PROCEDURE

The case originated in an application (no. 38663/06) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Austrian nationals, Ms Nadine Mladoschovitz and Ms Jeanine Mladoschovitz (“the applicants”), both represented by their mother Elke Mladoschovitz, on 14 September 2006.

The applicants were represented by Mr R. Gabl, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The applicants alleged a violation of Article 6 of the Convention in proceedings concerning the enforcement of their claims for maintenance against their father.

On 23 October 2008 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1998 and 2002 respectively and live in Linz.

The applicants have a maintenance claim against their father Mr W (“the debtor”). Apparently the debtor fell into arrears with maintenance payments (Unterhaltsrückstand) amounting to the sum of EUR 3,006. The applicants applied for enforcement of their payment orders to the competent District Court (Bezirksgericht) in Enns. The enforcement order (Exekutionsbewilligung) provided for the sale of the debtor's movable property (Fahrnisexekution) and granted the applicants a lien on outstanding claims which the debtor held against his own debtors (Forderungsexekution).

On 21 July 2006 the debtor lodged an action under Section 35 of the Enforcement Act (Oppositionsklage) to have the claim underlying the enforcement order dismissed and also applied to postpone enforcement (Aufschiebung der Exekution) until a decision on his action had been reached. In support of his case to have the enforcement order set aside, the debtor stated that during the period of time in which he had not made maintenance payments, the applicants had been living with him and he had paid all their living expenses.

In support of his application to postpone enforcement regarding the sale of movable property, the debtor claimed he would risk losing his property rights over the objects seized for enforcement. He also argued that if a lien against outstanding claims from his own debtors was enforced, the recovery of the money from the applicants, who did not have any funds, would be nearly impossible if the enforcement order was, in fact, set aside.

On 27 July 2006 the District Court, without hearing the applicants, allowed the postponement of enforcement by granting the applicants a lien on outstanding claims if a deposit of EUR 3,500 was lodged with the court but the postponement of the sale of the debtor's movable property was not granted. On 2 August 2006 the debtor appealed, claiming that the deposit was too high. The applicants were not notified of the appeal.

The Steyr Regional Court (Landesgericht) quashed the decision, ordering both kinds of enforcement to be postponed until the decision on the action under Section 35 of the Enforcement Act was rendered and re-setting the deposit at EUR 1,000. The applicants were not heard in the proceedings. It held that an appeal on points of law to the Supreme Court was not admissible. The applicants, having lost the case on postponement of the enforcement, were obliged to reimburse legal costs amounting to EUR 305.40 to the debtor.
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CODE
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38663/06
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001-99863_a8_e2
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ORG
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Republic of Austria
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DEM
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Austrian
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PERSON
DIRECT
Ms Nadine Mladoschovitz
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PERSON
QUASI
Ms Jeanine Mladoschovitz
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PERSON
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Elke Mladoschovitz
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DATETIME
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14 September 2006
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PERSON
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Mr R. Gabl
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LOC
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Linz
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ORG
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Austrian Government
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PERSON
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H. Tichy
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ORG
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Federal Ministry for European and International Affairs
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DATETIME
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23 October 2008
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DATETIME
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1998
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DATETIME
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2002
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LOC
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Linz
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PERSON
QUASI
Mr W
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QUANTITY
QUASI
EUR 3,006
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ORG
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District Court
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ORG
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Bezirksgericht
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LOC
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Enns
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DATETIME
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21 July 2006
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DATETIME
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27 July 2006
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ORG
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District Court
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QUANTITY
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EUR 3,500
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DATETIME
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2 August 2006
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ORG
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Steyr Regional Court
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ORG
NO_MASK
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Landesgericht
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QUANTITY
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EUR 1,000
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ORG
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Supreme Court
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QUANTITY
QUASI
EUR 305.40
Nadine Mladoschovitz
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Nadine Mladoschovitz