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WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967] ECHR 2 (30 May 1967)
THE FACTSWhereas the original submissions of the Applicant company may besummarised as follows:I. The Applicant, an Austrian company, is represented by Dr. Franz R.Gugg, a barrister practising in Vienna.Pursuant to the provisions of the Austrian Restitution Acts theApplicant company appealed against the Republic of Austria forrestitution of the shares of the Österreichische Volksfürsorge(formally the Allianz- und Giselaverein), a life insurance company,which had lapsed to the Austrian Government. Since the object of therestitution - i.e. the shares of the aforesaid insurance company - isin the ownership of the Republic of Austria, the Act applicable in thiscase is the Second Restitution Act (Zweites Rückstellungsgesetz) whichstipulates that the body competent to decide the matter was not acourt, but an administrative authority - in the first instance the LandDirectorate of Finance (Finanzlandesdirektion), and in second and finalinstance the Federal Ministry of Finance. By decision (Bescheid), dated10th June, 1963, served upon the Applicant company on 14th June, 1963,its claim for restitution was rejected with binding effect afterprotracted proceedings on both sides. The Applicant company lodged aconstitutional appeal (Beschwerde) with the Austrian ConstitutionalCourt (Verfassungsgerichtshof) because - independently of Article 6 ofthe Convention on Human Rights - it considered that the decisionviolated the principles of equity and its right to property guaranteedunder the Constitution. In case the appeal was rejected by theConstitutional Court, the Applicant company applied for its transferto the Administrative Court (Verwaltungsgerichtshof). Examination bythe Constitutional Court is possible only in cases of alleged violationof rights guaranteed by the Constitution. As the Constitutional Courthas declared in numerous decisions, it does not regard Article 6 of theConvention as self-executing i.e. it holds that this Article isapplicable only by virtue of a special implementing act of domesticlaw. So far, no such implementing act has been issued. TheConstitutional Court has also declared that, although Article 83,paragraph (2), of the Federal Constitution (Bundes-Verfassungsgesetz)guarantees the "lawful judge" (gesetzlicher Richter), the legislatoris not forbidden to nominate, at his discretion, the body competent totake decisions. The prescript of Article 6 of the Convention, to wit:"In the determination of his civil rights and obligations or of anycriminal charge against him, everyone is entitled to a fair and publichearing within a reasonable time by an independent and impartialtribunal established by law", hence does not form a provision ofAustrian municipal law. It cannot therefore be invoked as grounds foran appeal to the Constitutional or the Administrative Court.This means that once the decision of the second administrative instance(the Federal Ministry of Finance) has been taken, the domestic remediesmust be considered exhausted in the present case. Since the decisionin question was rendered on 10th June, 1963, the present Applicationwas lodged within the time-limit prescribed by Article 26 of theConvention.The Applicant company alleges a violation of Article 6 of theConvention.II. With regard to the legislation in question, the Applicant companyobserves that the property changes ("Aryanisations") effected duringthe period of the National Socialist tyranny resulted in Austria, asin other European States, in subsequent "restitution laws", theprinciples of the General Civil Code (allgemeines bürgerlichesGesetzbuch) being regarded as inadequate to render null and void suchproperty transfers. The first enactment was the merely declaratoryNullity Act of 1946 - Federal Gazette (Bundesgesetzblatt) No. 106/1946-, which established the principle of the nullity of all acts ofseizure. It was followed, in stages, by the seven Restitution Acts, ofwhich the first three are of special importance.The First Restitution Act was published on 26th July, 1946 (FederalGazette No. 156/1946). It deals with the restitution of seizedproperties which are under the administration of the Federation or theFederal Länder. This Act appeared first because its purpose was theeasiest to determine. With regard to the properties involved, there wasno need to await the registrations ordered under the Act of 10th May,1945 - State Gazette (Staatsgesetzblatt) No. 10/1945 -, because thedetails were clearly apparent from the administrative files of theFederation or Länder. The only properties affected were such as hadeither automatically lapsed to the German Reich by virtue of laws likethe 11th Ordinance issued under the Reich Citizenship Act(Reichsbürgergesetz), or had fallen with its possession by virtue ofa confiscation decision. In the following year, on 6th February, 1947,the Second and Third Restitution Acts were promulgated. The Second Act(Federal Gazette No. 53/1947) deals with the restitution of seizedproperties which are in the ownership of the Austrian Republic, i.e.with properties which were first seized (Aryanized) and thenautomatically fell into the ownership of the Republic. The Applicantcompany's claim for the restitution of the shares of theÖsterreichische Volksfürsorge was submitted under the terms of thisAct. The latter, too, stipulates that the restitution authority is inthe first instance the Land Directorate of Finance and in the secondinstance the Federal Ministry of Finance. On 6th February, 1947, alsothe Third Restitution Act (Federal Gazette No. 54/1947) was published.This contains the most comprehensive settlement and deals with allseizures of material assets not falling under the provisions of thefirst two Acts. According to Article 1, paragraph (1), of the ThirdRestitution Act, the provisions of this Act are also applicable torestitution claims under the First or Second Act, in so far as thelatter do not otherwise provide.III. According to Article 1, paragraph (2), of the Third RestitutionAct, Article 3, paragraph (1), of the same Act also applies to claimsunder the Second Act. Article 3, paragraph (1), reads as follows:"Seizures of property (Article 1, paragraph (1)), shall be null andvoid. Unless this Act otherwise provides, the provisions of civil law,in particular those concerning the nullity of contracts on the groundof unjust and well-founded apprehension (ungerechter und begründeterFurcht) shall be applied."This passage is a significant pointer to the nature of a claim forrestitution. It explicitly refers to the provisions of general civillaw: the provisions concerning nullity of contracts on the ground ofunjust and well-founded apprehension are to be found in Articles 870and 877 of the General Civil Code. The consequences of the nullity ofcontracts concluded under duress are exhaustively set forth therein.These provisions are expressly repeated in Article 3, paragraph (1),second sentence, of the Third Restitution Act for the field it covers,in so far as the Act itself does not stipulate some other measure.Since under the General Civil Code the nullity of contracts is governedby differing provisions in respect of each cause of nullity, it isstipulated that the existing provisions of Articles 870 and 874 to 877of the Code - which refer to the closely related form of nullity ongrounds of unjust and well-founded apprehension - are applicable tonullity resulting from restitution legislation (on the newly-specifiedground of "seizure").In the prevailing view the nullity of an act of seizure(Entziehungsakt) should be assessed not as absolute but only asrelative nullity (defeasibility). The Supreme Court has thereforeexpressly ruled that a restitution judgment does not have declaratorybut constituent effect and that it is consequently in the discretionof the parties to appeal for nullification or not. A claim forrestitution is regarded as conditio within the meaning of Article 877of the General Civil Code. Thus such a claim is not based on theproperty rights of the injured party, but on the fact of havingreceived some illegal benefit. The Supreme Restitution Commission(Oberste Rückstellungskommission) states in fact:"Even though a claim for restitution may have the effect of a right inrem, it is primarily, by the terms of Article 3, paragraph (1), of theThird Restitution Act, an obligatory conditio within the meaning ofArticle 877 of the General Civil Code, not presupposing ownership ofthe object furnished."Law writers have established criteria of various kinds for defining theterm "civil right". Sometimes the governing consideration is theinterest protected (individual or collective interest), sometimes itis the relationship of the subjects to one another (equal footing orsuperiority and subordination), or it may well be the existence of theindividual's subjective interest corresponding to the obligation, oragain it may take the form of judicial protection (civil proceedingsor intervention by other authorities, etc.). Seventeen differentcriteria are laid down in the relevant literature. Of the definitionsmentioned above it is the "equal footing" and the "subordination"criteria which are most frequently found.The question of which authorities are granted the right of decisionover disputed claims under the internal legislation of the variousStates is not, however, a serviceable criterion. The view that "civilrights" in the sense of Article 6 of the Convention means only suchrights as are to be decided by the Courts under the internal laws ofa contracting State, whereas rights to be decided by the administrativeauthorities in virtue of a positive legal provision are not civilrights, would render Article 6 meaningless. It would then be left tothe discretion of each contracting State to get round Article 6 bygranting the power of decision, not to an impartial and independenttribunal, but to an administrative authority, bound by instructions.The concept of "civil rights" in Article 6 must therefore be understoodas a concept of material law.Reference is made in this respect to the Isop case (Application No.808/60), where the Commission held that "the question whether a rightor an obligation is of a civil nature within Article 6, paragraph (1),of the Convention does not depend on the particular procedureprescribed by domestic law for its determination but solely on anappreciation of the claim itself and of the purpose of the complaint"(Yearbook of the European Convention on Human Rights, Volume 5, page108 [122]).There is no need to enter into a discussion of the various definitionsevolved by the law writers. It is sufficient that a right should existunder the domestic law of the country in which the appeal is lodged -a right approximating to the rights customarily considered in thatcountry as belonging to the category of "civil rights". Notwithstandingall differences of opinion about the criterion serving to distinguishbetween rights, there is far-reaching agreement on the actualclassification of rights which are part of civil law (or private law)on the one hand or of public law (sovereign law, administrative law)on the other. All those rights which are provided for in the GeneralCivil Code are regarded as civil rights in accordance with unanimousAustrian doctrine and jurisprudence. This is expressly stated inArticle 1 of the General Civil Code. As shown above, restitution claimsare conceived on the model of claims submitted under Article 877 of theGeneral Civil Code. They are rights of conditio under civil law. Apartfrom the condition laid down in the Restitution Acts as to theirorigin, they do not differ from rights claimed under the General CivilCode. They govern the relations of subjects of law on an equal footing(see Article 1 of the General Civil Code: "The private rights andobligations of the inhabitants of the State among themselves") and theyare placed in the discretion of the parties.If the nature of restitution rights is thus analyzed according to theirinherent characteristics, it will be seen that they are among therights listed in the General Civil Code. The relevant clauses compriserights which are generally regarded in Austria as "civil rights".Accordingly, the Austrian Constitutional Court has held that claims forrestitution under all existing restitution laws are to be consideredas civil claims (Decision G 2/52-Slg. 2313). Restitution rights aretherefore sufficiently clearly defined to include them under Article6 of the Convention.IV. Although, under both the Second and the Third Restitution Acts,restitution rights are civil rights, the means of asserting them areregulated in an entirely different way.From the standpoint of material law the second Restitution Act bestowsmerely a right to restitution of property which is still existing inthe ownership of the Republic of Austria. Article 5 of the Second Actexcludes any claim for compensation against the Republic or makes suchclaim subject to special legislation. The Third Restitution Act, on theother hand, grants the injured proprietor, in addition to restitutionof the property seized, the right to claim compensation for the damagedone.The differences are more significant when one turns to the aspect offormal law. Here the divergent treatment rests on purely practicalconsideration. Whereas under the Third Act claims are to be heard bythe Courts, i.e. by the Restitution Commissions functioning as specialcourts attached to the Regional Courts, jurisdiction over claimssubmitted under the Second Act is awarded to the administrativeauthorities of the Republic. In the explanatory memorandum by thecompetent Committee of the Nationalrat, this ruling is justified asfollows:[/align]