CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 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. 12462/86                       by Hans MAIRITSCH                       against Austria             The European Commission of Human Rights sitting in private on 13 July 1987 the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              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 of the Convention for the Protection of Human Rights and Fundamental Freedoms ;           Having regard to the application introduced on 9 October 1986 by Hans Mairitsch against Austria and registered on 13 October 1986 under file N° 12462/86;           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 applicant, an Austrian national born in 1941, is a self-employed painter residing in Völkermarkt.   He is represented before the Commission by Dr.   G. Seeber, a lawyer practising in Klagenfurt.           On 20 January 1984 the applicant's marriage, concluded in 1972, was dissolved by the Klagenfurt Regional Court (Landesgericht).           Thereupon the applicant's former wife requested the partition of the matrimonial property and savings (Aufteilung des ehelichen Gebrauchsvermögens und der ehelichen Ersparnisse) in accordance with SS. 81 et seq. of the Marriage Act (Ehegesetz) and SS. 98 et seq. of the Civil Code (Allgemeines Bürgerliches Gesetzbuch).           The two spouses, inter alia, jointly owned a piece of land and a house in Völkermarkt where they had lived together until 1983. The applicant also used one room as office and parts of the cellar as a store room for his business.           On 21 August 1985 the Klagenfurt District Court (Bezirksgericht) partitioned the matrimonial property.   Apart from dividing the movable property the Court decided to transfer the applicant's title to the premises to his former wife, who was ordered to pay to the applicant the sum of 450.000 AS by way of compensation. Upon the applicant's appeal (Rekurs), the Klagenfurt Regional Court partly modified this decision on 11 October 1985 and assessed the sum to be paid by the applicant's former wife at 500,000 AS;   the remainder of the appeal was dismissed.           The applicant's further appeal (Revisionsrekurs) was dismissed by the Supreme Court (Oberster Gerichtshof) on 13 February 1986.       COMPLAINT           The applicant complains that he was deprived of his co-ownership of the piece of land concerned in violation of Article 1 of Protocol No. 1 providing that no one shall be deprived of his possessions except in the public interest.   However, as the title to the land was transferred to his former wife he claims that he was in fact expropriated not in the public interest but for the benefit of a private person.   THE LAW           The applicant complains that his share of formerly jointly-owned premises was transferred to his former wife in the course of the partition of the matrimonial property.           Article 1 of Protocol No. 1 (P1-1) to the Convention provides:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of      his possessions except in the public interest and subject to      the conditions provided for by law and by the general      principles of international law.        The preceding provisions shall not, however, in any way      impair the right of a State to enforce such laws as it deems      necessary to control the use of property in accordance with      the general interest or to secure the payment of taxes or      other contribrutions or penalties."           The Commission first observes that, although the actual transfer of ownership was in the present case enforced by a court order and thus by an act of a State organ, it is based on the provisions of the Austrian Marriage Act governing relations between (former) spouses in case of a dissolution of marriage.   However, as the Commission noted earlier, in all States Parties to the Convention, the legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property and, in some cases, compel a person to surrender a possession to another.   An example referred to by the Commission in this context was precisely the division of matrimonial estates.   The Commission found that this type of rule cannot in principle be considered contrary to Article 1 of the First Protocol (P1-1) and, more precisely, that in such cases the passing of property, resulting from legal limitations inherent in particular property rights, should not be considered as constituting a deprivation of possessions for the purposes of the second sentence of Article 1 (Art. 1) (Nos. 8588/79 and 8589/79, Dec. 12.10.82, D.R. 29 p. 64 [82]).           The Commission maintains this view.   Even if the transfer of title to movable or immovable property in case of a dissolution of marriage may not be effected by way of a private transaction between the former spouses but by a decision of a court or another State organ, the transfer as such continues to be the result of obligations stemming from general private law rules governing the conclusion and dissolution of marriages and their legal consequences.   An obligation, resulting from such rules, to transfer property to the other spouse cannot be considered contrary to Article 1 of Protocol No. 1 (P1-1) as such.           The Commission must nevertheless make sure that in determining the effects on property of legal relations between individuals the law does not create such irregularity that one person could be arbitrarily and unjustly deprived of property in favour of another (Nos. 8588/79 and 8859/79, supra, p. 82;   see also, mutatis mutandis, Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A No. 52, p. 26, para. 69).           With respect to partition of matrimonial estates the Commission notes that S. 21 para. 2 and S. 82 of the Austrian Marriage Act provide only for the partition of movable or immovable tangible property having served for the use of both spouses during the time of marriage, including household effects and the matrimonial home ("eheliches Gebrauchsvermögen").   On the other hand, property brought into the marriage or acquired by one spouse by way of succession or gift is not normally subject to partition, nor is the property serving for the use of one spouse only.   These rules reflect the idea underlying the Austrian matrimonial property regime that property acquired during the marriage for serving the purposes of both spouses shall be divided equitably between the spouses when marriage is dissolved, as normally both spouses will have contributed to its acquisition although ownership might be vested in one of them only. They cannot therefore be generally considered as disregarding the right of either spouse to the peaceful enjoyment of his or her possessions even if the partition of the matrimonial estate may necessitate the transfer of ownership from one spouse to the other in order to award to each spouse an equitable share of the matrimonial property.           It is true that in the present case the partition of the matrimonial estate included the transfer of title to immovable property which according to S. 90 of the Marriage Act shall be ordered in exceptional cases only.   However, the Commission's only task is to ensure the observance of the obligations undertaken by the parties in the Convention and it is in principle not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts.   The Commission finds no indication that the assumption of the Austrian courts, that exceptional circumstances justifying the transfer also of immovable property existed in the instant case, was based on arbitrary or unreasonable considerations. Moreover, the Commission notes that the Austrian courts took into account the value of the property thus transferred to the applicnt's former wife and ordered her to pay compensation to the applicant.           The Commission accordingly does not find that there has been any infringement of the applicant's right to the peaceful enjoyment of his possessions or that he has been deprived of his possessions in violation of Article 1 of Protocol No. 1 (P1-1).           It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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)