Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11918/86

by Helmuth and Margarethe PACHOLIK

against Austria

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRUGER, Deputy 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 6 December 1985

by Helmuth and Margarethe PACHOLIK against and registered

on 26 January 1986 under file No. 11918/86;

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

The facts of the case as they have been submitted by the

applicants may be summarised as follows:

The applicants, Austrian citizens, are employees resident at

Dornbirn, Austria. Before the Commission they are represented by Dr.

Weh, a lawyer practising in Bregenz, Austria.

In 1984 the applicants were renting an apartment belonging to

VOGEWOSI, a co-operative of the Federal Land Vorarlberg. On

17 December 1984, upon application of VOGEWOSI, the Dornbirn District

Court (Berzirksgericht) issued judicial notice (gerichtliche

Kündigung) on the applicants as from 31 January 1985 on the ground

that they were in arrear of payment of rent to the amount of 10,403 AS.

The notice contained the information to the applicants that, if they

did not vacate the apartment within 14 days as from that date, the

notice would be executed, and that they could raise objections against

the notice within 14 days.

On 19 December 1984 the postman unsuccessfully attempted to

serve on each applicant a letter containing the judicial notice. A

second unsuccessful attempt occurred on 20 December 1984. On either

occasion no reasons were marked on the notification paper. However

the postman marked with a cross under the further headline "refusal to

accept" one of two possible messages, i.e. that the letters could be

picked up at the post office, though later this cross was itself

crossed out. The applicants did not fetch the letters at the post

office and the notice was returned to the Court as not having been

served. On 29 January 1985 the District Court therefore stated that

the decision of 17 December 1984 could be executed.

On 19 April 1985 the District Court granted VOGEWOSI's request

to execute the judicial notice, though the applicants were given the

possibility to file a complaint (Rekurs) within 14 days.

On 14 May 1985 the applicants filed objections (Einwendungen)

against the decision of 17 December 1985 in which they explained that

they had not paid the rent on account of deficiencies in the

apartment. In the same letter they filed, in order to raise these

submissions, a request for reinstitution into the proceedings. They

also raised a complaint (Rekurs) against the execution of the judicial

notice on the ground that the latter had not been served properly.

On 2 July 1985 the Feldkirch Regional Court (Landesgericht),

after having heard the postman, dismissed the applicants' complaint

(Rekurs). It found that the postman, who had put the notification

paper in the applicants' letter box, had erroneously not ticked the

reasons for not serving the letters, and that the cross made had later

again been crossed out by him or another official since there had

been no refusal to accept the notice.

On 4 October 1985 the Dornbirn District Court dismissed the

applicants' request for a reinstitution into the proceedings in order

to present the objections (Einwendungen); it referred to the findings

in the previous decision of the Feldkirch Regional Court of 2 July 1985.

The Court noted that the notification had been dropped into the

applicants' letter box. It stated that the applicants had been

strikingly careless by not considering the postal instructions. In

the applicants' view the Court thereby implied that the objections

were out of time since they should have been filed after judicial

notice had been given.

The applicants filed an appeal (Rekurs) against this decision,

complaining, inter alia, that they had not been heard in the previous

proceedings. The appeal was dismissed on 4 November 1985 by the

Feldkirch Regional Court.

On 11 November 1985 the Dornbirn District Court permitted

VOGEWOSI forcibly to vacate the applicants' apartment.

COMPLAINTS

The applicants complain under Article 6 paras. 1 and 3 (d) of

the Convention that in the proceedings before the Dornbirn District

Court and the Feldkirch Regional Court they were not heard, as opposed

to the postman himself. They submit that the judicial notice had not

been served properly and that therefore they had had a considerable

interest in questioning the postman before these courts. They also

complain that on 14 October 1985 the Dornbirn Court regarded itself as

being bound by the decision of the Feldkirch Regional Court on

2 July 1985.

In respect of the applicability of Article 6 the applicants

submit, inter alia, that the objection (Einwendung) of 14 May 1985

concerned the manner in which the judicial notice had been served and

thus the issue of lease itself, rather than other proceedings. In any

event, execution proceedings also fall under Article 6 of the

Convention.

THE LAW

1. The applicants complain under Article 6 (Art. 6) of the Convention that

in the proceedings in which the Dornbirn District Court gave its

decision on 4 October 1985, and the Feldkirch Regional Court its

decisions on 2 July and 4 November 1985, they were not heard and that

on 4 October 1985 the Dornbirn District Court regarded itself as being

bound by the decision of the Feldkirch Regional Court of 2 July 1985.

2. The Commission considers that those proceedings concerned the

question whether the judicial notice had been served properly by the

postman on the applicants and that the Austrian Courts were deciding

on the execution of the decision of the Dornbirn District Court of

17 December 1984 as well as on the applicants' subsequent request for

reinstitution into the proceedings.

The Commission finds that those proceedings did not relate to a

criminal charge within the meaning of Article 6 para. 1 (Art. 6-1). Moreover,

neither enforcement proceedings following a civil court decision nor

proceedings in which it is decided whether or not to reinstitute a person into

previous proceedings come within the scope of Article 6 para. 1 (Art. 6-1)

since such proceedings do not themselves determine a dispute relating to civil

rights.

It follows that this part of the application must be rejected

as being incompatible ratione materiae with the provisions of the Convention

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

3. The applicants may be understood as directing their complaints under

Article 6 para. 1 (Art. 6-1) of the Convention also against the proceedings in

which the Dornbirn District Court,on 17 December 1984 issued judicial notice on

the applicants and on 29 January 1985 stated that the decision could be

executed.

However, the Commission is not required to decide whether or

not the facts alleged by the applicants disclose any appearance of a violation

of this provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted according to

the generally recognised rules of international law.

The Commission which notes that the applicants did not deny

that they received the notification paper considers, on the one hand,

that both the Feldkirch Regional Court on 2 July 1985 and the Dornbirn

District Court on 4 October 1985 concluded that the postman had in

fact put a notification of the judicial notice in the applicants'

letter box, though the applicants failed to pick up the letters

concerned at the post office.

On the other hand, the Commission notes that the applicants

could have raised objections within 14 days against the judicial

notice of 17 December 1984. Thereupon, court proceedings would have

ensued in which a court would have decided on the termination of the

applicants' lease. The applicants have not shown that they raised such

objections available to them under Austrian law. Moreover, an

examination of the case 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 and their

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) 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)

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PACHOLIK v. AUSTRIA

PACHOLIK v. AUSTRIA

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