AS TO THE ADMISSIBILITY OF

                      Application No. 26632/95

                      by Ulrike MAYER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 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 25 January 1995

by Ulrike MAYER against Austria and registered on 3 March 1995 under

file No. 26632/95;

     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 applicant is an Austrian citizen, born in 1960 and residing

in Dornbirn.  Before the Commission she is represented by Mr. E. Hagen,

a lawyer practising in Dornbirn.

A.   Particular circumstances of the case

     The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

     In 1986 the applicant's father J.G., who at that time ran a

butcher's shop, had considerable debts.  In order to continue his

business, he took a loan of ATS 250.000 and, as security, signed as

guarantor a bill of exchange (Wechselbürge) in the amount of

DEM 50.000.   Three months later J.G. received money from the

applicant's husband in order to pay back the loan.

     In autumn 1989 J.G. was again in financial difficulties.  The

applicant decided to sell real property belonging to her in order to

enable J.G. to settle his debts.  With the help of J.G. she drew up a

list of J.G.'s creditors.  The applicant's real estate was sold, the

proceeds of the sale given to J.G. and his creditors, according to the

list, were paid.  It was further agreed that upon his retirement J.G.

would assign his pension payments to the applicant.

     On 6 January 1991 J.G. retired.  On 23 February 1991 the

applicant and J.G. concluded a written agreement by which J.G. assigned

a part of his pension to the applicant.  The Old Age Pension Authority

for the Self Employed (Sozialversicherungsanstalt der Gewerblichen

Wirtschaft) was informed of this agreement and subsequently transferred

parts of J.G.'s pension to the applicant.

     Meanwhile, the bill of exchange which J.G. had signed as

guarantor in 1986 was passed on to the R. Savings Bank in Germany.  On

3 April 1987 the Savings Bank filed an action on the bill of exchange

against J.G. with the Feldkirch Regional Court (Landesgericht).  On

20 December 1989 the Regional Court found against J.G. and this

decision entered into force.  On 28 February 1990 the Savings Bank

requested the enforcement of the judgment of 20 December 1989.

Subsequently, a seizure in enforcement (Pfändung) of the furniture at

J.G.'s apartment took place.  Since property claims by third persons

(J.G.'s wife and the sister of the applicant) were raised with regard

to the objects seized, the enforcement proceedings were discontinued.

On 12 June 1990 J.G. made an oath of disclosure of his assets

(Offenbarungseid).  It appears that J.G. did not inform the applicant

of these developments.

     On 24 July 1992 the Old Age Pension Authority for the Self

Employed was served an order of the Enforcement Court

(Exekutionsgericht) by which it was ordered to pay J.G.'s pension to

the Savings Bank. The Pension Authority informed the Savings Bank of

the agreement between J.G. and the applicant concerning the assignment

of the pension payments.

     On 15 December 1992 the Savings Bank filed an action under

Section 2 para. 3 of the Debtors Voidable Dispositions Act

(Anfechtungsordnung) against the applicant.  The Savings Bank requested

the court to find that the assignment of J.G.'s pension claims to the

applicant was invalid.

     On 24 June 1993 the Regional Court dismissed the action.  It

found that under Section 2 para. 3 of the Debtors Voidable Dispositions

Act, the plaintiff had to prove that within two years before the action

had been filed the challenged transaction had taken place and that the

persons involved in the transaction were close relatives.  The

plaintiff was not required to prove that the debtor had acted with the

intention to cause him damage, nor that the person against whom the

action was directed had any knowledge of the debtor's intention, nor

that this person had acted in negligent ignorance (schuldhafte

Unkenntnis) of the debtor's intention.  It was up to the defendant to

prove that he had acted in good faith and any remaining uncertainties

had to be interpreted against him.

     In the present case the applicant had succeeded in proving that

there had been no intention to cause damage to the Savings Bank by the

challenged transaction.  When the list of J.G.'s creditors had been

drawn up in 1989 she had examined J.G.'s balance sheets and had asked

him about the existence of any other debts not mentioned therein. In

the list finally drawn up, the Savings Bank was not mentioned as

creditor.  Also when assigning his pension claims to the applicant,

J.G. did not mention to her the debt he had with the Savings Bank.

Other enquiries she could not have been expected to undertake.  The

fact that in 1990 enforcement proceedings against J.G. were pending was

not relevant as the applicant had not been informed of them.

     The Savings Bank appealed.  It submitted that the applicant had

acted negligently, as she had failed to make enquiries with the

Enforcement Court.  If she would have done so, she would have found out

about J.G.'s debt with the Savings Bank.

     On 29 October 1993 the Innsbruck Court of Appeal

(Oberlandesbgericht) dismissed the appeal.  It found that the applicant

had acted with the necessary diligence.  The Court of Appeal noted that

J.G. had assigned orally his pension claim to the applicant in 1989.

At that time no enforcement proceedings had been pending against J.G.,

so that any enquiries with the Enforcement Court would have been

superfluous.

     The Savings Bank lodged an extraordinary appeal on points of law

(außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster

Gerichtshof).

     On 22 June 1994 the Supreme Court granted the extraordinary

appeal.  It noted that according to the Court of Appeal J.G. had orally

assigned his future pension payments to the applicant already in 1989.

The Supreme Court found however that under the Social Security Act

pension payments could only be validly assigned to third persons with

the consent of the Pension Institution.  The pension authority had

given its consent only after it had received a written statements of

assignment by J.G. on 11 March 1991.  At that time the applicant could

easily have found out the existence of J.G.'s debts by enquiring with

the Enforcement Court.  There was nothing to show that it would have

been unreasonable to expect her to make such enquiries.  According to

her own statement the purpose of the assignment was to avoid J.G.

having to incur new debts.  Thus, the unreliability of J.G. had been

clear to the applicant.  Also the development of J.G.'s financial

situation, in particular the fact that in the past numerous enforcement

proceedings had been brought against him, showed him as a person who

had lost sight of all his different financial obligations.  In such

circumstances the applicant should not have trusted the word of J.G.

Applying an average measure of diligence the applicant should have made

enquiries with the Enforcement Court before concluding a transaction

with J.G.  Therefore, the applicant did not act with the necessary

diligence.

     The Supreme Court also found that there were no doubts about the

constitutionality of the reversal of burden of proof under Section 2

para. 3 of the Debtors Voidable Dispostions Act.  It was justified to

impose a heavier onus of proof on close relatives than on other persons

who conclude transactions with a debtor, as close relatives have in

general an easier and better access to information about the financial

situation of a debtor.  The purpose of the reversal of proof was

therefore to make up for the disadvantage in the obtaining of

information by persons who were not in such a close relationship.

B.   Relevant domestic law

     Under Section 2 para. 3 of the Debtors Voidable Disposition Act

(Anfechtungsordnung) creditors may apply to set aside a transaction

which has been concluded between the debtor and close relatives, unless

the other party at the time of the transaction did not know, or was not

bound to know about the debtor's intention to cause prejudice to the

creditor.  The time limit for filing such an action is two years.

Close relatives are defined in Section 4 of the Act and include

spouses, persons living with the debtor in an extramarital relation and

persons who are related to the debtor in lineal consanguinity or

collateral consanguinity up to the fourth degree.

COMPLAINTS

1.   The applicant complains under Article 6 para. 1 of the Convention

about the Supreme Court's judgment, given in the proceedings under the

Debtors Voidable Dispositions Act against her and the alleged

unfairness of these proceedings.  She submits that the distribution of

the onus of proof in these proceedings rendered the proceedings unfair

and violated the principle of equality of arms.  The general rule of

onus of proof, namely that the party asserting a claim had to prove

that the conditions for the granting of the claim were fulfilled, was

reversed to the disadvantage of the defendant merely on the ground that

the defendant had a family relationship with a debtor of the plaintiff.

2.   The applicant further complains under Article 14 in conjunction

with Article 6 para.1 of the Convention that the provisions of the

Debtors Voidable Dispositions Act were discriminatory, as there was no

reason why the reversal of the onus of proof was only imposed on close

relatives while other persons, like former spouses or persons who have

a close private and business relationship with the debtor are, not

subject to this onus of proof.

3.   Lastly, the applicant complains that the provisions of the

Debtors Voidable Dispositions Act violate the right to respect for

family life under Article 8 of the Convention, as they prevent close

relatives from helping those members of their family in financial

difficulties.

THE LAW

1.   The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the Supreme Court's judgment in the proceedings under

the Debtors Voidable Dispositions Act against her and the alleged

unfairness of these proceedings.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads as follows:

     "In the determination of his civil rights and obligations ...

     everyone is entitled to a fair ... hearing ... by an independent

     and impartial tribunal established by law."

     Insofar the applicant complains about the Supreme Court's

judgment, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77 p. 81; Eur. Court

H.R., Van de Hurk v. the Netherlands judgment of 19 April 1994,

Series A no. 288, p. 20, para. 61; Klaas v. Germany judgment of

22 September 1993, Series A no. 269, p. 17, para. 29).

     The applicant submits that the distribution of the onus of proof

in these proceedings rendered the proceedings unfair and violated the

principle of equality of arms.

     The Commission recalls that the principle of equality of arms is

only one feature of a wider concept of a fair trial and implies that

each party shall have a reasonable opportunity of presenting his case

to the court under conditions which do not place him at a substantial

disadvantage vis-a-vis his opponent (see, Eur. Court HR, Dombo Beheer

B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274,

p. 19, para. 33; Stran Greek Refineries S.A. and Stratis Andreadis v.

Greece judgment of 9 December 1994, Series A no. 301-B, para. 46).

     The Commission recalls further that Article 6 para. 1

(Art. 6-1) of the Convention does not, as such, regulate the allocation

of the burden of proof.  A provision laying down, in the context of a

civil dispute, a presumption of responsibility may therefore be

regarded as infringing the fairness of a trial only if and insofar as

it can result in an imbalance between the parties (No. 11941/86, Dec.

5.10.88, D.R. 57 p. 100).  In the context of criminal proceedings

Article 6 (Art. 6) requires Contracting States to confine presumptions

of fact or law provided for in their criminal law within reasonable

limits which take into account the importance of what is at stake and

maintain the rights of the defence.  In particular a presumption so

established by law must not be an irrebuttable one (Eur. Court HR, Pham

Hoang v. France judgment of 25 September 1992, Series A no. 243, pp.

21-22, paras. 33-34).

     The Commission observes that the Debtors Voidable Dispositions

Act imposes on the plaintiff in proceedings thereunder the obligation

to prove that a transaction of his debtor has occurred which was to his

detriment, that the other person involved in the transaction was a

close relative, and that the transaction had taken place within two

years of the challenge of the transaction.  If a creditor has succeeded

in establishing these issues it is presumed that the other party had

the intention to cause him damage.  However, this presumption is

rebuttable, as the defendant may prove that he had no knowledge of any

such intent of the debtor, in particular by showing that he had acted

in good faith.  The defendant succeeds in proving this, if he shows

that he has made the necessary enquiries into the financial situation

of the debtor and has verified that the intended transaction could not

cause damage to any existing creditor.

     In the present case, in the view of the Supreme Court, the

applicant failed to prove that she had acted in good faith as she had

failed to undertake the specific enquiries referred to by the Supreme

Court.  Having regard to the careful examination of this issue by the

Supreme Court on the basis of all the material in the file, the

Commissions cannot find that its decision was arbitrary, or that the

applicant, who was represented by counsel in the proceedings, could not

properly argue her case and rebut the presumption of law operated under

the Debtors Voidable Dispositions Act.  The Commission therefore finds

that, in the circumstances of the present case, the principle of

equality of arms was not infringed as the applicant was not placed at

a substantial disadvantage vis-a-vis her opponent.

     The Commission therefore finds that there is no appearance of a

violation of the applicant's right to a fair hearing under Article 6

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

     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 complains under Article 14 in conjunction

with Article 6 para. 1 (Art. 14+6-1) of the Convention that the

provisions of the Debtors Voidable Dispositions Act were

discriminatory, as there was no reason why the reversal of the onus of

proof was only imposed on close relatives while other persons, like

former spouses or persons who had a close private and business

relationship with the debtor are, not subject to this onus of proof.

     The Commission, assuming that the reversal of the burden of proof

in the proceedings against the applicant under the Debtors Voidable

Dispositions Act raises an issue which comes within the ambit of

Article 6 para. 1 (Art. 6-1) of the Convention, has examined her

complaint under Article 14 in conjunction with Article 6 para. 1

(Art. 14+6-1) of the Convention.

     Article 14 (Art. 14) of the Convention reads as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Commission recalls that for the purpose Article 14 (Art. 14)

of the Convention a difference in treatment is discriminatory only if

it has no objective and reasonable justification (Eur. Court HR,

Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no.

291-B, p. 32, para. 24).

     In the present case, the provisions of the Debtors Voidable

Dispositions Act were applied to the applicant as she was the daughter

of the debtor, and thus a close relative within the meaning of the Act.

Having regard the findings of the Supreme Court, according to which it

is justified to treat close relatives differently from other persons

who conclude transactions with a debtor as the former have in general

an easier and better access to information about the financial

situation of a debtor, the Commission finds that this difference in

treatment is based on an objective and reasonable criterion.

Accordingly, the applicant has not been discriminated against in her

right to a fair trial as guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention.

     It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.   Lastly, the applicant complains that the provisions of the

Debtors Voidable Dispositions Act violate the right to respect for

family life under Article 8 (Art. 8) of the Convention, as they prevent

close relatives from helping those members of their family in financial

difficulties.

     The Commission, having examined the applicant's remaining

complaint as it has been submitted by her, finds that it does not

disclose any appearance of a violation of the rights and freedoms set

out in the Convention.

     It follows that also this part of the application is 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.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber