CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1988

.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. 10757/84                       by W.                       against Austria             The European Commission of Human Rights sitting in private on 13 July 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 11 February 1983 by W. against Austria and registered on 28 December 1983 under file No. 10757/84;           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&S           The applicant, an Austrian citizen born in 1943, resides at D. and is represented by Dr.   W.L. Weh, a lawyer practising in Bregenz.           The facts agreed between the parties may be summarised as follows:           The applicant had inherited from her mother a half-share of a small farm in M.   The other half-share was owned by her stepfather. None of them lived there or worked on the farm whose land was leased out to other farmers.           In October 1980 the applicant's stepfather informed her that he wanted a partition of this real property and would bring a civil action against her if she continued to oppose partition.   The applicant replied that she agreed in principle to a partition, be it by a division of the assets or a division of the sales proceeds. However, she could not agree to the only partition scheme which had so far been submitted by her stepfather as it assigned to her only a fourth of the real value of the farm.   Thereupon the stepfather brought a civil action against the applicant in the Regional Court (Landesgericht) of F.           The case was heard on 8 January 1981.   The applicant declared not to oppose her stepfather's claim for a division of the assets. However, she opposed the stepfather's claim to be adjudicated his costs and instead applied for a court order that each party should bear his or her own costs.   She argued that she had not provoked the action as she had never opposed the partition as such, but only the scheme proposed by her stepfather.           By a judgment of the same date, the Regional Court decided that the partition should be effected as requested by a division of the assets.   The decision on costs was reserved.   However, the parties subsequently agreed not to pursue the litigation on this point.           The parties also agreed to determine the partition scheme by a settlement between themselves.   However, notwithstanding this agreement the applicant's stepfather applied in July 1981 to the District Court (Bezirksgericht) of B. for the partition of the real property concerned in executive proceedings under Section 351 of the Enforcement Proceedings Act (Exekutionsordnung).   At the same time he requested to enforce his cost claim in the amount of AS 6537,44 against the applicant under Section 74 of the same Act.   Both applications were allowed by a decision of the District Court of 5 August 1981.           The applicant's appeal against this decision was dismissed by the Regional Court on 11 September 1981.   It stated that both parties were entitled to request enforcement proceedings under Section 351 without a previous attempt to reach a friendly settlement.   The party who first lodged such a request was the petitioner in severance (betreibende Partei) and thus entitled under Section 74 to the reimbursement of his costs from the respondent (verpflichtete Partei). The costs were accordingly imposed on the applicant as the respondent.             Subsequently, on 18 June 1982, the District Court, exercising its functions under Section 351, distributed the assets of the joint property between the two parties ordering at the same time that the applicant should pay the sum of AS 20.393,50 as an equalisation payment to her stepfather.   The applicant fully accepted this part of the Court's decision and did not appeal against it.             However, the District Court had at the same time ordered under Section 74 that the applicant should reimburse the further costs of the execution proceedings amounting to AS 34.023,52 which had been incurred by her stepfather.   In this respect the applicant appealed, claiming that it was unfair that the party who first applied for enforcement proceedings was granted full compensation for his expenses by the other party although both were essentially in the same position.           The Regional Court rejected this appeal by a decision of 28 July 1982 which was served on the applicant on 16 August 1982. The Regional Court noted that Section 351 left it "to chance or rather to the prompter intervention" who was the petitioner in severance entitled to costs.   It added: "Certainly it is an unworthy race to which the parties are compelled by the fact that the one who first presents the application for enforcement to the Court will be the 'winner' regarding the costs.   In many cases this can indeed lead to injustice and unfairness of the worst kind, in particular if the respondent has opposed the action for partition and has lost the case despite this opposition ...   However, it is not for the courts but for the legislation to do away with unsatisfactory legal positions."   The Court then found that the applicable law left no room for discretion or considerations of equity, and therefore it confirmed the imposition of the costs on the applicant.           After the facts of the present case the law was amended in 1983 by introducing a new Section 352 (a) of the Enforcement Proceedings Act, which provides that the cash payments incurred in the course of partition proceedings are to be divided between the parties in relation to their shares in the property.           The applicant's stepfather subsequently took further enforcement proceedings against her in order to realise his claims to the equalisation payment and to the reimbursement of his costs resulting from the above partition proceedings.   The District Court of D. granted a request for the attachment of the applicant's movable property, and as no such property could be found, it eventually ordered her to take the oath of manifestation (Offenbarungseid).   The applicant then brought a counteraction (Oppositionsklage) under Section 35 of the Enforcement Proceedings Act, claiming that her stepfather's claims underlying the enforcement proceedings were defective as she had herself certain claims against him resulting from the administration of the joint property which should be set off against his above claims.   She also applied for the suspension of the enforcement proceedings pending the decision on the counteraction, but her remedies in this respect failed and further costs were imposed on her.   However, on 3 February 1983 the parties agreed to stay both the enforcement proceedings and the proceedings on the counteraction pending before the District Court of D.   The applicant thus avoided the oath of manifestation.           The applicant's stepfather then requested the correction of the land register in conformity with the partition order.   This was granted by decisions of the District Court of B. of 30 July 1984 and 11 September 1984.   The applicant appealed inter alia on the ground that she had not been heard and claiming that a correction of the land register without her consent infringed Article 6 (Art. 6) of the Convention.   However, her appeal was rejected on 10 October 1984 on the ground that she had not substantiated in which way her rights could have been violated.   The law did not provide for a right to be heard in matters of this kind which were of a merely technical nature.           Once the applicant's part of the real property had been ascribed to her in the land register, her stepfather immediately requested a compulsory sales order (Bewilligung der Zwangsver- steigerung) for certain of this property.   This was granted by the District Court of B. on 17 October 1984 and confirmed by the Regional Court on 27 November 1984 despite the applicant's argument that her counteraction was still pending before the District Court of D. and that the compulsory sale should therefore be postponed. She was again charged with the petitioner's procedural expenses.           In connection with the compulsory sales procedure the District Court appointed an expert for the purpose of estimating the property's value.   The expert was subsequently replaced by another one against whom the applicant raised objections, but these were rejected by the District Court on the ground that no separate remedy lay against the appointment of an expert.   The applicant appealed, claiming that the exclusion of a remedy in this respect infringed Article 6 (Art. 6) of the Convention.   However, on 27 December 1984 the Regional Court rejected the appeal stating that it was sufficient for securing the parties' right to be heard that they could comment on the expert opinion once it was submitted.           On 24 April 1985 the District Court fixed 20 June 1985 as the date of the compulsory sale.   It further ordered that the compulsory sale was to be carried out by three rounds of partial auctions.   The applicant immediately requested a postponement of the compulsory sale until a decision had been given on her counteraction which was still pending.   However, no decision was made on this request and the date of the compulsory sale was publicly announced in the Official Gazette (Amtsblatt) of V. and two regional newspapers.   In this situation the applicant eventually decided on 18 June 1985 to satisfy her stepfather's claims.   On that date she paid a global sum of AS 68,000.- to him.   The parties further agreed that the compulsory sale proceedings should be discontinued and the proceedings on the counteraction stayed (Ruhen).   The compulsory sale proceedings were actually discontinued by a court decision of 18 June 1985.     &_COMPLAINTS&S           The applicant now complains both of the executive partition proceedings under Section 351 of the Enforcement Proceedings Act, and of the subsequent enforcement proceedings taken against her by her stepfather.   1.       As regards the executive partition proceedings, she claims that they must be considered as proceedings on the determination of civil rights and obligations because they are by their nature not typical enforcement proceedings but rather resemble non-contentious proceedings such as are e.g. applicable to the partition of the property of spouses after a divorce.             The applicant considers it unfair that, unlike in other partition proceedings where the parties have to share the costs, they are placed on an unequal footing in the executive partition proceedings under Section 351 of the Enforcement Proceedings Act, and in any subsequent proceedings, including the land register and further enforcement proceedings, by virtue of the distinction between the petitioner and the respondent.   Under Section 74 of the Act the petitioner in severance is entitled to claim the full reimbursement of his costs by the respondent - petitioner being the party who first presents a petition to the court.   The applicant submits that this is not a reasonable criterion to be taken as a basis for cost decisions and that it violates the principle of equality of arms between the parties which is enshrined in Article 6 para. 1 (Art. 6-1) of the Convention.           The applicant further complains that the differential treatment of the parties to the partition proceedings in question is discriminatory and contrary to Article 14 (Art. 14) of the Convention.   2.       As regards the subsequent enforcement proceedings, the applicant claims that these proceedings also come within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   She refers in particular to the connection of these proceedings with the counteraction under Section 35 of the Enforcement Proceedings Act, an action which concerns the justification of the claim underlying these enforcement proceedings. She states that her counter-claims could also have been made the subject of normal civil proceedings, but submits that in the circumstances she could not reasonably be expected to choose that course rather than filing a counteraction.           Even if, as a result of the counteraction, the claim of the petitioner should in the end be found to be unjustified having regard to the provisions of substantive law, this does in no way prevent the taking of enforcement measures pending this action, and the costs of the enforcement measures will definitively have to be borne by the respondent.   The applicant considers this to be unfair and contrary to Article 6 para. 1 (Art. 6-1) of the Convention, for the same reasons as in the partition proceedings.   She adds that the refusal to postpone the proceedings pending a decision on the counteraction was extremely unfair in these circumstances:   As regards the enforcement proceedings concerning her movable property the refusal to postpone the proceedings led to serious disadvantages for her, including the order to take the oath of manifestation. As regards the compulsory sale proceedings concerning her real property no decision was taken on her request for postponement, and this despite the fact that the claims of her stepfather might in substance have been unjustified.           The applicant further claims that the absence of a remedy to avert the enforcement measures and concomitant costs violates Article 13 (Art. 13) of the Convention.   She finally claims that there is an unjustified interference with her property rights contrary to Article 1 of Protocol No. 1 (P1-1).           The applicant considers that she is not prevented from raising these complaints by the settlement which she concluded with her stepfather on 18 June 1985.   She submits that this settlement was made under duress as she was compelled to renounce her counter-claims and costs in the amount of some AS 200,000.-.     &_PROCEEDINGS&S           The application was introduced on 11 February 1983 and registered on 28 December 1983.           On 4 May 1987 the Commission decided to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit before 17 July 1987 their observations in writing on the admissibility and merits of the application.   Questions were put to the Government concerning the applicant's complaint of the partition proceedings under Section 351 of the Enforcement Proceedings Act.           The Government submitted their observations on 20 July 1987. The applicant submitted her observations in reply on 3 October 1987.           On 18 December 1987 the Commission decided to grant the applicant free legal aid.     &_SUBMISSIONS OF THE PARTIES&S   A.       The Government           In the Government's view, Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to partition proceedings as provided under Section 351 of the Enforcement Proceedings Act.           Proceedings for the legal partition of a property can be instituted by means of an action by a co-owner against the other co-owner or co-owners.   The pertinent legal provisions are contained in Sections 841 to 853 of the Civil Code.   Such proceedings end with a judgment terminating the co-ownership and determining, at the same time, the type of partition, i.e. either actual partition (Realteilung) or sales order (Zivilteilung).   The particularity of such a judgment is that its enforcement can be requested by both parties.   The party who files the request first assumes the part of the petitioner in severance in the enforcement proceedings.           Another particularity of such a partition judgment is that, while it must clearly specify what is to be partitioned and whether there is to be an actual partition or a sales order, it need not necessarily contain details on how exactly the actual partition is to be carried out, which would be binding upon the court competent for enforcement matters.   This decision may also be taken by the judge of the latter court.           Under Section 351 para. 1 of the Enforcement Proceedings Act the partition is to be effected by a legal officer of the court competent for enforcement matters, with all parties concerned participating, paying due consideration to Sections 841 to 853 of the Civil Code.   The judge fixes a date for the hearing and, after having finished the necessary inquiries, issues the partition order in compliance with the requirements of appropriateness and equity.           Up to the judgment terminating the co-ownership and thus defining the rights of the parties, the procedure is of a contentious nature leading to a judgment.   Subsequent executive proceedings, if any, only serve to enforce this judgment.   The enforcement character of the proceedings is confirmed by the consideration that, contrary to subsequent Section 352, Section 351 of the Enforcement Proceedings Act only refers to Sections 841 to 853 of the Civil Code and not to the stipulations governing non-contentious proceedings.   Another indication that these proceedings are exclusively enforcement proceedings is the fact that the judge is not bound by requests or proposals for partition made by the parties, but has to proceed according to his own discretion and the principles of appropriateness and equity.   In contentious proceedings such conduct by the judge would be inadmissible.           In Application No. 9233/81 (Dec. 15.10.81) the Commission stated that Article 6 (Art. 6) of the Convention is not applicable to enforcement proceedings.   The decisive factor for the Commission was that the issue of enforcement proceedings is no longer a contestation and hence an immediate determination of civil rights and obligations.   The contestation on civil rights and obligations takes place in the contentious proceedings preceding the enforcement proceedings.   Although in the present case the judgment ruled on the actual partition only in general terms and left it to the judge competent for the enforcement proceedings to decide upon the actual partition, the litigation concerning the partition as such, and thus on the civil rights of the parties, took place in the proceedings leading to the partition judgment.   Section 351 starts out from the fact that the partition judgment constitutes an enforceable fiat of execution (vollstreckbarer Exekutionstitel).   At this stage the judge only has "to enforce the actual partition ordered".   Therefore, it cannot be said that the proceedings under Section 351 are proceedings concerning a contestation on the partition of a joint property and consequently a contestation on civil rights and obligations.           The Government further submit that the applicant failed to exhaust all domestic remedies available to her.           Under Article 89 of the Federal Constitution, a court of second instance must ex officio file an application with the Constitutional Court for review of the law if it has doubts as to the constitutionality of this law.   An individual is entitled to challenge the constitutionality of a law under Article 140 para. 1 of the Constitution only if the law has become operative for the applicant without the delivery of a judicial or administrative decision.   As in the present case there was a judicial decision, the applicant could claim unconstitutionality of applied regulations only by suggesting to the court of second instance that it should make an application to the Constitutional Court under Article 89 of the Constitution.   The Government submit that Article 26 (Art. 26) of the Convention requires in this context that doubts as to the conformity of an applicable law with the Convention be voiced in the domestic proceedings with sufficient precision.   The applicant, in her appeal of 2 July 1982, failed to sufficiently elaborate on her concerns about the constitutionality of the law.   It would have been possible and even required to specify, in particular, the concern about the incompatibility of Section 351 of the Enforcement Proceedings Act with Article 6 (Art. 6) of the Convention.   The court would then have been obliged to take a clear stand and to state explicitly why it had no scruples against the application of this provision.   Although the competent court admittedly considered that the law provided only an unsatisfactory solution, its attention was not specifically drawn to a possible problem under Article 6 (Art. 6) of the Convention.   Accordingly, it cannot be said that all domestic remedies were exhausted.           Finally, the Government submit that the principle of fair trial relates to the proceedings before civil and criminal courts. An essential element of fair trial is the principle of equality of arms which also applies to civil proceedings.   But this principle only aims at ensuring the same procedural positions to the parties.   A regulation of and the concrete decision on the reimbursement of costs, however, neither relates to the procedural position nor the proceedings as such.   For this reason the regulation of who has to pay the costs as well as the actual decision on the costs cannot violate Article 6 (Art. 6) of the Convention.           Insofar as there might be doubts about the equality before the law, the applicant's allegation could perhaps have had a chance of success before the Constitutional Court on the basis of Article 7 of the Federal Constitution.   However, under Article 14 (Art. 14) of the Convention inequality cannot be alleged save in connection with the rights enshrined in the Convention.   As the regulation and decision on the payment of costs does not relate to a procedural position safeguarded by the fair trial principle, and as it affects no other right laid down in the Convention, which could be tied to Article 14 (Art. 14) of the Convention, this allegation must be rejected as inadmissible too.           The interests of the parties following a partition judgment may vary greatly.   The lawmaker can be guided by the normal case, which will be that one co-owner wants to enforce the partition against the opposing co-owners.   Under this aspect, it seems to lie within the discretion of the lawmaker to have the cost regulation of enforcement proceedings apply.   It may be correct that the provision based on the criterion that costs shall be adjudicated to the party which first makes a request for the enforcement of the partition judgment is not a very lucky legal solution.   However, it is not possible in this context to raise objections against the present cost decision and the underlying legal regulation other than in terms of considerations of legal appropriateness and concepts of justice.   In this connection the Government observe that the Enforcement Proceedings Act was amended in 1983 (cf. p. 3 above).           The Government therefore ask the Commission to dismiss the application on the ground that not all domestic remedies were exhausted, or alternatively to declare it inadmissible as being manifestly ill-founded.     B.       The Applicant           The applicant submits that the Government's argumentation concerning the nature of partition proceedings under Section 351 of the Enforcement Proceedings Act is exclusively based on the domestic law.   It overlooks that the notion of "civil rights" within the meaning of Article 6 (Art. 6) of the Convention is an autonomous concept (cf. Eur.   Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p.39 para. 94).   It thus cannot be decisive that in the internal legal system the partition proceedings in question are regarded as enforcement proceedings. Even if they were enforcement proceedings, they would not be excluded from the scope of Article 6 (Art. 6) as the Commission has held in an analogous case (No. 2797/66, Dec. ....).           The applicant considers that, in reality, the partition proceedings are not enforcement proceedings in the proper sense even in the domestic law.   The Government's submissions in this respect are misleading in several respects.   Under the provisions of the Civil Code each co-owner can ask for the termination of the co-ownership by bringing an action against the other co-owner or co-owners.   However, such a claim is excluded if it is being raised at an inappropriate time or under circumstances which involve a disadvantage for the other co-owners.   The court accordingly has to examine only these two questions, whether the claim has been raised at an inappropriate moment or under circumstances which involve a disadvantage for the other co-owners.   If such circumstances cannot be established, the court is obliged to order the termination of the co-ownership.   If at all possible from an economic point of view, it must order the actual partition of the property.   Only if that should be impossible may it order the sale of the property by auction, in which case all co-owners have the right to bid.   In the contentious proceedings the court therefore only examines which form of partition is appropriate and whether the above legal obstacles against the partition order exist. All further particulars of the actual partition are reserved to the judge competent for enforcement matters.   The judge dealing with a case in contentious proceedings must, in principle, refrain from deciding on the particulars of the actual partition.           Accordingly the proceedings before the courts competent in enforcement matters do not serve exclusively "to enforce the actual partition ordered".   The judge competent in enforcement matters determines which part of the property shall be assigned to each co-owner as his sole property.   He thus determines the future distribution of the property and does not only enforce clearly defined civil claims resulting from the earlier decision.   This is confirmed by the fact that Section 351 of the Enforcement Proceedings Act, as the only provision of this Act, refers to the substantive law contained in the Civil Code.   It thus makes it clear that the proceedings still concern the determination of civil rights, namely the civil rights of the co-owners according to the provisions of the Civil Code.           The fact that the actual partition is left to the judge competent in enforcement matters is explained by the consideration that there may be more than two co-owners.   In this case the party claiming termination of the co-ownership must lodge a joint action against all other co-owners.   If the conditions of actual partition are not met in the case of only one co-owner the action must be rejected, but if it is allowed it is impossible in contentious proceedings to distribute the property between more than two parties. Contentious proceedings between more than two parties do not exist under the provisions of the Code of Civil Procedure.   It is primarily for this reason that the actual partition has been left to the judge competent in enforcement matters.   Apart from this reason based on systematical considerations there are a number of more practical reasons why the court competent in enforcement matters has been entrusted with the task of actual partition.   The competent court here is the District Court which as a rule is located closer to the property and has more experience regarding the assessment of real property.   But this does not mean that, in substance, the actual partition by the court competent in enforcement matters does not involve a determination of civil rights.   The applicant further observes in this context that it has been recognised in the case-law that the redistribution of real property, e.g. in the context of agricultural land consolidation proceedings, is a determination of civil rights (cf.   Eur.   Court H.R., Erkner and Hofauer judgment of 23 April 1987, Series A no. 117).           In the present case both parties requested the adjudication of the farmhouse and the surrounding parcels and the judge competent in enforcement matters who decided on the actual partition upheld the applicant's claim in this respect.   This clearly shows that the matter was one of the determination of the applicant's civil rights and obligations to which Article 6 (Art. 6) is applicable.           As regards the Government's argument that the applicant has not exhausted the domestic remedies, the applicant observes that this question must be judged in the light of the prospects of success of the remedy in question on the basis of the existing case-law.   It would be inappropriate in this context to adopt a too formalistic approach because this would be incompatible with a system of effective protection of human rights.           While admitting that the applicant could not herself have asked for a review of the constitutionality of the applicable legislation by the Constitutional Court, the Government claim that the applicant should have suggested to the Regional Court of F. to request such constitutional review under Article 89 para. 2 of the Federal Constitution.   However, as regards such a request by a court of second instance the principle "jura novit curia" must be applied. This has been confirmed by the case-law of the Supreme Court.   In a decision of 2 July 1986 it expressly confirmed that an individual party has no right under the applicable legislation to request a measure under Article 89 para. 2 of the Federal Constitution ("eine Verfahrenspartei ist nach der geltenden Rechtslage nicht befugt, ein Vorgehen gemäss Artikel 89 Abs. 2 B-VG zu begehren").   A request for the constitutional review of applicable legislation is therefore inadmissible in civil proceedings.   There is no right to obtain a decision following such a request and the Commission has accordingly recognised that it is not a remedy to be exhausted under Article 26 (Art. 26) of the Convention (cf.   No. 10522/83, 11011/84 and 11070/84, Mellacher and others v.   Austria, Dec. 8.5.86).   This is also in line with the Commission's case-law concerning other similar remedies which give no right to obtain a decision such as, for instance, a suggestion to the Attorney General to file a plea of nullity for safeguarding the law.           The applicant furthermore submits that in the present case the suggestion to seek a constitutional review would not have had any prospects of success in view of the attitude of the Regional Court of F. at the relevant time, that is in Summer 1982.   That Court had never requested a constitutional review of any legislation applied by it and had never applied Article 6 (Art. 6) of the Convention as a directly applicable norm.   Moreover, the Regional Court was not compelled by the legislation to take the decision which it actually took.   The decision of the Regional Court of Innsbruck of 23 January 1970 (2R369/69), to which the applicant had referred in her appeal, shows that the law could have been interpreted differently. If it was possible to interpret the law in question in conformity with the Constitution, it was excluded that the Constitutional Court would quash that law as unconstitutional.           As regards the question whether the applicant was required to expressly invoke Article 6 (Art. 6) of the Convention in her appeal, she observes that this again is a question where the principle "jura novit curia" must apply.   She claims that, in substance, her appeal fully addressed the relevant problem of the unfairness of the decision on the costs, including the question of equality of arms in the proceedings and equality before the law in general.   It is clear that the Regional Court understood these arguments as in its subsequent decision it spoke itself of an "unworthy race" to the court and of "injustice and unfairness of the worst kind".   The Commission has constantly held that questions relating to the exhaustion of remedies must be assessed without undue formalism and that the only relevant criterion is whether the applicant has brought the substance of this complaint before the domestic authorities (cf.   No. 9783/82, Dec. 8.5.85).   In these circumstances it must have been sufficient for the applicant, without specifically referring to Article 6 (Art. 6) of the Convention, to invoke a decision by the Regional Court of I. which showed that an interpretation of the law in question in conformity with the Convention was, in fact, possible.           The applicant therefore maintains that, by bringing the substance of her complaint before the competent domestic court, she has in fact exhausted the domestic remedies in conformity with Article 26 (Art. 26) of the Convention.           As regards the substance of her complaint, the applicant observes that the Government themselves have doubts that the decision complained of was in line with the principle of equality.   In the applicant's view civil proceedings conducted contrary to the principle of equality must be regarded as unfair.   Moreover, the subsequent legislative amendment also shows that the applicant's complaint was, in substance, justified.   The applicant admits that there are various ways of regulating the costs of civil proceedings.   However, the legislation in this respect must not be based on arbitrary criteria.   In the applicant's submission it is wholly arbitrary to assign different roles to the parties to partition proceedings exclusively on the basis of the criterion of who has won the "unworthy race" to the court.           The Government's further argument, that a regulation of and the concrete decision on the reimbursement of costs neither relates to the procedural position of the parties nor to the proceedings as such, has been put forward without any reference to the case-law of the Convention organs.   The latter have repeatedly recognised that both in civil and criminal proceedings questions of costs may be of decisive importance (cf.   Eur.   Court H.R., Airey judgment of 9 October 1979, Series A no. 32, and Luedicke, Belkacem and Koc judgment of 28 November 1978, Series A no. 29).   Also Austrian legal writers consider questions of costs as an essential element of a fair trial and this has recently been confirmed by decisions of the Supreme Court (EuGRZ 1987, p. 83) and the Regional Court of Feldkirch (EuGRZ 1986, p. 692) although - significantly - no reference was made in this context to Article 6 (Art. 6) of the Convention.           The applicant stresses that in proceedings which concern economic interests questions of costs are of great importance.   In the present case the costs of each party, only for the inspection of the site at M. amounted to some AS 25,OOO.   Where such sums are involved it is unavoidable that the possible duty to bear the relevant costs will influence the procedural behaviour of the parties, in particular if they are in a weak financial position as the present applicant.   A regulation of the costs based on reasonable criteria is therefore intimately linked to the requirements of a fair trial and comes within the scope of Article 6 (Art. 6) of the Convention.   The proceedings must be regarded as a whole and it is inadmissible to exclude certain aspects such as questions of cost from the overall assessment of the fairness.           The arbitrary imposition of all costs on the applicant in the present case therefore amounted in her view to a violation of her rights under Article 6 (Art. 6) of the Convention, having regard, in particular, to the finding of the competent domestic court that the regulation on the reimbursement of costs had led to an "unfairness of the worst kind" in this case.           Apart from her replies to the Government's observations, the applicant insists that the other aspects of her case relating to the subsequent enforcement proceedings also raise serious issues under Article 6 (Art. 6) of the Convention.   In particular, she submits that the Court's refusal to give suspensive effect to her counteraction was extremely unfair.   The claims raised in this counteraction had been well substantiated and nevertheless the courts did not stop the enforcement measures taken against her by the opposite party, ordered her to take the oath of manifestation and did not take a decision until two days before the date fixed for the compulsory sale of her property.   By this way of proceeding the applicant was forced to give up the greater part of her justified claims and consent to a compromise solution which was extremely unfavourable to her.           The applicant therefore fully maintains her application.     &_THE LAW&S   1.       The applicant first complains of partition proceedings under Section 351 of the Enforcement Proceedings Act claiming that these proceedings were unfair and contrary to Article 6 para. 1 (Art. 6-1) of the Convention because of the unilateral imposition of all costs on her as respondent although she was in essentially the same position as the petitioner.           Article 6 para. 1 (Art. 6-1), first sentence of the Convention provides:           "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Commission first observes that, as a general rule, enforcement proceedings following a civil court judgment do not come within the scope of Article 6 para. 1 (Art. 6-1) of the Convention. They do not themselves determine a dispute ("contestation") relating to civil rights, but presuppose a prior determination of these rights by the competent court.   However, partition proceedings under Section 351 of the Austrian Enforcement Proceedings Act differ from normal enforcement proceedings.           In the Ringeisen judgment of 16 July 1971 (Eur.   Court H.R., Series A no. 13, p. 39 para. 94) the European Court of Human Rights has stated that Article 6 para. 1 (Art. 6-1) "covers all proceedings the result of which is decisive for private rights and obligations ...   The character of the legislation which governs how the matter is to be determined ... [is] of little consequence".   Accordingly, it cannot be decisive that in the Austrian legal system the partition proceedings in question are considered as enforcement proceedings and are governed by the Enforcement Proceedings Act.   It has been recognised in earlier case-law that proceedings relating to the division or redistribution of real property between several parties, in particular where they concern the designation of the concrete assets to be assigned to each of those parties as their future property, involve a determination of civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. mutatis mutandis No. 8695/79, Inze v.   Austria, Dec. 5.12.84, para. 7 of "The Law";   Eur.   Court H.R., judgments of 23 April 1987 in the cases of Ettl, Erkner/Hofauer and Poiss, Series A no. 117).   Also the proceedings at issue in the present case determined the particular assets of the parties' former joint property which were to be assigned to each of them as their future sole property.   They thus involved a decision on the civil rights of the parties including the applicant. It follows that Article 6 para. 1 (Art. 6-1) of the Convention is applicable to these proceedings.           The Government claim that the applicant failed to exhaust all domestic remedies, as required by Article 26 (Art. 26) of the Convention, because she did not specifically suggest to the Regional Court that it should initiate a constitutional review of the applicable provisions of the Enforcement Proceedings Act under Article 6 (Art. 6) of the Convention. The Commission notes that the applicant herself could not seize the Constitutional Court with this question and that she had no enforceable right to have it brought before the Constitutional Court by the Regional Court.   In these circumstances the possibility of suggesting the initiation of constitutional review cannot be regarded as an effective remedy to be exhausted under Article 26 (Art. 26) of the Convention (cf.   No. 7464/76, Karrer, Fuchs and Kodrnja v. Austria, Dec. 5.12.78, D.R. 14 p. 51; Nos. 10522/83, 11011/84 and 11070/84, Mellacher and others v.   Austria, Dec. 8.5.86, to be published in D.R.).           There remains the question whether the applicant failed to comply with Article 26 (Art. 26) because in her appeal to the Regional Court she did not expressly refer to Article 6 (Art. 6) of the Convention.   However, the Commission has consistently held that domestic remedies must be considered as having been exhausted if the applicant, even without quoting the relevant provision of the Convention, has submitted, in substance, to the competent domestic authorities the claim he or she is bringing before the Commission, in particular when the domestic authorities apply the principle "jura novit curia" (cf. e.g. No. 9228/80, Dec. 16.12.82, D.R. 30 p. 132). In the present case the applicant clearly alleged an unfairness of the proceedings on account of the one-sided cost decision and therefore put the substance of her complaint before the competent domestic court.   Her complaint therefore cannot be rejected for failure to exhaust the domestic remedies as required by Article 26 (Art. 26) of the Convention.           The applicant claims that the question of costs cannot be separated from the proceedings as a whole and that in the present case the one-sided imposition of all costs on her as respondent, although she was in essentially the same position as the petitioner, was arbitrary and made the proceedings unfair.   The Government object that the question of costs did not affect the parties' procedural position or the conduct of the proceedings as such.   They claim that, for this reason, the applicant's complaint falls outside the scope of Article 6 para. 1 (Art. 6-1) and is manifestly ill-founded.           The Commission recalls the case-law according to which in civil cases high costs of proceedings may, in certain circumstances, raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention which secures to everyone a right of access to the courts and the right to a fair trial (cf.   Eur.   Court H.R., Airey judgment of 9 October 1979, Series A no. 32; No. 6202/73, Dec. 16.3.75, D.R. 1 p. 66; No. 7973/77, Dec. 28.2.79, D.R. 17 p. 74; No. 9353/81, Webb v. UK, Dec. 11.5.83, D.R. 33 p. 133).   The Commission notes that in the present case the courts applied regulations on the reimbursement of costs which, in the opinion of the competent court of second instance, could lead to highly unfair results in certain cases.   The Commission further notes that the relevant cost regulations were subsequently amended, apparently on the basis of similar considerations.           However, the Commission considers that under Article 6 para. 1 (Art. 6-1) of the Convention it cannot consider the fairness of cost regulations as such, but only whether the application of such regulations made the proceedings unfair insofar as the determination of civil rights and obligations is concern