AS TO THE ADMISSIBILITY OF
Application No. 26392/95
by Ernst WIRTH
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 20 January 1995
by Ernst WIRTH against Germany and registered on 3 February 1995 under
file No. 26392/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1959, was a German national and resident
at Aschheim. In the proceedings before the Commission, he was
represented by Mr. P. Kloer, a lawyer practising in Munich. By letter
of 12 February 1995, counsel informed the Commission that the applicant
had died and that his heirs wish to pursue the application.
In 1987 the applicant's brother died intestate and left as his
heirs, apart from the applicant, his mother and his sister. According
to the relevant provisions of the German Civil Code (Bürgerliches
Gesetzbuch), the mother was entitled to a half part of the inheritance
and the applicant and his sister each to one-quarter thereof. However,
the farm in question was subject to special legislation, the Real
Property Transaction Act (Grundstücksverkehrsgesetz) providing that,
in the case of hereditary succession, one of the heirs may request to
take over the entire property and pay off the other heirs. Such a
transfer could only be ordered if the estate had a farm and that the
income was sufficient to maintain a family. The amount of the sum to
be paid to the other heirs had to be calculated on the basis of the
farm's income value (Ertragswert).
The applicant's mother claimed that she should be called to take
over her son's farm as she had previously passed it on to him, had been
living and working on the farm and had managed it since her son's
death. While her daughter agreed, the applicant objected. In the
following proceedings, the applicant was represented by counsel.
On 5 July 1989 the Augsburg District Court (Amtsgericht)
transferred the title to the whole farm to the applicant's mother. The
Court found in particular that the farm's operating income was
comparable to the income of other farms and sufficient to maintain a
family. Moreover, the applicant's mother was living and working on the
farm, and also appeared capable of running the farm. In these respects
the Court proceeded from an agricultural expert opinion. The Court
further considered that the mother had previously ceded the farm to her
deceased son and that the applicant himself did not intend to take over
the farm. The Court also noted that the applicant, as a mechanician
for farming equipment, had attained an independant position in life.
Moreover, following a quarrel with his brother, the applicant, together
with his wife, had moved to Aschheim.
On 30 November 1989 the Munich Court of Appeal
(Oberlandesgericht) dismissed the applicant's appeal. The Court of
Appeal confirmed the factual findings of the District Court. As to the
applicant's argument that his mother was not, for health reasons,
capable of running the farm, the Court of Appeal further referred to
the results of an examination by the local health officer of
13 November 1989. Considering the putative will of the de cuius, the
Court took into account that the applicant's mother had been living on
the farm since her birth and that she had brought this property into
her marriage. It also noted that only the applicant's mother needed
a source of income.
On 14 December 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) dismissed the applicant's constitutional complaint.
The Constitutional Court found that the legislation according to which,
in case of hereditary succession, a farm may be transferred to one of
the heirs who has to pay off the other heirs, did not violate the
constitutional right of inheritance (Erbrechtsgewährleistung) or the
constitutional right to equal treatment (Gleichheitssatz). Legislation
in case of intestate succession had to take the reasonable interests
of the de cuius into account. In general, equal shares would therefore
be attributed to relatives of equal affinity. However, in case of a
farm which would not be viable if divided, it appeared reasonable to
transfer it to one of the heirs. These considerations also justified
the resulting difference of treatment between the heirs. Moreover, the
particular situation of farms as source of income allowed for this
special legislation as compared to trade and industry. As regards the
applicant's complaints about the lower courts' factual findings, the
Constitutional Court considered that there was no appearance of
arbitrariness.
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 that
the transfer of the farm to his mother violated his right to property.
He stated that he in principle agreed with the special legislation in
question. However, in the present case, the legal requirements for the
transfer of the farm had not been met, i.e. the farm allegedly was not
a full source of income.
2. The applicant further complained under Article 6 para. 1 of the
Convention that the Courts had not duly established the relevant facts,
in particular as to the circumstances of the farm and the capacity of
his mother to run the farm.
THE LAW
1. The Commission notes that the applicant died after introduction
of the application. By letter of 12 February 1996, counsel informed
the Commission that his heirs wish to pursue the application.
The Commission recalls its case-law (No. 10474/87, Dec. 6.5.86,
D.R. 47 p. 116; No. 12526/86, D.R. 68 p. 104) according to which the
applicant's death does not in itself dispose of his or her complaint.
In principle, it falls to the Convention organ before which the case
is pending to decide whether the application should be further examined
or whether it should be struck off the list of cases. In the
examination of this question, special consideration must be given to
the intentions exposed by the applicant's legal successor as well as
to the nature of the complaint.
The present application concerns property matters and related
court proceedings. The Commission finds that the applicant's heirs
have a sufficient legal interest in the outcome of the proceedings
before the Convention organs. It concludes that the applicant's heirs
may take over and continue the proceedings instituted by the applicant
before the Commission.
2. The applicant complained under Article 1 of Protocol No. 1
(P1-1) that the transfer of the farm to his mother violated his right
to property.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"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 contributions
or penalties."
The Commission finds that the impugned court decisions
constituted an interference with the applicant's right to the peaceful
enjoyment of his possessions, i.e. his share in the estate, which has
to be considered under Article 1 para. 1, second sentence (Art. 1-1-2).
The German legislation in question pursued the aim of ensuring
that, in case of intestate succession, a farm could be transferred to
one of the heirs, taking the reasonable interests of the de cuius into
account. This aim constitutes a legitimate "public interest" for the
purposes of Article 1 of Protocol No. 1 (P1-1), even to the extent that
it may imply the compulsory transfer of property from one individual
to another (cf., mutatis mutandis, Eur. Court H.R., James and Others
judgment of 21 February 1986, Series A no. 98, pp. 30-32, paras. 39-45;
Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171-
A, p. 15, para. 44).
The Commission observes that the applicant did not challenge the
aim of the law itself, or its lawfulness in general. According to the
applicant, the German courts had incorrectly found that the conditions
to apply the relevant provisions of the Real Estate Transaction Act in
the instant case were met.
Regarding the lawfulness of the impugned decisions, the
Commission would recall that its power to review compliance with
domestic law is limited (cf. Eur. Court H.R., Håkansson and Sturesson
judgment, loc. cit., p. 16, para. 47). In the present case, the
applicant's submissions do not disclose any non-observance of the
legislation in question. In this respect, the Commission notes that
the District Court as well as the Court of Appeal established the
pertinent facts inter alia on the basis of expert evidence. The
Commission therefore considers that the impugned decisions were in
accordance with German law.
The impugned decisions thus had a legitimate aim and were lawful
for the purposes of Article 1 of Protocol No. 1 (P1-1).
The Commission further observes that the applicant did not show
that the transfer of his deceased brother's farm to his mother was
disproportionate. In this respect, the Commission had regard to the
reasoning advanced by the German courts, inter alia that the farm had
previously belonged to the applicant's mother and that she was the only
one of the heirs not having another source of income as well as the
fact that the applicant himself had not intended to take over the farm.
In these circumstances, there is no appearance of a violation of
Article 1 of Protocol No. 1 (P1-1).
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 complained under Article 6 para. 1
(Art. 6-1) of the Convention that the German courts had not duly
established all relevant facts.
The Commission finds that there is nothing to show that the
applicant, represented by counsel, could not duly forward his arguments
in the course of the domestic court proceedings, or that the
proceedings were otherwise unfair. Consequently, there is no
appearance of a violation of his rights under Article 6 para. 1
(Art. 6-1).
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy