Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23962/94

by Marie-Luise BEER

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, 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 2 March 1994 by

Marie-Luise BEER against Austria and registered on 25 April 1994 under

file No. 23962/94;

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

17 July 1996 and the observations in reply submitted by the

applicant on 4 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1947 and residing in

Kirchdorf (Tyrol). Before the Commission she is represented by Mr. A.

Feichtner, a lawyer practising in Kitzbühel (Tyrol).

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

A. Particular circumstances of the case

On 16 July 1991 the applicant concluded a sales contract for a

parcel of land situated in Kirchdorf.

On 23 July 1991 she requested the local Real Property Transaction

Authority for Kirchdorf (Grundverkehrsbehörde) to approve the above

sales contract.

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.

On 15 April 1992 the applicant appealed.

On 17 September 1992 the Regional Authority 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.

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.

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

1. 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).

2. The procedure before the real property transaction authorities

is governed by the General Administrative Procedure Act 1950

(Allgemeines Verwaltungsverfahrensgesetz).

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."

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).

COMPLAINTS

The applicant's remaining complaint under Article 6 para. 1 of

the Convention concerns the lack of a public hearing in the proceedings

before the real property transaction authorities.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 March 1994 and registered on

25 April 1994.

On 12 April 1996 the Commission decided to communicate the

applicant's complaint concerning the lack of a public hearing to the

respondent Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on

17 July 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 4 October 1996.

THE LAW

The applicant complains that in the proceedings at issue the real

property transaction authorities did not hold a public hearing as

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

Article 6 para. 1 (Art. 6-1) 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 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 provision 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."

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.

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.

The Government further submit that the applicant has waived his

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.

The applicant contests this view.

After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this complaint cannot be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE THE REMAINDER OF THE APPLICATION, without

prejudging the merits.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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BEER v. AUSTRIA

BEER v. AUSTRIA

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