AS TO THE ADMISSIBILITY OF

                      Application No. 14699/89

                      by Georg and Helmut MEUSBURGER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           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 17 January 1989

by Georg and Helmut MEUSBURGER against Austria and registered on

27 February 1989 under file No. 14699/89;

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

of Procedure of the Commission;

     Having regard to the Commission's decision of 6 April 1993 to

declare the application inadmissible;

     Having regard to the submissions of the applicants' counsel of

10 August 1993 and the subsequent correspondence;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicants are brothers, born in 1936 and 1938 respectively.

They are Austrian citizens, living in Dornbirn and Schwarzach

respectively. In the proceedings before the Commission they are

represented by Mr. W. Weh, a lawyer practising in Bregenz.

     On 20 September 1984 the applicants offered the highest bid

(Meistgebot) for the forced sale (Zwangsversteigerung) of farmland

situated in Hörbranz.

     Under the applicable Real Property Transaction Act

(Grundverkehrsgesetz) the transfer of agricultural property requires

approval by a Real Property Transaction Commission (Grundverkehrs-

kommission).

     On 29 January 1985 the competent Commission refused approval of

the applicant's bid. In these and the subsequent proceedings the

applicants were represented by Mr. Weh.

     On 9 July 1985 the Provincial Real Property Transaction Senate

(Grundverkehrs-senat) dismissed the applicants' appeal. It found that

the first applicant was the owner and general manager of a medium-size

commercial enterprise, in which the second applicant also held a

management position. Given their present profession and the fact that

their time was taken by the management of their enterprise, they had

failed to show that they would use the property at issue for farming

purposes. The purchase was, thus, contrary to the Real Property

Transaction Act.

     On 27 August 1985  the applicants lodged a constitutional

complaint. They complained inter alia about the composition of the

Provincial Real Property Transaction Senate and the way it was set up.

They submitted in particular that the Senate had its seat in the Office

of the Land Government, where it also held its meetings, and argued

that this created the impression that the Senate was not independent

from the executive. Further they argued that it was contrary to the

Real Property Transaction Act to appoint a civil servant of the Land

as President. At present there existed the impression among practising

lawyers that the President of the Senate sometimes held meetings with

the competent member of the Land Government before the sessions of the

Senate. Further, the said Act provided that the Rapporteur had to be

a civil servant of the Land, which also cast doubt on the independence

of the Senate. There were no objections as regards the two judges who

were members of the Senate. As to the representatives of different

interest groups, it was not clear, which interests they had to defend

in the Senate. Finally, one member had to be an expert for agriculture

and forestry. There were doubts as to his impartiality as he had to

give an expert opinion first and then had to vote on it. In the present

case, this expert was a senior civil servant at the District Agrarian

Authority (Agrarbezirksbehörde) and as such the subordinate of the

chairman of the Real Property Transaction Commission, who was head of

the District Agrarian Authority. In conclusion, the applicants found

that the Provincial Agrarian Senate could not be regarded as an

independent and impartial tribunal within the meaning of Article 6 of

the Convention. The applicants also complained that the Senate's

decision violated their right to property.

     Meanwhile, the applicants requested anew that their bid be

approved. They claimed that new facts had arisen in that the Hörbranz

community had bought the adjacent plot of land. They claimed that the

said community intended to change the designation of the neighbouring

land. The Real Property Transactions Commission refused the request on

the ground that it concerned the same matter as had already been

decided.

     On 25 March 1996 the Provincial Real Property Transaction Senate

dismissed the applicants' appeal. It found that there were no relevant

new facts.

     On 14 May 1986 the applicants lodged a constitutional complaint

against this decision. They referred to their complaint in the first

set of proceedings. They added in particular that their request that

the major of Hörbranz be heard had been refused.

     On 17 May 1986 the applicants supplemented their complaint of

27 August 1985. They referred to their submissions as regards the

impression that the President of the Provincial Real Property

Transaction Senate sometimes discussed matters with the competent

member of the Land Government and stated explicitly that they had

reported a personal impression and not alleged a fact. However, there

was a certain basis for this impression: Following the hearing of

30 January 1986 in the proceedings relating to their second request for

approval of their bid, they had confronted the President of the Senate

with their allegation that he had had a conversation with the member

of the Land Government responsible for agricultural matters exactly one

year ago. The President had remembered such a conversation and that it

had concerned the interpretation of the term "farmer", but without any

connection to particular proceedings. They further complained that they

felt that the Senate's decision was arbitrary in the sense that

stricter measures were applied in their case than in other cases. Thus,

they had requested access to two files. However, the Senate had refused

their request without giving reasons.

     On 1 December 1986 the Constitutional Court (Verfassungs-

gerichtshof) quashed the Senate's decisions of 9 July 1985 and

25 March 1986. It noted that in principle the Senate's organisation was

in conformity with Article 6 of the Convention. The Real Property

Transactions Act provided that its members were not to be given

instructions from the executive. They were appointed for a period of

five years, during which they could not be removed from office. There

were no objections from a constitutional point of view against

appointing a civil servant of the Land as Rapporteur. However, in the

present case there were legitimate reasons to fear a lack of

impartiality as regards one of the members of the Senate. The court

found in particular that the said member was in a subordinate position

to the chairman of the Real Property Transaction Commission, i.e. the

authority of first instance. Moreover, the same member had in his

function as a civil servant given an expert opinion on the value of the

property at issue.

     The case was referred back to the Provincial Real Property

Transaction Senate for a new decision.

     On 4 February 1987 the applicants requested that an oral hearing

be held, and that the mayor of Hörbranz be heard as a witness. Further,

they requested to have access to two particular decisions of the

Senate.

     On 19 March 1987 the Provincial Real Property Transaction Senate,

recomposed, held an oral hearing, in presence of the second applicant

and the applicants' counsel. Counsel for the applicants submitted their

arguments, in particular that they grew up on their parents' farm where

they also worked as adolescents and that they intended to breed horses

on the property at issue. At the close of the hearing counsel for the

applicants stated that his request that the mayor of Hörbranz be heard

had been dealt with, whereas his request for access to two particular

decisions of the Senate was still open.

     On 22 May 1987 the Provincial Real Property Transaction Senate

again dismissed the applicants' appeal. It confirmed the reasons given

in its earlier decision. As regards the applicants' request for

transmission of decisions of the Senate, it pointed out that there was

no obligation under constitutional law to make its decisions available

to the public.

     On 10 July 1987 the applicants again lodged a constitutional

complaint. Inter alia, they complained again about the composition of

the Provincial Real Property Transaction Senate and submitted that the

fact that the Rapporteur was a civil servant of the Land raised doubts

as to his independence. As regards the Senate's President, they

referred to their first constitutional complaint. He had, while their

case was pending, discussed the main legal issue raised by their case

with a member of the Land Government. They also alleged that the

presence of members of various interest groups was contrary to

Article 6 of the Convention. Further, they argued that the Senate's

decision was arbitrary and that the proceedings violated their right

to a fair trial as the Senate's decisions are not published and they

could, therefore, not consult decisions which, in their view, concerned

comparable cases. Thus, they had no possibility to show that the Senate

had decided differently in similar cases. They requested that the court

order the Senate to submit three files, which they specified. They also

complained that the Senate's decision violated their right to property.

     On 31 May 1988, after the Senate had made submissions in reply,

the applicants supplemented their complaint. They argued in particular

that the Senate's case-law conceded that the purchaser of agricultural

property did not already have to be a farmer by profession but could

become one by starting a farming activity. This followed from the three

decisions which they had requested and which the Senate had now

submitted to the Constitutional Court. With a view to these decisions,

the refusal to approve their bid was arbitrary.

     On 10 June 1988 the Constitutional Court dismissed the complaint.

It found that there were no doubts as regards the independence and

impartiality of the members of the Provincial Real Property Transaction

Senate. The applicants had failed to mention specific circumstances

which would show that this body's composition was contrary to Article 6

of the Convention. Further, as regards the applicant's complaint that

the contested decision was arbitrary, the court found that the

Provincial Real Property Transaction Senate had carried out

comprehensive proceedings to establish the relevant facts and had given

detailed reasoning for its view that the applicants did not intend to

use the property at issue for agricultural purposes. There were no

indications that the Senate had decided arbitrarily. As regards the

applicants' reference to other proceedings, the court, having inspected

the respective files, found that they partly did not concern comparable

cases. Further, it referred to its constant case-law according to which

an authority's misguided decision in one case did not entitle anyone

to a misguided decision in another case. As regards the applicants'

right to peaceful enjoyment of their possessions, the court referred

to the reasons given for the refusal to approve the property

transaction, finding that they did not disclose any arbitrariness.

COMPLAINTS

     The applicants allege several violations of Article 6 of the

Convention.

     Firstly, they complain about the composition of the Provincial

Real Property Transaction Senate and claim that it is not independent

from the executive. They submit that it applies administrative

procedural law, that it has its headquarters and holds its meetings in

the Office of the Land Government and that its members are appointed

by the Land Government. Further, they submit in particular that the

President of the Senate was a retired civil servant of the Land and

that its Rapporteur was a civil servant of the Land. They claim that,

on 30 January 1986, these two members had a conversation with the

competent member of the Land Government about the legal issue raised

by their case, allegedly just before one of the sessions in which their

case was on the Senate's agenda. As regards the members belonging to

various interest groups they submit that it is not clear whose

interests they represent.

     Further they complain that the proceedings before the Senate were

not fair. In particular, they submit that they had no possibility to

question the mayor of Hörbranz and that they were refused inspection

of files relating to similar cases.

THE LAW

1. The Commission recalls that, by its decision of 6 April 1993 it

declared inadmissible for non-observance of the six-months-rule the

applicants' complaint about the alleged lack of independence and

impartiality of the Provincial Real Property Transaction Senate and the

alleged unfairness of the proceedings.

     The Commission notes that it has been brought to its attention

that the facts on which this decision was based were incorrect.

     It follows that the decision of 6 April 1993, insofar as it

declared the applicants' complaints under Article 6 (Art. 6)

inadmissible for non-observance of the six-months-rule cannot be

maintained.

2.   The applicants allege several violations of Article 6 para. 1

(Art. 6-1) of the Convention which, so far as relevant, reads as

follows:

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

     everyone is entitled to a fair ... hearing ... by an independent

     and impartial tribunal ...  ."

a.   As regards the applicants' complaints about the composition of

the Provincial Real Property Transaction Senate, the Commission recalls

at the outset that the Convention organs have on several occasions

found that the organisation of the authorities responsible for the

control of land acquisition in Austria does not, in principle, raise

any problems regarding the judicial character or the independence of

these authorities (see inter alia, Eur. Court HR., Ringeisen v. Austria

judgment of 16 July 1971 , Series A no. 13, p. 39, para. 95; Sramek v.

Austria judgment of 22 October 1984, Series A no. 84, pp. 17-20,

paras. 36-42).

     As regards the question whether the members of the Senate in the

applicants' case satisfied the requirements of impartiality, both

subjectively and objectively (see Eur. Court of HR., Padovani v. Italy

judgment of 26 February 1993, Series A no. 257-B, p. 20, paras. 25-27),

the Commission observes the following:

     The mere fact that the President of the Senate was a retired

civil servant of the Land cannot bear out a challenge of bias: the

subjective impartiality of a judge is presumed until the contrary is

proven (Eur. Court HR., Hauschildt judgment v. Denmark judgment of

24 May 1989, Series A no. 154, p. 21, para. 47). Furthermore, this fact

is in itself not sufficient to warrant legitimate doubts as to his

impartiality.

      As regards the Rapporteur of the Senate, the Commission recalls

that the Court has held that the presence of civil servants on the

comparable Upper Austrian Regional Commission was compatible with the

Convention (Ringeisen judgment loc. cit., pp. 39-40, paras. 95-97).

Moreover, in the present case, the Land Government was not a party to

the proceedings (Sramek judgment loc, cit., pp. 19-20, paras. 41-42).

     The applicants further allege that the President and the

Rapporteur of the Senate had a conversation with the competent member

of the Land Government about the legal issue raised by their case,

allegedly just before one of the sessions in which their case was on

the Senate's agenda. The Commission firstly notes that there are some

inconsistencies between the applicants' submissions before the

Commission and those before the domestic authorities, as regards the

date of this conversation (30 January 1986 or a year earlier, as

indicated in the applicants' submissions of 17 May 1986 to the

Constitutional Court), the persons participating (only the President

or also the Rapporteur) and the issue discussed. In any case, the

Commission, referring to its above finding that the Land Government was

not a party to the proceedings and having regard to the lapse of time

between the conversation at issue and the Senate's final decision of

22 May 1987, finds that the applicants' fear as regards a lack of

impartiality of the Senate cannot be regarded as objectively justified.

     Finally, the Commission does not consider that the applicants'

further submissions of a more general nature, including the complaint

that the Senate's members are appointed by the Land Government raise

any issue as to either the objective or the subjective impartiality or

independence of the Senate (Sramek judgment loc. cit., p. 18,

para. 38).

b.   The applicants also complain that the proceedings before the

Senate were not fair. In particular, they submit that they had no

possibility to question the mayor of Hörbranz and that they were

refused inspection of files relating to similar cases.

     The Commission recalls that its task is to ascertain whether the

proceedings, considered as a whole, were fair (Eur. Court HR., Lüdi v.

Switzerland judgment of 15 June 1992, Series A no. 238, p. 20,

para. 43).

     As regards the questioning of the mayor of Hörbranz, the

Commission notes that the applicants' counsel at the end of the hearing

of 19 March 1987 stated that his request as regards hearing the mayor

had been dealt with. He did not claim that the applicants had had no

possibility to question him, nor did the applicants raise this

complaint with the Constitutional Court. As regards the inspection of

files relating to similar cases, the Commission notes that the Senate

submitted the decisions requested by the applicants to the

Constitutional Court. It follows from the applicants' submissions of

31 May 1988 that they had access to these decisions and in fact

referred to them to support their argument that the Senate had taken

different decisions in comparable cases. In these circumstances, the

Commission finds that there is no indication that the applicants,

represented by counsel, could not duly present their arguments or that

the proceedings were otherwise unfair.

     It follows that the applicants' complaints under Article 6

(Art. 6) of the Convention are manifestly ill-founded within the

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

     For these reasons, the Commission, unanimously,

     DECIDES TO RE-OPEN THE PROCEEDINGS IN THIS CASE, insofar as the

     application concerned the applicants' complaint about the alleged

     lack of independence and impartiality of the Provincial Agrarian

     Senate and the alleged unfairness of the proceedings;

     DECLARES THIS COMPLAINT INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber