AS TO THE ADMISSIBILITY OF

Application No. 29477/95

by Herbert EISENSTECKEN

against Austria

The European Commission of Human Rights (First Chamber) sitting in private on 22 October 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 September 1995 by Herbert EISENSTECKEN against Austria and registered on 6 December 1995 under file No. 29477/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 21 July 1997 and the observations in reply submitted by the applicant on 23 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1961, is an Italian national, residing in Vahrn , Italy.  Before the Commission he is represented by Mr. J. Posch and Mrs. E. Posch , both lawyers practising in Innsbruck.

The facts as submitted by the parties may be summarised as follows.

A. Particular circumstances of the case

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.

On 15 December 1992, after the death of E., the applicant filed a request with the local Real Property Transactions Authority for Mils ( Grundverkehrsbehörde Mils) 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.

On 2 August 1993 the Real Estate Transactions Officer ( Landesgrundverkehrs -referent) at the Office of the Regional Government for the Tyrol ( Amt der Landesregierung ) exercised his right of appeal to the Regional Real Property Transactions Authority ( Landesgrund-verkehrsbehörde ).

On 10 August 1993 also the administrator of the deceased's estate appealed.

On 1 September 1993 the applicant commented on the appeals.

On 28 September 1993 the Regional Real Property Transactions Authority established a report on an inspection of the land in question.

On 14 October 1993 the applicant approved this report and requested an oral hearing.  On 2 December 1993 the Regional Real Property Transactions Authority held an oral hearing.

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

On 28 February 1994 the new 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.

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 has decided without offering him the possibility to present his arguments in the course of an oral hearing before this body.

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

1. Under the Tyrolean Real Property Transactions Act of 1983 ( Grundverkehrsgesetz ), a contract concerning the transfer of ownership over 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).

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

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

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 .

COMPLAINTS

The applicant's remaining complaint under Article 6 para. 1 of the Convention concerns the lack of an oral and public hearing before the Regional Real Property Transactions Commission.

PROCEEDINGS BEFORE THE COMMISSION

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

On 10 April 1997 the Commission decided to communicate the applicant's complaint concerning the lack of a hearing before the Real Property Transaction Commission and to declare the remainder of the application inadmissible.

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

THE LAW

The applicant complains under Article 6 para. 1 of the Convention about the lack of an oral and public hearing before the Regional Real Property Transactions Commission.

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."

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 Transaction Commission. On 14 October 1993 he had asked for an oral hearing and such a hearing had been held before the Real Property Transactions Authority.

This is disputed by the applicant.  He submits that in the appeal proceedings he made an explicit request for an oral hearing and the Real Property Transactions Commission, which finally dealt with the appeals, should only have done so after an oral hearing.

The Commission considers, in the light of the parties' submissions, that the remaining complaint raises issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits.  The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 of the Convention.  No other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the remainder of the application.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary           President

          to the First Chamber                of the First Chamber