Lexploria

FINAL

SECOND CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 13713/88

by J., F. H. and W.

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 October 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 October 1987

by J., F., H. and W. against Austria and registered on 29 March 1988

under file No. 13713/88 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the Commission's decision of 8 April 1991 to

declare the application partly inadmissible;

Having regard to the observations submitted by the respondent

Government on 2 July 1991 and the applicants' observations in reply

submitted on 3 September 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are all Austrian citizens. The first applicant

was born in 1944 and lives in Gerersdorf, the second applicant was born

in 1934 and lives in Petzenkirchen, the third applicant was born in

1933 and lives in Gross Sierning and the fourth applicant was born in

1928 and lives in Kilb. The second, third and fourth applicants are

represented by the first applicant.

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

summarised as follows.

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 Agricultural Succession (Appointment

of Heirs) Act 1958 (Bundesgesetz über besondere Vorschriften für die

bäuerliche Erbteilung (Anerbengesetz) - "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.

On 7 September 1977 the Mank District Court found inadmissible

as being out of time an application the 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.

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 the 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.

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.

On 29 May 1984 the Mank District Court rejected the first

applicant's challenge to 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.

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

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

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.

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.

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.

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 to 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.

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 1977 rejected the fourth applicant's further appeal as

neither of the grounds for such an appeal had been alleged or

established.

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

of the farm in the land registry.

COMPLAINTS

The applicants allege a violation of Article 6 of the Convention

based on the length of the proceedings. They see a further violation

of Article 6 of the Convention in that, although the St. Pölten

Regional Court on 4 December 1985 found that the District Court judge

had not been impartial, it failed to annul previous decisions and remit

the case back for further consideration.

The applicants also allege a violation of Article 1 of Protocol

No. 1 in that, although they should have been appointed heirs (Anerben)

to the farm, a person less suitable was appointed. They see a further

violation of the provision in the length of the time taken to determine

the succession for which period they received no interest. In this

connection they also allege a violation of Article 14 of the Convention

in that the heir to the farm was entitled to profits from it while the

proceedings were pending, whereas they received no interest on their

entitlement to the estate.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 October 1987 and registered

on 29 March 1988.

On 8 April 1991 the Commission decided to declare inadmissible

the complaint concerning the alleged violation of the applicants'

property rights, and to communicate to the respondent Government the

complaint concerning the length of the proceedings.

The respondent Government submitted their observations on

2 July 1991, after extension of the time-limit, and the applicants

submitted their observations in reply on 3 September 1991.

On 2 September 1991 the Commission decided to transfer the case

to a Chamber.

THE LAW

The applicants consider that the proceedings under the

Agricultural Succession (Appointment of Heirs) Act 1958 (Bundesgesetz

über besondere Vorschriften für die bäuerliche Erbteilung

(Anerbengesetz)) exceeded a reasonable time within the meaning of

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

so 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 applicants' 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, without prejudging the merits of the case,

the applicants' complaint about the length of the proceedings.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

Menu

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

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

LEXI