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 10 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 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 19 September 1995

by Herbert EISENSTECKEN against Austria and registered on

6 December 1995 under file No. 29477/95;

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

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

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 applicant 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 28 April 1993 the applicant informed the Real Property

Transactions Authority that meanwhile, on 26 April 1993, he had

concluded a sales contract concerning E.'s farming estate with the

municipality of Mils.  He requested the Real Property Transactions

Authority to approve the contract with E., taking into account that he

had meanwhile concluded a sales contract with the municipality of Mils.

     On 23 July 1993 the Real Property Transactions Authority approved

the contract concluded with E. under the conditions that the land be

immediately transferred to the municipality of Mils and that the

municipality of Mils be registered as its owner in the land register

(Grundbuch) while a registration of the applicant as the owner in the

land register should not take place.

     Meanwhile, on 25 May 1993, the Real Property Transactions

Authority had also approved the sales contract of 26 April 1993.

     On 2 August 1993 the Real Estate Transactions Officer

(Landesgrundverkehrsreferent) 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).  He submitted that the contract with E. was in breach

of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz)

as neither the provisions on the transfer of agricultural and forestry

land nor the provisions on the transfer of real property to foreigners

were met.  Section 4 of the Real Property Transactions Act required the

safeguard of the public interest in maintaining and strengthening an

economically viable agriculture and forestry.  Under Section 6 of the

Act the approval of an acquisition of land must be refused if a person

acquired agricultural or forestry land without guaranteeing that he

would exploit the land himself.  For this reason the approval had to

be denied.  In any event, approval had to be refused on the ground that

the matter was res iudicata, since the applicant had already on two

previous occasions in 1982 and 1984 submitted contracts for transfer

of property concerning the same farming estate and each time approval

of the transfer had been refused by the Real Property Transactions

Authorities.

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

appealed.

     On 1 September 1993 the applicant commented on the appeals.  He

contested that the matter was res iudicata.  In his opinion also the

fact that he would not exploit the land himself was irrelevant as he

had already concluded a sales contract with the municipality of Mils.

     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.

Refuting the argument that the matter was res iudicata, the Real

Property Transactions Commission found that the approval had to be

refused on the ground that the applicant did not intend to exploit the

land himself.  The sales contract concluded with the municipality of

Mils was irrelevant, because the applicant's failure to fulfil the

requirements for an approval of the transfer of the land could not be

remedied by a subsequent transfer of the land.  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 that the Regional Real Property Transactions

Commission had infringed his right to inviolability of property and his

right to acquire real property because it had applied the law in a

misconceived (denkunmöglich) manner by requiring that he exploited the

land himself, although this question had been irrelevant since he had

already concluded a sales contract with the municipality of Mils.

     The applicant further raised the following complaints about the

Regional Real Property Transactions Commission and the appeal

proceedings:

-    the Real Property Transactions Commission had not been competent

to decide his case as, according to the transitional provisions in

Section 40 of the Real Property Transactions Act 1993, the Real

Property Transactions Act 1983 was still applicable and the Regional

Real Property Authority should therefore have decided his case;

-    the Real Property Transactions Commission had not been properly

composed since at its session of 24 February 1994 three of its members

had been replaced by substitute members, although they had not

officially informed the chairman of any reason for their absence;

-    although the law required that the chairman of the Real Property

Transactions Commission should be someone with experience in real

property transaction matters the applicant was not aware that the

person appointed as chairman had any such experience;

-    several members of the Real Property Transactions Commission and

the Real Property Transactions Authority, namely the senior civil

servant from the Agricultural Services Department (technischer

Agrardienst), the senior civil servant from the Forestry Services

Department (forsttechnischer Dienst), the legal expert and in the case

of the Real Property Transactions Commission also the chairman, were

members of the same division (B III) of the Office of the Regional

Government.  Also the Real Property Transactions Officer was part of

this division.  Although the Real Property Transactions Officer was not

a superior of the above civil servants indirect influence via their

common superior could not be ruled out;

-    the setting up of the Regional Real Property Transactions

Commission had never been made public and therefore had not been valid;

-    the Real Property Transactions Commission had held its session

and had decided on 28 February 1994, although its rules of procedure

(Geschäftsordnung) adopted by the Regional Government on

8 February 1994 had only been published in the Regional Official

Gazette on 8 March 1994;

-    the Regional Real Property Transactions Authority had held a

hearing on 2 December 1993 at which the parties were present.  However,

on 24 February 1994 the Regional Real Property Commission had held a

further hearing without informing the applicant thereof.  Thus, two

different bodies had held a hearing and taken a decision in his case

and he had not been offered the possibility to present his arguments

in the course of the second hearing.

     On 27 February 1995 the Constitutional Court dismissed the

applicant's complaint.

     As regards the competence of the Real Property Transactions

Commission and the applicant's complaint about a decision-taking by two

authorities, the Constitutional Court found that the Real Property

Transactions Authority had not taken any decision.  The Real Property

Transactions Commission which had taken the contested decision, had,

according to the transitional provision of Section 40 of the Real

Property Transactions Act 1993, been competent to do so.  This

Commission had not decided on the basis of the oral hearing of

2 December 1993, but on the basis of the contents of the file.

Referring to its own case-law the Court found that an oral hearing was

in the present case not obligatory.

     As regards the composition of the Real Property Transactions

Commission the Constitutional Court found that all the members had been

properly summoned to its session of 24 February 1994.  The fact that

the chairman had in his previous positions never dealt with real

property transaction matters did not show that he was not "a person

experienced with real property transaction matters" as provided for by

the law.  Neither the Federal Constitution nor any ordinary law

required the publication of the appointment of the members of a

collective authority (Kollegialbehörde).  There were no members in the

Real Property Transactions Commission who were in their ordinary

administrative functions hierarchically subordinated to one of the

parties to the proceedings.  Moreover, the Real Property Transactions

Act and the General Administrative Procedure Act (Allgemeines

Verwaltungsverfahrensgesetz) regulated the proceedings before the Real

Property Transactions Commission in a sufficiently precise manner.  It

followed that the composition of the Real Property Transactions

Commission did not give rise to any constitutional concerns.

     As regards the complaint that the Real Property Transactions

Commission applied the law in a misconceived manner the Constitutional

Court found that the subject-matter of the proceedings at issue had

been the approval of the transfer of rights to the applicant, and not

any subsequent contracts.  Even the applicant himself had not alleged

that the authorities had assessed in a misconceived manner that he did

not exploit the land himself.  Insofar the applicant had relied on a

right to freedom of acquisition of real property the Constitutional

Court found that this right was only granted to Austrian citizens.

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).  Such a 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 (and thus property definitely acquired) until the

transaction had been approved by the competent authority (Section 2

para. 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.  It regulates the matter in more detail but

essentially maintains the above principles.

     The transitional provision of Section 40 of the 1993 Act provides

that pending proceedings have to be terminated in accordance with the

provisions of the 1983 Act (para. 3) and that the 1983 Act remains

applicable to contracts concluded before the entry into force of the

1993 Act (para. 4).  The Regional Government shall appoint the members

of the Real Property Transactions Commission in time so that they can

take up their duties when the 1993 Act enters into force (para. 2).

     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).

The membership in both bodies varies according to the subject-matter

of the contract to be examined.  In the case of agricultural or

forestry land - whether the buyer be Austrian or foreign - the nine

members of the Regional Real Property Commission are (Section 28):

     a) a person experienced in real property transaction matters as

     chairman

     b) a member of the judiciary (Richterstand)

     c) a legally qualified civil servant from the Office of the

     Regional Government as rapporteur

     d) a lawyer or public notary (Rechtsanwalt oder Notar)

     e) a member of the Chamber of Workers and Employees (Kammer für

     Arbeiter und Angestellte), a member of the Chamber of Commerce

     (Kammer der Gewerblichen Wirtschaft), a member of the Chamber of

     Agriculture (Landwirtschaftskammer)

     f) a senior civil servant from the Agricultural Services

     Department (technischer Agrardienst)

     g) a senior civil servant from the Forestry Services Department

     (forsttechnischer Dienst)

     The Regional Real Property Transactions Authority, when dealing

with matters of agricultural and forestry land, was composed in the

same manner (Section 13 para. 4 of the 1983 Act as amended in 1991).

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

1.   The applicant complains under Article 1 of Protocol No. 1 that

the Regional Real Property Transactions Commission's refusal to approve

the contract for a transfer of property violates his property rights

because the Authority had applied the law in a misconceived manner.

2.   He further complains that the Real Property Transactions

Commission could not be considered a "tribunal established by law"

within the meaning of Article 6 para. 1 of the Convention and had not

been competent to decide his case.  He submits in particular that:

-    according to the transitional provisions of the 1993 Real

Property Transactions Act it should have been the former Real Estate

Transactions Authority and not the newly created Real Property

Transactions Commission which should have decided his case;

-    at its session of 24 February 1994 the Real Property Transactions

Commission had not been properly composed because three of its members

had been represented by substitute members and the absent members had

not properly informed the chairman of any reasons for their absence;

-    the rules of procedure of the Real Property Transactions

Commission, adopted by the Regional Government of the Tyrol on

8 February 1994, had only been published after the decision had been

taken in his case;

-    the appointment of the members of the Real Property Transactions

Commission had not been published;

-    the chairman of the Real Property Transactions Commission is not

a person experienced in real property transactions matters.

3.   The applicant also complains that the Regional Real Property

Transactions Commission did not satisfy the requirement of impartiality

under Article 6 para. 1 of the Convention because four of its members

were civil servants belonging to the same division as the Real Property

Transactions Officer.  Although the Real Property Transactions Officer

was not a superior of the above civil servants, indirect influence via

their common superior could not be ruled out.

4.   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.

THE LAW

1.   The applicant complains about the fact that he could not acquire

the farming estate at issue and relies on Article 1 of Protocol No. 1,

(P1-1) 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 observes that under the relevant domestic law a

contract for transfer of ownership of real property can only take

effect and entered into the land register if it has been approved by

the competent real property transactions authority.  The transfer of

title does not occur before the entry into the land register.  The

applicant thus complains that he could not acquire property over the

land at issue.    However, Article 1 of Protocol No. 1 (P1-1) does not

guarantee a right to acquire possessions (No. 11628/85, Dec. 9.5.86,

D.R. 47, p. 270; Union of Atheists v. France, Comm. Report 6.7.94,

para. 55; No. 21956/93, Dec. 22.2.95, unpublished; No. 23962/94,

Dec. 12.4.96, unpublished).

     It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

2.   The applicant further complains that the Real Property

Transactions Commission could not be considered a "tribunal established

by law" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention and had not been competent to decide his case.

     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 Commission finds that the proceedings at issue involved a

determination of the applicant's civil rights or obligations within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see Eur.

Court HR, Sramek v. Austria judgment of 22 October 1984, Series A no.

84, p. 17, para. 34).  Article 6 para. 1 (Art. 6-1) therefore applies.

     The Commission recalls that it is the purpose of Article 6

para. 1 (Art. 6-1) requiring that tribunals shall be "established by

law" that the judicial organisation in a democratic society must not

depend on the discretion of the Executive, but that it should be

regulated by law emanating from Parliament.  However, Article 6 para.

1 (Art. 6-1) does not require the legislature to regulate every detail

in this area by formal Act of Parliament if the legislature establishes

at least the organisational framework for the judicial organisation

(cf. Zand v. Austria, Comm. Report 12.10.78, para. 69, D.R. 15, p. 80).

     Having regard to the findings of the Constitutional Court in its

decision of 27 February 1995, the Commission finds that the Real

Property Transactions Commission, and not another body which had

already ceased to exist, had been competent to examine the applicant's

case.

     The Commission observes that the applicant further raises various

complaints concerning formalities of the appointment and composition

of the Commission which decided his case on 24 February 1994, which the

Constitutional Court, in its detailed decision, considered unfounded.

In the Constitutional Court's view this Commission had been correctly

composed, correctly summoned and had sufficiently precise procedural

rules for dealing with the applicant's case.

     The Commission therefore finds that there is no appearance of a

violation of the applicant's rights under Article 6 para. 1

(Art. 6-1) of the Convention in this respect.

     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.

3.   The applicant also complains that the Regional Real Property

Transactions Commission did not satisfy the requirement of impartiality

under Article 6 para. 1 (Art. 6-1) of the Convention because four of

its members were civil servants belonging to the same division as the

Real Property Transactions Officer.  Although the Real Property

Transactions Officer was not a superior of the above civil servants,

indirect influence via their common superior could not be ruled out.

     The Commission recalls that in the Sramek case the Court has

found that where a tribunal's members include a person who is in a

subordinate position, in terms of his duties and the organisation of

his service, vis-a-vis one of the parties, litigants may entertain a

legitimate doubt about that person's independence (Eur. Court HR,

Sramek v. Austria judgment of 22 October 1984, Series A no. 84, p. 20,

para. 42).

     The Commission observes, however, that in the present case the

civil servants employed by the Office of the Regional Government were

not in a subordinate position vis-a-vis the Real Property Transactions

Officer.  This is also accepted by the applicant.  He argues, however,

that because all these persons belong to the staff of the same body,

the Office of the Regional Government, indirect influence on the civil

servants sitting in the Regional Real Transactions Commission could not

be ruled out.  The Commission finds that this allegation, not

substantiated by any other element, is not in itself sufficient for

casting doubts on the independence of these civil servants (see

Eur. Court HR, Ettl v. Austria judgment of 23 April 1987, Series A

no. 117-A, p. 18, paras. 38-39).

     The Commission therefore finds that there is no appearance of a

violation of the applicant's rights under Article 6 para. 1

(Art. 6-1) of the Convention in this respect either.

     It follows that also this part of the application is manifestly

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

Convention.

4.   The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the lack of an oral and public hearing before the

Regional Real Property Transactions Commission.

     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 about the lack of an oral and public hearing

     before the Regional Real Property Transactions Commission;

     and, unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber