AS TO THE ADMISSIBILITY OF
Application No. 10757/84
by W.
against Austria
The European Commission of Human Rights sitting in private
on 13 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
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 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 February 1983
by W. against Austria and registered on 28 December 1983 under file
No. 10757/84;
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&S
The applicant, an Austrian citizen born in 1943, resides at
D. and is represented by Dr. W.L. Weh, a lawyer practising in
Bregenz.
The facts agreed between the parties may be summarised as
follows:
The applicant had inherited from her mother a half-share of a
small farm in M. The other half-share was owned by her stepfather.
None of them lived there or worked on the farm whose land was leased
out to other farmers.
In October 1980 the applicant's stepfather informed her that
he wanted a partition of this real property and would bring a civil
action against her if she continued to oppose partition. The
applicant replied that she agreed in principle to a partition, be
it by a division of the assets or a division of the sales proceeds.
However, she could not agree to the only partition scheme which had so
far been submitted by her stepfather as it assigned to her only a
fourth of the real value of the farm. Thereupon the stepfather
brought a civil action against the applicant in the Regional Court
(Landesgericht) of F.
The case was heard on 8 January 1981. The applicant declared
not to oppose her stepfather's claim for a division of the assets.
However, she opposed the stepfather's claim to be adjudicated his
costs and instead applied for a court order that each party should
bear his or her own costs. She argued that she had not provoked the
action as she had never opposed the partition as such, but only the
scheme proposed by her stepfather.
By a judgment of the same date, the Regional Court decided
that the partition should be effected as requested by a division of
the assets. The decision on costs was reserved. However, the parties
subsequently agreed not to pursue the litigation on this point.
The parties also agreed to determine the partition scheme by a
settlement between themselves. However, notwithstanding this
agreement the applicant's stepfather applied in July 1981 to the
District Court (Bezirksgericht) of B. for the partition of the
real property concerned in executive proceedings under Section 351 of
the Enforcement Proceedings Act (Exekutionsordnung). At the same time
he requested to enforce his cost claim in the amount of AS 6537,44
against the applicant under Section 74 of the same Act. Both
applications were allowed by a decision of the District Court of
5 August 1981.
The applicant's appeal against this decision was dismissed by
the Regional Court on 11 September 1981. It stated that both parties
were entitled to request enforcement proceedings under Section 351
without a previous attempt to reach a friendly settlement. The party
who first lodged such a request was the petitioner in severance
(betreibende Partei) and thus entitled under Section 74 to the
reimbursement of his costs from the respondent (verpflichtete Partei).
The costs were accordingly imposed on the applicant as the
respondent.
Subsequently, on 18 June 1982, the District Court, exercising
its functions under Section 351, distributed the assets of the joint
property between the two parties ordering at the same time that the
applicant should pay the sum of AS 20.393,50 as an equalisation
payment to her stepfather. The applicant fully accepted this part of
the Court's decision and did not appeal against it.
However, the District Court had at the same time ordered under
Section 74 that the applicant should reimburse the further costs of
the execution proceedings amounting to AS 34.023,52 which had been
incurred by her stepfather. In this respect the applicant appealed,
claiming that it was unfair that the party who first applied for
enforcement proceedings was granted full compensation for his expenses
by the other party although both were essentially in the same
position.
The Regional Court rejected this appeal by a decision of
28 July 1982 which was served on the applicant on 16 August 1982.
The Regional Court noted that Section 351 left it "to chance or rather
to the prompter intervention" who was the petitioner in severance
entitled to costs. It added: "Certainly it is an unworthy race to
which the parties are compelled by the fact that the one who first
presents the application for enforcement to the Court will be the
'winner' regarding the costs. In many cases this can indeed lead to
injustice and unfairness of the worst kind, in particular if the
respondent has opposed the action for partition and has lost the case
despite this opposition ... However, it is not for the courts but for
the legislation to do away with unsatisfactory legal positions." The
Court then found that the applicable law left no room for discretion
or considerations of equity, and therefore it confirmed the imposition
of the costs on the applicant.
After the facts of the present case the law was amended in
1983 by introducing a new Section 352 (a) of the Enforcement
Proceedings Act, which provides that the cash payments incurred in the
course of partition proceedings are to be divided between the parties
in relation to their shares in the property.
The applicant's stepfather subsequently took further
enforcement proceedings against her in order to realise his claims to
the equalisation payment and to the reimbursement of his costs
resulting from the above partition proceedings. The District Court of
D. granted a request for the attachment of the applicant's movable
property, and as no such property could be found, it eventually
ordered her to take the oath of manifestation (Offenbarungseid). The
applicant then brought a counteraction (Oppositionsklage) under
Section 35 of the Enforcement Proceedings Act, claiming that her
stepfather's claims underlying the enforcement proceedings were
defective as she had herself certain claims against him resulting from
the administration of the joint property which should be set off
against his above claims. She also applied for the suspension of the
enforcement proceedings pending the decision on the counteraction, but
her remedies in this respect failed and further costs were imposed on
her. However, on 3 February 1983 the parties agreed to stay both the
enforcement proceedings and the proceedings on the counteraction
pending before the District Court of D. The applicant thus avoided
the oath of manifestation.
The applicant's stepfather then requested the correction of
the land register in conformity with the partition order. This was
granted by decisions of the District Court of B. of 30 July 1984
and 11 September 1984. The applicant appealed inter alia on the
ground that she had not been heard and claiming that a correction of
the land register without her consent infringed Article 6 (Art. 6) of the
Convention. However, her appeal was rejected on 10 October 1984 on
the ground that she had not substantiated in which way her rights
could have been violated. The law did not provide for a right to be
heard in matters of this kind which were of a merely technical nature.
Once the applicant's part of the real property had been
ascribed to her in the land register, her stepfather immediately
requested a compulsory sales order (Bewilligung der Zwangsver-
steigerung) for certain of this property. This was granted by the
District Court of B. on 17 October 1984 and confirmed by the Regional
Court on 27 November 1984 despite the applicant's argument that her
counteraction was still pending before the District Court of D. and
that the compulsory sale should therefore be postponed. She was again
charged with the petitioner's procedural expenses.
In connection with the compulsory sales procedure the
District Court appointed an expert for the purpose of estimating the
property's value. The expert was subsequently replaced by another one
against whom the applicant raised objections, but these were rejected
by the District Court on the ground that no separate remedy lay
against the appointment of an expert. The applicant appealed,
claiming that the exclusion of a remedy in this respect infringed
Article 6 (Art. 6) of the Convention. However, on 27 December 1984 the
Regional Court rejected the appeal stating that it was sufficient for
securing the parties' right to be heard that they could comment on the
expert opinion once it was submitted.
On 24 April 1985 the District Court fixed 20 June 1985 as the
date of the compulsory sale. It further ordered that the compulsory
sale was to be carried out by three rounds of partial auctions. The
applicant immediately requested a postponement of the compulsory sale
until a decision had been given on her counteraction which was still
pending. However, no decision was made on this request and the date
of the compulsory sale was publicly announced in the Official Gazette
(Amtsblatt) of V. and two regional newspapers. In this situation the
applicant eventually decided on 18 June 1985 to satisfy her
stepfather's claims. On that date she paid a global sum of AS
68,000.- to him. The parties further agreed that the compulsory sale
proceedings should be discontinued and the proceedings on the
counteraction stayed (Ruhen). The compulsory sale proceedings were
actually discontinued by a court decision of 18 June 1985.
&_COMPLAINTS&S
The applicant now complains both of the executive partition
proceedings under Section 351 of the Enforcement Proceedings Act, and
of the subsequent enforcement proceedings taken against her by her
stepfather.
1. As regards the executive partition proceedings, she claims
that they must be considered as proceedings on the determination of
civil rights and obligations because they are by their nature not
typical enforcement proceedings but rather resemble non-contentious
proceedings such as are e.g. applicable to the partition of the
property of spouses after a divorce.
The applicant considers it unfair that, unlike in other
partition proceedings where the parties have to share the costs, they
are placed on an unequal footing in the executive partition
proceedings under Section 351 of the Enforcement Proceedings Act, and
in any subsequent proceedings, including the land register and further
enforcement proceedings, by virtue of the distinction between the
petitioner and the respondent. Under Section 74 of the Act the
petitioner in severance is entitled to claim the full reimbursement of
his costs by the respondent - petitioner being the party who first
presents a petition to the court. The applicant submits that this is
not a reasonable criterion to be taken as a basis for cost decisions
and that it violates the principle of equality of arms between the
parties which is enshrined in Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant further complains that the differential
treatment of the parties to the partition proceedings in question is
discriminatory and contrary to Article 14 (Art. 14) of the Convention.
2. As regards the subsequent enforcement proceedings, the
applicant claims that these proceedings also come within the scope of
Article 6 para. 1 (Art. 6-1) of the Convention. She refers in particular to
the connection of these proceedings with the counteraction under Section 35 of
the Enforcement Proceedings Act, an action which concerns the justification of
the claim underlying these enforcement proceedings. She states that her
counter-claims could also have been made the subject of normal civil
proceedings, but submits that in the circumstances she could not reasonably be
expected to choose that course rather than filing a counteraction.
Even if, as a result of the counteraction, the claim of the
petitioner should in the end be found to be unjustified having regard
to the provisions of substantive law, this does in no way prevent the
taking of enforcement measures pending this action, and the costs of
the enforcement measures will definitively have to be borne by the
respondent. The applicant considers this to be unfair and contrary to
Article 6 para. 1 (Art. 6-1) of the Convention, for the same reasons
as in the partition proceedings. She adds that the refusal to postpone the
proceedings pending a decision on the counteraction was extremely unfair in
these circumstances: As regards the enforcement proceedings concerning her
movable property the refusal to postpone the proceedings led to serious
disadvantages for her, including the order to take the oath of manifestation.
As regards the compulsory sale proceedings concerning her real property no
decision was taken on her request for postponement, and this despite the fact
that the claims of her stepfather might in substance have been unjustified.
The applicant further claims that the absence of a remedy to
avert the enforcement measures and concomitant costs violates Article
13 (Art. 13) of the Convention. She finally claims that there is an
unjustified interference with her property rights contrary to Article 1 of
Protocol No. 1 (P1-1).
The applicant considers that she is not prevented from raising
these complaints by the settlement which she concluded with her
stepfather on 18 June 1985. She submits that this settlement was made
under duress as she was compelled to renounce her counter-claims and
costs in the amount of some AS 200,000.-.
&_PROCEEDINGS&S
The application was introduced on 11 February 1983 and
registered on 28 December 1983.
On 4 May 1987 the Commission decided to give notice of the
application to the respondent Government and to invite them, in
accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to
submit before 17 July 1987 their observations in writing on the
admissibility and merits of the application. Questions were put to
the Government concerning the applicant's complaint of the partition
proceedings under Section 351 of the Enforcement Proceedings Act.
The Government submitted their observations on 20 July 1987.
The applicant submitted her observations in reply on 3 October 1987.
On 18 December 1987 the Commission decided to grant the
applicant free legal aid.
&_SUBMISSIONS OF THE PARTIES&S
A. The Government
In the Government's view, Article 6 para. 1 (Art. 6-1) of
the Convention is not applicable to partition proceedings as provided under
Section 351 of the Enforcement Proceedings Act.
Proceedings for the legal partition of a property can be
instituted by means of an action by a co-owner against the other
co-owner or co-owners. The pertinent legal provisions are contained
in Sections 841 to 853 of the Civil Code. Such proceedings end with
a judgment terminating the co-ownership and determining, at the same
time, the type of partition, i.e. either actual partition
(Realteilung) or sales order (Zivilteilung). The particularity of
such a judgment is that its enforcement can be requested by both
parties. The party who files the request first assumes the part of
the petitioner in severance in the enforcement proceedings.
Another particularity of such a partition judgment is that,
while it must clearly specify what is to be partitioned and whether
there is to be an actual partition or a sales order, it need not
necessarily contain details on how exactly the actual partition is to
be carried out, which would be binding upon the court competent for
enforcement matters. This decision may also be taken by the judge of
the latter court.
Under Section 351 para. 1 of the Enforcement Proceedings Act
the partition is to be effected by a legal officer of the court
competent for enforcement matters, with all parties concerned
participating, paying due consideration to Sections 841 to 853 of the
Civil Code. The judge fixes a date for the hearing and, after having
finished the necessary inquiries, issues the partition order in
compliance with the requirements of appropriateness and equity.
Up to the judgment terminating the co-ownership and thus
defining the rights of the parties, the procedure is of a contentious
nature leading to a judgment. Subsequent executive proceedings, if
any, only serve to enforce this judgment. The enforcement character
of the proceedings is confirmed by the consideration that, contrary to
subsequent Section 352, Section 351 of the Enforcement Proceedings Act
only refers to Sections 841 to 853 of the Civil Code and not to the
stipulations governing non-contentious proceedings. Another
indication that these proceedings are exclusively enforcement
proceedings is the fact that the judge is not bound by requests or
proposals for partition made by the parties, but has to proceed
according to his own discretion and the principles of appropriateness
and equity. In contentious proceedings such conduct by the judge
would be inadmissible.
In Application No. 9233/81 (Dec. 15.10.81) the Commission
stated that Article 6 (Art. 6) of the Convention is not applicable to
enforcement proceedings. The decisive factor for the Commission
was that the issue of enforcement proceedings is no longer a
contestation and hence an immediate determination of civil rights
and obligations. The contestation on civil rights and obligations
takes place in the contentious proceedings preceding the enforcement
proceedings. Although in the present case the judgment ruled on the
actual partition only in general terms and left it to the judge
competent for the enforcement proceedings to decide upon the actual
partition, the litigation concerning the partition as such, and thus on
the civil rights of the parties, took place in the proceedings leading
to the partition judgment. Section 351 starts out from the fact that
the partition judgment constitutes an enforceable fiat of execution
(vollstreckbarer Exekutionstitel). At this stage the judge only has
"to enforce the actual partition ordered". Therefore, it cannot
be said that the proceedings under Section 351 are proceedings
concerning a contestation on the partition of a joint property and
consequently a contestation on civil rights and obligations.
The Government further submit that the applicant failed to
exhaust all domestic remedies available to her.
Under Article 89 of the Federal Constitution, a court of
second instance must ex officio file an application with the
Constitutional Court for review of the law if it has doubts as to the
constitutionality of this law. An individual is entitled to challenge
the constitutionality of a law under Article 140 para. 1 of the
Constitution only if the law has become operative for the applicant
without the delivery of a judicial or administrative decision. As in
the present case there was a judicial decision, the applicant could
claim unconstitutionality of applied regulations only by suggesting to
the court of second instance that it should make an application to the
Constitutional Court under Article 89 of the Constitution. The
Government submit that Article 26 (Art. 26) of the Convention requires in this
context that doubts as to the conformity of an applicable law with the
Convention be voiced in the domestic proceedings with sufficient
precision. The applicant, in her appeal of 2 July 1982, failed to
sufficiently elaborate on her concerns about the constitutionality of
the law. It would have been possible and even required to specify, in
particular, the concern about the incompatibility of Section 351 of the
Enforcement Proceedings Act with Article 6 (Art. 6) of the Convention. The
court would then have been obliged to take a clear stand and to state
explicitly why it had no scruples against the application of this
provision. Although the competent court admittedly considered that
the law provided only an unsatisfactory solution, its attention was
not specifically drawn to a possible problem under Article 6 (Art. 6)
of the Convention. Accordingly, it cannot be said that all domestic remedies
were exhausted.
Finally, the Government submit that the principle of fair
trial relates to the proceedings before civil and criminal courts.
An essential element of fair trial is the principle of equality of
arms which also applies to civil proceedings. But this principle only
aims at ensuring the same procedural positions to the parties. A
regulation of and the concrete decision on the reimbursement of costs,
however, neither relates to the procedural position nor the
proceedings as such. For this reason the regulation of who has to pay
the costs as well as the actual decision on the costs cannot violate
Article 6 (Art. 6) of the Convention.
Insofar as there might be doubts about the equality before the
law, the applicant's allegation could perhaps have had a chance of
success before the Constitutional Court on the basis of Article 7 of
the Federal Constitution. However, under Article 14 (Art. 14) of the
Convention inequality cannot be alleged save in connection with the
rights enshrined in the Convention. As the regulation and decision on
the payment of costs does not relate to a procedural position
safeguarded by the fair trial principle, and as it affects no other
right laid down in the Convention, which could be tied to Article 14
(Art. 14) of the Convention, this allegation must be rejected as inadmissible
too.
The interests of the parties following a partition judgment
may vary greatly. The lawmaker can be guided by the normal case,
which will be that one co-owner wants to enforce the partition against
the opposing co-owners. Under this aspect, it seems to lie within the
discretion of the lawmaker to have the cost regulation of enforcement
proceedings apply. It may be correct that the provision based on the
criterion that costs shall be adjudicated to the party which first
makes a request for the enforcement of the partition judgment is not
a very lucky legal solution. However, it is not possible in this
context to raise objections against the present cost decision and the
underlying legal regulation other than in terms of considerations of
legal appropriateness and concepts of justice. In this connection the
Government observe that the Enforcement Proceedings Act was amended in
1983 (cf. p. 3 above).
The Government therefore ask the Commission to dismiss the
application on the ground that not all domestic remedies were
exhausted, or alternatively to declare it inadmissible as being
manifestly ill-founded.
B. The Applicant
The applicant submits that the Government's argumentation
concerning the nature of partition proceedings under Section 351 of
the Enforcement Proceedings Act is exclusively based on the domestic
law. It overlooks that the notion of "civil rights" within the
meaning of Article 6 (Art. 6) of the Convention is an autonomous concept (cf.
Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p.39
para. 94). It thus cannot be decisive that in the internal legal system the
partition proceedings in question are regarded as enforcement proceedings.
Even if they were enforcement proceedings, they would not be excluded from the
scope of Article 6 (Art. 6) as the Commission has held in an analogous case
(No. 2797/66, Dec. ....).
The applicant considers that, in reality, the partition
proceedings are not enforcement proceedings in the proper sense even
in the domestic law. The Government's submissions in this respect are
misleading in several respects. Under the provisions of the Civil
Code each co-owner can ask for the termination of the co-ownership by
bringing an action against the other co-owner or co-owners. However,
such a claim is excluded if it is being raised at an inappropriate
time or under circumstances which involve a disadvantage for the other
co-owners. The court accordingly has to examine only these two
questions, whether the claim has been raised at an inappropriate
moment or under circumstances which involve a disadvantage for the
other co-owners. If such circumstances cannot be established, the
court is obliged to order the termination of the co-ownership. If at
all possible from an economic point of view, it must order the actual
partition of the property. Only if that should be impossible may it
order the sale of the property by auction, in which case all co-owners
have the right to bid. In the contentious proceedings the court
therefore only examines which form of partition is appropriate and
whether the above legal obstacles against the partition order exist.
All further particulars of the actual partition are reserved to the
judge competent for enforcement matters. The judge dealing with a
case in contentious proceedings must, in principle, refrain from
deciding on the particulars of the actual partition.
Accordingly the proceedings before the courts competent in
enforcement matters do not serve exclusively "to enforce the actual
partition ordered". The judge competent in enforcement matters
determines which part of the property shall be assigned to each
co-owner as his sole property. He thus determines the future
distribution of the property and does not only enforce clearly defined
civil claims resulting from the earlier decision. This is confirmed
by the fact that Section 351 of the Enforcement Proceedings Act, as
the only provision of this Act, refers to the substantive law
contained in the Civil Code. It thus makes it clear that the proceedings
still concern the determination of civil rights, namely the civil
rights of the co-owners according to the provisions of the Civil Code.
The fact that the actual partition is left to the judge
competent in enforcement matters is explained by the consideration
that there may be more than two co-owners. In this case the party
claiming termination of the co-ownership must lodge a joint action
against all other co-owners. If the conditions of actual partition
are not met in the case of only one co-owner the action must be
rejected, but if it is allowed it is impossible in contentious
proceedings to distribute the property between more than two parties.
Contentious proceedings between more than two parties do not exist
under the provisions of the Code of Civil Procedure. It is primarily
for this reason that the actual partition has been left to the judge
competent in enforcement matters. Apart from this reason based on
systematical considerations there are a number of more practical
reasons why the court competent in enforcement matters has been
entrusted with the task of actual partition. The competent court here
is the District Court which as a rule is located closer to the
property and has more experience regarding the assessment of real
property. But this does not mean that, in substance, the actual
partition by the court competent in enforcement matters does not
involve a determination of civil rights. The applicant further
observes in this context that it has been recognised in the case-law
that the redistribution of real property, e.g. in the context of
agricultural land consolidation proceedings, is a determination of
civil rights (cf. Eur. Court H.R., Erkner and Hofauer judgment of
23 April 1987, Series A no. 117).
In the present case both parties requested the adjudication of
the farmhouse and the surrounding parcels and the judge competent in
enforcement matters who decided on the actual partition upheld the
applicant's claim in this respect. This clearly shows that the matter
was one of the determination of the applicant's civil rights and
obligations to which Article 6 (Art. 6) is applicable.
As regards the Government's argument that the applicant has
not exhausted the domestic remedies, the applicant observes that this
question must be judged in the light of the prospects of success of
the remedy in question on the basis of the existing case-law. It
would be inappropriate in this context to adopt a too formalistic
approach because this would be incompatible with a system of effective
protection of human rights.
While admitting that the applicant could not herself have
asked for a review of the constitutionality of the applicable
legislation by the Constitutional Court, the Government claim that the
applicant should have suggested to the Regional Court of F. to
request such constitutional review under Article 89 para. 2 of the
Federal Constitution. However, as regards such a request by a court
of second instance the principle "jura novit curia" must be applied.
This has been confirmed by the case-law of the Supreme Court. In a
decision of 2 July 1986 it expressly confirmed that an individual
party has no right under the applicable legislation to request a measure
under Article 89 para. 2 of the Federal Constitution ("eine
Verfahrenspartei ist nach der geltenden Rechtslage nicht befugt, ein
Vorgehen gemäss Artikel 89 Abs. 2 B-VG zu begehren"). A request for
the constitutional review of applicable legislation is therefore
inadmissible in civil proceedings. There is no right to obtain a
decision following such a request and the Commission has accordingly
recognised that it is not a remedy to be exhausted under Article 26
(Art. 26) of the Convention (cf. No. 10522/83, 11011/84 and 11070/84,
Mellacher and others v. Austria, Dec. 8.5.86). This is also in line
with the Commission's case-law concerning other similar remedies which
give no right to obtain a decision such as, for instance, a suggestion
to the Attorney General to file a plea of nullity for safeguarding the
law.
The applicant furthermore submits that in the present case the
suggestion to seek a constitutional review would not have had any
prospects of success in view of the attitude of the Regional Court of
F. at the relevant time, that is in Summer 1982. That Court had never
requested a constitutional review of any legislation applied by it and
had never applied Article 6 (Art. 6) of the Convention as a directly
applicable norm. Moreover, the Regional Court was not compelled by
the legislation to take the decision which it actually took. The
decision of the Regional Court of Innsbruck of 23 January 1970
(2R369/69), to which the applicant had referred in her appeal, shows
that the law could have been interpreted differently. If it was
possible to interpret the law in question in conformity with the
Constitution, it was excluded that the Constitutional Court would
quash that law as unconstitutional.
As regards the question whether the applicant was required to
expressly invoke Article 6 (Art. 6) of the Convention in her appeal,
she observes that this again is a question where the principle "jura
novit curia" must apply. She claims that, in substance, her appeal
fully addressed the relevant problem of the unfairness of the decision
on the costs, including the question of equality of arms in the
proceedings and equality before the law in general. It is clear that
the Regional Court understood these arguments as in its subsequent
decision it spoke itself of an "unworthy race" to the court and of
"injustice and unfairness of the worst kind". The Commission has
constantly held that questions relating to the exhaustion of remedies
must be assessed without undue formalism and that the only relevant
criterion is whether the applicant has brought the substance of this
complaint before the domestic authorities (cf. No. 9783/82, Dec.
8.5.85). In these circumstances it must have been sufficient for the
applicant, without specifically referring to Article 6 (Art. 6) of the
Convention, to invoke a decision by the Regional Court of I. which
showed that an interpretation of the law in question in conformity
with the Convention was, in fact, possible.
The applicant therefore maintains that, by bringing the
substance of her complaint before the competent domestic court, she
has in fact exhausted the domestic remedies in conformity with
Article 26 (Art. 26) of the Convention.
As regards the substance of her complaint, the applicant
observes that the Government themselves have doubts that the decision
complained of was in line with the principle of equality. In the
applicant's view civil proceedings conducted contrary to the principle
of equality must be regarded as unfair. Moreover, the subsequent
legislative amendment also shows that the applicant's complaint was, in
substance, justified. The applicant admits that there are various ways
of regulating the costs of civil proceedings. However, the legislation
in this respect must not be based on arbitrary criteria. In the
applicant's submission it is wholly arbitrary to assign different
roles to the parties to partition proceedings exclusively on the basis
of the criterion of who has won the "unworthy race" to the court.
The Government's further argument, that a regulation of and the
concrete decision on the reimbursement of costs neither relates to the
procedural position of the parties nor to the proceedings as such, has
been put forward without any reference to the case-law of the
Convention organs. The latter have repeatedly recognised that both in
civil and criminal proceedings questions of costs may be of decisive
importance (cf. Eur. Court H.R., Airey judgment of 9 October 1979,
Series A no. 32, and Luedicke, Belkacem and Koc judgment of
28 November 1978, Series A no. 29). Also Austrian legal writers
consider questions of costs as an essential element of a fair trial
and this has recently been confirmed by decisions of the Supreme Court
(EuGRZ 1987, p. 83) and the Regional Court of Feldkirch (EuGRZ 1986,
p. 692) although - significantly - no reference was made in this
context to Article 6 (Art. 6) of the Convention.
The applicant stresses that in proceedings which concern
economic interests questions of costs are of great importance. In the
present case the costs of each party, only for the inspection of the
site at M. amounted to some AS 25,OOO. Where such sums are involved
it is unavoidable that the possible duty to bear the relevant costs
will influence the procedural behaviour of the parties, in particular
if they are in a weak financial position as the present applicant. A
regulation of the costs based on reasonable criteria is therefore
intimately linked to the requirements of a fair trial and comes within
the scope of Article 6 (Art. 6) of the Convention. The proceedings
must be regarded as a whole and it is inadmissible to exclude certain
aspects such as questions of cost from the overall assessment of the
fairness.
The arbitrary imposition of all costs on the applicant in the
present case therefore amounted in her view to a violation of her
rights under Article 6 (Art. 6) of the Convention, having regard, in
particular, to the finding of the competent domestic court that the
regulation on the reimbursement of costs had led to an "unfairness of
the worst kind" in this case.
Apart from her replies to the Government's observations, the
applicant insists that the other aspects of her case relating to the
subsequent enforcement proceedings also raise serious issues under
Article 6 (Art. 6) of the Convention. In particular, she submits that the
Court's refusal to give suspensive effect to her counteraction was
extremely unfair. The claims raised in this counteraction had been
well substantiated and nevertheless the courts did not stop the
enforcement measures taken against her by the opposite party, ordered
her to take the oath of manifestation and did not take a decision
until two days before the date fixed for the compulsory sale of her
property. By this way of proceeding the applicant was forced to give
up the greater part of her justified claims and consent to a
compromise solution which was extremely unfavourable to her.
The applicant therefore fully maintains her application.
&_THE LAW&S
1. The applicant first complains of partition proceedings under
Section 351 of the Enforcement Proceedings Act claiming that these
proceedings were unfair and contrary to Article 6 para. 1 (Art. 6-1)
of the Convention because of the unilateral imposition of all costs on
her as respondent although she was in essentially the same position as
the petitioner.
Article 6 para. 1 (Art. 6-1), first sentence of the Convention
provides:
"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 first observes that, as a general rule,
enforcement proceedings following a civil court judgment do not come
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.
They do not themselves determine a dispute ("contestation") relating
to civil rights, but presuppose a prior determination of these rights
by the competent court. However, partition proceedings under Section
351 of the Austrian Enforcement Proceedings Act differ from normal
enforcement proceedings.
In the Ringeisen judgment of 16 July 1971 (Eur. Court H.R.,
Series A no. 13, p. 39 para. 94) the European Court of Human Rights
has stated that Article 6 para. 1 (Art. 6-1) "covers all proceedings
the result of which is decisive for private rights and obligations ...
The character of the legislation which governs how the matter is to
be determined ... [is] of little consequence". Accordingly, it cannot
be decisive that in the Austrian legal system the partition
proceedings in question are considered as enforcement proceedings and
are governed by the Enforcement Proceedings Act. It has been
recognised in earlier case-law that proceedings relating to the
division or redistribution of real property between several parties,
in particular where they concern the designation of the concrete
assets to be assigned to each of those parties as their future
property, involve a determination of civil rights within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention (cf. mutatis
mutandis No. 8695/79, Inze v. Austria, Dec. 5.12.84, para. 7 of "The
Law"; Eur. Court H.R., judgments of 23 April 1987 in the cases of
Ettl, Erkner/Hofauer and Poiss, Series A no. 117). Also the
proceedings at issue in the present case determined the particular
assets of the parties' former joint property which were to be assigned
to each of them as their future sole property. They thus involved a
decision on the civil rights of the parties including the applicant.
It follows that Article 6 para. 1 (Art. 6-1) of the Convention is
applicable to these proceedings.
The Government claim that the applicant failed to exhaust all
domestic remedies, as required by Article 26 (Art. 26) of the Convention,
because she did not specifically suggest to the Regional Court that it
should initiate a constitutional review of the applicable provisions
of the Enforcement Proceedings Act under Article 6 (Art. 6) of the
Convention. The Commission notes that the applicant herself could not
seize the Constitutional Court with this question and that she had no
enforceable right to have it brought before the Constitutional Court
by the Regional Court. In these circumstances the possibility of
suggesting the initiation of constitutional review cannot be regarded
as an effective remedy to be exhausted under Article 26 (Art. 26) of
the Convention (cf. No. 7464/76, Karrer, Fuchs and Kodrnja v.
Austria, Dec. 5.12.78, D.R. 14 p. 51; Nos. 10522/83, 11011/84 and
11070/84, Mellacher and others v. Austria, Dec. 8.5.86, to be
published in D.R.).
There remains the question whether the applicant failed to
comply with Article 26 (Art. 26) because in her appeal to the Regional
Court she did not expressly refer to Article 6 (Art. 6) of the
Convention. However, the Commission has consistently held that
domestic remedies must be considered as having been exhausted if the
applicant, even without quoting the relevant provision of the
Convention, has submitted, in substance, to the competent domestic
authorities the claim he or she is bringing before the Commission, in
particular when the domestic authorities apply the principle "jura
novit curia" (cf. e.g. No. 9228/80, Dec. 16.12.82, D.R. 30 p. 132).
In the present case the applicant clearly alleged an unfairness of the
proceedings on account of the one-sided cost decision and therefore
put the substance of her complaint before the competent domestic
court. Her complaint therefore cannot be rejected for failure to
exhaust the domestic remedies as required by Article 26 (Art. 26)
of the Convention.
The applicant claims that the question of costs cannot be
separated from the proceedings as a whole and that in the present case
the one-sided imposition of all costs on her as respondent, although
she was in essentially the same position as the petitioner, was
arbitrary and made the proceedings unfair. The Government object that
the question of costs did not affect the parties' procedural position
or the conduct of the proceedings as such. They claim that, for this
reason, the applicant's complaint falls outside the scope of Article 6
para. 1 (Art. 6-1) and is manifestly ill-founded.
The Commission recalls the case-law according to which in
civil cases high costs of proceedings may, in certain circumstances,
raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention
which secures to everyone a right of access to the courts and the
right to a fair trial (cf. Eur. Court H.R., Airey judgment of 9
October 1979, Series A no. 32; No. 6202/73, Dec. 16.3.75, D.R. 1 p.
66; No. 7973/77, Dec. 28.2.79, D.R. 17 p. 74; No. 9353/81, Webb v.
UK, Dec. 11.5.83, D.R. 33 p. 133). The Commission notes that in the
present case the courts applied regulations on the reimbursement of
costs which, in the opinion of the competent court of second instance,
could lead to highly unfair results in certain cases. The Commission
further notes that the relevant cost regulations were subsequently
amended, apparently on the basis of similar considerations.
However, the Commission considers that under Article 6 para. 1
(Art. 6-1) of the Convention it cannot consider the fairness of cost
regulations as such, but only whether the application of such
regulations made the proceedings unfair insofar as the determination
of civil rights and obligations is concerned. This would be so e.g.
where prohibitive costs and the refusal to grant legal aid prevented
effective access to the court for securing a legitimate civil law
claim (cf. the above-mentioned cases of Airey and Webb), or where the
imposition of certain costs was likely to influence a party's
procedural behaviour e.g. by making him or her refrain from raising
relevant arguments or legitimate claims. Nothing of the kind happened
in the present case. The applicant's access to court was not
interfered with, she could submit all relevant arguments and thereby
secure a decision on the merits of her case which essentially
corresponded to her own wishes. The cost decision was taken
simultaneously with this decision on the merits and, although it might
have been foreseeable on the basis of the applicable legislation,
nevertheless did not influence her procedural behaviour. There is
consequently no appearance of a violation of the requirements of a
fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention, and the complaint in this respect must accordingly be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention as
being manifestly ill-founded.
2. The applicant further complains that the one-sided imposition
of all costs on her was discriminatory and thus contrary to Article 14
(Art. 14) of the Convention, read in conjunction with Article 6 para. 1
(Art. 6-1). The Commission, having found the latter provision to be
applicable to the case, finds that Article 14 (Art. 14) is also applicable.
However, the different treatment of the applicant as compared to that
of the opposite party with regard to the obligation to pay the costs
in question was only the consequence of her being the defendant in the
case. It thus was not based on any particular personal status of the
kind mentioned in Article 14 (Art. 14). If the applicant had been the
petitioner in severance she could have claimed reimbursement of her
costs from the opposite party in the same way as the latter did in the
present case. The applicant's complaint under Article 14 (Art. 14) of
the Convention must therefore also be rejected as being manifestly
ill-founded.
3. The applicant further complains of the subsequent enforcement
proceedings taken against her by her stepfather for the recovery of
his equalisation and cost claims resulting from the above partition
proceedings. The applicant submits that these proceedings also come
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention
because of the connection with her counteraction under Section 35 of
the Enforcement Proceedings Act by which she tried to contest the
underlying claims. She claims that Article 6 para. 1 (Art. 6-1) of the
Convention was violated by the unfairness of the Court's refusal to
postpone the enforcement proceedings pending the decision on her
counteraction, and also because of the imposition of all the costs on
her despite this counteraction. She further alleges violations of
Article 13 (Art. 13) of the Convention and of Article 1 of Protocol
No. 1 (P1-1)in this respect.
However, the Commission notes that both in the enforcement
proceedings concerning the applicant's movable property and in the
subsequent compulsory sale proceedings concerning her real property
she reached a settlement with her stepfather whose claims she
eventually satisfied. The applicant states that she accepted the
first settlement of 3 February 1983 in order to avoid the oath of
manifestation, and the second settlement of 18 June 1985 under the
threat of losing her real property by its compulsory sale.
However, there is no indication that these circumstances
affected the validity of the settlements under Austrian law, or
that these settlements were a necessary consequence of the underlying
legislation which left the applicant no chance to reach a more
favourable solution of her case (cf. No. 8695/79, Inze v. Austria,
Dec. 5.12.1984, para. 2 of The Law, to be published in D.R.). In
particular the applicant was in no way compelled by the law to
renounce the compensation claims which she believed to have against
her stepfather and which were at the basis of her counteraction. If
she had not agreed to refrain from pursuing her counter-claims the
Courts would have been obliged to determine their justification either
on the basis of Section 35 of the Enforcement Proceedings Act, or in
the framework of normal civil proceedings. The applicant would also
10757/84
have had the possibility of taking further compensation proceedings
against her stepfather for any damage caused to her by the taking of
premature enforcement proceedings, or even of bringing an official
liability action against the competent courts if they had failed to
determine her counteraction within reasonable time and thereby caused
damage to the applicant.
In these circumstances the Commission finds no basis for the
applicant's complaints under the Convention regarding the proceedings
which eventually led to the conclusion of the above settlements. The
applicant is bound by the terms of these settlements and can no longer
claim to be a victim, within the meaning of Article 25 (Art. 25) of the
Convention, of a violation of her Convention rights in these
proceedings or as a consequence thereof (cf. mutadis mutandis,
No. 8865/80, Dec. 10.7.81, D.R. 25 p. 252). It follows that the
applicant's complaints in this respect must be rejected as being
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)