Information Note on the Court’s case-law No. 121
July 2009
Zehentner v. Austria - 20082/02
Judgment 16.7.2009 [Section I]
Article 34
Locus standi
Applicant lacking legal capacity under domestic law permitted to present own case before the Court despite guardian’s disapproval: admissible
Article 8
Article 8-1
Respect for home
Lack of procedural safeguards in enforcement proceedings for debtor lacking legal capacity: violation
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Lack of procedural safeguards in enforcement proceedings for debtor lacking legal capacity: violation
Facts: In November 1999 the applicant’s flat was the subject of a sale at the request of creditors who had obtained payment orders against her in summary proceedings in the sum of approximately EUR 9,600. The court decisions concerning the sale were not served on her personally as she could not be found at her home address, but were deposited at the post office and the sale took place in her absence. In February 2000 the applicant was evicted from the flat. The following month she suffered a nervous breakdown and was admitted to a psychiatric hospital. A temporary guardian was appointed to look after her needs. In the ensuing guardianship proceedings it was established that since 1994 she had suffered from paranoid psychosis and had been unable to make rational decisions. The guardian appealed against the order for the sale of the flat on the grounds of the applicant’s incapacity. However, although the court found that two of the payment orders that had served as a basis for the enforcement order had not been enforceable because the applicant had been unable to participate in the proceedings at the time, it ruled that it was no longer possible to discontinue the enforcement proceedings as the decision allocating the proceeds of sale to the creditors had become final and had been executed. Moreover, the 14-day time-limit for appealing the decision was absolute and served to protect the purchaser.
Law: Article 34 – The applicant had filed her application with the Court in 2002, setting out in a sufficiently substantiated manner the subject-matter of her complaint. In 2006 her guardian informed the Court that she had not approved the institution of the proceedings before the Court and did not wish to pursue the application. The applicant, however, requested that the Court proceed with the examination of her case and stated that she did not wish to be represented before the Court by her guardian. Bearing in mind that the conditions governing individual applications were not necessarily the same as national criteria governing locus standi, the Court concluded that the applicant had standing to pursue her complaint.
Conclusion: admissible (unanimously)
Article 8 – The Court found that the applicant had lacked legal capacity for a number of years by the time the judicial sale of the flat and her eviction took place. She had therefore not been able either to contest the payment order or to resort to the remedies available under domestic legislation. By the time the authorities became aware of her lack of legal capacity, she was left without any means of obtaining a review of her case owing to the absolute nature of the time-limit for appealing. Even though the existence of such time-limits served to protect legal certainty as well as bona fide purchasers, the Court considered that when persons lacking legal capacity were concerned, specific justification was required owing to their vulnerable position. However, the domestic courts had not advanced any such justification, or weighed the interests of the purchaser against those of the applicant. As regards whether the absolute time-limit served the general interest of legal certainty, the Court reiterated that that principle would not be violated in circumstances of a substantial and compelling character. Accordingly, neither of the legitimate aims relied on by the Government could outweigh the fact that the applicant had been dispossessed of her home without being able to effectively participate in the proceedings and without any possibility to have the proportionality of the measure determined by the courts.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1 – Even though the applicant’s case involved a dispute between private parties, the State was under an obligation to afford those parties judicial procedures offering the necessary procedural safeguards. In this connection, the Court had doubts whether the applicant’s interests were taken into account where a payment order for a comparatively minor sum issued in summary proceedings should serve as a basis for judicial sale of real estate of considerable value. As to the procedural mechanism relied on by the Government as an alternative means of protecting the applicant’s pecuniary interests, the Court was not convinced that such procedure, requiring the institution of a number of consecutive sets of proceedings against each of the applicant’s creditors, offered adequate protection to a person lacking legal capacity.
Conclusion: violation (unanimously).
Article 41 – EUR 30,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy