EHRM, 16-07-2009, nr. 20082/02

The Government submitted that the applicant did not have legal standing to conduct the proceedings before the Court. They asserted that she was under guardianship because she had been unable for many years to make decisions, in particular as far as housing matters were concerned. The present application concerned matters relating to the applicant's apartment and had not been approved by her guardian. Consequently, it appeared that the applicant did not have standing to file the present application.

The applicant did not file any submissions in this connection.

The Court observes that the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention and, whilst those purposes may sometimes be analogous, they need not always be so (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 139, ECHR 2000-VIII). The Court notes that the appointment of a guardian under domestic law prevents a person lacking legal capacity from validly entering into contacts or conducting proceedings. Thus it serves, inter alia, to protect the person concerned from disposing of his or her rights or assets to their own disadvantage. In Convention proceedings the need for a person lacking legal capacity to be represented by a guardian is less obvious. In certain circumstances it may therefore be justified to allow a person lacking legal capacity under domestic law to conduct Convention proceedings in his or her own right. Indeed, under Article 34 of the Convention the Court may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. There is no obligation in general, or for persons lacking legal capacity in particular, to be represented at the initial stage of the proceedings.

In the present case, the applicant filed an individual application with the Court on 3 May 2002, setting out in a sufficiently substantiated manner the subject matter of her complaint. Following communication of the application to the Government, the applicant's guardian informed the Court by letter of 12 April 2006 that she had not approved the institution of the proceedings and did not wish to pursue the application. Meanwhile, in March 2006, the applicant had requested the Court to proceed with the examination of her case. She stated that she did not wish her guardian to represent her before the Court, but was unable to appoint another representative. On 3 May 2006 the President of the Chamber granted leave to the applicant to present her own case pursuant to Rule 36 § 2 of the Rules of Court.

Having regard to the above considerations, the Court finds that the applicant has standing to pursue the present application and that the Government's objection must be dismissed.

The Government submitted that the applicant did not assert her right to respect for her home and to an effective remedy in this respect either in the domestic proceedings or in the proceedings before the Court. Nor did she raise this complaint within the six-month time-limit. Thus, this complaint cannot be examined for failure to comply with Article 35 § 1 of the Convention.

The Court reiterates that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. It also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports 1996-IV).

In the present case the applicant, represented by her guardian, requested leave to lodge an appeal on points of law against the Vienna Regional Court's decision of 28 December 2000, by which it had dismissed her request to have the judicial sale annulled. She made it sufficiently clear that the apartment at issue had been her place of residence and that she had not only lost her property but had lost her home as a result of the judicial sale and the subsequent eviction (see above, paragraph 21). She even advanced an argument on the lack of proportionality of the interference with her rights on the one hand and the creditors' and purchaser's interests on the other hand. In her application to the Court, although relying on Article 1 of Protocol No. 1, she also mentioned not only that she had lost her property but that she had been left without an apartment as a result.

The Court therefore finds that the applicant raised the point now at issue before the domestic courts, thus enabling them to redress the violation at issue. The way in which she set out the facts and complaints in her application is also sufficient to encompass the aspect that the apartment subject to judicial sale was her ‘home’. In sum, the Court finds that the requirements of Article 35 § 1 have been complied with.

The Court considers that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

The applicant complained that she lost her apartment as a result of the judicial sale proceedings and that she was left without any defence against that.

The Government argued that it was not sufficiently clear whether the apartment which had been subject to judicial sale had actually been the applicant's ‘home’ within the meaning of Article 8. Referring to the applicant's submissions in respect of just satisfaction, they argued that she had apparently intended to let the apartment.

Furthermore, the Government asserted that the mere fact of a judicial sale did not directly affect the applicant's right to respect for her home. The judicial sale brought about a change of ownership but not a change in her living situation at that point. This was only the case once eviction proceedings were carried out in which, however, legal protection was available.

Even assuming that Article 8 was applicable, the interference with the applicant's right to respect for her home was justified. The forced sale of the apartment had a legal basis and served the legitimate aim of protecting the rights of others, namely the applicant's creditors. The applicant's subsequent eviction served to protect the purchaser's rights.

As to the necessity of the interference, the Government asserted that States enjoyed a wide margin of appreciation in matters of social policy. As regards the procedural guarantees implied in Article 8, they observed that all documents relating to the enforcement proceedings had been served on the applicant, who had failed to react. There had been no indication for the judge that the applicant lacked legal capacity. That had not become apparent at the time of her eviction either, but had only been discovered some five months after the judicial sale. The rules of Austrian law, which contained a strict 14-day time-limit for challenging a judicial sale of real estate with the consequence that the decision could not be reviewed even if it turned out that the person concerned had lacked legal capacity, were nevertheless proportionate. They were not only justified to protect the bona fide purchaser but also served to protect the interests of debtors or creditors in general, as property would not achieve normal or close-to-market prices at judicial sales if the law permitted the sale to be challenged without a time-limit. More generally, the absolute time-limit served the interests of the efficient administration of justice and of preserving legal certainty.

The Court has noted on a number of occasions that whether or not a particular habitation constitutes a ‘home’ which attracts the protection of Article 8 § 1 will depend on the factual circumstances (see, for instance, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports 1996-IV, §§ 52–54 and, as a recent authority, McCann v. the United Kingdom, no. 19009/04, § 46, 13 May 2008).

The Court observes that the apartment subject to judicial sale was situated at S.-street 17/3 in Vienna. It appears that the courts considered it to be the applicant's residence, as it was at that address that the decision authorising the judicial sale and the summons informing the applicant of the date of the auction were served in June and October 1999, respectively. Moreover, it is not in dispute that following the judicial sale which took place in November 1999 the applicant was evicted from the apartment, in February 2000. Consequently, the Court sees no reason to doubt that the apartment subject to the judicial sale was at the material time the applicant's ‘home’ within the meaning of Article 8 of the Convention.

The Court considers that the judicial sale of the applicant's apartment and her eviction interfered with her right to respect for her home. In contrast to the Government's view, the Court finds that the judicial sale and the applicant's eviction are to be seen as a whole. The judicial sale deprived her legally of her home, and was a necessary pre-condition for the eviction, which factually deprived her of her home.

The interference at issue will be in violation of Article 8 unless it is justified under the second paragraph of that provision. In the present case the interference was in accordance with the law, being based on the relevant provisions of the Enforcement Act, and served the legitimate aim of protecting the rights and freedoms of others: the proceedings as a whole served the interests of the creditors to obtain payment of their claims. In addition, the eviction and the refusal to annul the judicial sale served to protect the purchaser of the apartment.

The Court reiterates that an interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see Connors v. the United Kingdom, no. 66746/01, § 81, 27 May 2004, and Buckley, cited above, § 74).

In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights. Where general social and economic policy considerations have arisen in the context of Article 8, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (see Connors, cited above, § 82 with further references).

The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Connors, cited above, §83, and Buckley, cited above, § 76).

In this context the Court has already held that the loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (see McCann, cited above, § 50, 13 May 2008).

The Court recalls that in proceedings originating in an individual application it has to confine itself, as far as possible, to an examination of the concrete case before it (see J.B. v. Switzerland, no. 31827/96, § 63, ECHR 2001-III). It is therefore not called upon to review the legislation at issue in the abstract, namely the relevant provisions of the Enforcement Act on the judicial sale of property, but will examine the specific circumstances of the applicant's case. Having regard to the crucial nature of the interference with the applicant's right to respect for her home, the Court attaches particular weight to the procedural safeguards.

The Court notes at the outset that the judicial sale of the applicant's apartment was authorised on the basis of a payment order which had been issued in summary proceedings. While this may be in the interest of efficient enforcement proceedings, the Court has doubts as to whether the debtor's interests are adequately taken into account where such a payment order, moreover for a comparatively minor sum, can be the basis for the judicial sale of a debtor's ‘home’ within the meaning of Article 8. While the Court does not have to examine this system in the abstract, it notes that in the circumstances of the present case it was particularly detrimental to the applicant. It appears from the expert opinion provided in the guardianship proceedings that by the time the judicial sale of her apartment took place she had lacked legal capacity for years. As a result she had not been in a position either to object to the payment order underlying the decision authorising the judicial sale or to make use of the remedies available to the debtor under the Enforcement Act (see paragraph 28 above).

It is true, as the Government pointed out, that the courts were not and could not have been aware of the applicant's lack of legal capacity when conducting the proceedings at issue. However, the Court attaches weight to the fact that once the applicant's lack of legal capacity had been established and a guardian had been appointed for her, she was left without any means of obtaining a review of her case due to the absolute nature of the time-limit for appealing against a judicial sale laid down in section 187 § 1 of the Enforcement Act.

The Court notes the Supreme Court's and the Government's arguments that the said time-limit served to protect the bona fide purchaser and the general interests of an efficient administration of justice and of preserving legal certainty. Nevertheless, persons who lack legal capacity are particularly vulnerable and States may thus have a positive obligation under Article 8 to provide them with specific protection by the law (see, mutatis mutandis, Connors, cited above § 84). While generally there may be good reasons for having an absolute time-limit for lodging an appeal against a judicial sale of real estate, specific justification would be required where a person lacking legal capacity is concerned. The Court notes that the Supreme Court has not given any such justification and has not carried out any weighing of the conflicting interests at stake, namely the interests of the bona fide purchaser on the one hand and the debtor lacking legal capacity on the other hand.

Turning to the Government's argument that the absolute time-limit served the general interest of preserving legal certainty, the Court reiterates its established case-law in the context of Article 6 § 1. It has repeatedly stated that one of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue their ruling should not be called into question (see, among many others, Brumărescu v. Romania, judgment of 28 October 1999, Reports 1999-VII, § 61). Nevertheless, the Court has held that departures from that principle may be justified when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX). The Court has not considered Article 6 § 1 to have been violated where the quashing of a final and enforceable decision was aimed at correcting a fundamental defect (see, for instance, Protsenko v. Russia, no. 13151/04, §§ 30–34, 31 July 2008).

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 Article 8 of the Convention in the instant case.

The applicant maintained that the judicial sale of her apartment had unjustly deprived her of her property.

The Government argued that Article 1 of Protocol No. 1 did not apply, since the judicial sale of the property had not reduced the applicant's assets. The rules governing the enforcement proceedings ensured that the property was sold at a fair price. The proceeds of the sale were used to satisfy the creditors' claims, which meant that the applicant was relieved of her liabilities. The remaining surplus of the proceeds had been allocated to the applicant.

In any case the judicial sale was provided for by law, namely by the Enforcement Act, and served the public interest in an effective administration of justice. Furthermore, it was justified in the interest of legal certainty and proportionate that an appeal against the decision to sell the property was limited in scope and that no reinstatement was allowed in respect of the 14-day time-limit for lodging that appeal. In that respect, the Government referred in essence to their submissions under Article 8.

In addition, the Government asserted that despite the impossibility to have the judicial sale annulled the applicant was not left without any procedural protection. Having obtained the finding that the payment orders underlying the judicial sale were not enforceable due to her lack of legal capacity, she was in a position to obtain a review of the proceedings on the merits. In the event that they resulted in her creditor's claims being dismissed, she would be able, by invoking unjust enrichment under Article 1435 of the Civil Code, to reclaim the amounts which had been paid to them from the proceedings of the judicial sale. Any damage going beyond these amounts could be claimed if caused by unlawful acts of her creditors.

The Court refers to its established case-law on the structure of Article 1 of Protocol No. 1 and the manner in which the three rules contained in that provision are to be applied (see, among many other authorities, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 52, ECHR 2007-…, and Jokela v. Finland, no. 28856/95, § 44, ECHR 2002-IV).

In line with that case-law, the Court considers that the judicial sale of the applicant's property falls to be considered under the so-called third rule, relating to the State's right ‘to enforce such laws as it deems necessary to control of the use of property in accordance with the general interest’ set out in the second paragraph of Article 1 of Protocol No. 1. It constitutes an interference with the applicant's property, since she was no longer able to dispose of her apartment. The Government's argument that the judicial sale did not reduce the applicant's assets is not decisive in this context.

Any interference with the right to peaceful enjoyment of possessions must strike a ‘fair balance’ between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (J.A. Pye, cited above, § 53). In respect of interferences which fall under the second paragraph of Article 1 of Protocol No. 1, there must also exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In this respect States enjoy a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (J.A. Pye, cited above, § 55).

Moreover, the Court reiterates that although Article 1 of Protocol No. 1 contains no explicit procedural requirements, the proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, the Court takes a comprehensive view (see, for instance, Jokela, cited above, § 45).

The Court notes that the interference with the applicant's right to peaceful enjoyment of her possessions was based on the relevant provisions of the Enforcement Act and served the legitimate aims of protecting the creditors and the purchaser of the apartment (see paragraph 55 above for similar considerations in respect of Article 8).

The Court does not overlook the fact that the present case concerned proceedings between private parties, namely the applicant and her creditors on the one hand and the applicant and the purchaser of the apartment on the other hand. However, even in cases involving private litigation the State is under an obligation to afford the parties to the dispute judicial procedures which offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly in the light of the applicable law (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-…, and also J.A. Pye, cited above, § 57). The present case raises an issue regarding the applicant's procedural protection in the proceedings at issue.

In that respect, the Court refers in essence to the considerations set out above (see paragraphs 61–62 above). 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. As has already been noted above, the applicant, due to her lack of legal capacity, was unable to object to the payment order underlying the decision authorising the judicial sale of her apartment or to make use of the remedies available to the debtor under the Enforcement Act. Nor could she obtain an annulment of the judicial sale due to the absolute nature of the time-limit for appealing against a judicial sale laid down in section 187 § 1 of the Enforcement Act.

However under Article 1 of Protocol No. 1 the Court is examining the judicial sale of the applicant's apartment not from the point of view that it was the applicant's ‘home’ but from the point of view of property rights. In that context the Government's argument that the applicant had alternative means to protect her pecuniary interests needs to be examined. The Government pointed out that the applicant, represented by her guardian, had obtained a finding that the payment orders underlying the judicial sale were not enforceable due to her lack of legal capacity. Subsequently, she would be able to obtain a review of the proceedings on the merits and, if they resulted in her creditor's claims being dismissed, she could claim reimbursement of the amounts which had been paid to them from the proceeds of the judicial sale (see paragraph 69 above).

However, the Court is not convinced that this procedural mechanism, which requires conducting a number of consecutive sets of proceedings against each of the applicant's creditors, offers adequate protection to a person lacking legal capacity. It therefore refers to its above considerations dismissing the Government's argument that the strict time-limit for appealing against a judicial sale was justified in the interests of protecting the bona fide purchaser and in the general interests of an efficient administration of justice and of preserving legal certainty. In sum the Court does not find any reasons to come to a different conclusion under Article 1 of Protocol No. 1.

Consequently, there has been a violation of Article 1 of Protocol No. 1.