APPLICATION/REQUÉTE N' 10153/82 Z. and E. v / AUSTRIA Z. et E. c/AUTRICHE IIECISION of 13 October 1986 on the admissibility of the application DÉCISION du 13 octobre 1986 sur la recewabilité de la requêt e Article 6, paragraph I of the Cortventton : Civil proceeaïng.s. Tie Commission can ensuretlun the presentation af evidence was fair, but cannotreview the interpe tatYon and application of national law. The jua;qe must hear the parties' argument.s, but is not bowrd to discuss each of their submismions in derail . Artlcle 8, paragraph I of the Conventiott : The right to respect for famiiy i ïfe nwry involve for Contracting States positive obligations calculated to allow those concemed to lead a normal family liJè . Tlu's applies nor onlp to legislation regulating family relationships, but also to legislation regulating the use ofpropertyfor family purposes . Article 13 of the Convention : This provision does not require tlwt there sh gûld be several levels of jurisdiction. Article 25 of the Conventian : Death of one applicant and purrv wance by her successor of the application, relating to alleged interjèrences with property rights, family lt(e and the right to a fair prccedure in a reasonable time . Despite the persoawl nature c f these complaints the successor, herself an applicant who has raised similar complaints, may "claim to be a vi ctim". In spite of a change ofcircumstances, applicants nonetheless recognised as victims in view of the importance to them of the past situation of which they comp!ain. Article 1, paragrnph 1 of the Firstl3-otocol : The Austrian legislation whi ni limits the right of the otvner to tetminate the lease does not constimte a deprivation of property. ~57 Article 1, paragraph 2 of the First Protocol : Legislation on the protection of tenants as a regulation of use ofan apartment house . General interest and necessity of the regulation. Article 6, paragraphe 1, de la Convention : Procès civil. La Commission peut s'assurer que l'administration des preuves a été équitable mais non revoir l'interprétation et l'application du droit national. Le juge doit entendre l'argumentation des parties mdis n'est pas tenu de discuter en détail chacune de leurs thèses . Article 8, paragraphe 1, de la Convention : Le droit au respect de la vie familiale peut comporter pour les Etats contractants des obligations positives, de manière à permettre aux intéressé.s de mener une vie familiale normale. Cela vaut non seulement pour la législation qui régit les relations familiales, maisaussi pour celle qui réglemente l'usage des biens à des fins familiales. Article 13 de la ConvenBon : Cette disposition n'impose pas l'existence de plusieurs degrés de juridiction . Article 25 de la Convention : Décès d'un des requérants et poursuite par son héritier de la requête portant sur une prétendue atteinte à la propriété, à la vie familiale et au droit à un procès équitable dans un délai raisonnable. Malgré le caractère personnel de ces derniers griefs l'héritier, lui-même requérant ayant soulevé des griefs analogues, peut mse prétendre victime» . En dépit d'une évolution des circonstances, requérants néanmoins reconnus comme victimes vu l'importance pour eux de la situation passée dont ils se plaignent . Article 1, paragraphe 1, du Protocole additionnel : Ne constituè pas une privation de propriété la législation autrichienne qui restreint le droit du bailleur de donner congé. Article 1, paragraphe 2, du Protocole additionnel : Législation sur la protection des locataires en tant que réglementation de l'usage d'un bien immeuble. Intérêt général et nécessité de cette réglementation. THE FACTS (français : voir p. 77) The first and second applicants are Austrian citizens born in 1934 and 1938 respectively. They are a married couple who at the time of introducing the application each owned a third interest in a house in Vienna which they had acquired in 1974. The second applicant now owns two thirds because she has in the meantime inherited her mother's share. The latter, an Austrian citizen born in 1909, died on 25 January 1985. She had originally been the third applicant in the case and the firs t 68 and second applicants now ttate ttiat they wish to maintain the application as her successors insofar aa it is alleged that the third applicant's Convention rights were also interfered with . The first and second applicants oecupy a flat on the second floor of the abov e house. It has a surface of 65 m2 ara] consists of three roonts, a kitchen and a< :orridor. There are two flats on the frrst floor each with s. surface of 42 m2 . One of tttese flats was occupied by the third applicant during her lifetime and has apparently not been relet after her death. 7'he second flat on the first floor was already occupied by certain tenants when the applicants acquired the house . They continue to occupy this i3at despite repeated attempts by the applicants lo terrainate tlte lease . Two further small fla[s on he grouind floor, with surfaces of 32 and 20 m2 respecdvely, are also let to tenants . In addition, the grnund tloor comprises two small rooms accessible through the same corridor as the 20 m2 flat which are unoccupied . On 29 February 1980, the first applicant's elderly parents were both critically injured in a car accident and as a result required care, allegedly for the rest of their lives . As they lived in a village some 30 km outside Vienna it ivas difficult for the applicants to look after them and ihey therefore decided to have them move to their home. For this purpose they wanted to lodge them in the flat on the first flbor of their house which was occupied by tenants . They accordingly sought to terminate the lease ef those ter :ants. As the flat in question was subject to the rent protec:ion legislation of the 1922 Rent Act (Mieten;;esetz, Fed . Law Gazette No . 872/1922, as amended) the notification had tobe made in conformity with the particular provisions of this Act . These provisions may be summarized at, follows : Under Section 19 (1) of the Act, termination of a tenancy contract by the landlord is only possible for important reasons (°Der Vermieter kann nur aus wichtigen Gründen den Mietvertrag kUndigen") . Section 19 (2) sets out detailed examples of what is to be considered as "important reasons", including sub-sectian (6) which reads as ïollows : "lf the landlord needs the tenancy property (residential rooms . . .) urgently for hiinself or his direct lincar relation and if he puts at the disposal of the tenants . .. ac.equate alternative housing" ["der Vermieter deu Mietgegenstand (Vi'ohnrdume . . .) für sich selbst oder für Verwandte in geraler Linie dringend bendtigt und dem Mieter . ..-einen entsprechenden Ersatz beschafft"] . As regards the procedure, Section 21 (1) provides that notification of tarmination cau only be made through tte courts . In doing, so the landlord must briefly 69 indicate the reasons invoked by him, and he is barred from invoking other reasons at a later time. If the tenant raises objections, it is for the landlord to prove the existence of the reasons given by him . On 7 March 1980 the applicants gave judicial notice to the tenants occupying the above apartment, invoking both the general clause in Section 19 (1) (important reasons) and Section 19 (2)(6) of the Act . As the tenants raised objections, the District Court of Vienna-Floridsdorf had to decide the matter in non-contentious proceedings . After having carried out an inspection of the locality, and having obtained expert medical testimony on the state of health of the first applicant's parents, the Court decided on 15 November 1981 that the termination of the lease was of no legal effect, and therefore it rejected the applicants' claim to evict the tenants . The Court found that the term "urgent personal need" ("dringender Eigenbedarf") in Section 19 (2) (6) of the Act was to be strictly construed . This criterion was not met in the present case as the applicants could adapt the unoccupied rooms on the ground floor for lodging the first applicant's parents, if they should really need care . The rooms were appropriate for this purpose, and the parents could share the toilet with the tenant of the 20 m2 apartment who under her lease had no exclusive right to its use . The Court further noted that the applicants had already earlier tried several times without success to terminate the lease in question, and therefore the impression arose that the applicants were only using the parents' accident as a pretext for getting rid of their tenants . The applicants appealed, claiming that the District Court had made ineorrect and insufficient findings of fact and law, in particular as regards the appropriateness of the rooms in question for housing purposes (they lacked heating and washing facilities), the impossibility of obtaining a building permit for the required adaptations (they would not be allowed under the applicable provisions of the Vienna Building Act, Prov . Law Gazette No . 18/ 1976, as the house was situated in a rural area and any changes strengthening its tenancy character would not be permitted), the encroachment on the rights of the tenant of the 20 m2 apartment (who would have to share her toilet and corridor with the parents), and finally as regards the true state of health of the parents . However, by a decision of 21 April 1982, the Regional Court of Vienna rejected the appeal as unfounded . It noted that the applicants no longer invoked Section 19 (1) of the Act . As regards Section 19 (2)(6), it found that the Court below had rightly applied a strict standard . All the applicants' submissions on appeal were irrelevant as the emergency situation required by this provision did not exist . In this regard, the Court found that it was not necessary to deal with the appropriateness of the empty rooms on the ground floor as the applicants could in anyevent be expected to care for their parents in their own apartment on the second floor . For the same reasons it was not necessary to make further investigations concerning the parents' state of health . 70 7'he Regional Court refused the applicants le-ave to app :al to the 3upreme Court, and they therefore had nc further remedy . COMPLAIN7'S 1 . 7'he applicants now comphtin that the proceoclings were not fair and thus contrary to Article 6 para. I of the Convention becaase the coutts did not deal tvith the matter in the way in which they had presented the case . In particular, the courts litnited themselvcs to findings under Section 19 (2)(6) oc the Rent Act, but did not investigate whether there were in the special circumstances other, . similar reasons for terminating the Icase which could be based on the gener;d clause in Sectiori 19 .(1). It is subniitted that in particular the claim raised by the third applicant remained without any response on the part of the Court. 2. The applicants further complain that by the way in which the courts interpreded and applied the Iaw they failed to secure the applicants' right to respect for private and fatnily life, as guaranteed by Article 8 of the Convention . T:iey are parcicularly aggrieved that the courts should have endeavoured to prescribe how the applicants should best structure and organise their private and family life in relation to their elderly pai-ents who they felt needed constant care .3 . 'Ihe applicauts further complain that the restrictions imposed onthem by th e Rent A .et, as inte:rpreted by the courts in their case, amounted to an unjustified interference with their right to Ihe peaceful enjoyment of their possessons, as guaranteed by Article 1 of Protocol No . I to the Convention. In this respect, they invoke. inter alia., the Commission's decision iti Application No . 8003/77 (Dec. 3.10.79, D.R . 17 p. 80), claiming that the restrictions applied to them went beyond those considered in that case. 4. Tie applicants also consider that as landlords they have been discrintinated against, contrary to Ar[icle 14 of the Convention, in relation to the tenants . 5. The applicarits finally invoke Article 13 of the Conrention, claitning that tltey did not have an effective remedy before a national auihority in Anstria before which they cculd have nvoked their Convention rights in relation to the matter under consideration . In this respect,they complain in partieular of tYie exclusion of an appeal to tlhe Supreme Court . THE LAW . I . Ttie applicants, who own a two-storev house in a suburb of Vienna they live themselves and parts of which are let to tenants, complain e ;sentially ttiat they were restricted in the possibility to terminate the lease of certain tenants whose fla t 71 they wished to use for purposes of their own family, i .e. for lodging the first applicant's elderly parents who had suffered an accident and were in need of constant care. In this respect the applicants allege violations of their propeny rights as guaranteed by Article I of the Protocol and of their right to respect for their family life as guaranteed by Article 8 of the Convention. They also claim that they have been discriminated against, contrary to Article 14 of the Convention, in the exercise of their above Convention rights . The applicants further complain of the civil court proceedings by which they sought to bring about the termination of the lease in question, alleging that procedural guarantees of Article 6 of the Convention were disregarded and that they were denied an effective remedy as required by Article 13 of the Convention . 2. The Commission must first examine whether the applicants can still claim to be victints of a violation of their Convention rights (Article 25 of the Convention) having regard to the fact that the circumstances have considerably changed since the introduction of the application : after the tenants' objection and the courts' refusal to terminate their lease, an alternative solution was found to care for the first applicant's parents in their home at some distance from Vienna. Eventually in 1984 his father was taken to an old people's home in view of his deteriorating state of health . He remained there until his death in November 1985 . In the meantime the third applicant had also died in January 1985, leaving behind her flat on the first floor of the applicants' house which now eouldhave been used for lodging the first applicant's parents. Apparently his mother was reluctant to make use of this possibility at that time. Despite these developments, the applicants claim that they had been effectively restricted during a considerable period of time in using their property and shaping their family life as they liked . The Commission notes that in fact the accident of the first applicant's parents occurred in February 1980 and that they gave notice to their tenants in March 1980 . The court proceedings were completed in April 1982 and insofar as the applicants complain of the conduct of those proceedings the applicants are clearly entitled to invoke the Convention notwithstanding the fact that in the tneantime there have been new developments which were not in issue in these proceedings . The court proceedings determined the applicants' situation as regards the possibility to use their property both during the time when the proceedings were pending and in the subsequent period . In view of the particular circumstances of the case where an emergency situation was invoked a favourable decision would have been of the greatest importance for the applicants immediately after that situation had arisen, but even at a later date they still had a considerable interest in regularising their situation which essentially continued to exist until the third applicant's death in January 1985 . Having regard to these considerations, the Commission accepts the applicants' argument and finds that they can reasonably claim to have been victim s 72 of violations of their Convention rights both as regards the conduct of the proceedings and as regards the results of these proceedings wltich actually affected them durin€, a considerable period. 3 . At present, there remain only the first and second applicants . However, they claim that they ntust be entitled ta maintain the application also insofar as the third applicant's Comention rigats had been affected . The Commksion notes that the second applicant is the legal succa .-ssor to the third applicant's share of property and therefore she can indeed have a legitimate interest to pursue the third applicant's complaints at lcast insofar as she, had alleged an unjuslified ic .terference with her property rights (cf. No . 8003/77, Dec . 3 .10 .79, D .R . 1 ï pp . 80-82) . It ma,y remain open whether the, same applies to the third applicant's complaints of intetferences with her family life and her procedural rights . Even if these lattar complaints might be considered as being of a personal nature, which, in principle, eceludes their further pursui; by her legal successors, it must be noted that in any event the first and second applicants have raised similar complaints . The Commission therefore accepts that the seconc applicant may as legal successor pursue the eomplainCa introduced by the third appllcant. 4. As regards the substance of the applicants' co ;nplaints, the Commissioh considers it appropriate to exainine ètrst the proceduraâ aspects. It is claimed that the conduct of the proceedings was not in line with Article 6 para . I of the Convention because their civil rights and obliigations were not determined within a reasonable time and because they were treatc:d unfairly. It is further alleged that the refusal to allow a further appeal to the Supreme Court violate(i Anicle 13 of the Convention . a) As regards first the issue of the length of the proceedings, the Commission notes that the applicants' complaiit in this respect has first beer mentioned in their letter of 'I November 1985, i .e. more than six months after the final (lomestic decisien which dates from 21 April 1982 . This part of the application has tberefore been lodged out of time and must accordingly be rejected under Article 27 para . 3 read ir conjunction with Aiticle 26 of the Convention .b)AsregardsIheallegationofunfairnessoftheproceidings,theapplicantshave submieed several arguinenta which fall essentially into two categories : - First it is alleged that the adininistradon of the evidence was unfair in that the courts required the applicants to disprove certain allegations of the defendani tenants to which an emergency situation did not actually exist, and that the courts further required them to prove ee.rtain facts which 1he applicants consider as selfevident, namely that they couldnot be expected to lodge their parents in their e,wn flat . The Commission does not consider that the courts' approacti in this respect can be regerded as urfair. In particular it was not unfair that the plaintiffs who wished to brina,, about a ohange of a certain legal situation were required to prove all facts which were legally relevant to their claim, including facs whica were dispuled by 73 the defendant . This did not in itself amount to an unfair reversal of the burden of proof nor did it imply a requirement to discharge an impossible burden of proof . This part of the application is therefore manifestly ill-founded and must be rejected under Article 27 para . 2 of the Convention . - The second group of arguments concerns the legal assessment of the applicants' claim by the courts . They allege that the Regional Court's final decision was based on a distortion of the submissions which they had actually made as regards the legal ground of termination invoked, and that this court failed to take into account certain essential legal aspects such as the restrictions resulting from the planning regulations, the nature of the house concerned as a family home, and the fact that the applicants had offered to provide alternative accommodation to the tenants . However, it is not the Commission's task to interfere with the legal assessment of a particular claim made by the competent courts under the domestic law . The application and interpretation of the domestic law is in principle a matter reserved to the jurisdiction of the national courts . In this respect they are free to qualify a claim according to the criteria which they consider as legally relevant . They cannot be bound by the legal argumentation of a particular party . Moreover, the Commission considers that a court's failure to discuss every detail of a party's pleadings is not in itself contrary to the requirements of a fair hearing . It is, however, essential that the party's right to be heard is not disregarded and that his pleadings are considered by the court even if this is not reflected in explicit terms in the eventual decision . On this basis, the Commission finds no indication in the present case that the various legal arguments presented by the applicants were not duly examined by the Austrian courts . The fact that the courts may have considered them as irrelevant or unfounded and implicitly rejected these arguments cannot amount to a breach of the Convention . This part of the application is therefore also manifestly ill-founded . c) As regards finally the applicants' complaint under Article 13 of the Convention that they were deprived of an effective remedy because a further appeal to the Supreme Court was not admitted, the Commission observes that the proceedings in question come within the scope of Article 6 para. I of the Convention which requires that there should be access to an independent and impartial tribunal established by law. A right to an appeal to a higher court cannot be derived from this provision as the Commission has held in its constant case-law . Nor does a separate issue arise under Article 13 of the Convention in a case like the present one where a judicial remedy in conformity with Article 6 para . I has in fact been granted . 5 . Insofar as the applicants claim that therehas been an uqjustified interference with their property rights as guaranteed by Article I of the Protocol, the Commission first notes that both parties seem to agree that there was no deprivation of possessions within the meaning of the second sentence of paragraph 1 of this Article . A restriction on the landlord's right to give notice to his tenant must in fact be ebnsidered as a regulation of the use of property within the meaning of the second paragraph 74 of Article 1 . This has been confirmed by the Commissicn's decision on the . admissibility of Application No . 8003/77 v . Austria (Dec. 3 .10.79, D .R. 17 p. £10) which eoncerned the same legislation as that applied in the present case . In that decision, the Commission also found that the restrictions in question pursued a legitimate aim of social policy, i.e. the protection of the interests oftenants in a situation of a shorteige of (cheap) housing, and that they were as such appropriate means to acttieve this aim of social policy so that they could still be considered as necessary iocontrol the use of propcrty in aceordance with dhe general imerest . 3ection 19 (1) of the Rent Act allows the landlard to terminatea lease for "important reasons", and Section 19 (2) enumerates many instances of suçh imoortant reasons, including sub-paragi-aph (6), according, to which tlte termination of thc lease is admissible if the laudlord himself or his direct linear re'.atives urgently need the object and if the landlord makes appropriate alternative acco:mmodation availlable to the tenant . It is exclusively the latter provision which the Austrian courts considered a.; relevant to the present case, and the applicants seein to accept that this provision is as such in coriformity with the Conventior . ]3oviever, the applicants claim that in the specific circumstances of their case this provision was given atoo restrictive interpretation and that this amounted to a disproportionate interference wiih their property rights . The 19nal decision of the Regional Court in fact is limited to the examination of whether an "urgent need" withit. the meaning of the above provision existed . 'This questicn was denied on the basis of the constant case-law according to which the term "urgent need" must be strictly interpreted as referring to a genuine situation of emergency which cannot be retnedied in any other way . The Court considered that the applicants had failed to prove why it would have been impossible for them to lodge thr, parents of tfié first applicant in th eir own flats. In the absence of an "urgent need" a11 other submissions of the applicants were considered as irrelevant . -"fheCommissionrecognisesthatthisdecisioninvolvedanimportant,interferencewith the applicants' property rights and in particular the right to use their propeity for purposes of ttteir own . However, on the other hand there were also impor:ant interests of the tenants at stake . As already mentioned, the restrictions on the landlord's right to use his property for the purpose of protecfing a tenant's rights in a situation of a shortage of chimp housing may in principle be justified as being a measure in the general interest covered by Artiele I para 2 of the Protocol (cf. No . 8003/77, Dec .3 .1(i.79, loc . cit.). TheCominission considers thaticcan still be regarded as proportionate if a iarticularly strict standard is applied when the two conflicting interests of the landlo-d and tenant are weighed against each othcr . The Comrnission refers to the wide margin of appreciation whieh Ar:icle 1 para . 2 of the Protocol concedes to the Contracting States in this respec[ (cf . mutatis mutasdis 1?ur. Court H .R., Haudyside judgment of 7 December 1976, Series A no . 24, and James and others judgment of 21 February 1986, Series A no . 98) . In the circuinstances 75 of the present case the application of this strict standard led to a finding that the situation invoked by the applicants could be met in a different way than by terminating the lease of the applicants' tenants . The Commission finds that this conclusion was neither arbitrary nor unreasonable given the fact that the applicants had two flats in the house where there were in addition several unoccupied rooms . It follows that the interference can be justified under Article 1 para . 2 of the Protocol, and the applicants' complaint under this provision is therefore manifestly ill-founded . 6. The applicants further complain that the same restriction also interfered with their right to respect for their family life as guaranteed by Article 8 of the Convention . The Government object that Article 8 is not applicable because there was no direct interference with the applicants' family life, but only a remote repercussion on it. The Commission does not share this view . Article 8 guarantees "respect" for family life, and this may involve positive obligations for the Contracting States inherent in an effective "respect" for family life . In shaping the domestic law, the State must act in a manner calculated to allow those concerned to lead a nonnal family life (cf. Eur. Court H .R., Marckx judgment of 13 June 1979, Series A no. 31, para. 31) . The Commission is of the opinion that this consideration applies not only to legislation regulating faniily relationships, but also to legislation regulating the use of property insofar as it interferes with the possibility to use this property for family purposes . Since in the present case the applicants were not able to use their property for family purposes as they wished, their family life could indeed be affected. However, the Commission considers that the manner in which the law was applied to the applicants did not fail to show respect for their family life as required by Article 8 of the Convention . In the relevant final decision of the Regional Court it was in fact pointed out in whieh way the applicants could be expected to shape their fainily life without interfering with their tenants' rights . It has already been stated above that this decision appears neither arbitrary nor unreasonable in the circumstances . This part of the application must accordingly also be rejected as being manifestly ill-founded . 7 . The applicants finally invoke Article 14 of the Convention claiming that they were discriminated against in the exercise of their above Convention rights . In the original application, the applicants complained only of discrimination in comparison with their tenants . However, the Cotnmission considers that the respective position of a landlord and a tenant is so different that it cannot be reasonably compared . There is accordingly no appearance of any discrimination in this respect . The applicants have later cotnpared their situation to that of owners of family homes who let apartments after 1967 and were able to negotiate contractual conditions by which the restrictions on the right to give notice to the tenants could be avoided . However, this argument has not been substantiated . The applicant's complaint of discrimination is therefore again manifestly ill-founded . For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE . 76