Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29544/95

by Helmut ENTLEITNER

against Austria

The European Commission of Human Rights (First Chamber) sitting

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

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 27 September 1995

by Helmut ENTLEITNER against Austria and registered on 14 December 1995

under file No. 29544/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1943. He lives in

Piesendorf, and is represented before the Commission by Mr. E. Proksch,

a lawyer practising in Vienna. The facts of the case, as submitted by

the applicant, may be summarised as follows.

The particular circumstances of the case

On 12 June 1991, the applicant applied to the Salzburg District

Agricultural Authority (Agrarbezirksbehörde, the "District Authority")

for declarations (1) that the share in an agricultural association

(Agrargemeinschaft) represented by a certain parcel of land ("the

share") belonged to him, and (2) that grazing rights in that parcel

("the grazing rights") also belonged to him. On 24 June 1991, the

District Authority found that the applicant had not made out his

claims, and it declared that the share and the grazing rights belonged

to a third person. The applicant appealed to the Regional Agricultural

Authority (Agrarlandesbehörde, the "Regional Authority").

The Regional Authority dismissed the applicant's appeal on 8 May

1992. After an oral hearing, it found, so far as relevant, that the

share had passed with a transfer of the land to a third party in 1949

(as rectified in 1952). The question of the grazing rights had to be

determined by reference to the ownership of the land on 29 April 1868,

as that was the last time they were mentioned. In the absence of any

express alienation of the grazing rights since then, the grazing rights

passed with the land - that is, the applicant did not own them.

The Constitutional Court (Verfassungsgerichtshof) declined to

deal with the applicant's constitutional complaint on 14 October 1992.

It remitted the case to the Administrative Court (Verwaltungs-

gerichtshof).

The Administrative Court dismissed the applicant's administrative

complaint on 14 March 1995 (judgment received by the applicant's

representative on 31 March 1995). In its 29 page judgment, the

Administrative Court confirmed the relevant parts of the Regional

Authority's decision. It declined to hold the hearing the applicant

had requested.

Relevant domestic law

A summary of the rules concerning the composition of and

procedure before Regional Agricultural Authorities, and hearings before

the Administrative Court may be found in the judgment of the European

Court of Human Rights in the case of Kuso and Stallinger (Eur. Court

HR, Kuso and Stallinger judgment of 23 April 1997, Reports 1997-II,

No. 35). In that case, Regional Agricultural Authorities were referred

to as the Regional Land Reform Boards.

COMPLAINTS

The applicant alleges a violation of Article 6 para. 1 of the

Convention and of Article 1 of Protocol No. 1 to the Convention. Under

Article 6, he claims that the civil servants who participated in the

Regional Agricultural Authority also act as experts, and that the

Authority cannot therefore be an independent tribunal within the

meaning of Article 6. He also claims that the subsequent review by the

Constitutional and Administrative Courts cannot remedy these flaws, as

these courts merely have power to quash decisions, and cannot take

decisions on the merits on their own.

He also claims that the absence of an oral, public hearing before

any of the bodies which considered the case violated Article 6.

In connection with Article 1 of Protocol No. 1, the applicant

claims that the Agricultural Authorities, the Constitutional Court and

the Administrative Court deprived him of his possessions without any

legislative competence to do so, and moreover did so without any

compensation. He adds that the transfer on which the agricultural

authorities based their decisions did not include the share.

THE LAW

1. The applicant alleges a violation of Article 1 of Protocol No. 1

(P1-1) to the Convention, which provides as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission must first establish whether the applicant owned

any "possessions" within the meaning of Article 1 of Protocol No. 1

(P1-1). Only if there are such "possessions" need it determine whether

any interference with the right to peaceful enjoyment of those

possessions was compatible with the provision. In assessing whether

there was a "possession", the Commission will have regard to the

position in domestic law (see Eur. Court HR, Tre Traktörer AB v. Sweden

judgment of 7 July 1989, Series A no. 159, p. 21, para. 53, and Pressos

Compania Naviera SA and others v. Belgium judgment of 20 November 1995,

Series A no. 332, p. 21, para. 31).

The aim of the proceedings in the present case was to determine

whether the applicant did, or did not, own the share and the grazing

rights. All the bodies which examined the question in detail - that

is, the District Authority, the Regional Authority and the

Administrative Court - came to the conclusion that the applicant did

not own them, as they had passed with previous transfers of the land.

In domestic law, therefore, the applicant had no possessions, and it

is not for the Commission to substitute its opinion of domestic law for

that of the domestic authorities.

The Commission concludes that the proceedings in the present case

did not affect the applicant's peaceful enjoyment of his "possessions".

The applicant's entitlement under domestic law was to a determination

of the question of whether the share and the rights belonged to him,

and that determination was duly undertaken, even if the outcome was

unsuccessful from the applicant's point of view.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges a violation of Article 6 (Art. 6) of

the Convention, which provides, so far as relevant, as follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal

established by law. ..."

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

For these reasons, the Commission

DECIDES TO ADJOURN the examination of the applicant's

complaint that the proceedings in the case did not comply

with Article 6 of the Convention,

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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ENTLEITNER v. AUSTRIA

ENTLEITNER v. AUSTRIA

LEXI