Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 13713/88

J.M., F.M., H.M. and F.W.

against

Austria

REPORT OF THE COMMISSION

(adopted on 6 April 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-18). . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 19-28) . . . . . . . . . . . . . . . . . . . . . . .5

A. Complaint declared admissible

(para. 19). . . . . . . . . . . . . . . . . . . . . . .5

B. Point at issue

(para. 20). . . . . . . . . . . . . . . . . . . . . . .5

C. Compliance with Article 6 para. 1 of the Convention

(paras. 21-27). . . . . . . . . . . . . . . . . . . . .5

CONCLUSION

(para. 28) . . . . . . . . . . . . . . . . . . . . . . . . .6

APPENDIX I: PARTIAL DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . .7

APPENDIX II: FINAL DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . 14

I. INTRODUCTION

1. The present Report concerns Application No. 13713/88 against

Austria, introduced on 20 October 1987 and registered on

29 March 1988.

The applicants are Austrian nationals born in 1944, 1934, 1933

and 1928 respectively. They live in Gerersdorf, Petzenkirchen,

Gross Sierning and Kilb respectively.

The second, third and fourth applicants are represented before

the Commission by the first applicant.

The Government are represented by their Agent,

Ambassador F. Cede, head of the International Law Department of the

Federal Ministry of Foreign Affairs.

2. The Plenary Commission declared the application partly

inadmissible on 8 April 1991. On the same date, the complaint

concerning the length of the proceedings was communicated to the

respondent Government. On 2 September 1991 the Commission decided to

transfer the case to a Chamber. Following an exchange of memorials,

the complaint relating to the length of proceedings

(Article 6 para. 1 of the Convention) was declared admissible by the

Commission (Second Chamber) on 14 October 1992. The decisions on

admissibility are appended to this Report.

3. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (Second Chamber), after

deliberating, adopted this Report on 6 April 1994 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

MM. S. TRECHSEL, President of the Second Chamber

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Austria.

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with

Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In their application, in which they rely on Article 6 para. 1

of the Convention, the applicants complain of the length of non-

contentious proceedings under the Agricultural Succession

(Appointment of Heirs) Act 1958 (Bundesgesetz über besondere

Vorschriften für die bäuerliche Erbteilung - the 1958 Act).

7. F.M., the uncle of the applicants, died on 6 November 1975.

On 11 December 1975 the Mank District Court (Bezirksgericht)

received the declaration by the applicants and the other persons

entitled under F.M.'s intestacy that they were the heirs to the

estate. The first applicant's appeal (Rekurs) against this act was

rejected by the St. Pölten Regional Court (Kreisgericht) on

22 January 1976, the Court finding that there lay no appeal against

the simple receipt of a declaration. This decision was confirmed by

the Supreme Court (Oberster Gerichtshof) on 29 April 1976. On

13 September 1976 the Mank District Court found that the farm

belonging to the late F.M. did not fall within the definition of the

the 1958 Act. Upon the first applicant's appeal, the St. Pölten

Regional Court found on 20 October 1976 that the farm did fall within

the definition of the 1958 Act, and that it was accordingly an

hereditary farm (Erbhof). The Supreme Court rejected the further

appeal (Revisionsrekurs) of the third and fourth applicants on

2 June 1977, confirming that the farm was an hereditary farm.

8. On 7 September 1977 the Mank District Court found inadmissible

as being out of time an application the first applicant had made on

17 February 1976 concerning the priority of heirs. On the first

applicant's appeal the St. Pölten Regional Court found on

12 October 1977 that the application was not out of time as, at the

relevant time, it had not been determined that the farm was an

hereditary farm. The Supreme Court, on 16 March 1978, confirmed the

decision of 12 October 1977 and rejected the further appeal

(Revisionsrekurs) made by the third and fourth applicants.

9. On 23 January 1979 the Mank District Court ordered an expert's

report to establish whether the brother of F.M. was physically a fit

person to take over the hereditary farm. On 18 November 1979,

referring to a medical report of 27 July 1979 and the opinion of the

Lower Austrian Chamber of Agriculture (Niederösterreichische

Landes-Landwirtschaftskammer), the Mank District Court found that

J.M., the brother of F.M., was the heir for the purposes of the 1958

Act and the farm was transferred to him. The St. Pölten Regional

Court rejected appeals by the first and second applicants on

2 July 1980. Further appeals by both applicants were rejected for

formal reasons by the Supreme Court on 1 October 1980. An application

by the first applicant to re-open the proceedings was declared

inadmissible by the Mank District Court on 24 February 1981 on the

ground that no such application could be made. The decision was

confirmed by the St. Pölten Regional Court on 25 November 1981. A

further appeal was likewise rejected by the Supreme Court on

13 January 1982. A further request by the first applicant for the

proceedings to be re-opened was rejected by the Mank District Court

on 16 February 1982.

10. On 29 November 1982 the Mank District Court appointed two

experts to determine the transfer price (Ubernahmspreis) of the farm.

After a decision of 14 March 1983 by which it blocked the late F.M.'s

saving books, the Mank District Court appointed a third expert on

3 December 1983.

11. On 29 May 1984 the Mank District Court rejected the first

applicant's challenge of two of the experts and fixed the transfer

price of the farm at AS 2,100,000. Appeals by J.M. (brother of F.M.)

and by the applicants were rejected by the St. Pölten Regional Court

on 13 July 1984.

12. On 12 October 1984 the St. Pölten Regional Court rejected the

appeals by the third and fourth applicants concerning experts' fees.

13. On 17 January 1985 the Supreme Court rejected further appeals

by the applicants against the decision of the St. Pölten Regional

Court of 13 July 1984. The transfer price for the farm of AS

2,100,000 thereby became final.

14. The first, third and fourth applicants and a niece of F.M.

challenged the presiding judge at the Mank District Court on the

ground that he had made inappropriate comments. The St. Pölten

Regional Court rejected the challenge on 27 February 1985. It

considered that, apart from the fact that there was no indication

that the judge in question was biased, the challenge was an attempt

to have a further appeal against the substantive decisions already

taken in the proceedings. An appeal to the Vienna Court of Appeal

(Oberlandesgericht) was rejected by that court on 21 May 1985. A

purported further appeal was refused by the Mank District Court on

17 July 1985 on the ground that no such remedy existed.

15. On 4 December 1985, in reply to a further challenge by the

second, third and fourth applicants and a niece of F.M., the

St. Pölten Regional Court accepted that it could appear to an

outsider that the judge of the Mank District Court was not completely

impartial in that he had delayed preparing interlocutory decisions in

order to deal with them at the same time as a final decision. As

there had been a considerable press campaign against the judge, the

court found that the judge should not take any further decisions in

the case. Previous decisions were not affected. The applicants' then

representative received the decision on 17 January 1986.

16. On 1 April 1986 the new judge (a) ordered the registration of

the transfer of the farm, (b) calculated the shares of each heir and

declared the closure of the above proceedings, and (c) rejected an

application by the applicants for appointment of a new heir to the

farm. The first applicant appealed against all three decisions and

the remaining three applicants appealed against the registration of

the transfer and the declaration that the proceedings were closed.

The St. Pölten Regional Court on 17 December 1986 found that it was

no longer possible to appoint a new successor, but that the question

of apportionment of the profits of the farm had not been properly

considered, and should be remitted to the Mank District Court. On

26 March 1987 the Supreme Court, considering the further appeals of

all four applicants and of J.M., rejected the applicants' appeal and

restored the decisions of the Mank District Court of 1 April 1986.

In connection with the successful challenge of the judge of the Mank

District Court, the Supreme Court found that the applicants could

have appealed against the failure to deal in the decision with the

question of nullity of decisions taken by the judge, but that they

had failed to do so.

17. On 4 August 1987 the Mank District Court rejected an application

by the fourth applicant for payment of AS 652,987.61 (compared with

his entitlement pursuant to the proceedings of AS 273,285.14). The

difference was made up by interest accrued over the years since the

death of F.M. The fourth applicant's appeal (Rekurs) to the

St. Pölten Regional Court was rejected on 16 September 1987 as there

was no provision in non-contentious proceedings for interest as

claimed. Any claim for interest would have to be made in civil

proceedings by way of a claim on the sum due under the succession.

The Supreme Court on 18 December 1987 rejected the fourth applicant's

further appeal as neither of the grounds for such an appeal had been

alleged or established.

18. On 13 May 1988 the Mank District Court entered J.M. as

proprietor of the farm in the land registry.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

19. The Commission has declared admissible the applicants' complaint

that their case was not heard within a reasonable time.

B. Point at issue

20. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" referred to in Article 6

para. 1 (Art. 6-1) of the Convention.

C. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

21. Article 6 para. 1 (Art. 6-1) of the Convention includes the

following provision:

"In the determination of his civil rights and obligations

..., everyone is entitled to a ... hearing within a

reasonable time by (a) ... tribunal ..."

22. The proceedings in question concerned the applicants'

entitlement in the succession on their uncle's intestacy. The

purpose of the proceedings was to obtain a decision in a dispute over

"civil rights and obligations" and they accordingly fell within the

scope of Article 6 para. 1 (Art. 6-1) of the Convention.

23. These proceedings, which began on 11 December 1975 with a

declaration by the applicants before the Mank District Court and

closed on 13 May 1988 with the entry of the applicants' late uncle's

brother as proprietor of the farm which had been at the centre of the

dispute, lasted almost 12 ½ years.

24. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of

the case, the conduct of the parties and the conduct of the

authorities dealing with the case (see Eur. Court H.R., Vernillo

judgment of 20 February 1991, Series A no. 198, para. 30).

25. The applicants consider that the Government bear responsibility

for the length of the proceedings, and point out that a number of

their avenues of appeal were successful. According to the

Government, the length of the period in question is due to the

complexity of the case, namely the different legal issues which had

to be resolved, and to the applicants' conduct.

26. The Commission accepts that the case was of a certain complexity

as it involved the issues of whether the farm fell under the 1958

Act, who was entitled to the farm, and how the farm was to be valued.

The Commission considers that the applicant's conduct, although it

certainly contributed to the length of the proceedings, is not in

itself sufficient to explain that length. It considers that no

convincing explanation of the length of the proceedings has been

advanced by the respondent Government. The Commission reaffirms that

it is for Contracting States to organise their legal systems in such

a way that their courts can guarantee the right of everyone to obtain

a final decision on disputes relating to civil rights and obligations

within a reasonable time.

27. In the light of the criteria established by case-law and having

regard to all the information in its possession, the Commission finds

that the length of the proceedings complained of exceeded the

"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the

Convention.

CONCLUSION

28. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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J.M., F.M., H.M. and F.W. v. AUSTRIA

J.M., F.M., H.M. and F.W. v. AUSTRIA

LEXI