holiday. I therefore request an adjournment as I cannot be present." "Bei durchschauen meine Termine bin ich auf meine Verhandlung in obiger Geschäftszahl 4. Oktober 90 gestossen. Ich gebe bekannt, dass 4. Oktober mosaischer Feiertag ist. Daher bitte ich um eine Vertagung, da ich nicht erscheinen kann." On 26 September 1990 the District Court dismissed the applicants' request with reference to the principle of expediting proceedings (Verfahrensbeschleunigung). The Court pointed out that seven parties were involved, that a whole morning would be required for the hearing, and that an "adjournment at short notice" ("kurzfristige Verlegung") was not possible. The Court drew the applicants' attention to the fact that they could be represented by another person. By letter of 3 October 1990 to the District Court the applicants complained of the refusal to adjourn the hearing. The applicants further stated that "it was impossible to instruct a legal representative with such a difficult matter, and that it was therefore impossible to send a representative to the hearing" ("ist es unmöglich, eine Vertretung in diese schwierige Materie einzuarbeiten, und es ist daher unmöglich, eine solche zur Verhandlung zu schicken"). The hearing before the District Court was conducted on 4 October 1990. By decision of 28 October 1990 the District Court held that the rent had been too high and ordered the applicants to pay back the excess. The applicants were ordered to reimburse altogether 107,970 AS as well as 4% interest on the sum since 1987. The Court found that certain facts had remained uncontested (ausser Streit) between the parties. The applicant's appeal was dismissed by the Vienna Regional Court (Landesgericht) on 9 April 1991. In so far as the applicants complained that the hearing had not been adjourned, the Court found that the applicants had not explained what they would have said at the hearing and that in any event they had been told that they could submit written statements. The applicants' further extraordinary appeal (ausserordentlicher Rekurs) was declared inadmissible by the Supreme Court on 25 June 1991. COMPLAINTS 1. The applicants complain under Article 6 para. 1 of the Convention that they did not have a fair hearing as they could not be present at the oral hearing on 4 October 1990 before the District Court. They point out that courts in Austria have a calendar where the holidays of all recognised religions are marked. The applicants submit that their religion prohibited them from being represented by other persons on this day. Moreover, after refusal of the adjournment of the hearing there was not enough time for submitting a written statement instead. 2. Under Article 9 of the Convention the applicants complain that the District Court, by refusing their request, disclosed prejudice against their religion. 3. Under Article 14 of the Convention the applicants complain of discrimination, claiming that it would not be expected of a Catholic or a Protestant to attend a court hearing on a Sunday. 4. Under Article 1 of Protocol No. 1 to the Convention the applicants complain that they could not freely dispose of their property. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 13 September 1991 and registered on 17 October 1991. On 14 April 1992 the Rapporteur decided to request information from the respondent Government pursuant to Rule 47 para. 2 (a) of the Commission's Rules of Procedure. The information was provided by the respondent Government on 12 June 1992 and comments thereupon were submitted by the applicants on 29 June 1992. Comments by their lawyer were received on 16 September 1992. THE LAW 1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that they did not have a fair hearing as they could not be present at the oral hearing on 4 October 1990 before the District Court. The applicants submit that their religion prohibited them from being represented by other persons on this day. Moreover, after the refusal of the adjournment of the hearing there was not enough time for submitting a written statement instead. The Commission observes, on the one hand, that 4 October 1990, the date for which the oral hearing was fixed, was an important religious holiday for the applicants. Their religion also prohibited a lawyer working for them on that day. Furthermore, as a result of their absence, the District Court considered in its decision of 28 October 1990 inter alia that certain facts had remained uncontested between the parties. On the other hand, the Commission observes that the case involved seven plaintiffs, namely the tenants who brought claims against the applicants. The organisation of the proceedings before the District Court would thus have been of some complexity. Moreover, it has not been disputed by the applicants that they were in fact already notified on 30 May 1990 of the hearing on 4 October 1990, i.e. approximately four months in advance. In view of the great religious importance of that date for the applicants as well as the complex organisation of the proceedings, the Commission considers that, upon the notification of the date of the hearing, the applicants could have been expected duly to request an adjournment at their earliest convenience in order to enable the Court to arrange a new date for the hearing. It is true that on 25 September 1990, i.e. nine days before the hearing, the applicants wrote to the District Court and requested an adjournment of the hearing. However, in view of the complexity of the organisation of the proceedings at issue, it does not appear unreasonable if the District Court in its decision of 26 September 1990 dismissed the request as it had only been filed at short notice. 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. Under Article 9 (Art. 9) of the Convention the applicants complain that the District Court, by refusing their request, disclosed prejudice against their religion. Under Article 14 (Art. 14) of the Convention the applicants complain of discrimination, claiming that it would not be expected of a Catholic or a Protestant to attend a court hearing on a Sunday. However, having concluded that the applicants' complaints under Article 6 (Art. 6) of the Convention are manifestly ill-founded, the Commission finds that no separate issue arises under Article 9 (Art. 9) or under Article 14 of the Convention taken together with Article 9 (Art. 14+9). This part of the Convention is therefore also manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3. The applicants complain under Article 1 of Protocol No. 1 (P1-1) to the Convention that they could not freely dispose of their property. The Commission notes that the decisions of the Austrian courts on the reduction of rent and the corresponding reimbursement imposed on the applicants concerned relations between private persons. There is no indication of a violation of the applicants' right to property within the meaning of Article 1 of Protocol No. 1 (P1-1). The remainder of the application is therefore also 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. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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