EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 29477/95

Herbert Eisenstecken

against

Austria

REPORT OF THE COMMISSION

(adopted on 8 September 1999)

I. INTRODUCTION

(paras. 1-15) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-10) .................................................... 1

C. The present Report

(paras. 11-15) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-28) ....................................................... 3

A. The particular circumstances of the case

(paras. 16-23) .................................................. 3

B. Relevant domestic law

(paras. 24-28) .................................................. 3

III. OPINION OF THE COMMISSION

(paras. 29-41) ....................................................... 5

A. Complaint declared admissible

(para. 29) ...................................................... 5

B. Point at issue

(para. 30) ...................................................... 5

C. As regards Article 6 para. 1 of the Convention

(paras. 31-40) .................................................. 5

a. Applicability of Article 6

(paras. 31-32) ....................................................... 5

b. The Austrian reservation to Article 6

(paras. 33-34) ....................................................... 5

Page

c. Compliance with Article 6

(paras. 35-40) ....................................................... 6

CONCLUSION

(para. 41) ...................................................... 7

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ............... 8

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ............ 17

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is an Italian citizen, born in 1961 and resident in Varna / Vahrn .  He was represented before the Commission by Mr. J. Posch and Mrs. E. Posch , both lawyers practising in Innsbruck.

3 . The application is directed against Austria.  The respondent Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

4 . The case concerns the lack of a public hearing in the proceedings before Real Property Transactions Authorities.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5 . The application was introduced on 19 September 1995 and registered on 6 December 1995.

6 . On 10 April 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint concerning the lack of a hearing before the Real Property Transactions Commission.  It declared the remainder of the application inadmissible.

7 . The Government's observations were submitted on 21 July 1997.  The applicant replied on 23 September 1997.

8. On 22 October 1998 the Commission declared the remaining complaint admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 30 October 1998 and they were invited to submit such further information or observations on the merits as they wished.  No further observations were submitted.

10. After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected. Pursuant to the entry into force of Protocol No. 11 of the Convention, the application was transferred to the Commission sitting in Plenary.

C. The present Report

11. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

B. CONFORTI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI Č

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 8 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16.              On 7 March 1985 the applicant concluded with E. a contract for property to vest in a third person on the owner's death ( Ãœbergabevertrag auf den Todesfall ) under which the applicant should receive the farming estate of E. situated in Mils after the latter's death.

17.              On 15 December 1992, after the death of E., the applicant filed a request with the local Real Property Transactions Authority for Mils ( Grundverkehrsbehörde ) at the office of the Innsbruck District Administration ( Bezirkshauptmannschaft ) for the approval of the above contract and submitted that he intended to exploit the land himself.              On 23 July 1993 the Real Property Transactions Authority approved the contract concluded with E.

18.              On 2 August 1993 the Real Estate Transactions Officer ( Landesgrundverkehrsreferent ) at the Office of the Regional Government ( Amt der Landesregierung ) for the Tyrol exercised his right of appeal to the Regional Real Property Transactions Authority ( Landesgrundverkehrsbehörde ).              On 10 August 1993 the administrator of the deceased's estate also appealed.

19.              On 14 October 1993 the applicant requested an oral hearing.  On 2 December 1993 the Regional Real Property Transactions Authority held an oral hearing.

20. On 7 July 1993 a new Tyrolean Real Property Transactions Act was adopted, which entered into force on 1 January 1994.  According to this Act the name and composition of the Regional Real Property Transactions Authority were changed.

21.              On 28 February 1994 the newly established Real Property Transactions Commission ( Landes-Grundverkehrskommission ) granted the appeal of the Real Estate Transactions Officer and refused to approve the contract with E.  As regards the appeal of the administrator of the deceased's estate the Real Property Transactions Commission found that he lacked legal standing.

22.              On 13 April 1994 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ).  He complained inter alia that the Regional Real Property Transactions Commission had adopted its decision without offering him the possibility to present his arguments in the course of an oral hearing before this body.

23.              On 27 February 1995 the Constitutional Court dismissed the applicant's complaint.  Referring to its own case-law the Court found that an oral hearing was in the present case not obligatory.

B. Relevant domestic law

24. Under the Tyrolean Real Property Transactions Act of 1983 ( Grundverkehrsgesetz ), a contract concerning the transfer of ownership of real property was subject to approval by the real property transaction authorities if agricultural and forestry land was concerned or if the purchaser did not possess Austrian nationality (Sections 1 and 3).  If approval was withheld, the acquisition was null and void (Section 16 para. 1).

25.              On 1 January 1994 a new Real Property Transactions Act (of 1993) entered into force.  According to the 1983 Act the authority of second and final instance was the Regional Real Property Transactions Authority ( Landesgrundverkehrsbehörde ).  In the 1993 Act the Regional Real Property Authority is replaced by the Regional Real Property Transactions Commission ( Landes-Grundverkehrskommission ).

26.              The procedure before the real property transactions authorities is governed by the General Administrative Procedure Act 1950 ( Allgemeines Verwaltungsverfahrensgesetz ).

27.              Section 40 para. 1 of the General Administrative Procedure Act deals with oral hearings and provides as follows:

[Translation]

             "(1) Oral hearings shall be held in the presence of all known parties and the necessary witnesses and experts.  If oral hearings have to be combined with an inspection of the location, they should, if possible, be held there or otherwise at the seat of the authority or another location which in the circumstances appears most suitable.”

[German]

"(1) Mündliche Verhandlungen sind unter Zuziehung aller bekannten Beteiligten sowie der erforderlichen Zeugen und Sachverständigen vorzunehmen und , sofern sie mit einem Augenschein verbunden sind , womöglich an Ort und Stelle , sonst am Sitz der Behörde oder an dem Ort abzuhalten , der nach der Sachlage am zweckmäßigsten erscheint .”

28.              It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise as it is commonly understood that the principle of publicity does not extend to administrative proceedings (see WALTER/MAYER, Grundriss des österreichischen Verwaltungsverfahrensrechts , sixth edition, Vienna 1995, pp. 114-115).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

29. The Commission has declared admissible the applicant’s complaint that in the real property transactions proceedings the authorities did not hold a public hearing as required by Article 6 para. 1 of the Convention

B. Point at issue

30. The only point at issue is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

a. Applicability of Article 6

31.              Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."

32.              Article 6 is applicable to real property transactions proceedings (see Eur. Court HR, Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 39, para. 94; Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 17, para. 34). This is undisputed by the parties.

b. The Austrian reservation to Article 6

33.              The Austrian reservation to Article 6 of the Convention reads as follows:

“The provisions of Article 6 of the Convention shall be so applied that there shall be no prejudice to the principles governing public court hearings laid down in Article 90 of the 1929 version of the Federal Constitutional Law.”

34.              The Commission recalls that it found in previous cases that the reservation was not valid as it did not comply with the criteria set out in Article 64 of the Convention (see Stallinger and Kuso v. Austria, Comm. Report 7.12.95, para. 61, Reports of Judgments and Decisions 1997-II, pp. 687-688; Szücs v. Austria and Werner v. Austria, Comm. Reports 3.9.96, para. 53 and para. 49 respectively, Reports 1997-VII, p. 2490 and p. 2523 respectively; Beer v. Austria, Comm. Report 14.1.98, para. 37).  However, in their observations the Government do not rely on this reservation.  The Commission therefore finds that it need not examine whether the complaint is covered by the relevant reservation and it is unnecessary for the Commission to consider it of its own motion ( mutatis mutandis Eur. Court HR, Szücs v. Austria judgment of 24 November 1997, Reports 1997-VII, p. 2480, para. 40).

c. Compliance with Article 6

35. The local Real Property Transactions Authority granted the applicant's request without a hearing.  In the appeal proceedings the applicant requested an oral hearing and the Regional Real Property Transactions Authority, on 2 December 1993, held a hearing in camera, as provided for in Section 40 of the General Administrative Procedure Act. The applicant was present at that hearing. Subsequently the newly established Real Property Transactions Commission became competent to decide the case and it did so on 28 February 1994 without an oral hearing on the basis of the file.  Since neither the local authority nor the appeal authorities held a public hearing in the proceedings on the applicant’s request, the Commission must examine whether the lack of a public hearing before these authorities was compatible with Article 6 para. 1 of the Convention in the present case.

36.              The applicant complains that no public hearing as required by Article 6 para. 1 of the Convention was ever held in his case.

37. The Government submit that the applicant waived his right to an oral hearing because, after the 1993 Real Property Transactions Act had entered into force, he had not expressly requested a (further) hearing before the Real Property Transactions Commission. On 14 October 1993 he had asked for an oral hearing and accordingly such a hearing had been held before the Real Property Transactions Authority.

38. The Commission finds that the applicant was in principle entitled to a hearing under Article 6 para. 1 as none of the exemptions laid down therein applied to his case (cf. Eur. Court HR, Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171, p. 20, para. 64).  However, no hearing was held, as a hearing held earlier before a body which can no longer determine a case is not one which can possibly satisfy the requirements of Article 6 para. 1.

39. In the Commission’s view it is irrelevant whether or not the applicant requested an oral hearing in the appeal proceedings because oral hearings under Section 40 para. 1 of the General Administrative Procedure Act are, in any event, not public. In this respect, the Commission recalls that the question whether or not an applicant has requested a public hearing becomes irrelevant for the purpose of examining compliance with Article 6 para. 1 of the Convention when the respective domestic law excludes the holding of public hearings (see Eur. Court HR, Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 14, para. 31; No. 23962/94, Beer v. Austria, Comm. Report 14.1.98, para. 42).

40.              The Commission concludes that there were no exceptional circumstances, which would justify the absence of a public hearing.  The failure of the Real Property Transactions Authorities to hold such a hearing in the applicant’s case therefore amounted to a violation of Article 6 para. 1 of the Convention.

CONCLUSION

41. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.