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Cite as: [2011] ECHR 639
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
25701/06
by Edith WEHINGER
against Austria
The European Court of Human Rights (First Section), sitting on 22 March 2011 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Christos Rozakis,
Peer
Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque, judges,
and Søren
Nielsen, Section
Registrar,
Having regard to the above application lodged on 14 June 2006,
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, Ms Edith Wehinger, is an Austrian national who was born in 1947 and lives in Bürs. She was represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. 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.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s father was a member of the Agricultural Association of Bürs (Agrargemeinschaft Bürs, hereinafter “the Association”). He died in 1984.
The statutes of the Agricultural Association of Bürs of 1969 (“the 1969 statutes”) provided in its § 4 that entitlement to membership would be based, inter alia, on the legitimate descent from a male member. In its § 6, however, the 1969 statutes stated that such membership should be suspended, inter alia, in respect of married daughters for the duration of their marriage (see also “Relevant domestic law” below). The applicant, who is married, did not upon her father’s death in 1984 apply for membership pursuant to § 4 of the 1969 statutes.
In 1993 a woman applied for membership in the Association after her father, being a member of the Association, had died. Her application for membership was rejected as she had been married at the time the application for membership was lodged. She appealed and then filed a complaint with the Constitutional Court. On 12 December 1994 the Constitutional Court held that the provision that membership of women was suspended while they were married was discriminatory on grounds of sex. It also held that, in line with its case-law, the statutes of agricultural associations did not have the legal status of an ordinance (Verordnung) and that the Constitutional Court thus did not have the competence to review such statutes directly. As agricultural associations were public-law entities, their statutes were only binding upon an act of public law by the agricultural authorities, namely authorisation of the statutes. Thus the statutes had to be interpreted in conformity with fundamental rights and the basic principles of the Constitution, such as the principle of non-discrimination. Any provisions of the statutes that were not in line with those principles would have to be treated as null and void ab initio, as provided for in Section 879 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). The agricultural authorities had thus erred when finding that the discriminatory provision, according to which membership of women was suspended for the time they were married, was valid and in force. Their decisions to that effect had thus to be set aside.
Following the decision of the Constitutional Court the Association held a general meeting and adopted, on 15 December 1995, new statutes in order to comply with the Constitutional Court’s ruling. On 9 February 1996 the new statutes were approved by the Agricultural District Authority (Agrarbezirksbehörde) with binding effect as of 15 December 1995. The new statutes provided that the key date for defining current members under the new statute was 12 December 1994. Furthermore, whereas the right to acquire membership remained the same, the suspension of membership of female married persons had been deleted (see “Relevant domestic law” below).
On 27 December 1995 the applicant wrote a letter to the Association in which she applied for membership. On 27 March 1996 she was informed that her application for membership was refused. The reason given was that the new statutes provided that membership by way of succession could only be derived from persons who were members on the key date of 12 December 1994; since the applicant’s father had died in 1984 and thus was not a member on the key date, the applicant could not derive any claim to membership from him.
Meanwhile, being represented by a lawyer, the applicant applied to the Agricultural District Authority on 22 August 1997 to have the rule on the key date set aside. The District Authority turned down the application on 18 November 1997. On 3 December 1997 the applicant appealed to the Regional Land Reform Board (Landesagrarsenat).
On 31 October 2000 the Regional Land Reform Board decided that the applicant (and several persons who had also challenged the statutes of the Association) should be accepted as members of the Association. Whereas the Regional Land Reform Board found that all applicants in the proceedings had failed to submit documentary evidence that they fulfilled all further prerequisites for membership, it found it unjust to refuse membership on those formal grounds.
The Association appealed to the Supreme Agricultural Board (Oberster Agrarsenat). On 5 December 2001, however the Supreme Agricultural Board rejected the Association’s appeal.
The Association thereafter complained to the Administrative Court, which, on 16 October 2003, set aside the decision to accept the applicant’s membership. It held that whilst the applicant had been entitled to become a member under the old statutes which would have had to be interpreted in a non-discriminatory way, she had only applied for membership after the statutes had been changed and according to which she was not entitled to membership. The case was returned to the Supreme Agricultural Board for consideration.
On 5 May 2004 the Supreme Agricultural Board granted the Association’s appeal and rejected the applicant’s application for membership. It held that the application for membership had been made too late and that the rejection of her application was therefore justified.
The applicant complained to the Constitutional Court, which on 4 October 2004 refused to deal with the complaint. The applicant applied to have the case transferred to the Administrative Court.
The Administrative Court dismissed the complaint on 24 November 2005. It held that the Supreme Agricultural Board was bound by the Administrative Court’s decision of 16 October 2003. The Supreme Agricultural Board had decided in the light of that decision. The Administrative Court’s decision was served on the applicant’s counsel on 14 December 2005.
B. Relevant domestic law
The Agricultural Association of Bürs is situated in the Province of Vorarlberg.
The Vorarlberg Agricultural Land Planning Act (Flurverfassungsgesetz), governing inter alia agricultural associations, defines agricultural associations as follows:
Ҥ 32
(1) An agricultural association consists of the totality of the respective owners of the real-estate properties to which participation rights in a real-estate property of an agricultural association attach (ancestral real-estate properties), including those persons who are entitled to person (“walzende”) shares.”
An agricultural association has the legal status of a public-law corporation, but is not endowed with the typical sovereign competences; it is thus not a state institution, but an association of private persons. Its tasks are to manage, cultivate, preserve and improve the property of the association. The members of the association, which are those holding shares in the association, have rights and duties vis-à-vis the other members and the property of the association. The rights of members include participation in elections and the right to use the common economic facilities and real-estate properties. The duties include payment of contributions for proper management of the association, and for the construction and maintenance of the common facilities.
A member’s free disposition concerning their shares is largely excluded, and the transfer of ancestral real-estate properties and the transfer by legal transaction of the shares attaching to specific persons are subject to supervision by the agricultural authority.
The 1969 statutes of the Agricultural Association contained the following rules on membership:
Ҥ 3 Membership
The members of the Bürs Agricultural Association are those persons whose names appear on the list of members on the date of entry into force of the present statutes. ...
§ 4 Acquisition of membership
Membership is acquired by means of entry in the list of members. Entitlement to entry in the list of members, provided that the conditions for actual exercise of the rights of use are met, shall be based on the following grounds:
(a) legitimate descent from a male member (§ 3 ) ...
(b) ...
...
§ 6 Suspension of membership
Membership shall be suspended in the case of:
(a) members who are not habitually resident in the municipality of Bürs;
(b) members’ married daughters, for the duration of their marriage;
...
§ 7 Effects of suspension of membership
For the duration of suspension of membership there is no right to participate in the administration and the use of real property belonging to the Agricultural Association.
...
§ 8 Reinstatement of membership
Once the reasons for suspension of membership no longer apply, membership shall be reinstated, namely with regard to the rights of participation in administration as of the date of a written notice stating that the reasons for suspension no longer apply, and with regard to participation in use [of property] as of the beginning of the following calendar year.
...”
After the amendment of the statutes in 1996 (“the 1996 statutes”), the relevant provisions read as follows:
Ҥ 3 Membership
The members of the Bürs Agricultural Association are those persons possessing the relevant rights of use whose names, as at 12 December 1994, appeared on the Association’s current list of members, and persons who are admitted as members in accordance with the provisions of the present statutes.
§ 4 Acquisition of membership
1. Membership is acquired by means of entry in the list of members. The requrements for entry in the list of members are:
a) Austrian nationality
b) ordinary domicile at Bürs
c) maintaining one’s own household
d) direct descent form a member (father/mother: son/daughter)
...
§ 6 Suspension of membership
Membership shall be suspended in the case of:
(a) members who are not permanently resident in Bürs;
...”
COMPLAINTS
THE LAW
Article 1 of Protocol No. 1 reads as follows:
“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.”
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The applicant argued that before the Constitutional Court had declared the statutes discriminatory, she had not been entitled to membership due to her being a married woman. However, after the discriminatory parts of the statutes had been set aside, the rule on the key date was introduced, thus abolishing her right to membership retroactively.
The applicant had inherited from her father a claim to future membership in the Association, but it had been removed as a result of an amendment to the statutes, after they had been found discriminatory. The applicant argued that the amendments to the rules in essence aimed at maintaining the effects of the old discriminatory statutes.
The applicant argued that the difference in treatment amounted to discrimination on grounds of sex, which could not be justified. If she had had a brother, he would have fulfilled the conditions for membership under the old statutes, and he could have become a member of the Association at any given time. However, she could not become a member under the old statutes, and the new statutes providing for a key date and thereby excluding her from membership simply prolonged the discriminatory situation.
The Government argued that the claim to future membership did not constitute a “possession” within the meaning of Article 1 of Protocol No. 1. Article 1 of Protocol No. 1 did not guarantee a right to acquire possessions, but only applied to existing possessions. A legitimate expectation could be considered an existing possession if there was a sufficiently justified expectation that it would materialise.
The Government further contended that the applicant should have applied for membership earlier. Even if under the 1969 statutes her membership would have been suspended immediately on account of her being a married woman, she would have been on the membership list and, if the conditions for suspension had lapsed, could have become a (full) member. Membership in an agricultural association did not transfer to the heir of a member automatically, but had to be applied for. The mere possibility of being added to the list of members did not constitute a legitimate expectation.
Furthermore the Government argued that even if there had been a “possession” within the meaning of Article 1 of Protocol No. 1, there had been no deprivation of such a possession, but merely an interference with the applicant’s right to obtain membership in the future. The right to obtain membership in the future had then been affected by the change in the statutes, with the result that the applicant no longer fulfilled the requirements for membership. The Government repeated that there had been no violation of the applicant’s rights, as she could have applied for membership earlier; to that effect the Government relied on the Court’s judgment in Phocas v. France (23 April 1996, § 60, Reports of Judgments and Decisions 1996 II), where the Court held that because the applicant had not made use of remedies provided for in expropriation proceedings, no violation of his right to peaceful enjoyment of his possessions had occurred.
The Government pointed out that the key date of 12 December 1994 in the statutes, as amended with binding force by the decision of the Agricultural District Authority on 9 February 1996, was agreed upon by the members of the Association on 15 December 1995. The legislator left a wide margin of appreciation to members of agricultural associations to determine the rules applicable to their association. By stipulating that statutes be examined as to their conformity with the law by the Agricultural District Authority, individuals had sufficient safeguards at their disposal to prevent violations of their fundamental rights.
As regards the retroactivity of the amendment to the statutes, the Government stated that the 1969 statutes had also contained a key date. The key date was necessary to safeguard public interest, as it led to legal certainty.
Agricultural associations served an important function in the life of a community; such associations had existed for several centuries and they secured and preserved the farming population, facilitated the development of viable farm holdings and coordinated the use of the land. As membership in an association entailed not only rights but also duties, members had to participate actively. That was also why an application system for members was in place. For these reasons, the Government argued that any interference with the applicant’s right to respect for property was in the general interest and was justified.
The Government pointed out that discrimination was defined as different treatment of comparable facts without any reasonable justification. The Convention afforded the State a certain amount of discretion as to which situations and facts justified different treatment. The burden of proof for discriminating treatment lay with the applicant. Only when that burden had been discharged was it for the State to provide justification for the difference in treatment.
The Government submitted that there was no difference in treatment in the present case, and the applicant’s treatment did not result in discrimination on grounds of sex. The applicant’s argument that if she had had a brother, he could have become a full member of the Association a long time before, did not prove that her treatment had been different to that of a man in her situation, as by the time the applicant had applied for membership the amendment of the statutes had already entered into force and she did not fulfil the conditions for membership. Also the applicant’s brother would not have fulfilled the conditions for membership, as his ascendant would not have been on the list of members at the key date.
Consequently, the Government maintained that the applicant, upon whom lay the burden of proof that a given treatment was discriminatory, had failed to prove that there had been discrimination.
The Government also argued that the difference in treatment was objectively justified by the Association’s need to ensure legal certainty and clarity as to who its members were. Furthermore, in view of the tasks that agricultural associations performed, their proper functioning was also in the public interest.
The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. It has effect solely in relation to the “enjoyment of the rights and freedoms” safeguarded by those provisions, and thus has no independent existence. However, the application of Article 14 does not necessarily presuppose the violation of a substantive right guaranteed by the Convention, but it suffices for the facts of the case to fall within the ambit of one or more of the Convention Articles (see Stec and Others v. the United Kingdom [GC], no. 65731/01, § 39, ECHR 2006 VI, and Burden v. the United Kingdom [GC], no. 13378/05, § 58, ECHR 2008 ...). It is therefore first to be determined whether the applicant’s claim to membership falls within the ambit of Article 1 of Protocol No. 1.
The Court recalls that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII; Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII; and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004 IX).
The Court reiterates that membership in the agricultural association in question entitles the member to use the association’s property and common economic facilities in accordance with the statutes. It also entails a duty to contribute to the proper management and maintenance of common facilities. Thus, the Court considers that the consequences of being a member of the association might have repercussions on property rights of its members within the meaning of Article 1 of Protocol No. 1 to the Convention.
In the present case, however, the applicant had never applied to become a member under the 1969 statutes. The 1969 statutes did not provide for automatic membership of the association upon the death of an ascendant but required an application therefor. It is not for the Court to speculate on the reasons why the applicant chose not to apply for membership upon her father’s death in 1984.
The Court further notes that the applicant applied for membership after the 1969 statutes’ condition of being unmarried had been set aside by the Constitutional Court’s decision, but the application was lodged on 27 December 1995 which was after the Agricultural Association had agreed to change its statutes on 15 December 1995 and introduced the key date of 12 December 1994 as approved by the competent authorities.
The Court thus finds that as of 15 December 1995 the applicant clearly did not fulfil the conditions for membership. Consequently, not being a member of the association and, thus, not being in a position to enjoy the consequences of membership, the applicant was not deprived of any “possession” in the meaning of Article 1 Protocol No. 1 to the Convention.
As stated above, Article 14 of the Convention is not autonomous in its application. Thus, having regard to the conclusion that Article 1 of Protocol No. 1 is not applicable, the Court considers that Article 14 cannot apply in the instant case.
It follows that the complaint under Article 1 of Protocol No. 1 taken together with Article 14 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
According to Article 35 of the Convention, the Court may only deal with applications after all domestic remedies have been exhausted. However, the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient (see Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999 V).
The Court considers that the proceedings at issue started on 18 November 1997, when the District Authority dismissed the applicant’s request to set aside parts of the statutes, as it was then that a “dispute” within the meaning of Article 6 § 1 arose, the administrative authority’s decision being a necessary preliminary for bringing the dispute before a tribunal (see mutatis mutandis, Morscher v. Austria, no. 54039/00, § 38, 5 February 2004). The proceedings ended with the service of the last decision of the Administrative Court on 14 December 2005. The proceedings thus lasted for eight years and one month and stretched over four levels of jurisdiction, with a total of eight decisions having been taken in the course of proceedings.
A long delay occurred when the case was pending before the Regional Land Reform Board for two years and almost eleven months.
The Court notes that during this period the applicant did not lodge an application for a transfer of jurisdiction (Devolutionsantrag).
Another delay of one year and more than one month occurred when the case was pending before the Supreme Agricultural Board for the first time, and the applicant also did not lodge an application for the Administrative Court to deal with the case (Säumnisbeschwerde).
The case came before the Administrative Court twice, where it was pending for one year and nine months, and one year and two months, respectively, and once before the Constitutional Court, where it was pending for five months. In proceedings before these courts, no remedies against unreasonably long duration of proceedings exist. However, in the present
case, the Court finds that the duration of the proceedings before the Administrative Court can still be considered reasonable.
The Court has frequently held that an application for transfer of jurisdiction is in principle an effective remedy as regards complaints about the length of proceedings before administrative authorities (see Egger v. Austria (dec.), no. 74159/01, 9 October 2003; Kern v. Austria, no. 14206/02, § 49, 24 February 2005; and Ortner v. Austria, no. 2884/04, § 26, 31 May 2007).
As the applicant failed to lodge a request for the transfer of jurisdiction to remedy the failures of the administrative authorities to decide within a reasonable time, the applicant has not exhausted domestic remedies. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Nina Vajić
Registrar President