THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54645/00 by Franz OSINGER against Austria

The European Court of Human Rights (Third Section), sitting on 26 June 2003 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 30 November 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Franz Osinger, is a Austrian national, who was born in 1937 and lives in Simonsberg (Austria). He is represented before the Court by Mr Kattner, a lawyer practising in Amstetten (Austria).

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

A. O., the applicant’s brother, died on 1 December 1988. He had been a farmer and the owner of a farm in P. (“the L. farm”). On 23 December 1998 the competent court was informed about A. O.’s death and, subsequently, appointed a notary public as court commissioner ( Gerichtskommissär ).

On 23 February 1989 the applicant and eight other persons entitled to the estate of A. O. appeared before the notary public in Ybbs and made conditional declarations of acceptance of succession ( bedingte Erbserklärung ).

On 23 February, 28 March and in April 1989 three experts submitted opinions on the value of the L. farm.

On 28 July 1989 the applicant’s sister M.V . argued that the L. farm was a hereditary one ( Erbhof ) within the meaning of the Agricultural Succession Act 1958 ( Anerbengesetz ) and filed an application to be appointed as principal heir ( Anerben ) to the L. farm.

On 22 September 1989 an expert submitted his opinion and concluded that the L. farm should not be considered hereditary.

On 2 October 1989 the applicant filed a request to be appointed as principal heir.

On 28 December 1989 the Ybbs District Court found that the L. farm did not fulfil the requirements of a hereditary farm because it could not provide a living for five adults as required under the applicable law. Further it found the declarations of acceptance valid and appointed all nine statutory heirs as heirs to A. O.’s estate ( Einantwortungsurkunde ) but dismissed the applicant’s and M.V.’s applications to be appointed principal heir. On 9 January 1990 the applicant filed an appeal against this decision.

On 21 February 1990 the Regional Court quashed the District Court’s decision. It found that the District Court had failed to take evidence on the issue of whether the L. farm qualified as hereditary farm within the meaning of the Agricultural Succession Act 1958 and remitted the case to the District Court. The other heirs filed an appeal against this decision.

On 18 October 1990 the Supreme Court dismissed the appeals and confirmed the Regional Court’s finding. On 31 December 1990 the District Court transmitted the file to the notary public for supplementary investigations.

On 28 February 1991 an expert submitted an additional opinion. On 8 April 1991 the District Court decided, after a hearing, to request another additional expert opinion. On 12 September 1991 the court obtained that opinion.

On 17 October 1991 the District Court, after having heard an agricultural expert, found that the L. farm qualified as a hereditary farm and that the Agricultural Succession Act 1958 was applicable. Five parties filed appeals against this decision.

On 4 March 1992 the Regional Court dismissed the appeals and, on 27 Mai 1992, the Supreme Court dismissed an appeal on points of law and confirmed that the Agricultural Succession Act 1958 was applicable.

Subsequently the District Court held hearings on 7 September 1992 and on 9 November 1992. It heard several agricultural experts in order to clarify whether M.V. or the applicant qualified as principal heirs. On 13 January and 11 March 1993 the court obtained further expert opinions.

From April to June 1993 forest pest control measures had to be carried out in the forest belonging to the L. farm. As the parties of the hereditary proceedings did not reach an agreement, an estate curator ( Verlassenschaftskurator ) had to be appointed and the succession proceedings were suspended.

On 8 September 1993 the District Court dismissed the applicant’s application to be appointed as principal heir. It found that he did not qualify as such because he already owned part of another hereditary farm, and appointed M. V. as principal heir. The applicant filed an appeal and submitted a new private expert opinion.

On 29 December 1993 the Regional Court allowed the applicant’s appeal and remitted the case to the District Court. It found that there was not sufficient evidence to conclude that the applicant did not fulfil the requirements for being appointed as principal heir.

On 7 March 1994 the District Court transferred the file to the notary public for supplementary investigations. On 27 April 1994 additional expert opinions were submitted, and on 13 May 1994 the applicant commented on them.

From September to November 1994 new forest pest control measures had to be carried out in the forest belonging to the L. farm. Again an estate curator ( Verlassenschaftskurator ) had to be appointed and the succession proceedings were suspended. On 17 November 1994 the District Court ordered the notary public to submit his final submissions.

On 2 February 1995 the District Court, after having heard additional experts, again dismissed the applicant’s request and appointed M. V. as principal heir. The applicant appealed.

On 12 July 1995 the Regional Court quashed the decision and remitted the case to the District Court. On 10 August 1995 the file was transmitted to the notary public.

On 5 February 1996 the District Court held a further hearing on the applicant’s claim. Thereafter, it obtained further expert reports, and the applicant commented repeatedly on these reports and repeatedly requested further opinions. The applicant also submitted a private expert opinion, and the court-appointed expert commented thereupon. On 13 July 1998 the court held another hearing in which the applicant asked it to hear further experts.

On 21 October 1998 the District Court dismissed the applicant’s application to be appointed as principal heir and appointed M. V. as such. Further, it rejected the applicant’s request to hear further experts.

On 19 March 1999 the Regional Court dismissed the applicant’s appeal. It confirmed the District Court’s refusal to hear further experts and found that the court-appointed expert had commented in detail on the private expert opinion submitted by the applicant and that this opinion could not impugn the plausibility of the court-appointed expert’s opinion. Therefore, it was not necessary to hear further experts.

On 10 June 1999 the Supreme Court dismissed the applicant’s appeal on points of law. This decision was served on the applicant’s lawyer on 14 July 1999.

B. Relevant domestic law and practice

The Non-Contentious Proceedings Act ( Außerstreitgesetz ) does not contain any specific provision on hearings. It is generally considered that hearings under this act are not public (see Fasching , Lehrbuch des österreichischen Zivilprozessrechts , Vienna, 1984, marginal number 682; Gögl , Der Beweis im Verfahren außer Streitsachen , ÖJZ 1956, 344 (347)), and this is also the practice of the Austrian courts.

COMPLAINTS

The applicant complains that in these proceedings there was no public hearing as required by Article 6 § 1 of the Convention. He further complains that the Austrian courts did not properly justify their decisions as they failed to take sufficiently into account the private expert’s report submitted by him. The applicant also complains about the length of the civil proceedings and a violation of his right to an adversarial process .

THE LAW

The applicant complains under Article 6 § 1 of the Convention about the lack of a public hearing in the course of the succession proceedings. Article 6 § 1, so far as relevant in the present case, provides as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”

1. The Government contend that the right to a public hearing is not absolute and that an exclusion of the general public is admissible, inter alia , for the protection of the private lives of the parties or when required on grounds of private and family life within the meaning of Article 8 of the Convention. They point out that succession proceedings are not open to the general public in order to protect the private sphere of the parties. The legislator has, thus, taken into account that family relations and the pecuniary situation of the parties belong to a person’s private sphere which deserves protection from the disclosure of details. They conclude that the parties’ right to protection of their private lives guaranteed by Article 8, and also by Article 6 § 1, justifies an exclusion of the public for such proceedings are not of public interest. Moreover, the Government submit that there have been a number of hearings in which the parties could duly put forward their arguments and that the applicant’s submissions that there had been no fair hearing are unfounded. Finally they argue, referring to the Court’s decision in the Varela Assalino v. Portugal case (no. 643369/01, 25 April 2002), that the primarily “technical nature” of the issues to be determined in the present proceedings, i.e. the question of whether the farm qualified as hereditary, would have justified the absence of a hearing altogether and that this, therefore, must be all the more true for the lack of publicity at the hearings.

The applicant contests the Government’s submissions. He contends that the proceedings at issue involved a dispute about civil rights which did not differ from other claims dealt with in civil proceedings. There was no reason to distinguish succession proceedings from other civil suits; in particular, the determination of the heir of an agricultural estate did not involve the consideration of facts falling within the parties’ private sphere. Further he submits that the question of whether the farms qualified as hereditary could not be regarded as being of a “technical nature”. This issue amounted to an estimate based on valuations rather than to an empirically measurable question of fact. He argues that the holding of public court hearings constitutes a fundamental principle enshrined in Article 6 § 1 and that he never waived his right to such hearings.

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the case.

It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant further complains under Article 6 § 1 of the Convention about the length of the proceedings.

The Government contend that the applicant failed to exhaust domestic remedies as he did not make an application in order to expedite the proceedings pursuant to Section 91 of the Courts Act. In the Government’s view such an application is an effective remedy.

The applicant contests the Government’s view, arguing in particular that an application under Section 91 of the Courts Act is not an effective remedy and that this provision only entered into force on 1 January 1990. Moreover, he submits that the proceedings at issue are in principle conducted ex officio by the courts and that it is, therefore, in the first place for the judges to speed up the proceedings.

In the case of Holzinger v. Austria, the Court found that a request under Section 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings ( Holzinger v. Austria , no. 23459/94, §§ 24-25, ECHR 2001-I, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, unreported , relating to criminal proceedings). It asserted, however, that the effectiveness of such a remedy may depend on whether there has already been a substantial delay before the entry into force of this provision ( Holzinger (no. 2) v. Austria , no. 28898/95, 30.01.01, §§ 21-22). In the present case the proceedings started before the entry into force of Section 91 of the Austrian Courts Act.

The Court notes that the proceedings began on 23 December 1988 and ended on 14 July 1999. Thus, the proceedings started slightly more than one year before the entry into force of Section 91 of the Austrian Courts Act on 1 January 1990. Given that the proceedings lasted another eight years and seven months, during which time the applicant could have made use of Section 91, and that there was no inactivity in the proceedings within the period from December 1989 to 1 January 1990, the Court finds that that period cannot be regarded as substantial. In the circumstances of the case a request under Section 91 must be considered an effective and sufficient remedy, which the applicant has failed to use.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant also complains under Article 6 of the Convention that the courts’ reasoning was insufficient In particular he submits, that they failed to consider the private expert opinion properly.

However, the Court reiterates that, while Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument ( García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I).

In the present case, the Court finds that the Court of Appeal dealt adequately with the applicant’s argument that the opinion of the court- appointed expert was contradictory and explained why it did not rely on the private expert opinion.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. In his observations in reply to the Government, the applicant complained that he had no possibility to question witnesses, the other parties to the proceedings and the experts at the hearings and that, therefore, his right to an adversarial process under Article 6 § 1 was violated.

The Court notes that the proceedings were terminated on 14 July 1999 , when the Supreme Court’s decision was served on the applicant’s counsel. However, the above complaint was only introduced on 11 November 2002, which is more than six months after the domestic proceedings were terminated.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the lack of a public hearing ;

Declares the remainder of the application inadmissible.

Mark Villiger Georg Ress              Deputy Registrar President