CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 11918/86                       by Helmuth and Margarethe PACHOLIK                       against Austria             The European Commission of Human Rights sitting in private on 5 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   M.A. TRIANTAFYLLIDES                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRUGER, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 6 December 1985 by Helmuth and Margarethe PACHOLIK against and registered on 26 January 1986 under file No. 11918/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as they have been submitted by the applicants may be summarised as follows:           The applicants, Austrian citizens, are employees resident at Dornbirn, Austria.   Before the Commission they are represented by Dr. Weh, a lawyer practising in Bregenz, Austria.           In 1984 the applicants were renting an apartment belonging to VOGEWOSI, a co-operative of the Federal Land Vorarlberg.   On 17 December 1984, upon application of VOGEWOSI, the Dornbirn District Court (Berzirksgericht) issued judicial notice (gerichtliche Kündigung) on the applicants as from 31 January 1985 on the ground that they were in arrear of payment of rent to the amount of 10,403 AS. The notice contained the information to the applicants that, if they did not vacate the apartment within 14 days as from that date, the notice would be executed, and that they could raise objections against the notice within 14 days.           On 19 December 1984 the postman unsuccessfully attempted to serve on each applicant a letter containing the judicial notice.   A second unsuccessful attempt occurred on 20 December 1984.   On either occasion no reasons were marked on the notification paper.   However the postman marked with a cross under the further headline "refusal to accept" one of two possible messages, i.e. that the letters could be picked up at the post office, though later this cross was itself crossed out.   The applicants did not fetch the letters at the post office and the notice was returned to the Court as not having been served.   On 29 January 1985 the District Court therefore stated that the decision of 17 December 1984 could be executed.           On 19 April 1985 the District Court granted VOGEWOSI's request to execute the judicial notice, though the applicants were given the possibility to file a complaint (Rekurs) within 14 days.           On 14 May 1985 the applicants filed objections (Einwendungen) against the decision of 17 December 1985 in which they explained that they had not paid the rent on account of deficiencies in the apartment.   In the same letter they filed, in order to raise these submissions, a request for reinstitution into the proceedings.   They also raised a complaint (Rekurs) against the execution of the judicial notice on the ground that the latter had not been served properly.           On 2 July 1985 the Feldkirch Regional Court (Landesgericht), after having heard the postman, dismissed the applicants' complaint (Rekurs).   It found that the postman, who had put the notification paper in the applicants' letter box, had erroneously not ticked the reasons for not serving the letters, and that the cross made had later again been crossed out by him or another official since there had been no refusal to accept the notice.           On 4 October 1985 the Dornbirn District Court dismissed the applicants' request for a reinstitution into the proceedings in order to present the objections (Einwendungen); it referred to the findings in the previous decision of the Feldkirch Regional Court of 2 July 1985.   The Court noted that the notification had been dropped into the applicants' letter box.   It stated that the applicants had been strikingly careless by not considering the postal instructions.   In the applicants' view the Court thereby implied that the objections were out of time since they should have been filed after judicial notice had been given.           The applicants filed an appeal (Rekurs) against this decision, complaining, inter alia, that they had not been heard in the previous proceedings.   The appeal was dismissed on 4 November 1985 by the Feldkirch Regional Court.           On 11 November 1985 the Dornbirn District Court permitted VOGEWOSI forcibly to vacate the applicants' apartment.     COMPLAINTS           The applicants complain under Article 6 paras. 1 and 3 (d) of the Convention that in the proceedings before the Dornbirn District Court and the Feldkirch Regional Court they were not heard, as opposed to the postman himself.   They submit that the judicial notice had not been served properly and that therefore they had had a considerable interest in questioning the postman before these courts.   They also complain that on 14 October 1985 the Dornbirn Court regarded itself as being bound by the decision of the Feldkirch Regional Court on 2 July 1985.           In respect of the applicability of Article 6 the applicants submit, inter alia, that the objection (Einwendung) of 14 May 1985 concerned the manner in which the judicial notice had been served and thus the issue of lease itself, rather than other proceedings.   In any event, execution proceedings also fall under Article 6 of the Convention.     THE LAW   1.       The applicants complain under Article 6 (Art. 6) of the Convention that in the proceedings in which the Dornbirn District Court gave its decision on 4 October 1985, and the Feldkirch Regional Court its decisions on 2 July and 4 November 1985, they were not heard and that on 4 October 1985 the Dornbirn District Court regarded itself as being bound by the decision of the Feldkirch Regional Court of 2 July 1985.   2.       The Commission considers that those proceedings concerned the question whether the judicial notice had been served properly by the postman on the applicants and that the Austrian Courts were deciding on the execution of the decision of the Dornbirn District Court of 17 December 1984 as well as on the applicants' subsequent request for reinstitution into the proceedings.           The Commission finds that those proceedings did not relate to a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1).   Moreover, neither enforcement proceedings following a civil court decision nor proceedings in which it is decided whether or not to reinstitute a person into previous proceedings come within the scope of Article 6 para. 1 (Art. 6-1) since such proceedings do not themselves determine a dispute relating to civil rights.           It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicants may be understood as directing their complaints under Article 6 para. 1 (Art. 6-1) of the Convention also against the proceedings in which the Dornbirn District Court,on 17 December 1984 issued judicial notice on the applicants and on 29 January 1985 stated that the decision could be executed.           However, the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           The Commission which notes that the applicants did not deny that they received the notification paper considers, on the one hand, that both the Feldkirch Regional Court on 2 July 1985 and the Dornbirn District Court on 4 October 1985 concluded that the postman had in fact put a notification of the judicial notice in the applicants' letter box, though the applicants failed to pick up the letters concerned at the post office.           On the other hand, the Commission notes that the applicants could have raised objections within 14 days against the judicial notice of 17 December 1984.   Thereupon, court proceedings would have ensued in which a court would have decided on the termination of the applicants' lease.   The applicants have not shown that they raised such objections available to them under Austrian law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicants, according to the generally recognised rules of international law, from exhausting the domestic remedies at their disposal.           It follows that the applicants have not complied with the condition as to the exhaustion of domestic remedies and their application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission             President of the Commission                    (H.C. KRÜGER)                          (C.A. NØRGAARD)