Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18287/91

by Helmut HARRAUER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 19 February 1992, the following members being present:

MM.J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

SirBasil HALL

Mr.C.L. ROZAKIS

Mrs.J. LIDDY

MM.M. PELLONPÄÄ

Mr.M. de SALVIA, Secretary to the First 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 17 December 1990

by Helmut HARRAUER against Austria and registered on 30 May 1991 under

file No. 18287/91;

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 they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1944, is an Austrian national and resident

at Traun. He is a farmer by profession. Before the Commission he is

represented by Mr. K. Puchmayr, a lawyer practising in Linz.

On 25 July 1984 Mrs. S. instituted civil proceedings before the

Wels Regional Court (Kreisgericht) against Mr. H. and the applicant

which related to the transfer of real property. The plaintiff claimed

a declaratory judgment concerning the validity of a contract of 1982

on the purchase of the real property concerned, which had been

concluded between Mr. H., herself and her meanwhile deceased husband.

In these court proceedings, the applicant was represented by counsel.

In the course of the proceedings at first instance, the parties

further negotiated on the transfer of the property in question, and in

particular the applicant took further steps to implement his property

rights. Thus his contract with Mr. H. concerning the purchase of the

agricultural property in question was administratively authorised in

May 1985, and he subsequently was entered as owner into the land

registry. The plaintiff several times amended her claims.

On 29 July 1987 the Wels Regional Court passed a declaratory

judgment according to which, first, the contract of November 1982

between Mr. H. on the one side, and the plaintiff as well as her

husband on the other side, which concerned the transfer of real

property (Ãœbergabevertrag), was valid; and, second, the entry in the

land registry of the applicant's property rights as regards this real

property was invalid and had to be quashed.

In its detailed judgment, the Regional Court found in particular

that Mr. H. had been the sole owner of the agricultural property

concerned. In November 1982, following unsuccessful negotiations with

other persons interested in the property, Mr. H. as vendor, and the

plaintiff and her husband as purchasers, signed a notarial contract

concerning the purchase of the property concerned. On the part of the

purchasers, the negotiations had been conducted by one Mr. B. who had

expressed an interest in acquiring the property himself and told Mr. H.

that the plaintiff and her husband had only been named as purchasers

in order to secure the authorisation under the Real Property

Transactions Act (Grundverkehrsgesetz). The plaintiff's husband died

in January 1983, the plaintiff being the sole heir. In January 1984

the purchase by the plaintiff was authorised under the Real Property

Transactions Act, and in July 1984 the plaintiff was entered into the

land registry. Already in June 1984 Mr. H. had informed the plaintiff

that he intended to withdraw from the contract. In July 1984 Mr. H.

and the applicant concluded a notarial contract concerning the purchase

of the property concerned. In May 1985, in the context of agricultural

land settlement proceedings (landwirtschaftliches Siedlungsverfahren),

the contract between Mr. H. and the applicant was authorised, and the

applicant was entered into the land registry.

The Regional Court proceeded from numerous documents in respect

of the negotiations between the parties, and their correspondence with

third persons, which mainly dated from 1982 until 1985, some from 1986

and January 1987. It also consulted files of other court proceedings,

e.g. between the plaintiff and Mr. B., and heard eight witnesses.

The Regional Court considered that it was irrelevant whether or

not the contract of 1982 constituted a fiduciary transaction for a

third person in order to circumvent provisions of the Real Property

Transactions Act, as such agreements would not render the purchase of

the real property as such null and void. Further objections of the

defendants as to the validity of the purchase were dismissed. Thus the

applicant, who had later concluded a contract with Mr. H. on the

transfer of the property concerned on the condition that the first

contract was void, had been incorrectly entered in the land registry.

The value in dispute (Streitwert) was fixed at AS 1,150,000,

i.e. the price of the real estate fixed in the contract of 1982. The

judgment was served on 27 August 1987.

On 14 October 1988 the Linz Court of Appeal (Oberlandesgericht)

dismissed the appeal (Berufung) of Mr. H. Upon the applicant's appeal,

the order for costs was amended, but the remainder of his appeal was

dismissed. As regards the value in dispute in the appeal proceedings,

the Court of Appeal, having regard to the tax value (Einheitswert) of

the real estate in question, indicated that it was above AS 60,000, but

below AS 300,000. The judgment was served on 10 November 1988.

On 27 April 1989 the Austrian Supreme Court (Oberster Gerichts-

hof), upon both defendants' appeals on points of law (Revisionen),

quashed the judgment of 14 October 1988 and sent the case back to the

Court of Appeal. The Supreme Court, referring to its case-law,

considered in particular that transactions intended to circumvent legal

provisions, e.g. an authorisation under the Real Property Transactions

Act, were not necessarily null and void, but in abeyance until

termination of the authorisation proceedings in respect of the real,

not the fiduciary transaction. However, the plaintiff had claimed a

declaratory judgment of her unconditional property right, the Court of

Appeal should have, therefore, clarified in how far the contract of

1982 constituted a fiduciary transaction. The judgment was apparently

served in June 1989.

On 15 December 1989 the Linz Court of Appeal again dismissed the

appeal of Mr. H., and upon the applicant's appeal, amended the order

for costs, but dismissed its remainder. The Court of Appeal, having

heard a further witness, found in particular that the defendants had

failed to prove the fiduciary nature of the contract of 1982. Having

regard to the Supreme Court's case-law, the Court of Appeal rejected

the defendants' requests to hear further witnesses on the ground that

the evidence concerned could have been taken in the first set of

proceedings and the defendants had not, or had unsuccessfully appealed

in this respect. As regards the value in dispute in the appeal

proceedings, the Court of Appeal indicated that it was above AS 60,000,

but below AS 300,000. The Court of Appeal, having regard to its

refusal to take further evidence, declared that the defendants could

lodge an appeal on points of law. The judgment was served on

2 February 1990.

On 7 June 1990 the Supreme Court rejected the defendants' appeals

on points of law, considering that the Court of Appeal had correctly

applied the relevant provision of the Austrian Code of Civil Procedure

(Zivilprozeßordnung). There was accordingly no relevant procedural

question requiring an examination by the Supreme Court. The decision

was served on 18 July 1990.

COMPLAINTS

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

about the length of the civil proceedings.

2.Furthermore the applicant complains under Article 6 para. 1 and

Article 7 of the Convention about the Austrian court decisions and the

proceedings concerned. He submits in particular that the Court of

Appeal arbitrarily fixed the value in dispute below the pecuniary limit

for an appeal on points of law and thus prevented a review of the

merits of his case by the Supreme Court.

THE LAW

1.The applicant complains about the length of the civil proceedings

instituted against him and Mr. H. He invokes Article 6 para. 1

(Art. 6-1) of the Convention which guarantees that "in the

determination of his civil rights and obligations ..., everyone is

entitled to a ... hearing within reasonable time".

The proceedings were instituted on 25 July 1984 and lasted until

18 July 1990, i. e. six years.

The Commission examined the complaint about the length of the

civil proceedings in the light of the criteria established in the case-

law of the Convention organs on the question of "reasonable time" (cf.

Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A

No. 198, para. 30).

The case related to the validity of a contract on the transfer

of real property and involved questions of the fiduciary nature of the

transaction, a possible circumvention of legal provisions and other

objections against the validity of the contract. The Commission finds

that the proceedings were of some complexity as regards the legal and

factual issues.

As regards the conduct of the parties, the Commission notes that

the plaintiff amended her action several times, apparently in

accordance with the further legal steps taken by the applicant with

regard to the purchase of the property concerned, in particular his

request for authorisation and his entry into the land registry in May

1985. Some documentary evidence was only submitted at a later stage

of the proceedings at first instance. Furthermore, the applicant did

not show that at any stage, in particular in course of the proceedings

at first instance, the parties acted with the necessary diligence in

order to accelerate the proceedings. Thus the parties contributed to

the length of the proceedings.

The Commission has next examined the conduct of the Austrian

judicial authorities.

The Commission notes that in the civil action against the

applicant and Mr. H. the Austrian courts passed five judgments in two

sets of proceedings during a period of six years. The proceedings were

pending at first instance for about three years. The first round of

appeal proceedings before the Linz Court of Appeal lasted for about one

year and two months. The Supreme Court rendered its first judgment

within approximately six months. The second set of proceedings before

the Linz Court of Appeal lasted about seven months. Subsequently, the

proceedings were terminated before the Supreme Court after less than

four months.

The Commission finds that the applicant, who complains in general

about the overall length of the proceedings, did not show any

particular delay to be imputed to the Austrian judicial authorities.

In particular, there is no indication of any considerable periods of

inactivity or otherwise undue delays in the first set of proceedings

before the Wels Regional Court, which lasted about three years.

Rather, it appears that the Regional Court advanced the case in

accordance with the repeated amendments of the plaintiff's claims and

both parties' further submissions.

In these circumstances, the Commission considers that the length

of the civil proceedings against the applicant did not exceed a

reasonable time within the meaning of 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 also complains under Article 6 para. 1 and

Article 7 (Art. 6-1, 7) of the Convention about the Austrian court

decisions and the judicial proceedings concerned.

With regard to these complaints, 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 in 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 (see e.g. No. 458/59, Dec.

29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection

43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

The Commission observes that Article 7 (Art. 7) of the Convention

only applies to criminal cases, and considered the applicant's

complaints under Article 6 para. 1 (Art. 6-1). The Commission finds

that there is no indication that the applicant, who was represented by

counsel, could not properly present his arguments, or that the

proceedings were otherwise unfairly conducted. In particular, it does

not appear that the Linz Court of Appeal arbitrarily fixed the value

in dispute below the pecuniary limits for an appeal on points of law.

It follows that this part of the application is also manifestly

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

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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HARRAUER v. AUSTRIA

HARRAUER v. AUSTRIA

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