(Application no. 20082/02)
16 July 2009
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 Zehentner v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 25 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The enforcement proceedings against the applicant, the judicial sale of her apartment and her eviction
B. The appointment of a guardian for the applicant
C. The attempts to have the enforcement proceedings suspended and the judicial sale of the apartment annulled
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Civil Procedure
B. Enforcement Act
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 AND OF ARTICLES 6, 8 and 13 OF THE CONVENTION
“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 contributions or penalties.”
“1. Everyone has the right to respect for his private ... life, his home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 6, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. Applicant's standing
2. Non-compliance with the requirements of Article 35 § 1 of the Convention
B. Merits of the complaint under Article 8
1. The parties' submissions
2. The Court's assessment
C. Merits of the complaint under Article 1 of Protocol No. 1
1. The parties' submissions
2. The Court's assessment
D. Articles 6 § 1 and 13 of the Convention
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 30,000 (thirty-thousand euros) in respect of non-pecuniary damage and EUR 200 (two-hundred euros) in respect of costs and expenses, plus any tax that may be chargeable on these amounts;
(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;
Done in English, and notified in writing on 16 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Malinverni, joined by Judge Kovler is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER
I voted against point 6 of the operative provisions as I am of the opinion that the applicant in the present case suffered pecuniary as well as non pecuniary damage.
The reason invoked by the majority for refusing any award in respect of the pecuniary damage sustained by the applicant is that it “does not discern any causal link between the violations found and the pecuniary damage claimed by the applicant” (see paragraph 92).
Again in the view of the majority, the lack of a causal link between the violation of Article 1 of Protocol No. 1 and the compensation claimed for pecuniary damage stems from the fact that the breach of the applicant's property rights was of a procedural nature (paragraph 65):
“In the present case, neither the protection of the bona fide purchaser nor the general interest of preserving legal certainty are sufficient to outweigh the consideration that the applicant, who lacked legal capacity, was dispossessed of her home without being able to participate effectively in the proceedings and without having any possibility to have the proportionality of the measure determined by the courts. It follows that, because of the lack of procedural safeguards, there has been a violation of ... the Convention...”
I am not wholly persuaded by the distinction thus drawn between the legal consequences of a substantive violation of Article 1 of Protocol No. 1 and those of a procedural violation. Furthermore, the majority itself appears to concede that the procedural violation was accompanied by a substantive violation, when it states (paragraph 76):
“It has doubts as to whether the debtor's interests are adequately taken into account where a payment order for a comparatively minor sum issued in summary proceedings can serve as a basis for the judicial sale of real estate of considerable value.”
Moreover, the Court in the end finds a violation of Article 1 of Protocol No. 1, without specifying whether it is substantive or procedural in nature (paragraph 79).
According to the Court's settled case-law, any violation of the right to peaceful enjoyment of one's possessions calls in principle for reparation to be made in the form of restitutio in integrum. As it has reiterated on several occasions, the most appropriate means of redress for a violation of Article 1 of Protocol No. 1 is for the victim to have his or her ownership rights restored (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 B); see also, for example, Vontas and Others v. Greece, no. 43588/06, § 50, 5 February 2009).
In the present case, the difficulty of implementing the principle of restitutio in integrum lies in the fact that the applicant's apartment was sold almost ten years ago, on 17 November 1999. Is this sufficient reason not to award the applicant compensation for pecuniary damage?
The Court has always maintained that “[i]f the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it ... If, on the other hand, national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate” (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 33, ECHR 2000 XI).
I am of the view that, in the present case, the victim should have been awarded just satisfaction for pecuniary damage, irrespective of whether the violation of Article 1 of Protocol No. 1 was substantive or procedural in nature.
In order to repay the applicant's debts to her creditors, totalling a little over EUR 10,000 (see paragraphs 6 to 8), the domestic authorities organised the compulsory sale of the apartment she owned in Vienna, with a surface area of 115 square metres, at the ridiculously low price of approximately EUR 59,000 (see paragraph 10).
Admittedly, it is difficult for the Court to assess the pecuniary damage sustained by the applicant, nor is it its task to do so. One way forward might therefore have been to reserve the question of application of Article 41 until such time as the parties had arrived at a fair and mutually acceptable solution.
One thing is certain – the award of EUR 30,000 for non-pecuniary damage (see point 5 (a) of the operative provisions) is not – by any means – sufficient to redress the injustice suffered by the applicant.