LECHNER AND HESS v. AUSTRIA

• Judgment Date: 23 April 1987
• ECLI: ECLI:CE:ECHR:1987:0423JUD000931681
• Respondent State: Austria
• Application Number: 9316/81
• Date: 23 April 1987
• Court: Chamber (European Court of Human Rights)
• Counsel: N/A
• Applied Rules: 6;6-1;41
• Official Gazette Publication: [object Object]



In the case of Lechner and Hess*,

_______________

* Note by the Registrar: The case is numbered 11/1985/97/145. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. Thór Vilhjálmsson,

Mr. F. Matscher,

Mr. L.-E. Pettiti,

Mr. C. Russo,

Mr. J. Gersing,

Mr. A. Spielmann,

and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 October 1986 and on 25 March 1987,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The present case was brought before the Court on

17 October 1985 by the European Commission of Human Rights

("the Commission"), within the three-month period laid down in

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention.

The case originated in an application (no. 9316/81) against the

Republic of Austria lodged with the Commission on 18 February 1981

under Article 25 (art. 25) by three Austrian citizens, Siegfried and

Rosalia Lechner (husband and wife) and Mrs. Rosalia Hess, the wife's

mother.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the Austrian declaration recognising the compulsory

jurisdiction of the Court (Article 46) (art. 46). Its purpose is to

obtain a decision as to whether or not the facts of the case disclose

a breach by the respondent State of its obligations under

Article 6 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that they

wished to take part in the proceedings pending before the Court and

designated the lawyer who would represent them (Rule 30).

3. The Chamber of seven judges to be constituted included ex

officio Mr. F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43) and Mr. R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 25 October 1985, in the

presence of the Registrar, the President of the Court drew by lot the

names of the other five members, namely Mr. W. Ganshof van der

Meersch, Mr. Thór Vilhjálmsson, Mr. L.-E. Pettiti, Mr. J. Gersing and

Mr. A. Spielmann (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43). Subsequently, Mr. C. Russo, substitute judge,

replaced Mr. Ganshof van der Meersch, whose term of office had expired

(Rule 22 para. 1).

4. Mr. Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Deputy Registrar, consulted the Agent

of the Austrian Government ("the Government"), the Commission's

Delegate and the applicants' lawyer on the need for a written

procedure (Rule 37 para. 1). On 20 January 1986, he decided that the said

lawyer should have until 14 March to file a memorial, to which the

Delegate should be entitled to reply in writing within two months of

the day on which the Registrar forwarded it to him.

The applicants' memorial reached the registry on 21 March; it included

a request for leave to use German in both the written and the oral

proceedings; the President granted leave on the same day.

On 18 April, the Secretary to the Commission informed the Registrar

that the Commission's Delegate did not think it necessary to submit

any observations at that stage.

On 21 April, the President granted the applicants legal aid, for which

they had applied in their memorial.

5. Having consulted - through the Deputy Registrar - the Agent of

the Government, the Commission's Delegate and the applicants' lawyer

(Rule 38), the President directed that the hearing should take place

on 21 October 1986.

6. The hearing was held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr. H. Türk, Legal Adviser, Ministry of Foreign Affairs, Agent,

Mr. N. Okresek, Federal Chancellery,

Mr. P. Reindl, Ministry of Justice, Advisers;

- for the Commission

Mr. A. Weitzel, Delegate;

- for the applicants

Mr. H. Gussenbauer, Rechtsanwalt, Counsel,

Mr. S. Lechner,

Mrs. R. Lechner, Applicants.

The Court heard addresses by Mr. Türk and Mr. Reindl for the

Government, by Mr. Weitzel for the Commission and by Mr. Gussenbauer

for the applicants as well as their replies to its questions.

7. On various dates between 1 October 1986 and 4 March 1987, the

Registrar received:

- from the Commission, a number of documents either at the President's

request or of its own accord;

- from the applicants, further particulars of their claims for just

satisfaction in respect of costs and expenses;

- from the Commission's Delegate and subsequently the Agent of the

Government, comments on the said claims;

- the applicants' replies to these comments.

AS TO THE FACTS

8. The applicants, a married couple, Siegfried and

Rosalia Lechner, and Mrs. Lechner's mother, Mrs. Rosalia Hess, are

Austrian citizens who were born in 1935, 1939 and 1910 respectively

and live in Vienna.

A. Background

9. On 7 August 1970, the applicants purchased a house in Vienna

from Mr. and Mrs. Josef Mayer. In order to pay the price of

650,000 Austrian schillings, they had to sell a house and a flat they

owned.

Mr. and Mrs. Mayer were involved in divorce proceedings at the time

the contract was concluded; Mrs. Mayer's lawyer, Mr. Weiser, played an

active part in their negotiations with the applicants and represented

the vendors in all the subsequent proceedings. The applicants, on the

other hand, frequently changed their lawyers.

10. The applicants moved into the house on 9 September 1970. A

few weeks later, however, Mr. Mayer informed them that the planning

department (Baubehörde) had not given him permission for the house to

be occupied (Benützungsbewilligung) but that this was a pure

formality.

The applicants approached the said department in order to obtain the

necessary permission, but without success because the house had

several defects. On 20 March 1972, the department did however issue

them with a permit to occupy the house except for the garage and the

veranda above it; the first floor and the attic were not included in

the list of rooms they could use.

On 5 April 1972, the applicants appealed to the Vienna City

authorities against this decision and requested a permit that would be

valid for the whole of the building, although they also mentioned a

number of structural defects.

After the applicants had announced, more than six months later, that

they intended to appeal to the Administrative Court

(Verwaltungsgerichtshof) against the planning department's failure to

act, the existing permit was withdrawn by the City authorities for

technical reasons (on 3 July 1973); this was tantamount to prohibiting

them from occupying the house either in whole or in part.

They continued to live there, however, until October 1978 (see

paragraph 31 below).

B. Proceedings from which the present case arose

1. Civil action against the vendors

11. On 15 May 1972, the applicants brought an action against the

vendors in the Vienna Regional Civil Court (Landesgericht für

Zivilsachen) claiming rescission of the contract of sale, repayment of

the purchase price and simultaneous return of the property to the

vendors, plus compensation. They argued that they had been

deliberately misled by the vendors as regards the fact that permission

had not been granted for the house to be occupied. They gave further

particulars of their claims on 28 March 1973. Earlier, the Regional

Civil Court had held several hearings, and had taken evidence, notably

in the form of testimony; it had also on 7 September 1972 and on

several subsequent occasions asked the planning department to produce

the file on the building in issue, but in vain. Eventually, officials

from the planning department were examined on 14 December 1972 and 28

March 1973. It emerged that the documents in question were in their

possession, but neither the Regional Civil Court nor the parties

gained access to them.

12. The Regional Civil Court dismissed the applicants' claims on

1 June 1973. They might indeed have had reason to believe that a permit

to occupy the house had been issued, as the vendors had lived in it

for a long time, but the planning department had inspected the house

before the vendors left it and had found that there were a number of

defects. The applicants had failed to remedy these after the contract

of sale had been concluded, and it was therefore their own fault that

the permit had been refused. Furthermore, there was no evidence of

any misrepresentation to their detriment.

On 21 November 1973, the Vienna Court of Appeal (Oberlandesgericht)

set aside this judgment on an appeal lodged by the applicants

on 31 August 1973, and remitted the case to the Regional Civil Court,

which received the Court of Appeal's judgment on 20 December 1973.

13. On 5 February 1974, the applicants challenged the judge

...