AS TO THE ADMISSIBILITY OF

                      Application No. 10757/84

                      by W.

                      against Austria

        The European Commission of Human Rights sitting in private

on 13 July 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 11 February 1983

by W. against Austria and registered on 28 December 1983 under file

No. 10757/84;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

&_THE FACTS&S

        The applicant, an Austrian citizen born in 1943, resides at

D. and is represented by Dr.  W.L. Weh, a lawyer practising in

Bregenz.

        The facts agreed between the parties may be summarised as

follows:

        The applicant had inherited from her mother a half-share of a

small farm in M.  The other half-share was owned by her stepfather.

None of them lived there or worked on the farm whose land was leased

out to other farmers.

        In October 1980 the applicant's stepfather informed her that

he wanted a partition of this real property and would bring a civil

action against her if she continued to oppose partition.  The

applicant replied that she agreed in principle to a partition, be

it by a division of the assets or a division of the sales proceeds.

However, she could not agree to the only partition scheme which had so

far been submitted by her stepfather as it assigned to her only a

fourth of the real value of the farm.  Thereupon the stepfather

brought a civil action against the applicant in the Regional Court

(Landesgericht) of F.

        The case was heard on 8 January 1981.  The applicant declared

not to oppose her stepfather's claim for a division of the assets.

However, she opposed the stepfather's claim to be adjudicated his

costs and instead applied for a court order that each party should

bear his or her own costs.  She argued that she had not provoked the

action as she had never opposed the partition as such, but only the

scheme proposed by her stepfather.

        By a judgment of the same date, the Regional Court decided

that the partition should be effected as requested by a division of

the assets.  The decision on costs was reserved.  However, the parties

subsequently agreed not to pursue the litigation on this point.

        The parties also agreed to determine the partition scheme by a

settlement between themselves.  However, notwithstanding this

agreement the applicant's stepfather applied in July 1981 to the

District Court (Bezirksgericht) of B. for the partition of the

real property concerned in executive proceedings under Section 351 of

the Enforcement Proceedings Act (Exekutionsordnung).  At the same time

he requested to enforce his cost claim in the amount of AS 6537,44

against the applicant under Section 74 of the same Act.  Both

applications were allowed by a decision of the District Court of

5 August 1981.

        The applicant's appeal against this decision was dismissed by

the Regional Court on 11 September 1981.  It stated that both parties

were entitled to request enforcement proceedings under Section 351

without a previous attempt to reach a friendly settlement.  The party

who first lodged such a request was the petitioner in severance

(betreibende Partei) and thus entitled under Section 74 to the

reimbursement of his costs from the respondent (verpflichtete Partei).

The costs were accordingly imposed on the applicant as the

respondent.

        Subsequently, on 18 June 1982, the District Court, exercising

its functions under Section 351, distributed the assets of the joint

property between the two parties ordering at the same time that the

applicant should pay the sum of AS 20.393,50 as an equalisation

payment to her stepfather.  The applicant fully accepted this part of

the Court's decision and did not appeal against it.

        However, the District Court had at the same time ordered under

Section 74 that the applicant should reimburse the further costs of

the execution proceedings amounting to AS 34.023,52 which had been

incurred by her stepfather.  In this respect the applicant appealed,

claiming that it was unfair that the party who first applied for

enforcement proceedings was granted full compensation for his expenses

by the other party although both were essentially in the same

position.

        The Regional Court rejected this appeal by a decision of

28 July 1982 which was served on the applicant on 16 August 1982.

The Regional Court noted that Section 351 left it "to chance or rather

to the prompter intervention" who was the petitioner in severance

entitled to costs.  It added: "Certainly it is an unworthy race to

which the parties are compelled by the fact that the one who first

presents the application for enforcement to the Court will be the

'winner' regarding the costs.  In many cases this can indeed lead to

injustice and unfairness of the worst kind, in particular if the

respondent has opposed the action for partition and has lost the case

despite this opposition ...  However, it is not for the courts but for

the legislation to do away with unsatisfactory legal positions."  The

Court then found that the applicable law left no room for discretion

or considerations of equity, and therefore it confirmed the imposition

of the costs on the applicant.

        After the facts of the present case the law was amended in

1983 by introducing a new Section 352 (a) of the Enforcement

Proceedings Act, which provides that the cash payments incurred in the

course of partition proceedings are to be divided between the parties

in relation to their shares in the property.

        The applicant's stepfather subsequently took further

enforcement proceedings against her in order to realise his claims to

the equalisation payment and to the reimbursement of his costs

resulting from the above partition proceedings.  The District Court of

D. granted a request for the attachment of the applicant's movable

property, and as no such property could be found, it eventually

ordered her to take the oath of manifestation (Offenbarungseid).  The

applicant then brought a counteraction (Oppositionsklage) under

Section 35 of the Enforcement Proceedings Act, claiming that her

stepfather's claims underlying the enforcement proceedings were

defective as she had herself certain claims against him resulting from

the administration of the joint property which should be set off

against his above claims.  She also applied for the suspension of the

enforcement proceedings pending the decision on the counteraction, but

her remedies in this respect failed and further costs were imposed on

her.  However, on 3 February 1983 the parties agreed to stay both the

enforcement proceedings and the proceedings on the counteraction

pending before the District Court of D.  The applicant thus avoided

the oath of manifestation.

        The applicant's stepfather then requested the correction of

the land register in conformity with the partition order.  This was

granted by decisions of the District Court of B. of 30 July 1984

and 11 September 1984.  The applicant appealed inter alia on the

ground that she had not been heard and claiming that a correction of

the land register without her consent infringed Article 6 (Art. 6) of the

Convention.  However, her appeal was rejected on 10 October 1984 on

the ground that she had not substantiated in which way her rights

could have been violated.  The law did not provide for a right to be

heard in matters of this kind which were of a merely technical nature.

        Once the applicant's part of the real property had been

ascribed to her in the land register, her stepfather immediately

requested a compulsory sales order (Bewilligung der Zwangsver-

steigerung) for certain of this property.  This was granted by the

District Court of B. on 17 October 1984 and confirmed by the Regional

Court on 27 November 1984 despite the applicant's argument that her

counteraction was still pending before the District Court of D. and

that the compulsory sale should therefore be postponed. She was again

charged with the petitioner's procedural expenses.

        In connection with the compulsory sales procedure the

District Court appointed an expert for the purpose of estimating the

property's value.  The expert was subsequently replaced by another one

against whom the applicant raised objections, but these were rejected

by the District Court on the ground that no separate remedy lay

against the appointment of an expert.  The applicant appealed,

claiming that the exclusion of a remedy in this respect infringed

Article 6 (Art. 6) of the Convention.  However, on 27 December 1984 the

Regional Court rejected the appeal stating that it was sufficient for

securing the parties' right to be heard that they could comment on the

expert opinion once it was submitted.

        On 24 April 1985 the District Court fixed 20 June 1985 as the

date of the compulsory sale.  It further ordered that the compulsory

sale was to be carried out by three rounds of partial auctions.  The

applicant immediately requested a postponement of the compulsory sale

until a decision had been given on her counteraction which was still

pending.  However, no decision was made on this request and the date

of the compulsory sale was publicly announced in the Official Gazette

(Amtsblatt) of V. and two regional newspapers.  In this situation the

applicant eventually decided on 18 June 1985 to satisfy her

stepfather's claims.  On that date she paid a global sum of AS

68,000.- to him.  The parties further agreed that the compulsory sale

proceedings should be discontinued and the proceedings on the

counteraction stayed (Ruhen).  The compulsory sale proceedings were

actually discontinued by a court decision of 18 June 1985.

&_COMPLAINTS&S

        The applicant now complains both of the executive partition

proceedings under Section 351 of the Enforcement Proceedings Act, and

of the subsequent enforcement proceedings taken against her by her

stepfather.

1.      As regards the executive partition proceedings, she claims

that they must be considered as proceedings on the determination of

civil rights and obligations because they are by their nature not

typical enforcement proceedings but rather resemble non-contentious

proceedings such as are e.g. applicable to the partition of the

property of spouses after a divorce.

        The applicant considers it unfair that, unlike in other

partition proceedings where the parties have to share the costs, they

are placed on an unequal footing in the executive partition

proceedings under Section 351 of the Enforcement Proceedings Act, and

in any subsequent proceedings, including the land register and further

enforcement proceedings, by virtue of the distinction between the

petitioner and the respondent.  Under Section 74 of the Act the

petitioner in severance is entitled to claim the full reimbursement of

his costs by the respondent - petitioner being the party who first

presents a petition to the court.  The applicant submits that this is

not a reasonable criterion to be taken as a basis for cost decisions

and that it violates the principle of equality of arms between the

parties which is enshrined in Article 6 para. 1 (Art. 6-1) of the Convention.

        The applicant further complains that the differential

treatment of the parties to the partition proceedings in question is

discriminatory and contrary to Article 14 (Art. 14) of the Convention.

2.      As regards the subsequent enforcement proceedings, the

applicant claims that these proceedings also come within the scope of

Article 6 para. 1 (Art. 6-1) of the Convention.  She refers in particular to

the connection of these proceedings with the counteraction under Section 35 of

the Enforcement Proceedings Act, an action which concerns the justification of

the claim underlying these enforcement proceedings. She states that her

counter-claims could also have been made the subject of normal civil

proceedings, but submits that in the circumstances she could not reasonably be

expected to choose that course rather than filing a counteraction.

        Even if, as a result of the counteraction, the claim of the

petitioner should in the end be found to be unjustified having regard

to the provisions of substantive law, this does in no way prevent the

taking of enforcement measures pending this action, and the costs of

the enforcement measures will definitively have to be borne by the

respondent.  The applicant considers this to be unfair and contrary to

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

as in the partition proceedings.  She adds that the refusal to postpone the

proceedings pending a decision on the counteraction was extremely unfair in

these circumstances:  As regards the enforcement proceedings concerning her

movable property the refusal to postpone the proceedings led to serious

disadvantages for her, including the order to take the oath of manifestation.

As regards the compulsory sale proceedings concerning her real property no

decision was taken on her request for postponement, and this despite the fact

that the claims of her stepfather might in substance have been unjustified.

        The applicant further claims that the absence of a remedy to

avert the enforcement measures and concomitant costs violates Article

13 (Art. 13) of the Convention.  She finally claims that there is an

unjustified interference with her property rights contrary to Article 1 of

Protocol No. 1 (P1-1).

        The applicant considers that she is not prevented from raising

these complaints by the settlement which she concluded with her

stepfather on 18 June 1985.  She submits that this settlement was made

under duress as she was compelled to renounce her counter-claims and

costs in the amount of some AS 200,000.-.

&_PROCEEDINGS&S

        The application was introduced on 11 February 1983 and

registered on 28 December 1983.

        On 4 May 1987 the Commission decided to give notice of the

application to the respondent Government and to invite them, in

accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to

submit before 17 July 1987 their observations in writing on the

admissibility and merits of the application.  Questions were put to

the Government concerning the applicant's complaint of the partition

proceedings under Section 351 of the Enforcement Proceedings Act.

        The Government submitted their observations on 20 July 1987.

The applicant submitted her observations in reply on 3 October 1987.

        On 18 December 1987 the Commission decided to grant the

applicant free legal aid.

&_SUBMISSIONS OF THE PARTIES&S

A.      The Government

        In the Government's view, Article 6 para. 1 (Art. 6-1) of

the Convention is not applicable to partition proceedings as provided under

Section 351 of the Enforcement Proceedings Act.

        Proceedings for the legal partition of a property can be

instituted by means of an action by a co-owner against the other

co-owner or co-owners.  The pertinent legal provisions are contained

in Sections 841 to 853 of the Civil Code.  Such proceedings end with

a judgment terminating the co-ownership and determining, at the same

time, the type of partition, i.e. either actual partition

(Realteilung) or sales order (Zivilteilung).  The particularity of

such a judgment is that its enforcement can be requested by both

parties.  The party who files the request first assumes the part of

the petitioner in severance in the enforcement proceedings.

        Another particularity of such a partition judgment is that,

while it must clearly specify what is to be partitioned and whether

there is to be an actual partition or a sales order, it need not

necessarily contain details on how exactly the actual partition is to

be carried out, which would be binding upon the court competent for

enforcement matters.  This decision may also be taken by the judge of

the latter court.

        Under Section 351 para. 1 of the Enforcement Proceedings Act

the partition is to be effected by a legal officer of the court

competent for enforcement matters, with all parties concerned

participating, paying due consideration to Sections 841 to 853 of the

Civil Code.  The judge fixes a date for the hearing and, after having

finished the necessary inquiries, issues the partition order in

compliance with the requirements of appropriateness and equity.

        Up to the judgment terminating the co-ownership and thus

defining the rights of the parties, the procedure is of a contentious

nature leading to a judgment.  Subsequent executive proceedings, if

any, only serve to enforce this judgment.  The enforcement character

of the proceedings is confirmed by the consideration that, contrary to

subsequent Section 352, Section 351 of the Enforcement Proceedings Act

only refers to Sections 841 to 853 of the Civil Code and not to the

stipulations governing non-contentious proceedings.  Another

indication that these proceedings are exclusively enforcement

proceedings is the fact that the judge is not bound by requests or

proposals for partition made by the parties, but has to proceed

according to his own discretion and the principles of appropriateness

and equity.  In contentious proceedings such conduct by the judge

would be inadmissible.

        In Application No. 9233/81 (Dec. 15.10.81) the Commission

stated that Article 6 (Art. 6) of the Convention is not applicable to

enforcement proceedings.  The decisive factor for the Commission

was that the issue of enforcement proceedings is no longer a

contestation and hence an immediate determination of civil rights

and obligations.  The contestation on civil rights and obligations

takes place in the contentious proceedings preceding the enforcement

proceedings.  Although in the present case the judgment ruled on the

actual partition only in general terms and left it to the judge

competent for the enforcement proceedings to decide upon the actual

partition, the litigation concerning the partition as such, and thus on

the civil rights of the parties, took place in the proceedings leading

to the partition judgment.  Section 351 starts out from the fact that

the partition judgment constitutes an enforceable fiat of execution

(vollstreckbarer Exekutionstitel).  At this stage the judge only has

"to enforce the actual partition ordered".  Therefore, it cannot

be said that the proceedings under Section 351 are proceedings

concerning a contestation on the partition of a joint property and

consequently a contestation on civil rights and obligations.

        The Government further submit that the applicant failed to

exhaust all domestic remedies available to her.

        Under Article 89 of the Federal Constitution, a court of

second instance must ex officio file an application with the

Constitutional Court for review of the law if it has doubts as to the

constitutionality of this law.  An individual is entitled to challenge

the constitutionality of a law under Article 140 para. 1 of the

Constitution only if the law has become operative for the applicant

without the delivery of a judicial or administrative decision.  As in

the present case there was a judicial decision, the applicant could

claim unconstitutionality of applied regulations only by suggesting to

the court of second instance that it should make an application to the

Constitutional Court under Article 89 of the Constitution.  The

Government submit that Article 26 (Art. 26) of the Convention requires in this

context that doubts as to the conformity of an applicable law with the

Convention be voiced in the domestic proceedings with sufficient

precision.  The applicant, in her appeal of 2 July 1982, failed to

sufficiently elaborate on her concerns about the constitutionality of

the law.  It would have been possible and even required to specify, in

particular, the concern about the incompatibility of Section 351 of the

Enforcement Proceedings Act with Article 6 (Art. 6) of the Convention.  The

court would then have been obliged to take a clear stand and to state

explicitly why it had no scruples against the application of this

provision.  Although the competent court admittedly considered that

the law provided only an unsatisfactory solution, its attention was

not specifically drawn to a possible problem under Article 6 (Art. 6)

of the Convention.  Accordingly, it cannot be said that all domestic remedies

were exhausted.

        Finally, the Government submit that the principle of fair

trial relates to the proceedings before civil and criminal courts.

An essential element of fair trial is the principle of equality of

arms which also applies to civil proceedings.  But this principle only

aims at ensuring the same procedural positions to the parties.  A

regulation of and the concrete decision on the reimbursement of costs,

however, neither relates to the procedural position nor the

proceedings as such.  For this reason the regulation of who has to pay

the costs as well as the actual decision on the costs cannot violate

Article 6 (Art. 6) of the Convention.

        Insofar as there might be doubts about the equality before the

law, the applicant's allegation could perhaps have had a chance of

success before the Constitutional Court on the basis of Article 7 of

the Federal Constitution.  However, under Article 14 (Art. 14) of the

Convention inequality cannot be alleged save in connection with the

rights enshrined in the Convention.  As the regulation and decision on

the payment of costs does not relate to a procedural position

safeguarded by the fair trial principle, and as it affects no other

right laid down in the Convention, which could be tied to Article 14

(Art. 14) of the Convention, this allegation must be rejected as inadmissible

too.

        The interests of the parties following a partition judgment

may vary greatly.  The lawmaker can be guided by the normal case,

which will be that one co-owner wants to enforce the partition against

the opposing co-owners.  Under this aspect, it seems to lie within the

discretion of the lawmaker to have the cost regulation of enforcement

proceedings apply.  It may be correct that the provision based on the

criterion that costs shall be adjudicated to the party which first

makes a request for the enforcement of the partition judgment is not

a very lucky legal solution.  However, it is not possible in this

context to raise objections against the present cost decision and the

underlying legal regulation other than in terms of considerations of

legal appropriateness and concepts of justice.  In this connection the

Government observe that the Enforcement Proceedings Act was amended in

1983 (cf. p. 3 above).

        The Government therefore ask the Commission to dismiss the

application on the ground that not all domestic remedies were

exhausted, or alternatively to declare it inadmissible as being

manifestly ill-founded.

B.      The Applicant

        The applicant submits that the Government's argumentation

concerning the nature of partition proceedings under Section 351 of

the Enforcement Proceedings Act is exclusively based on the domestic

law.  It overlooks that the notion of "civil rights" within the

meaning of Article 6 (Art. 6) of the Convention is an autonomous concept (cf.

Eur.  Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p.39

para. 94).  It thus cannot be decisive that in the internal legal system the

partition proceedings in question are regarded as enforcement proceedings.

Even if they were enforcement proceedings, they would not be excluded from the

scope of Article 6 (Art. 6) as the Commission has held in an analogous case

(No. 2797/66, Dec. ....).

        The applicant considers that, in reality, the partition

proceedings are not enforcement proceedings in the proper sense even

in the domestic law.  The Government's submissions in this respect are

misleading in several respects.  Under the provisions of the Civil

Code each co-owner can ask for the termination of the co-ownership by

bringing an action against the other co-owner or co-owners.  However,

such a claim is excluded if it is being raised at an inappropriate

time or under circumstances which involve a disadvantage for the other

co-owners.  The court accordingly has to examine only these two

questions, whether the claim has been raised at an inappropriate

moment or under circumstances which involve a disadvantage for the

other co-owners.  If such circumstances cannot be established, the

court is obliged to order the termination of the co-ownership.  If at

all possible from an economic point of view, it must order the actual

partition of the property.  Only if that should be impossible may it

order the sale of the property by auction, in which case all co-owners

have the right to bid.  In the contentious proceedings the court

therefore only examines which form of partition is appropriate and

whether the above legal obstacles against the partition order exist.

All further particulars of the actual partition are reserved to the

judge competent for enforcement matters.  The judge dealing with a

case in contentious proceedings must, in principle, refrain from

deciding on the particulars of the actual partition.

        Accordingly the proceedings before the courts competent in

enforcement matters do not serve exclusively "to enforce the actual

partition ordered".  The judge competent in enforcement matters

determines which part of the property shall be assigned to each

co-owner as his sole property.  He thus determines the future

distribution of the property and does not only enforce clearly defined

civil claims resulting from the earlier decision.  This is confirmed

by the fact that Section 351 of the Enforcement Proceedings Act, as

the only provision of this Act, refers to the substantive law

contained in the Civil Code.  It thus makes it clear that the proceedings

still concern the determination of civil rights, namely the civil

rights of the co-owners according to the provisions of the Civil Code.

        The fact that the actual partition is left to the judge

competent in enforcement matters is explained by the consideration

that there may be more than two co-owners.  In this case the party

claiming termination of the co-ownership must lodge a joint action

against all other co-owners.  If the conditions of actual partition

are not met in the case of only one co-owner the action must be

rejected, but if it is allowed it is impossible in contentious

proceedings to distribute the property between more than two parties.

Contentious proceedings between more than two parties do not exist

under the provisions of the Code of Civil Procedure.  It is primarily

for this reason that the actual partition has been left to the judge

competent in enforcement matters.  Apart from this reason based on

systematical considerations there are a number of more practical

reasons why the court competent in enforcement matters has been

entrusted with the task of actual partition.  The competent court here

is the District Court which as a rule is located closer to the

property and has more experience regarding the assessment of real

property.  But this does not mean that, in substance, the actual

partition by the court competent in enforcement matters does not

involve a determination of civil rights.  The applicant further

observes in this context that it has been recognised in the case-law

that the redistribution of real property, e.g. in the context of

agricultural land consolidation proceedings, is a determination of

civil rights (cf.  Eur.  Court H.R., Erkner and Hofauer judgment of

23 April 1987, Series A no. 117).

        In the present case both parties requested the adjudication of

the farmhouse and the surrounding parcels and the judge competent in

enforcement matters who decided on the actual partition upheld the

applicant's claim in this respect.  This clearly shows that the matter

was one of the determination of the applicant's civil rights and

obligations to which Article 6 (Art. 6) is applicable.

        As regards the Government's argument that the applicant has

not exhausted the domestic remedies, the applicant observes that this

question must be judged in the light of the prospects of success of

the remedy in question on the basis of the existing case-law.  It

would be inappropriate in this context to adopt a too formalistic

approach because this would be incompatible with a system of effective

protection of human rights.

        While admitting that the applicant could not herself have

asked for a review of the constitutionality of the applicable

legislation by the Constitutional Court, the Government claim that the

applicant should have suggested to the Regional Court of F. to

request such constitutional review under Article 89 para. 2 of the

Federal Constitution.  However, as regards such a request by a court

of second instance the principle "jura novit curia" must be applied.

This has been confirmed by the case-law of the Supreme Court.  In a

decision of 2 July 1986 it expressly confirmed that an individual

party has no right under the applicable legislation to request a measure

under Article 89 para. 2 of the Federal Constitution ("eine

Verfahrenspartei ist nach der geltenden Rechtslage nicht befugt, ein

Vorgehen gemäss Artikel 89 Abs. 2 B-VG zu begehren").  A request for

the constitutional review of applicable legislation is therefore

inadmissible in civil proceedings.  There is no right to obtain a

decision following such a request and the Commission has accordingly

recognised that it is not a remedy to be exhausted under Article 26

(Art. 26) of the Convention (cf.  No. 10522/83, 11011/84 and 11070/84,

Mellacher and others v.  Austria, Dec. 8.5.86).  This is also in line

with the Commission's case-law concerning other similar remedies which

give no right to obtain a decision such as, for instance, a suggestion

to the Attorney General to file a plea of nullity for safeguarding the

law.

        The applicant furthermore submits that in the present case the

suggestion to seek a constitutional review would not have had any

prospects of success in view of the attitude of the Regional Court of

F. at the relevant time, that is in Summer 1982.  That Court had never

requested a constitutional review of any legislation applied by it and

had never applied Article 6 (Art. 6) of the Convention as a directly

applicable norm.  Moreover, the Regional Court was not compelled by

the legislation to take the decision which it actually took.  The

decision of the Regional Court of Innsbruck of 23 January 1970

(2R369/69), to which the applicant had referred in her appeal, shows

that the law could have been interpreted differently. If it was

possible to interpret the law in question in conformity with the

Constitution, it was excluded that the Constitutional Court would

quash that law as unconstitutional.

        As regards the question whether the applicant was required to

expressly invoke Article 6 (Art. 6) of the Convention in her appeal,

she observes that this again is a question where the principle "jura

novit curia" must apply.  She claims that, in substance, her appeal

fully addressed the relevant problem of the unfairness of the decision

on the costs, including the question of equality of arms in the

proceedings and equality before the law in general.  It is clear that

the Regional Court understood these arguments as in its subsequent

decision it spoke itself of an "unworthy race" to the court and of

"injustice and unfairness of the worst kind".  The Commission has

constantly held that questions relating to the exhaustion of remedies

must be assessed without undue formalism and that the only relevant

criterion is whether the applicant has brought the substance of this

complaint before the domestic authorities (cf.  No. 9783/82, Dec.

8.5.85).  In these circumstances it must have been sufficient for the

applicant, without specifically referring to Article 6 (Art. 6) of the

Convention, to invoke a decision by the Regional Court of I. which

showed that an interpretation of the law in question in conformity

with the Convention was, in fact, possible.

        The applicant therefore maintains that, by bringing the

substance of her complaint before the competent domestic court, she

has in fact exhausted the domestic remedies in conformity with

Article 26 (Art. 26) of the Convention.

        As regards the substance of her complaint, the applicant

observes that the Government themselves have doubts that the decision

complained of was in line with the principle of equality.  In the

applicant's view civil proceedings conducted contrary to the principle

of equality must be regarded as unfair.  Moreover, the subsequent

legislative amendment also shows that the applicant's complaint was, in

substance, justified.  The applicant admits that there are various ways

of regulating the costs of civil proceedings.  However, the legislation

in this respect must not be based on arbitrary criteria.  In the

applicant's submission it is wholly arbitrary to assign different

roles to the parties to partition proceedings exclusively on the basis

of the criterion of who has won the "unworthy race" to the court.

        The Government's further argument, that a regulation of and the

concrete decision on the reimbursement of costs neither relates to the

procedural position of the parties nor to the proceedings as such, has

been put forward without any reference to the case-law of the

Convention organs.  The latter have repeatedly recognised that both in

civil and criminal proceedings questions of costs may be of decisive

importance (cf.  Eur.  Court H.R., Airey judgment of 9 October 1979,

Series A no. 32, and Luedicke, Belkacem and Koc judgment of

28 November 1978, Series A no. 29).  Also Austrian legal writers

consider questions of costs as an essential element of a fair trial

and this has recently been confirmed by decisions of the Supreme Court

(EuGRZ 1987, p. 83) and the Regional Court of Feldkirch (EuGRZ 1986,

p. 692) although - significantly - no reference was made in this

context to Article 6 (Art. 6) of the Convention.

        The applicant stresses that in proceedings which concern

economic interests questions of costs are of great importance.  In the

present case the costs of each party, only for the inspection of the

site at M. amounted to some AS 25,OOO.  Where such sums are involved

it is unavoidable that the possible duty to bear the relevant costs

will influence the procedural behaviour of the parties, in particular

if they are in a weak financial position as the present applicant.  A

regulation of the costs based on reasonable criteria is therefore

intimately linked to the requirements of a fair trial and comes within

the scope of Article 6 (Art. 6) of the Convention.  The proceedings

must be regarded as a whole and it is inadmissible to exclude certain

aspects such as questions of cost from the overall assessment of the

fairness.

        The arbitrary imposition of all costs on the applicant in the

present case therefore amounted in her view to a violation of her

rights under Article 6 (Art. 6) of the Convention, having regard, in

particular, to the finding of the competent domestic court that the

regulation on the reimbursement of costs had led to an "unfairness of

the worst kind" in this case.

        Apart from her replies to the Government's observations, the

applicant insists that the other aspects of her case relating to the

subsequent enforcement proceedings also raise serious issues under

Article 6 (Art. 6) of the Convention.  In particular, she submits that the

Court's refusal to give suspensive effect to her counteraction was

extremely unfair.  The claims raised in this counteraction had been

well substantiated and nevertheless the courts did not stop the

enforcement measures taken against her by the opposite party, ordered

her to take the oath of manifestation and did not take a decision

until two days before the date fixed for the compulsory sale of her

property.  By this way of proceeding the applicant was forced to give

up the greater part of her justified claims and consent to a

compromise solution which was extremely unfavourable to her.

        The applicant therefore fully maintains her application.

&_THE LAW&S

1.      The applicant first complains of partition proceedings under

Section 351 of the Enforcement Proceedings Act claiming that these

proceedings were unfair and contrary to Article 6 para. 1 (Art. 6-1)

of the Convention because of the unilateral imposition of all costs on

her as respondent although she was in essentially the same position as

the petitioner.

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

provides:

        "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 first observes that, as a general rule,

enforcement proceedings following a civil court judgment do not come

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

They do not themselves determine a dispute ("contestation") relating

to civil rights, but presuppose a prior determination of these rights

by the competent court.  However, partition proceedings under Section

351 of the Austrian Enforcement Proceedings Act differ from normal

enforcement proceedings.

        In the Ringeisen judgment of 16 July 1971 (Eur.  Court H.R.,

Series A no. 13, p. 39 para. 94) the European Court of Human Rights

has stated that Article 6 para. 1 (Art. 6-1) "covers all proceedings

the result of which is decisive for private rights and obligations ...

The character of the legislation which governs how the matter is to

be determined ... [is] of little consequence".  Accordingly, it cannot

be decisive that in the Austrian legal system the partition

proceedings in question are considered as enforcement proceedings and

are governed by the Enforcement Proceedings Act.  It has been

recognised in earlier case-law that proceedings relating to the

division or redistribution of real property between several parties,

in particular where they concern the designation of the concrete

assets to be assigned to each of those parties as their future

property, involve a determination of civil rights within the meaning

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

mutandis No. 8695/79, Inze v.  Austria, Dec. 5.12.84, para. 7 of "The

Law";  Eur.  Court H.R., judgments of 23 April 1987 in the cases of

Ettl, Erkner/Hofauer and Poiss, Series A no. 117).  Also the

proceedings at issue in the present case determined the particular

assets of the parties' former joint property which were to be assigned

to each of them as their future sole property.  They thus involved a

decision on the civil rights of the parties including the applicant.

It follows that Article 6 para. 1 (Art. 6-1) of the Convention is

applicable to these proceedings.

        The Government claim that the applicant failed to exhaust all

domestic remedies, as required by Article 26 (Art. 26) of the Convention,

because she did not specifically suggest to the Regional Court that it

should initiate a constitutional review of the applicable provisions

of the Enforcement Proceedings Act under Article 6 (Art. 6) of the

Convention. The Commission notes that the applicant herself could not

seize the Constitutional Court with this question and that she had no

enforceable right to have it brought before the Constitutional Court

by the Regional Court.  In these circumstances the possibility of

suggesting the initiation of constitutional review cannot be regarded

as an effective remedy to be exhausted under Article 26 (Art. 26) of

the Convention (cf.  No. 7464/76, Karrer, Fuchs and Kodrnja v.

Austria, Dec. 5.12.78, D.R. 14 p. 51; Nos. 10522/83, 11011/84 and

11070/84, Mellacher and others v.  Austria, Dec. 8.5.86, to be

published in D.R.).

        There remains the question whether the applicant failed to

comply with Article 26 (Art. 26) because in her appeal to the Regional

Court she did not expressly refer to Article 6 (Art. 6) of the

Convention.  However, the Commission has consistently held that

domestic remedies must be considered as having been exhausted if the

applicant, even without quoting the relevant provision of the

Convention, has submitted, in substance, to the competent domestic

authorities the claim he or she is bringing before the Commission, in

particular when the domestic authorities apply the principle "jura

novit curia" (cf. e.g. No. 9228/80, Dec. 16.12.82, D.R. 30 p. 132).

In the present case the applicant clearly alleged an unfairness of the

proceedings on account of the one-sided cost decision and therefore

put the substance of her complaint before the competent domestic

court.  Her complaint therefore cannot be rejected for failure to

exhaust the domestic remedies as required by Article 26 (Art. 26)

of the Convention.

        The applicant claims that the question of costs cannot be

separated from the proceedings as a whole and that in the present case

the one-sided imposition of all costs on her as respondent, although

she was in essentially the same position as the petitioner, was

arbitrary and made the proceedings unfair.  The Government object that

the question of costs did not affect the parties' procedural position

or the conduct of the proceedings as such.  They claim that, for this

reason, the applicant's complaint falls outside the scope of Article 6

para. 1 (Art. 6-1) and is manifestly ill-founded.

        The Commission recalls the case-law according to which in

civil cases high costs of proceedings may, in certain circumstances,

raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention

which secures to everyone a right of access to the courts and the

right to a fair trial (cf.  Eur.  Court H.R., Airey judgment of 9

October 1979, Series A no. 32; No. 6202/73, Dec. 16.3.75, D.R. 1 p.

66; No. 7973/77, Dec. 28.2.79, D.R. 17 p. 74; No. 9353/81, Webb v.

UK, Dec. 11.5.83, D.R. 33 p. 133).  The Commission notes that in the

present case the courts applied regulations on the reimbursement of

costs which, in the opinion of the competent court of second instance,

could lead to highly unfair results in certain cases.  The Commission

further notes that the relevant cost regulations were subsequently

amended, apparently on the basis of similar considerations.

        However, the Commission considers that under Article 6 para. 1

(Art. 6-1) of the Convention it cannot consider the fairness of cost

regulations as such, but only whether the application of such

regulations made the proceedings unfair insofar as the determination

of civil rights and obligations is concerned.  This would be so e.g.

where prohibitive costs and the refusal to grant legal aid prevented

effective access to the court for securing a legitimate civil law

claim (cf. the above-mentioned cases of Airey and Webb), or where the

imposition of certain costs was likely to influence a party's

procedural behaviour e.g. by making him or her refrain from raising

relevant arguments or legitimate claims.  Nothing of the kind happened

in the present case. The applicant's access to court was not

interfered with, she could submit all relevant arguments and thereby

secure a decision on the merits of her case which essentially

corresponded to her own wishes. The cost decision was taken

simultaneously with this decision on the merits and, although it might

have been foreseeable on the basis of the applicable legislation,

nevertheless did not influence her procedural behaviour.  There is

consequently no appearance of a violation of the requirements of a

fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention, and the complaint in this respect must accordingly be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention as

being manifestly ill-founded.

2.      The applicant further complains that the one-sided imposition

of all costs on her was discriminatory and thus contrary to Article 14

(Art. 14) of the Convention, read in conjunction with Article 6 para. 1

(Art. 6-1).  The Commission, having found the latter provision to be

applicable to the case, finds that Article 14 (Art. 14) is also applicable.

However, the different treatment of the applicant as compared to that

of the opposite party with regard to the obligation to pay the costs

in question was only the consequence of her being the defendant in the

case.  It thus was not based on any particular personal status of the

kind mentioned in Article 14 (Art. 14).  If the applicant had been the

petitioner in severance she could have claimed reimbursement of her

costs from the opposite party in the same way as the latter did in the

present case.  The applicant's complaint under Article 14 (Art. 14) of

the Convention must therefore also be rejected as being manifestly

ill-founded.

3.      The applicant further complains of the subsequent enforcement

proceedings taken against her by her stepfather for the recovery of

his equalisation and cost claims resulting from the above partition

proceedings.  The applicant submits that these proceedings also come

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

because of the connection with her counteraction under Section 35 of

the Enforcement Proceedings Act by which she tried to contest the

underlying claims. She claims that Article 6 para. 1 (Art. 6-1) of the

Convention was violated by the unfairness of the Court's refusal to

postpone the enforcement proceedings pending the decision on her

counteraction, and also because of the imposition of all the costs on

her despite this counteraction.  She further alleges violations of

Article 13 (Art. 13) of the Convention and of Article 1 of Protocol

No. 1 (P1-1)in this respect.

        However, the Commission notes that both in the enforcement

proceedings concerning the applicant's movable property and in the

subsequent compulsory sale proceedings concerning her real property

she reached a settlement with her stepfather whose claims she

eventually satisfied.  The applicant states that she accepted the

first settlement of 3 February 1983 in order to avoid the oath of

manifestation, and the second settlement of 18 June 1985 under the

threat of losing her real property by its compulsory sale.

        However, there is no indication that these circumstances

affected the validity of the settlements under Austrian law, or

that these settlements were a necessary consequence of the underlying

legislation which left the applicant no chance to reach a more

favourable solution of her case (cf.  No. 8695/79, Inze v.  Austria,

Dec. 5.12.1984, para. 2 of The Law, to be published in D.R.).  In

particular the applicant was in no way compelled by the law to

renounce the compensation claims which she believed to have against

her stepfather and which were at the basis of her counteraction.  If

she had not agreed to refrain from pursuing her counter-claims the

Courts would have been obliged to determine their justification either

on the basis of Section 35 of the Enforcement Proceedings Act, or in

the framework of normal civil proceedings.  The applicant would also

10757/84

have had the possibility of taking further compensation proceedings

against her stepfather for any damage caused to her by the taking of

premature enforcement proceedings, or even of bringing an official

liability action against the competent courts if they had failed to

determine her counteraction within reasonable time and thereby caused

damage to the applicant.

        In these circumstances the Commission finds no basis for the

applicant's complaints under the Convention regarding the proceedings

which eventually led to the conclusion of the above settlements.  The

applicant is bound by the terms of these settlements and can no longer

claim to be a victim, within the meaning of Article 25 (Art. 25) of the

Convention, of a violation of her Convention rights in these

proceedings or as a consequence thereof (cf. mutadis mutandis,

No. 8865/80, Dec. 10.7.81, D.R. 25 p. 252).  It follows that the

applicant's complaints in this respect must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)