Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16494/90

by Elisabeth SCHOBER

against Austria

The European Commission of Human Rights sitting in private on

2 December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 11 April 1990 by

Elisabeth SCHOBER against Austria and registered on 24 April 1990 under

file No. 16494/90;

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 submitted 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 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 marked 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.

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 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 this decision 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 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 1991

to the Regional Court was rejected on 28 February 1991. The

applicant's further appeal to the Supreme Court is dated 29 March 1990.

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 alleges 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.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in respect of civil proceedings.

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

as relevant, as follows:

"1. In the determination of his civil rights and

obligations ... everyone is entitled to a fair and

public hearing within a reasonable time by an

independent and impartial tribunal established by

law..."

The Commission notes that the applicant's grandmother died on 5

December 1983 and that the applicant's mother made a declaration to the

District Court on 16 December 1983. Both the proceedings in the

applicant's grandmother estate and the proceedings against the

applicant's will, introduced on 7 September 1984, are still continuing.

The Commission considers it cannot, on the basis of the file, determine

whether there has been a violation of Article 6 (Art. 6) as regards the

length of these proceedings, without the observations of both parties.

The Commission therefore adjourns this part of the application.

2. The applicant also alleges a violation of Article 6 (Art. 6)

of the Convention by virtue of the Supreme Court's interpretation of

the Hereditary Farms Act in its decision of 5 February 1987.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision, as Article 26 (Art. 26) of the Convention

provides that the Commission "may only deal with the matter ... within

a period of six months from the date on which the final decision was

taken".

To the extent that the decision of the Supreme Court of 5

February 1987 can be regarded as a separable issue from the remainder

of the case, that decision was final as to this particular complaint.

It was given on 5 February 1987 and received by the applicant's

representative on 26 March 1987. The present application, however, was

submitted to the Commission on 11 April 1990, that is, more than six

months after the date of this decision. Furthermore, an examination

of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the complaint under

Article 6 (Art. 6) of the Convention as to the length of

proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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SCHOBER v. AUSTRIA

SCHOBER v. AUSTRIA

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