EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 23962/94

Marie- Luise Beer

against

Austria

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

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. 16-25)              3

A. The particular circumstances of the case

(paras. 16-21)              3

B. Relevant domestic law

(paras. 22 -25)              3

III. OPINION OF THE COMMISSION

(paras. 26-45)              5

A. Complaint declared admissible

(para. 26) 5

B. Point at issue

(para. 27) 5

C. Article 6 para. 1 of the Convention

(paras. 28-44)              5

a. Applicability of Article 6

(para. 28-29) 5

b. The Austrian reservation to Article 6

(paras. 30-38)              5

c. The absence of a public hearing

(paras. 39-44)              7

CONCLUSION

(para. 45) 8

APPENDIX I: PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 9

APPENDIX II:FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION 14

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 a German citizen, born in 1947 and residing in Kirchdorf (Tyrol).  She was represented before the Commission by Mr A. Feichtner , a lawyer practising in Kitzbühel (Tyrol).

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 the real property transaction authorities.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 2 March 1994 and registered on 25 April 1994.

6. On 12 April 1996 the Commission (Second 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 relating to the lack of a public hearing in the proceedings before the real property transaction authorities.  It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 17 July 1996, after an extension of the time-limit fixed for this purpose.  The applicant replied on 4 October 1996.

8. On 2 July 1997 the Commission declared admissible the applicant's remaining complaint.

9. The text of the Commission's final decision on admissibility was sent to the parties on 15 July 1997 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 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.

C. The present Report

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

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 14 January 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to 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 is annexed hereto.

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 16 July 1991 the applicant concluded a sales contract for a parcel of land situated in Kirchdorf .

17. On 23 July 1991 she requested the local Real Property Transaction Authority ( Grundverkehrsbehörde ) for Kirchdorf   to approve the above sales contract.

18. On 31 March 1992 the local Authority, without having held a hearing, refused the applicant's request.  It found that the transaction ran counter to the public interest as defined in Section 4 para. 2 of the Real Property Transaction Act ( Grundverkehrsgesetz ) as the applicant had the intention to purchase a holiday residence while the land at issue was particularly suited for satisfying the need for housing of the local population.

19. On 17 September 1992 the Regional Real Property Transaction Authority ( Landesgrundverkehrsbehörde ) dismissed the applicant's appeal without a hearing.  It found that the transaction ran counter to the public interest as in view of the high percentage of foreign land owners in Kirchdorf the danger of foreign domination ( Überfremdung ) existed.  Furthermore, the applicant had only her secondary residence in Kirchdorf and was staying there during weekends so that she merely had the intention to acquire a holiday residence.

20. On 24 November 1992 the applicant introduced a complaint to the Constitutional Court ( Verfassungsgerichtshof ).  She complained that the real property transaction authorities could not be considered as tribunals within the meaning of Article 6 para. 1 of the Convention, and that no oral hearing had been held in the proceedings on her request.  Furthermore, the fact that she could not acquire the land at issue violated her right to property under Article 1 of Protocol No. 1.

21. On 21 June 1993 the Constitutional Court dismissed the applicant's complaint.  Referring to its previous case-law, it found that the organisation of the real property transaction authorities in the Tyrol was in accordance with constitutional law.  Moreover, the proceedings at issue did not violate her right to property.  This decision was served on the applicant on 6 September 1993.

B. Relevant domestic law

22. Under the Tyrolean Real Property Transaction Act ( Grundverkehrs-gesetz ), as in force at the relevant time, a sales contract concerning 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).  A sales contract could only take effect if it was approved by the real property transaction authorities (Sections 3 and 16).  The purchaser of land was obliged to seek approval within two months of the approval of the contract (Section 15 para. 1).  No entry could be made in the land register (by which property is acquired) until the transaction had been approved by the competent authority (Section 1 para. 3).  If approval was withheld, the acquisition was null and void (Section 16 para. 1).

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

24. Section 40 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.

(2) The authority must ensure that an inspection of the location is not abused for the discovery of a professional secret."

[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 .

(2) Die Behörde hat darüber zu wachen , daß die Vornahme eines Augenscheins nicht zur Verletzung eines Kunst -, Betriebs - oder Geschäftsgeheimnisses mißbraucht wird ."

25. 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

26. The Commission has declared admissible the applicant's complaint that in the real property transaction authorities did not hold a public hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.

B. Point at issue

27. The only point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

a. Applicability of Article 6 (Art. 6)

28. Article 6 para. 1 (Art. 6-1) of the Convention provides:

"1. In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

29. Article 6 (Art. 6) is applicable to real property transaction 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) and this is undisputed between the parties.

b. The Austrian reservation to Article 6 (Art. 6)

30. The applicant complains that the real property transaction authorities did not hold a public hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.  In her view the Commission is not prevented by the Austrian reservation to Article 6 (Art. 6) of the Convention from examining this complaint.  The reservation was not in conformity with Article 64 (Art. 64) of the Convention as it did not contain a brief statement of the law concerned.  Moreover, the reservation did not apply to the proceedings at issue as it only related to civil and criminal proceedings before the ordinary courts and not to administrative proceedings.

31. The Government consider that the applicant's complaint regarding the lack of a public hearing in the real property transaction proceedings is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention which provides as follows:

"The provisions of Article 6 (Art. 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."

32. The Government submit that the Austrian reservation is in accordance with Article 64 (Art. 64) of the Convention.  The reservation is sufficiently specific for the purpose of Article 64 (Art. 64) of the Convention.  As regards the requirement of the "brief statement of the law" the reservation outlines the contents of Article 90 of the Federal Constitution, i.e. the constitutional provision referred to.

33. According to the Government Article 90 of the Federal Constitution only relates to public hearings in civil and criminal cases before a court of law.  However, it must be assumed that this provision also extended to proceedings which under domestic law would qualify as administrative ones provided that they fell under Article 6 (Art. 6) of the Convention.  In the Government's opinion any other interpretation would be inconsistent because it would mean that exemptions from the principle of publicity would be allowed in civil and criminal cases dealt with in ordinary courts while in respect of matters which only in the light of an evolutive interpretation of the term "civil rights" are covered by Article 6 (Art. 6) of the Convention stricter publicity requirements would prevail.

34. Article 90 of the 1929 version of the Federal Constitution reads as follows:

"Hearings in civil and criminal cases before the trial court shall be oral and public.  Exceptions may be prescribed by law."

35. Article 64 (Art. 64) of the Convention reads as follows:

"1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision.  Reservations of a general character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain a brief statement of the law concerned."

36. The Commission recalls that the European Court of Human Rights has considered the question of the compatibility of declarations and reservations with Article 64 (Art. 64) of the Convention on several occasions (see, for example, Eur. Court HR, Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132; Weber v. Switzerland judgment of 22 May 1990, Series A no. 177; Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B; Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C).  The Court has held that Article 64 para. 1 (Art. 64-1) of the Convention requires "precision and clarity" and that the requirement set forth in Article 64 para. 2 (Art. 64-2) that a reservation shall contain a brief statement of the law concerned is not a "purely formal requirement but a condition of substance "which" constitutes an evidential factor and contributes to legal certainty" ( Belilos v. Switzerland judgment, op. cit., paras. 55 and 59).

37. In the case of Stallinger and Kuso the Commission, when examining the validity of the Austrian reservation under Article 64 (Art. 64) of the Convention, has found as follows:

"In this respect the Commission notes that the reservation at issue does not contain a "brief statement" of the law which is said not to conform to Article 6 (Art. 6) of the Convention. From the wording of the reservation it might be inferred that Austria intended to exclude from the scope of Article 6 (Art. 6) all proceedings in civil and criminal matters before ordinary courts insofar as particular laws allowed for non-public hearings. However, a reservation which merely refers to a permissive, non exhaustive, provision of the Constitution and which does not refer to, or mention, those specific provisions of the Austrian legal order which exclude public hearings, does not "afford to a sufficient degree 'a guarantee ... that [it] does not go beyond the provision expressly excluded' by Austria" (see Gradinger judgment, para. 51, Chorherr judgment, para. 20). Accordingly, the reservation  does not satisfy the requirements of Article 64 para. 2 (Art. 64-2) of the Convention.  In such circumstances the Commission finds that there is no need also to examine whether the other requirements of Article 64 (Art. 64) were complied with" ( Stallinger and Kuso v. Austria, Comm. Report 7.12.95, para. 61; see also Werner v. Austria and Szücs v. Austria, Comm. Reports, 3.9.96, para. 49 and para. 53 respectively).

38. The Commission therefore considers that the Austrian reservation cannot prevent it from examining the complaint at issue.

c. The absence of a public hearing

39. Neither the local Real Property Transaction Authority nor the Regional Real Property Transaction Authority held a public hearing in the proceedings on the applicant's request.  The Commission must therefore examine whether the lack of a public hearing before these authorities was compatible with Article 6 para. 1 (Art. 6-1) of the Convention in the present case.

40. The applicant acknowledges that she did not ask for an oral hearing to be held before the Regional Real Property Transaction Authority.  She submits, however, that the mere failure to request an oral hearing could not be considered to be a waiver of her right to a public hearing as the Regional Authority regularly holds oral hearings.  In any event, such a hearing would have been one in camera and therefore not a public hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.

41. The Government submit that the applicant has waived her right to a public hearing because she had not requested an oral hearing before the administrative authorities.  They acknowledge, however, that the General Administrative Procedure Act neither provides for public hearings to be held nor for a right to request public hearings.

42. The Commission finds that the applicant was in principle entitled to a public hearing under Article 6 para. 1 (Art. 6-1) as none of the exceptions laid down therein applied to her case (cf. Eur. Court HR, HÃ¥kansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171, p. 20, para. 64).

43. The Commission observes that the applicant did not expressly ask for a hearing to be held.  In the Government's view she must therefore be deemed to have waived her right to such a hearing.  However, the Commission shares the applicant's opinion that, since the relevant provisions of the General Administrative Procedure Act which applied to the proceedings at issue did not provide for a public hearing, she could not be deemed to have waived this right.  The Government themselves acknowledge that the General Administrative Procedure Act does not provide for public hearings.  In this respect, the Commission recalls that the question of whether or not an applicant has requested a public hearing becomes irrelevant for examining compliance with Article 6 para. 1 (Art. 6-1) 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). 

44. The Commission concludes that there were no exceptional circumstances which could justify the absence of a public hearing.  The failure of the Real Property Transaction Authorities to hold such hearings in the applicant's case therefore amounted to a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

45. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

   M.-T. SCHOEPFER                             J.-C. GEUS

      Secretary                                 President

to the Second Chamber                 of the Second Chamber