CASE OF ZEHENTNER v. AUSTRIA
Remainder inadmissible;Violation of Art. 8;Violation of P1-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1944 and lives in Vienna. 6. On 4 August 1998 the Meidling District Court (Bezirksgericht), in summary proceedings, ordered the applicant to pay 102,330.48 Austrian schillings (ATS), approximately 7,440 euros (EUR) to G. for the cost of plumbing work carried out in her apartment (Zahlungsbefehl). 7. On 26 May 1999 the District Court granted G.'s request for the enforcement of the payment of this order and the costs of the proceedings in the amount of approximately EUR 2,150 by judicial sale (Zwangsversteigerung) of the applicant's apartment situated at S.-street 23/17, in the 12th district of Vienna. That address was used by the courts for serving this and subsequent decisions. A registered letter was sent to the applicant at the above address. As it could not be handed over to her personally, it was served on her on 8 June 1999 by deposition (Hinterlegung) in the post office. 8. On 27 July 1999 the Meidling District Court, referring to two further enforceable payment orders of 24 October 1995 and 15 June 1999 respectively (amounting to approximately EUR 2,100) and to the costs of the respective proceedings, granted another creditor, W., leave to accede to the judicial sale. 9. The applicant was informed of the date of the judicial sale by registered letter, which was again sent to her address at S.-street 23/17, and was served by deposition in the post office on 6 October 1999. 10. On 17 November 1999 the judicial sale took place. The applicant did not assist. The District Court sold the applicant's apartment (Zuschlag) for 812,000 ATS (approximately EUR 59,000) to H. GmbH, a limited liability company. The decision of sale was served on the applicant on 24 November 1999 by deposition in the post office. 11. By a decision of 14 January 2000 the District Court allocated shares of the proceeds to the creditors (Meistbotsverteilungsbeschluss). 12. In February 2000 the applicant was evicted from the apartment. 13. In March 2000 the applicant had a nervous breakdown and stayed in a psychiatric hospital between 2 March 2000 and 12 April 2000. It cannot be established on the basis of the file where the applicant lived for the rest of the year 2000. It appears that in 2001 she was housed in a community owned apartment, where she is still living. 14. In connection with the applicant's stay in the psychiatric hospital, the Fünfhaus District Court instituted guardianship proceedings (Sach-walterschaftsverfahren) and, on 15 March 2000, appointed a provisional guardian for the applicant. In these proceedings a medical expert submitted that the applicant had suffered from paranoid psychosis since 1994 and had since then not been able to make rational decisions, in particular as far as housing matters were concerned. On 15 May 2005 a permanent guardian was appointed for the applicant. 15. On 3 April 2000 the Meidling District Court served the decision of 17 November 1999 concerning the judicial sale of the applicant's apartment on the applicant's guardian. On 17 April 2000 the applicant, represented by her guardian, appealed against this decision. Referring to the guardianship proceedings, she submitted that the enforcement proceedings were null and void as she had not been capable of participating in the proceedings (prozeßfähig) either at the time of delivery of the respective payment orders or at the time of delivery of the decisions granting enforcement and summoning her to the judicial sale. She further requested that the enforcement proceedings be suspended. 16. On 26 April 2000 the District Court dismissed the applicant's request for the enforcement proceedings to be suspended. On 3 May 2000 it granted a part of the surplus of the judicial sale to another creditor, A. The applicant, referring again to her argument that the enforcement proceedings should be considered null and void, appealed against both decisions. She further submitted that she had paid all outstanding debts to G. in July 1999. 17. On 23 June 2000 the Vienna Regional Civil Court (Landesgericht) suspended the proceedings concerning the appeal against the judicial sale of the applicant's apartment and ordered the Meidling District Court to decide on the applicant's capacity to participate in the proceedings since June 1999, when the decision granting enforcement by judicial sale of her apartment had been served on her. 18. On the applicant's requests, the Meidling District Court, on 3 July 2000, found that the payment orders of 4 August 1998 and 15 June 1999 (see paragraphs 6 and 8 above) were not enforceable. Relying on section 7 § 3 of the Enforcement Act (Exekutionsordnung), it found that the applicant had not been capable of participating in the proceedings at the time of the delivery of the decisions at issue. For the same reasons the Hernals District Court, on 3 May 2001, referring to the expert opinion obtained in the guardianship proceedings and a further expert opinion, found that the payment order of 24 October 1995 (see paragraph 8 above) was not enforceable. 19. Referring to the first decision, the applicant, in October 2000, requested the District Court to discontinue the enforcement proceedings. On 12 January 2001 the District Court dismissed this request and noted that discontinuation was no longer possible as the decision allocating the proceeds of the sale to the creditors had become final and the creditors had been paid. 20. In the meantime, on 28 December 2000, the Vienna Regional Civil Court resumed the proceedings concerning the applicant's appeal against the judicial sale. It dismissed the appeal, noting that under section 187 § 1 and section 184 § 1 (3) of the Enforcement Act only persons who had been present at the judicial sale or had erroneously not been summoned had a right to appeal within 14 days from the date of the auction. In contrast to the views expressed by legal writers, it was the Supreme Court's established caselaw that this time-limit was absolute and, therefore, also binding in a case like the present one where the debtor had not been capable of participating in the proceedings and had not been represented. Consequently, the sale of the applicant's apartment had become final and it was no longer possible to claim the nullity of the proceedings. The court therefore revised its decision of 23 June 2000 (see paragraph 17 above) finding that the question of the applicant's capacity to participate in the enforcement proceedings was not relevant. 21. The applicant, represented by her guardian, requested the Vienna Regional Civil Court to allow an ordinary appeal with the Supreme Court (Oberster Gerichtshof). She argued that section 187 § 1 of the Enforcement Act setting an absolute time-limit for the filing of an appeal against a decision of sale in a judicial auction was unconstitutional and amounted to discrimination against disabled persons not capable of participating in legal proceedings. Such individuals could not be treated like persons with legal capacity, who were able to defend their interests in underlying civil proceedings and could later appeal against a decision granting enforcement. In the present case, the interests of the applicant in declaring the sale of her apartment null and void had to prevail over the interests of the purchaser and the creditors. On the one hand, the applicant had become homeless, having lost her apartment, which had been sold far below its market price in order to satisfy relatively minor claims. On the other hand, annulling the judicial sale of the apartment would not have caused serious or irreparable damage to the creditors or the purchaser. 22. By a decision of 12 January 2001 the Meidling District Court entered the purchaser of the applicant's apartment, the limited company H., as owner in the land register. 23. On 24 April 2001 the Vienna Regional Civil Court refused to grant an ordinary appeal. Qualifying the applicant's submissions as an extraordinary appeal, it transferred them to the Supreme Court. 24. On 30 January 2002 the Supreme Court (Oberster Gerichtshof) rejected the applicant's extraordinary appeal. It noted that the Regional Court's decision was in line with its constant case-law. As to the question regarding the constitutionality of the absolute time-limit for the filing of appeals against a judicial sale, it referred to the necessary protection of the purchaser. 25. By decision of 12 April 2002 the Vienna Regional Civil Court dismissed the applicant's further appeals against a number of decisions of the District Court, including the decision entering the purchaser of the apartment as owner in the land register (see paragraph 22 above), a decision granting another part of the surplus of the judicial sale to creditor A., and decisions fixing further costs of the enforcement proceedings. It noted that the applicant's arguments were restricted to the allegation that the judicial sale had not become final and that, therefore, all subsequent decisions were null and void. However, according to the Supreme Court's decision, the judicial sale had become final. 26. Under Article 477 § 1 of the Code of Civil Procedure (Zivilprozeßordnung) a decision in civil proceedings is null and void and may be annulled if a party who is required to be represented has not been represented in the proceedings and the legal representative does not approve the conduct of the proceedings ex post. The party concerned may request annulment under section 529 of the Code of Civil Procedure. There is no specific time-limit for filing such a request. 27. Article 6a of the Code of Civil Procedure provides that if there is any indication that a party is not capable of effectively participating in the proceedings, they have to be suspended and the case has to be transferred to the competent court to conduct guardianship proceedings. 28. Enforcement proceedings are instituted by a request by the creditor, who indicates the mode of enforcement (section 54). In enforcement proceedings a debtor can oppose enforcement, claiming deficiencies in the underlying claim (Oppositionsklage, Oppositionsgesuch; sections 35 and 40) or can request a stay of execution (Impugnationsklage, Impugnations-gesuch, section 36) on account of deficiencies in the decision granting enforcement. Furthermore, the court may, of its own motion or at the request of a party concerned, declare that a judicial decision or payment order is not enforceable if enforcement would be erroneous or unlawful (section 7 § 3). Upon such a decision enforcement proceedings are in principle discontinued (section 29 § 1) or suspended (section 42 § 2). 29. Enforcement by way of judicial sale (Zwangsversteigerung) of a debtor's real estate is granted by a decision (Exekutionsbewilligung). Subsequently, the court orders the valuation of the property by an expert (section 140). Both parties to the proceedings, debtor and creditor, are summoned to the respective inspection of the real estate. At the time of the events, the value of the real estate was determined by a decision of the enforcement court which was subject to appeal (section 144). 30. The date of the judicial sale is communicated by official notification (Versteigerungsedikt) which is served on the debtor and creditor (section 171). The decision to sell (Zuschlag) real estate in a judicial sale constitutes an act of public law by which the purchaser obtains the property. Under sections 184 § 1 (3) and 187 § 1 such a decision can be appealed against within 14 days from the date of the judicial sale, inter alia, by a person who has erroneously not been summoned to the judicial sale. 31. According to the Supreme Court's constant case-law, after expiry of this time-limit the decision of judicial sale becomes final. It is then no longer possible to take the eventual nullity of underlying decisions into account, even if the debtor had not been capable of participating in the proceedings due to a lack of legal capacity at the time when enforcement had been granted. The Supreme Court holds that only this approach is compatible with the aims of the proceedings leading to a judicial sale and the protection of the bona fide purchaser. A debtor can remedy unlawful acts of the party having instituted enforcement proceedings by claiming compensation (Schadenersatz) and unlawful acts of the courts by instituting official liability proceedings (Amtshaftung) (see for example 3 Ob 133/88, and also 2 Ob 128/72, 3 Ob 114/83, 3 Ob 165/01p). 32. After the judicial sale becomes final, the enforcement court allocates the proceeds of the sale to the creditors and any eventual surplus subsequently to the debtor. Once the purchaser has fulfilled all the conditions, the court transfers the real estate and enters him as the owner in the land register.