Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12462/86

by Hans MAIRITSCH

against Austria

The European Commission of Human Rights sitting in private

on 13 July 1987 the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

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 of the Convention for the

Protection of Human Rights and Fundamental Freedoms ;

Having regard to the application introduced on 9 October 1986

by Hans Mairitsch against Austria and registered on 13 October 1986

under file N° 12462/86;

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 applicant, an Austrian national born in 1941, is a

self-employed painter residing in Völkermarkt. He is represented

before the Commission by Dr. G. Seeber, a lawyer practising in

Klagenfurt.

On 20 January 1984 the applicant's marriage, concluded in

1972, was dissolved by the Klagenfurt Regional Court (Landesgericht).

Thereupon the applicant's former wife requested the partition

of the matrimonial property and savings (Aufteilung des ehelichen

Gebrauchsvermögens und der ehelichen Ersparnisse) in accordance with

SS. 81 et seq. of the Marriage Act (Ehegesetz) and SS. 98 et seq. of

the Civil Code (Allgemeines Bürgerliches Gesetzbuch).

The two spouses, inter alia, jointly owned a piece of land

and a house in Völkermarkt where they had lived together until 1983.

The applicant also used one room as office and parts of the cellar as

a store room for his business.

On 21 August 1985 the Klagenfurt District Court

(Bezirksgericht) partitioned the matrimonial property. Apart from

dividing the movable property the Court decided to transfer the

applicant's title to the premises to his former wife, who was ordered

to pay to the applicant the sum of 450.000 AS by way of compensation.

Upon the applicant's appeal (Rekurs), the Klagenfurt Regional Court

partly modified this decision on 11 October 1985 and assessed the sum

to be paid by the applicant's former wife at 500,000 AS; the

remainder of the appeal was dismissed.

The applicant's further appeal (Revisionsrekurs) was

dismissed by the Supreme Court (Oberster Gerichtshof) on 13 February

1986.COMPLAINT

The applicant complains that he was deprived of his

co-ownership of the piece of land concerned in violation of Article 1

of Protocol No. 1 providing that no one shall be deprived of his

possessions except in the public interest. However, as the title to

the land was transferred to his former wife he claims that he was in

fact expropriated not in the public interest but for the benefit of a

private person.

THE LAW

The applicant complains that his share of formerly

jointly-owned premises was transferred to his former wife in the

course of the partition of the matrimonial property.

Article 1 of Protocol No. 1 (P1-1) to the Convention provides:

"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 contribrutions or penalties."

The Commission first observes that, although the actual

transfer of ownership was in the present case enforced by a court

order and thus by an act of a State organ, it is based on the

provisions of the Austrian Marriage Act governing relations between

(former) spouses in case of a dissolution of marriage. However, as

the Commission noted earlier, in all States Parties to the Convention,

the legislation governing private law relations between individuals

includes rules which determine the effects of these legal relations

with respect to property and, in some cases, compel a person to

surrender a possession to another. An example referred to by the

Commission in this context was precisely the division of matrimonial

estates. The Commission found that this type of rule cannot in

principle be considered contrary to Article 1 of the First Protocol

(P1-1) and, more precisely, that in such cases the passing of property,

resulting from legal limitations inherent in particular property

rights, should not be considered as constituting a deprivation of possessions

for the purposes of the second sentence of Article 1 (Art. 1) (Nos. 8588/79 and

8589/79, Dec. 12.10.82, D.R. 29 p. 64 [82]).

The Commission maintains this view. Even if the transfer of

title to movable or immovable property in case of a dissolution of

marriage may not be effected by way of a private transaction between

the former spouses but by a decision of a court or another State

organ, the transfer as such continues to be the result of obligations

stemming from general private law rules governing the conclusion and

dissolution of marriages and their legal consequences. An obligation,

resulting from such rules, to transfer property to the other spouse

cannot be considered contrary to Article 1 of Protocol No. 1 (P1-1) as such.

The Commission must nevertheless make sure that in determining

the effects on property of legal relations between individuals the law

does not create such irregularity that one person could be arbitrarily

and unjustly deprived of property in favour of another (Nos. 8588/79

and 8859/79, supra, p. 82; see also, mutatis mutandis, Eur.

Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,

Series A No. 52, p. 26, para. 69).

With respect to partition of matrimonial estates the

Commission notes that S. 21 para. 2 and S. 82 of the Austrian Marriage

Act provide only for the partition of movable or immovable tangible

property having served for the use of both spouses during the time of

marriage, including household effects and the matrimonial home

("eheliches Gebrauchsvermögen"). On the other hand, property brought

into the marriage or acquired by one spouse by way of succession or

gift is not normally subject to partition, nor is the property serving

for the use of one spouse only. These rules reflect the idea

underlying the Austrian matrimonial property regime that property

acquired during the marriage for serving the purposes of both spouses

shall be divided equitably between the spouses when marriage is

dissolved, as normally both spouses will have contributed to its

acquisition although ownership might be vested in one of them only.

They cannot therefore be generally considered as disregarding the

right of either spouse to the peaceful enjoyment of his or her

possessions even if the partition of the matrimonial estate may

necessitate the transfer of ownership from one spouse to the other in

order to award to each spouse an equitable share of the matrimonial

property.

It is true that in the present case the partition of the

matrimonial estate included the transfer of title to immovable

property which according to S. 90 of the Marriage Act shall be ordered

in exceptional cases only. However, the Commission's only task is to

ensure the observance of the obligations undertaken by the parties in

the Convention and it is in principle not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts. The Commission finds no indication that the

assumption of the Austrian courts, that exceptional circumstances

justifying the transfer also of immovable property existed in the

instant case, was based on arbitrary or unreasonable considerations.

Moreover, the Commission notes that the Austrian courts took into

account the value of the property thus transferred to the applicnt's

former wife and ordered her to pay compensation to the applicant.

The Commission accordingly does not find that there has been

any infringement of the applicant's right to the peaceful enjoyment of

his possessions or that he has been deprived of his possessions in

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

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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MAIRITSCH v. AUSTRIA

MAIRITSCH v. AUSTRIA

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