Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13713/88

by J.M., F.M.,

H.M. and F.W.

against Austria

The European Commission of Human Rights sitting in private

on 8 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

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 20 October 1987

by J.M., F.M., H.M. and F.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 deliberated;

Decides as follows:

THE FACTS

The applicants are all Austrian citizens. The first applicant

was born in 1944 and lives in G., the second applicant was born in

1934 and lives in P., the third applicant was born in 1933 and lives

in G. S. and the fourth applicant was born in 1928 and lives in K.

All applicants are represented by the first applicant.

The facts submitted 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 M.'s intestacy that they were the heirs to the

estate. The first applicant's appeal (Rekurs) against this decision

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 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"). On 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 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

N., the brother of 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 N. (brother of 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 proceedings at an end, 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 at an end. The St. Pölten

Regional Court (Landesgericht) 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 N., 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 rejected the fourth applicant's further appeal as

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

established.

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.

THE LAW

1. The applicants allege a violation of Article 6 (Art. 6) of the

Convention in respect of the proceedings under the 1958 Act. Article

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

as follows:

"In the determination of his civil rights and obligations or

of any criminal charge against him, 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 F.M., the uncle of the applicants,

died on 6 November 1975 and the first procedural step was taken by the

Mank District Court on or before 11 December 1975. The proceedings

continued at least until 1986. The Commission considers that 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 the proceedings

without the observations of both parties.

The Commission therefore adjourns this part of the

application.

2. The applicants also allege a violation of Article 6 (Art. 6)

of the Convention in that the St. Pölten Regional Court on 4 December

1985 found that the Mank District Court judge should not take any

further decision in the case, but did not annul prior decisions he had

taken.

However, under Article 26 (Art. 26) of the Convention, the

Commission can only deal with this complaint after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law.

The Commission notes that the Supreme Court, in its judgment

of 26 March 1987, found that the applicants had failed to appeal

against the failure of the St. Pölten Regional Court to consider the

question of nullity of prior decisions.

Accordingly, the applicants have not exhausted the remedies

available to them under Austrian law in this respect. Moreover, an

examination of the case as it has been submitted does not disclose the

existence of any special circumstances which might have absolved the

applicants, according to the generally recognised rules of

international law, from exhausting the domestic remedies at their

disposal.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies in this respect,

and this part of the application must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

3. The applicants also allege violations of Article 1 of Protocol

No. 1 (P1-1) alone and taken together with Article 14 (Art. 14) of the

Convention. These provisions provide as follows:

Article 1 of Protocol No. 1 (P1-1):

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalties."

Article 14 (Art. 14) of the Convention:

"The enjoyment of the rights and freedoms set forth in

this Convention shall be secured without discrimination

on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social

origin, association with a national minority, property,

birth or other status."

As to the complaint that the applicants were disregarded in

favour of a less appropriate candidate for succession to the farm, 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. The Commission refers, on this point, to its established

case-law (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).

As to the complaint under Article 14 (Art. 14) in connection

with Article 1 of Protocol No. 1 (P1-1) that the successor to the farm

was entitled to work it and keep the profits for the period whilst the

case was pending, whereas the applicants received no interest on their

entitlement, the Commission refers to its admissibility decision in

the Inze case (No. 8695/79, Dec. 5.12.84, D.R. 39 p. 26; cf. Eur.

Court H.R. judgment of 28 October 1987, Series A no. 126). The

Commission found that the system established by the Carinthian

equivalent of the 1958 Act "manifestly serves the public interest to

maintain viable farms ... It is ... inevitable for achieving the

basic aim of the legislation that the financial compensation to be

paid to the ceding heirs must be calculated in such a manner that it

does not encroach on the viability of the farm ...".

This reasoning applies not only to questions of calculation of

the transfer price, but also to other terms of the transfer, including

the payment of interest from the date of death. The Commission finds

that if the heir to the farm were required to pay interest, the

situation could arise where he would not be able to afford the

payments to the other heirs. Conversely, if he were required to

account for profits on the farm since his succession, he could be in a

position which made the farm no longer viable.

As to the complaint that the length of the proceedings was in

itself a violation of Article 1 of Protocol No. 1 (P1-1), the Commission

recalls that it has adjourned the substantive issue of the length

of the proceedings. Moreover, the question of loss accruing to

applicants through the length of proceedings is a question of damage

sustained in the context of Article 6 (Art. 6) of the Convention

rather than a substantive claim in its own right under Article 1 of

Protocol No. 1 (P1-1) (cf. Eur. Court H.R., Zanghi judgment of 19

February 1991, Series A no. 194 para. 22).

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.

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

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

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