Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16494/90

by Elisabeth SCHOBER

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 September 1993, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, 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 11 April 1990 by

Elisabeth SCHOBER against Austria and registered on 24 April 1993 under

file No. 24 April 1993;

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 1954. She lives in

Steyr and is represented before the Commission by Mr. A. Friedberg,

lawyer of Vienna.

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant's maternal grandmother died on 5 December 1983. She

left the bulk of her estate to her son with provision for only the

"reserved portion" to pass to her daughter, the applicant's mother.

The applicant's mother made a declaration to the St. Peter in der Au

District Court (Bezirksgericht) on 16 December 1983 that she was

entitled to and claimed the reserved portion. On 23 January 1984 the

applicant's mother died. The applicant thenceforth took the place of

her mother in the proceedings.

The applicant complains of the length of the following

proceedings:

1. On 18 April 1984 a partial inventory was prepared before a

notary. The estate of the applicant's grandmother was valued at

2,377,607.35 AS. On 30 August 1984 the applicant submitted to the

court a valuation of the estate which put its market value at 4,259,000

AS. On 4 February 1985 the District Court decided not to include the

value put on the estate by the applicant's valuer in the court papers,

but to have the estate valued on the basis that it was an hereditary

farm (Erbhof) within the meaning of the Hereditary Farms Act

(Anerbengesetz). On 5 June 1985 the St. Pölten Regional Court

(Kreisgericht) granted the applicant's appeal (Rekurs) on the basis

that the papers before the District Court did not disclose that there

was in fact an hereditary farm, and remitted the case to the District

Court. On 15 October 1985 the District Court found that the estate did

constitute an hereditary farm, and again ordered revaluation under the

Hereditary Farms Act. The applicant's appeal against this decision was

also successful: the decision of 15 October 1985 was quashed by the

Regional Court on 25 June 1986.

On the request of the applicant, the District Court decided on

26 January 1987 inter alia to separate the applicant's grandmother's

estate from the property of the applicant's uncle, to appoint a trustee

for the administration of the estate and to require a further

inventory.

On 5 February 1987 the Supreme Court (Oberster Gerichtshof)

granted the applicant's uncle's further appeal (Revisionsrekurs)

against the decision of 25 June to quash the decision of 15 October

1985, and remitted the case to the District Court for decision on

whether the estate was an hereditary farm. The applicant's

representative received the decision of 5 February on 26 March 1987.

On 27 February 1987 the St. Pölten Regional Court granted the

applicant's uncle's appeal against the decision of the St. Peter in der

Au Court of 26 January 1987. The applicant's further appeal against

the decision of the Regional Court of 27 February 1987 was rejected by

the Supreme Court on 24 March 1988. The Supreme Court's decision was

served on the applicant's representative on 18 May 1988.

On 16 May 1989 the District Court found that the applicant's

grandmother's estate constituted an hereditary farm and set the

transfer value at 1,630,000 AS. The applicant's appeal of 31 May 1989

to the Regional Court was rejected on 28 February 1990. The

applicant's further appeal to the Supreme Court of 29 March 1990 was

rejected on 26 April 1990. It was received by the applicant's

representative on 20 June 1990. On 8 October 1990 the St. Peter in der

Au District Court took a decision ending the administration proceedings

and transferring the hereditary farm to the applicant's uncle. The

applicant appealed.

In a letter of 24 March 1993 the President of the St. Pölten

Regional Court asked the applicant's representative whether he wished

to maintain the outstanding aspects of the proceedings, namely the

applicant's appeals (Rekurse) against the District Court's decisions

of 8 October 1990 and an application the applicant had made on 9

October 1990 for the registration of her part of the estate. The

representative replied on 31 March 1993 that he did wish to pursue the

proceedings.

2. In proceedings independent of the above, the applicant on 7

September 1984 introduced proceedings against her uncle for the amount

due to her under her mother's estate. On 7 December 1984 the District

Court adjourned the proceedings until the courts had finally decided

whether the applicant's grandmother's estate was or was not an

hereditary farm. These proceedings are still pending.

COMPLAINTS

The applicant complains of the length of the above proceedings,

alleging a violation of Article 6 para. 1 of the Convention.

The applicant also initially alleged that Article 6 para. 1 of

the Convention has been violated by the decision of the Supreme Court

of 5 February 1987 as to its interpretation of the Hereditary Farms

Act.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 April 1990 and registered

on 24 April 1990.

On 2 December 1991 the Commission decided to declare inadmissible

the complaint concerning the Supreme Court's decision of 5 February

1987, and to communicate to the respondent Government the complaint

concerning the length of the proceedings.

The respondent Government submitted their observations on

27 March 1992 and the applicant submitted her observations in reply on

21 May 1992.

THE LAW

The applicant considers that the proceedings referred to above

exceeded a reasonable time within the meaning of Article 6 (Art. 6) of

the Convention. Article 6 para. 1 (Art. 6-1), as far as relevant,

provides:

"In the determination of his civil rights and obligations

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

reasonable time ..."

The Government contend that, given the factual and legal

complexity of the case and the applicants' conduct, the application is

manifestly ill-founded or, in the alternative, that there is no

violation of the Convention.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of the reasonableness of the length of proceedings, namely the

complexity of the case, the applicant's conduct and that of the

competent authorities, and having regard to all the information in its

possession, that a thorough examination of this complaint is required,

both as to the law and as to the facts.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE the remainder of the application, without

prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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SCHOBER v. AUSTRIA

SCHOBER v. AUSTRIA

LEXI