Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18960/91

by S.H. and H.V.

against Austria

The European Commission of Human Rights sitting in private on

13 January 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. H.C. KRÜGER, Secretary to the Commission,

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 September 1991

by S.H. and H.V. against Austria and registered on 17 October 1991

under file No. 18960/91;

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 facts of the case, as submitted by the applicants, may be

summarised as follows.

The applicants are Austrian citizens born in 1931 and 1918

respectively. Both applicants are retired. They reside at the same

address in Vienna. Before the Commission they are represented by

Mrs. N. Schloter, a lawyer practising in Strasbourg.

The first applicant owns real property in Vienna containing

apartments which the applicants let. Seven tenants introduced

proceedings in 1987 against both applicants, requesting the Vienna

Central City District Court (Bezirksgericht Innere Stadt Wien) to

reduce the rents originally fixed between them and the applicants, and

to order the reimbursement of the excess amounts.

A hearing was first fixed for 27 June 1990 and then for 4 October

1990. The latter date coincided with the first day of the Jewish feast

of Tabernacles (Laubhüttenfest).

On 30 May 1990 the District Court notified the applicants that

the hearing would be held on 4 October 1990.

On 25 September 1990 the first applicant wrote to the District

Court as follows:

"When looking at my commitments I noticed my hearing in the

above case on 4 October 1990. I hereby announce that 4 October

is a mosaic holiday. I therefore request an adjournment as I

cannot be present."

"Bei durchschauen meine Termine bin ich auf meine

Verhandlung in obiger Geschäftszahl 4. Oktober 90 gestossen. Ich

gebe bekannt, dass 4. Oktober mosaischer Feiertag ist. Daher

bitte ich um eine Vertagung, da ich nicht erscheinen kann."

On 26 September 1990 the District Court dismissed the applicants'

request with reference to the principle of expediting proceedings

(Verfahrensbeschleunigung). The Court pointed out that seven parties

were involved, that a whole morning would be required for the hearing,

and that an "adjournment at short notice" ("kurzfristige Verlegung")

was not possible. The Court drew the applicants' attention to the fact

that they could be represented by another person.

By letter of 3 October 1990 to the District Court the applicants

complained of the refusal to adjourn the hearing. The applicants

further stated that "it was impossible to instruct a legal

representative with such a difficult matter, and that it was therefore

impossible to send a representative to the hearing" ("ist es unmöglich,

eine Vertretung in diese schwierige Materie einzuarbeiten, und es ist

daher unmöglich, eine solche zur Verhandlung zu schicken").

The hearing before the District Court was conducted on 4 October

1990. By decision of 28 October 1990 the District Court held that the

rent had been too high and ordered the applicants to pay back the

excess. The applicants were ordered to reimburse altogether

107,970 AS as well as 4% interest on the sum since 1987. The Court

found that certain facts had remained uncontested (ausser Streit)

between the parties.

The applicant's appeal was dismissed by the Vienna Regional Court

(Landesgericht) on 9 April 1991. In so far as the applicants

complained that the hearing had not been adjourned, the Court found

that the applicants had not explained what they would have said at the

hearing and that in any event they had been told that they could

submit written statements.

The applicants' further extraordinary appeal (ausserordentlicher

Rekurs) was declared inadmissible by the Supreme Court on 25 June 1991.

COMPLAINTS

1. The applicants complain under Article 6 para. 1 of the Convention

that they did not have a fair hearing as they could not be present at

the oral hearing on 4 October 1990 before the District Court. They

point out that courts in Austria have a calendar where the holidays of

all recognised religions are marked. The applicants submit that their

religion prohibited them from being represented by other persons on

this day. Moreover, after refusal of the adjournment of the hearing

there was not enough time for submitting a written statement instead.

2. Under Article 9 of the Convention the applicants complain that

the District Court, by refusing their request, disclosed prejudice

against their religion.

3. Under Article 14 of the Convention the applicants complain of

discrimination, claiming that it would not be expected of a Catholic

or a Protestant to attend a court hearing on a Sunday.

4. Under Article 1 of Protocol No. 1 to the Convention the

applicants complain that they could not freely dispose of their

property.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 September 1991 and

registered on 17 October 1991.

On 14 April 1992 the Rapporteur decided to request information

from the respondent Government pursuant to Rule 47 para. 2 (a) of the

Commission's Rules of Procedure.

The information was provided by the respondent Government on

12 June 1992 and comments thereupon were submitted by the applicants

on 29 June 1992. Comments by their lawyer were received on

16 September 1992.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that they did not have a fair hearing as they could not be

present at the oral hearing on 4 October 1990 before the District

Court. The applicants submit that their religion prohibited them from

being represented by other persons on this day. Moreover, after the

refusal of the adjournment of the hearing there was not enough time for

submitting a written statement instead.

The Commission observes, on the one hand, that 4 October 1990,

the date for which the oral hearing was fixed, was an important

religious holiday for the applicants. Their religion also prohibited

a lawyer working for them on that day. Furthermore, as a result of

their absence, the District Court considered in its decision of 28

October 1990 inter alia that certain facts had remained uncontested

between the parties.

On the other hand, the Commission observes that the case involved

seven plaintiffs, namely the tenants who brought claims against the

applicants. The organisation of the proceedings before the District

Court would thus have been of some complexity.

Moreover, it has not been disputed by the applicants that they

were in fact already notified on 30 May 1990 of the hearing on

4 October 1990, i.e. approximately four months in advance.

In view of the great religious importance of that date for the

applicants as well as the complex organisation of the proceedings, the

Commission considers that, upon the notification of the date of the

hearing, the applicants could have been expected duly to request an

adjournment at their earliest convenience in order to enable the Court

to arrange a new date for the hearing.

It is true that on 25 September 1990, i.e. nine days before the

hearing, the applicants wrote to the District Court and requested an

adjournment of the hearing. However, in view of the complexity of the

organisation of the proceedings at issue, it does not appear

unreasonable if the District Court in its decision of 26 September 1990

dismissed the request as it had only been filed at short notice.

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. Under Article 9 (Art. 9) of the Convention the applicants

complain that the District Court, by refusing their request, disclosed

prejudice against their religion. Under Article 14 (Art. 14) of the

Convention the applicants complain of discrimination, claiming that it

would not be expected of a Catholic or a Protestant to attend a court

hearing on a Sunday. However, having concluded that the applicants'

complaints

under Article 6 (Art. 6) of the Convention are manifestly ill-founded,

the Commission finds that no separate issue arises under Article 9

(Art. 9) or under Article 14 of the Convention taken together with

Article 9 (Art. 14+9).

This part of the Convention is therefore also manifestly ill-

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

Convention.

3. The applicants complain under Article 1 of Protocol No. 1 (P1-1)

to the Convention that they could not freely dispose of their property.

The Commission notes that the decisions of the Austrian courts on the

reduction of rent and the corresponding reimbursement imposed on the

applicants concerned relations between private persons. There is no

indication of a violation of the applicants' right to property within

the meaning of Article 1 of Protocol No. 1 (P1-1).

The remainder of the application is therefore also 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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S.H. AND H.V. v. AUSTRIA

S.H. AND H.V. v. AUSTRIA

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