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FIRST
SECTION
CASE OF MLADOSCHOVITZ v. AUSTRIA
(Application
no. 38663/06)
JUDGMENT
STRASBOURG
15 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mladoschovitz v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 24 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38663/06) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Austrian nationals, Ms Nadine Mladoschovitz
and Ms Jeanine Mladoschovitz (“the applicants”), both
represented by their mother Elke Mladoschovitz, on 14 September 2006.
- The
applicants were represented by Mr R. Gabl, a lawyer practising in
Linz. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy,
Head of the International Law Department at the Federal Ministry for
European and International Affairs.
- The
applicants alleged a violation of Article 6 of the Convention in
proceedings concerning the enforcement of their claims for
maintenance against their father.
- On
23 October 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1998 and 2002 respectively and live in Linz.
- The
applicants have a maintenance claim against their father Mr W
(“the debtor”). Apparently the debtor fell into arrears
with maintenance payments (Unterhaltsrückstand) amounting
to the sum of EUR 3,006. The applicants applied for enforcement of
their payment orders to the competent District Court (Bezirksgericht)
in Enns. The enforcement order (Exekutionsbewilligung)
provided for the sale of the debtor’s movable property
(Fahrnisexekution) and granted the applicants a lien on
outstanding claims which the debtor held against his own debtors
(Forderungsexekution).
- On
21 July 2006 the debtor lodged an action under Section 35 of the
Enforcement Act (Oppositionsklage) to have the claim
underlying the enforcement order dismissed and also applied to
postpone enforcement (Aufschiebung der Exekution) until a
decision on his action had been reached. In support of his case to
have the enforcement order set aside, the debtor stated that during
the period of time in which he had not made maintenance payments, the
applicants had been living with him and he had paid all their living
expenses.
- In
support of his application to postpone enforcement regarding the sale
of movable property, the debtor claimed he would risk losing his
property rights over the objects seized for enforcement. He also
argued that if a lien against outstanding claims from his own debtors
was enforced, the recovery of the money from the applicants, who did
not have any funds, would be nearly impossible if the enforcement
order was, in fact, set aside.
- On
27 July 2006 the District Court, without hearing the applicants,
allowed the postponement of enforcement by granting the applicants a
lien on outstanding claims if a deposit of EUR 3,500 was lodged with
the court but the postponement of the sale of the debtor’s
movable property was not granted. On 2 August 2006 the debtor
appealed, claiming that the deposit was too high. The applicants were
not notified of the appeal.
- The
Steyr Regional Court (Landesgericht) quashed the decision,
ordering both kinds of enforcement to be postponed until the decision
on the action under Section 35 of the Enforcement Act was rendered
and re-setting the deposit at EUR 1,000. The applicants were not
heard in the proceedings. It held that an appeal on points of law to
the Supreme Court was not admissible. The applicants, having lost the
case on postponement of the enforcement, were obliged to reimburse
legal costs amounting to EUR 305.40 to the debtor.
II. RELEVANT DOMESTIC LAW
- The
enforcement of court orders is set down in the Enforcement Act
(Exekutionsordnung). In principle, an application for
an enforcement order (Exekutionsbewilligung) can only be made
when the civil right to be enforced is established with final effect;
such a decision establishing a civil right is called a fiat of
execution (Exekutionstitel).
- If
after a fiat of execution has been passed, new facts emerge which
vitiate or weaken the enforceable claim, the debtor can bring an
action under Section 35 of the Enforcement Act. If successful, such
an action will set aside the fiat of execution. In the proceedings,
the Code on Civil Procedure (Zivilprozeßordnung) will
apply.
- If
an action is brought under Section 35 of the Enforcement Act,
enforcement may also be postponed according to Section 42 § 1
no. 5 of the Enforcement Act, until a final decision is taken under
Section 35 of the Enforcement Act. The postponement of enforcement is
taken in the form of a decision (Beschluß). According to
Section 44 § 2 no. 1 of the Enforcement Act, such postponement
is to be subject to the payment of a deposit by the debtor seeking to
have the claim underlying the fiat of execution set aside unless the
debtor can show unobjectionable documents supporting his action under
Section 35 of the Enforcement Act. The deposit serves to safeguard
the creditor(s) against damage resulting from delay in the
enforcement of the claim.
- According
to Austrian jurisprudence, the amount of the deposit is to be
determined according to the likelihood of a successful outcome to the
action under Section 35 of the Enforcement Act, without taking into
account the merits of the action under Section 35.
- Section
78 of the Enforcement Act stipulates that, unless provided otherwise,
the general provisions of the Code of Civil Procedure
(Zivilprozessordnung) are applicable to enforcement
proceedings.
- As
a general principle, the opponent does not have the right to be heard
if the other party lodges an appeal against a decision (Rekurs)
other than those decisions set out in Section 521a of the Code of
Civil Procedure.
- The
legal costs have to be borne by the party who loses the case; in
circumstances in which both parties partly lose and partly win a
case, the costs will be split proportionately, with the court
enjoying a narrow margin of appreciation (see Sections 40 to 43 of
the Code of Civil Procedure).
- While
certain court fees are payable upon application for an enforcement
order and the bringing of an action under Section 35 of the
Enforcement Act, no such fees are payable for a motion to postpone
enforcement. However, appeals against decisions (Rekurs) have
to be signed by a lawyer in principle, who is entitled to
remuneration.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that their right to a fair hearing, as provided
in Article 6 § 1 of the Convention, has been violated. Article 6
§ 1 of the Convention reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- In
particular, the applicants argued that if they had been heard in the
proceedings on postponing enforcement, they could have agreed to the
postponement or agreed to the postponement without the need for a
deposit, and then would not have been obliged to reimburse the legal
costs to the debtor.
- The
Government contested that argument.
A. Admissibility
- The
Government contested the applicability of Article 6 of the Convention
to the proceedings on the postponement of enforcement. According to
the Court’s case-law, a “civil right” exists if
there is a genuine and serious dispute which relates to the
existence, the content or the conditions of a right and which is, at
least on arguable grounds, recognised under domestic law. The outcome
of the proceedings must have a direct impact on the right in
question.
- The
Government contended that enforcement proceedings did not come within
the purview of Article 6 of the Convention because the disputed civil
right had already been decided upon in the proceedings on the merits.
- However,
enforcement proceedings do not have as their purpose the
determination of a claim, but the actual enforcement of the claim.
Enforcement proceedings do not affect the existence of a claim. The
Government argued that the present case was to be distinguished from
other cases in which Article 6 § 1 of the Convention was found
to be applicable to enforcement proceedings, such as cases concerning
the length of proceedings or cases of non-enforcement. The Government
emphasised that the present application exclusively concerned the
postponement of an enforcement order until a final decision on the
action under Section 35 of the Enforcement Act was taken.
- Finally,
the Government pointed out that the whole purpose of enforcement
proceedings was the rapid implementation of a final decision on the
merits of the claim. Thus, whenever there is a dispute about the
civil rights claim underlying the enforcement proceedings, the
proceedings are adversarial but the enforcement proceedings are
unilateral. The consequence that legal costs may have to be
reimbursed for the unilateral postponement of enforcement proceedings
does not change the fact that Article 6 of the Convention is not
applicable to enforcement proceedings. The Court’s judgment in
Beer v. Austria, no. 30428/96, 6 February 2001, in which the
Court held that disputes over costs raised in the main proceedings
come within the scope of application of Article 6 of the Convention,
is not comparable to the present application.
- The
applicants argued that the enforcement proceedings also touched upon
their civil rights, as the deposit demanded by the court should have
secured their claim. The applicants did not know whether or not the
debtor had made the offer of the deposit of his own accord. As the
success of the enforcement proceedings was dependent on the fast
enforcement of the claim, they should have at least have been
informed of the debtor’s appeal and given the opportunity to
comment on it. They also argued that a request to postpone
enforcement is comparable to a request to interrupt civil proceedings
under Section 190 of the Code of Civil Procedure, where a decision
could only be taken after a hearing.
- The
applicants stated that even if Article 6 of the Convention was not
applicable to a decision to postpone enforcement until a final
decision on the action under Section 35 of the Enforcement Act was
taken, Article 6 of the Convention was applicable to the final
decision which ordered the applicants to pay the costs. They stated
that the subject-matter of their application to the Court was not the
decision to postpone enforcement, but the fact that they had to bear
the costs for the debtor’s appeal without having been heard or
having been able to settle the matter with the debtor.
- The
Court reiterates its established case-law that enforcement of a
judgment given by any court must be regarded as an integral part of
the "trial" for the purposes of Article 6 (see, for
instance, Hornsby v. Greece, 19 March 1997, § 40,
Reports of Judgments and Decisions 1997 II, Immobiliare
Saffi v. Italy [GC], no. 22774/93, § 63, ECHR 1999 V).
The Government argued that this case-law, which was developed in the
context of the non-enforcement of final decisions, does not imply
that Article 6 applies to any type of execution proceedings. The
Court has no need to examine this argument, as it considers, for the
reasons set out below, that the proceedings at issue involved a
determination of the applicants’ civil rights.
- In
the present case, the Court notes that the application to postpone
the enforcement was filed after an action under Section 35 of the
Enforcement Act had been lodged by the debtor. The action under
Section 35 of the Enforcement Act challenged the claim giving
rise to the fiat of execution, and therefore directly related to a
“civil right” within the meaning of Article 6 § 1 of
the Convention.
- As
has been set out above, the amount of the deposit is closely linked
to the proceedings under Section 35 of the Enforcement Act. To
determine the amount of the deposit, the court has to estimate the
prospects of success of the proceedings under Section 35 of the
Enforcement Act.
- As
it was in those proceedings that the applicants were ordered to pay
the debtor’s costs, Article 6 § 1 of the Convention
applies in this case.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants argued they should have been heard on the debtor’s
appeal, as they ultimately also had to bear the costs for the appeal.
- The
Government contended that a distinction must be made between the
issue of being granted the right to be heard and the issue of the
payment of costs. Under Austrian law, the person losing the case has
to reimburse the legal costs. They also noted that even if the
applicants did have a right to be heard on the debtor’s appeal
and had agreed to postpone enforcement, they would have had to pay
the costs, as the outcome of the proceedings would have been the same
− namely, the postponement of the enforcement. Payment of costs
in a situation like this can be avoided only by not bringing
unjustified enforcement claims or by not pursuing such unjustified
claims any further.
- The
Court notes that the costs in the appeals proceedings, relating to
the amount of the deposit, had to be borne by the applicants, without
regard to the outcome of the proceedings under Section 35 of the
Enforcement Act.
- The
Court found a violation of the principle of equality of arms in the
case of Beer v. Austria, no. 30428/96, § 17, 6 February
2001, holding that each party must be given the opportunity of have
knowledge of and comment on the observations filed or evidence
adduced by the other party (with further reference to Ruiz Mateos
v. Spain, judgment of 24 June 1993, Series A no. 262, p.
25, § 63; Nideröst-Huber v. Switzerland,
judgment of 18 February 1997, Reports 1997-I, p. 108, §
24; Werner v. Austria, judgment of 24 November 1997,
Reports 1997-VII, p. 2513, § 65). It is also for the
parties to say whether or not a document calls for their comment.
What is at stake is the litigants’ confidence in the workings
of justice, which is based on, inter alia, the knowledge that
they have had the opportunity to express their views on every
document in the file (Beer, cited above, § 18).
- The
applicants had neither knowledge of the appeal against the decision
setting the amount of the deposit, nor an opportunity to submit their
arguments, yet had to bear the costs of the appeals proceedings.
- The
Court therefore considers that the principle of equality of arms has
been infringed and concludes that there has been a violation of
Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 305.40 euros (EUR) in respect of pecuniary damage
and EUR 8,520 in respect of non-pecuniary damage.
- The
Government did not dispute the amount claimed in respect of pecuniary
damage, but argued that the claim for EUR 8,520 for non pecuniary
damage was unsubstantiated and appeared excessive.
42. The Court cannot speculate as to the outcome of the
proceedings had there been no breach of the guarantees of Article 6
of the Convention. It thus rejects the claim for pecuniary damages.
On the other hand, the Court awards the applicants jointly EUR 1,500
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 2,180 for costs and expenses incurred
before the Court.
- The
Government argued that no proof has been furnished about these costs.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
notes that the applicants have not submitted evidence for the costs
and expenses claimed. It thus rejects the claim for costs and
expenses before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
