Lexploria

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;

HÃ¥kansson 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., HÃ¥kansson 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)

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WIRTH v. GERMANY

WIRTH v. GERMANY

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