CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 16 juillet 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sA36B60A1 { font-family:Arial; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     572 16.07.2009   Press release issued by the Registrar   CHAMBER JUDGMENT ZEHENTNER v. AUSTRIA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Zehentner v. Austria (application no. 20082/02). The case concerned the sale by a court of the apartment of the applicant, a person lacking legal capacity, in order to pay debts owed to the applicant’s creditors.   The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights and a violation of Article 1 of Protocol No 1 (protection of property) , on account of the applicant having been deprived of her home without being able to participate effectively in the court proceedings.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 30,000   euros   (EUR) in respect of non-pecuniary damage and EUR   200 for costs and expenses. ( The judgment is available only in English .)   1.     Principal facts   The applicant, Bernardina Zehentner, was born in 1944 and lives in Vienna. In August 1998 a district court ordered her to pay approximately 7,440   EUR to G. for the cost of plumbing work carried out in her apartment; in June 1999 she was ordered to pay money to another creditor, W. In May 1999 the court granted G.’s request for the enforcement of the payment plus the costs of the proceedings (approximately EUR   2,150) by judicial sale of the applicant’s apartment. In October 1999 Ms Zehentner was informed of the date of the judicial sale by registered letter and on 17 November 1999 the judicial sale took place, however, in her absence. The court sold her apartment for approximately EUR   59,000 to a limited liability company; the decision for the sale was served on her on 24 November 1999 by deposition in the post office. In January 2000 part of the proceeds of the sale were allocated to Ms   Zehentner’s creditors and in February 2000 she was evicted from the apartment.   In March 2000 the applicant had a nervous breakdown and spent more than a month in a psychiatric hospital. The court instituted guardianship proceedings and obtained a medical expert’s opinion according to which she was suffering from paranoid psychosis since 1994 and since then had not been able to make rational decisions. The court appointed her a provisional guardian in March 2000.   In April 2000 the court served the decision of 17 November 1999 concerning the judicial sale of Ms Zehentner’s apartment on her guardian. As of 17 April 2000 she, represented by her guardian, appealed numerous times before the domestic courts of different level against this decision asking that it be annulled and the enforcement proceedings suspended.   In response to her appeals the courts found that the payment orders of August 1998 and June 1999 were not enforceable as she had not been capable of participating in the proceedings; however, the appeals against the enforcement of the orders were ultimately dismissed as the courts held that reversing the enforcement was no longer possible given that the decision allocating the proceeds of the sale to the creditors had become final and the creditors had been paid.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 3 May 2002 and examined at the same time for admissibility and merits.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Khanlar Hajiyev (Azerbaijan), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), judges ,   and Søren Nielsen , Section Registrar ,   3.     Summary of the judgment [2]   Complaint   Relying on Article 1 of Protocol No 1 the applicant complained of the judicial sale of her apartment having deprived her of her possessions. The Court considered it appropriate, in addition to Article 1 of Protocol No. 1, to examine the applicant’s complaint in addition under Article 8.   Decision of the Court   Admissibility   Ms Zehentner had filed an individual application with the Court on 3 May 2002, setting out in a sufficiently substantiated manner the subject matter of her complaint. Nonetheless, Ms   Zehentner’s guardian had informed the Court in April 2006 that she had not approved the institution of the proceedings before the Court and did not wish to pursue the application; however, in March 2006, the applicant herself had requested the Court to proceed with the examination of her case stating that she did not wish her guardian to represent her before the Court but was unable to appoint another representative. The Court found that the applicant was in a position to pursue her complaint and declared it admissible.   Article 8 (protection of family life and home)   The Court found that Ms Zehentner had lacked legal capacity for years by the time the judicial sale of the apartment and her eviction had taken place, so she had not been able either to object or to resort to the remedies available in the legislation. In addition, she had been left without any means of obtaining a review of her case as a result of the absolute nature of the time-limit for appealing against a judicial sale provided for in domestic legislation. Given that persons who lacked legal capacity were particularly vulnerable, the Court found that specific justification had to be required where a person lacking legal capacity was concerned. The Austrian Supreme Court had not given any such justification and had not carried out any weighing of the conflicting interests of the purchaser in good faith and the debtor lacking legal capacity. As regards whether the absolute time-limit had served the general interest of preserving legal certainty, the Court recalled its case law in which it had held that legal certainty would not be violated in circumstances of compelling character. Accordingly, the arguments relied upon by the Government were not sufficient to outweigh the consideration that the applicant had been deprived of her home without having been able to participate effectively in the proceedings, in violation of Article 8.   Article 1 of Protocol No1   The Court noted that the proceedings in this case had been between private parties, however it considered that even in such a case the State was under an obligation to afford both parties the necessary procedural guarantees. It found the suggested procedural mechanism by the Government an unfeasible scenario for the applicant, a person lacking legal capacity, to be able to recover her possessions of which she was deprived without adequate guarantees. In addition, in view of its findings in respect of the violation of Article 8, the Court held that there had also been a violation of Article 1 of Protocol 1.     Judge Malinverni and judge Kovler expressed a joint partly dissenting opinion, which is annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.