THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35435/97 by H.P. and Others against Austria

The European Court of Human Rights, sitting on 23 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 30 August 1996 and registered on 25 March 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision on admissibility by the European Court of Human Rights on 8 February 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, H.P., born in 1941, E.M., born in 1932, R.B., born in 1936, G.P., born in 1945, and M.G., born in 1943, are all Austrian nationals. They are living in Spittal/Drau, Gladbach and Möllbrücke respectively. They are represented before the Court by Mr H. Walther, a lawyer practising in Klagenfurt.

A. The circumstances of the case

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

The applicants and their brother are all children of a Carinthian farmer who died on 3 September 1993 without having left a will. After the death of the applicants’ father, inheritance proceedings commenced on 10 December 1993 when their conditional declaration accepting the inheritance ( bedingte Erbserklärung ) was registered by the Spittal/Drau District Court.

On 30 December 1993, 17 May, 27 June, 18 October 1994, and 20 March 1995, inheritance negotiation hearings were held by the court commissioner in the competent notary’s office. As the applicants and their brother were unable to reach an agreement, on 13 July 1995 the proceedings were transferred to the District Court which held hearings on 18 September, 23 October, 20 November 1995 and 15 January 1996. On the latter date the court ruled that the applicants and their brother had already, on 30 December 1993, entered into a valid agreement concerning the estate and appointed the applicants’ brother as the principal heir ( Anerbe ). The latter appealed against this decision arguing that no agreement had been reached. On 14 February 1996 the Klagenfurt Regional Court granted his appeal and referred the case back to the District Court.

The District Court continued the proceedings and took several expert opinions on the question whether the applicants’ brother was able to be the principal heir. Upon the applicants’ requests, experts were appointed on 12 July, 9 September, 21 October 1996 and 28 May 1997. On 17 June 1997 the District Court determined that the applicants’ brother was the principal heir. On 24 July 1997 the Klagenfurt Regional Court granted the applicants’ appeal and referred the case back to the District Court.

On 6 August 1997 the District Court requested an expert opinion of the Carinthian Chamber of Agriculture and Forestry ( Kammer für Land- und Forstwirtschaft ) on the question whether the estate fulfilled the conditions of a hereditary farm ( Erbhof ) within the meaning of the Carinthian Hereditary Farms Act ( Kärntner Erbhöfegesetz ). On 18 August 1997 the District Court found that it was a hereditary farm.

Further hearings were held on 30 September and 5 November 1997. On the latter date the applicants and their brother agreed on a settlement regulating the inheritance ( Erbübereinkommen ). The file was transferred to the notary and, at the hearing of 14 April 1998, the applicants and their brother agreed on a family arrangement regulating the division of the whole estate ( Erbteilungsübereinkommen ).

On 6 May 1998 the District Court issued the certificate putting the statutory heir in possession of the estate ( Einantwortungsurkunde ). Thereupon, on 25 October 1999, the inheritance settlement was entered in the land register ( Grundbuch ).

B. Relevant domestic law

Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."

COMPLAINT

The applicants complain under Article 6 of the Convention about the length of inheritance proceedings.

THE LAW

The applicants’ complaint concerns the length of the inheritance proceedings, which began on 10 December 1993 and ended on 6 May 1998 with the issue of the certificate putting the heir in possession of the estate. They therefore lasted four years and almost five months.

Article 6 of the Convention, as far as relevant, provides as follows:

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

The Government contend that the applicants failed to exhaust domestic remedies since they did not file a request under section 91 of the Courts Act to expedite the proceedings.

The applicants contest the Government’s view and maintain that an application of section 91 of the Courts Act would not have been an effective remedy. Periods of delays are mainly attributable to the notary who acted as the court commissioner.

The Court recalls that, i n the case of Holzinger v. Austria, it has found that a request under section 91 of the 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, 30.01.01, §§ 24-25, to be published in ECHR 2001). As to the applicant’s argument, the court considers that it is not called upon to examine whether section 91 of the Courts Act also applies where possible delays are caused by a notary acting as a court commissioner, as in any case the negotiation hearings were conducted at reasonable intervals in this phase of the proceedings which did not last more than one and a half years. However, the Court notes that the applicants could have made such a request under section 91 of the Courts Act in the period between the Regional Court’s decision of 14 February 1996, which referred the case back to the District Court, and the latter court’s decision of 17 June 1997. In particular between 21 October 1996 and 28 May 1997 the applicants could have requested that a time-limit be fixed for the expert to submit his opinion and that a hearing be held. However, they did not make use of this possibility and have, thus, failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early J.-P. Costa Depu ty Registrar President