AS TO THE ADMISSIBILITY OF

                      Application No. 23084/93

                      by Roman WENZL

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 2 November 1993

by Roman WENZL against Austria and registered on 14 December 1993 under

file No. 23084/93;

     Having regard to the observations submitted by the respondent

Government on 20 July 1995 and the observations in reply submitted by

the applicant on 27 September 1995;

     Having regard to the reports 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 national born in 1942 who resides

in St. Pölten.  Before the Commission he is represented by Mr. Urbanek,

a lawyer practising in St. Pölten.

A.   Particular circumstances of the case

     The facts of the case, as presented by the parties, may be

summarised as follows.

     Between 1982 and 1983 a municipal road (Gemeindestraße) in

Neiding (Lower Austria), registered as parcel No. 366 in the

Dietersberg land register (Grundbuch), was asphalted.  Parcel No. 319

of the Dietersberg land register, adjacent to the municipal road was

at that time owned by J.A. and A.A.

     On 28 May 1984 the director of the Lower Austrian Farmers'

Federation sent a letter to the mayor of Neiding.  In this letter it

was stated that J.A. and A.A. had put parts of their land at the

disposal of the Municipality in order to ameliorate a municipal road

under the condition that adequate drainage facilities relieving their

adjacent land would be provided for.   Unfortunately, at present no

such measures had been adopted.  The mayor was requested to deal with

this problem and to find a satisfactory solution.

     On 29 November 1984 a hearing took place before the St. Pölten

District Administrative Authority (Bezirkshauptmannschaft) in which,

inter alia, J.A., A.A. and the applicant participated.  The subject of

this hearing was the water drainage situation of the land adjacent to

the newly asphalted municipal road.  According to the transcript of the

hearing it was decided to add a concrete rim to the southern edge of

the municipal road as a relief measure for parcel No. 319.  This result

was confirmed by a decision of the Administrative Authority of

12 December 1984.

     On 19 March 1991 the applicant bought parcels No. 319, 320 and

321 from J.A and A.A.  According to the sales contract concluded the

price for the three parcels was fixed at 125.000 AS and their surface

stated as 3701, 795 and 1917 square metres respectively.  The vendors

did not guarantee the applicant the exactness of the surface in square

metres.  The applicant stated in the contract that he was familiar with

the situation of the land.  According to Section IV. 2. of the sales

contract the vendors informed the applicant that the Neiding

Municipality had been ordered to add a rim on the southern edge of the

asphalted road.

1.   The civil proceedings

     On 23 October 1991 the applicant filed a civil law action against

the Neiding Municipality with the St. Pölten District Court (Bezirks-

gericht).  He submitted that the Municipality was the owner of a

municipal road adjacent to his land which the Municipality had covered

with asphalt in 1982.  Close to a crossing, asphalt had been put on the

applicant's land.  He requested that the Municipality be ordered to

remove the asphalt from his land.

     On 30 December 1991 the Neiding Municipality, represented by

counsel, replied to the applicant's action.  They submitted that the

previous owners of parcel No. 319 had offered to the municipality parts

of the land of this parcel for upgrading the municipal road.

The construction works on parcel No. 366 had been carried out without

amending the land register and in agreement with the owners of parcel

No. 319.  The Municipality referred to the transcript of the hearing

before the St. Pölten District Administrative Authority on 29 November

1984.  If the previous owners had informed the applicant about these

circumstances he could not raise any claim whatsoever against the

defendant.  If not, the previous owners were liable for any damage

resulting from this omission.  The defendant therefore requested the

court to give third-party notice of the action to J.A. and A.A.

(Streitverkündung).

     On 13 April 1992 a hearing took place before the St. Pölten

District Court in which counsel for the Neiding Municipality produced

the transcript of the hearing before the St. Pölten District

Administrative Authority of 29 November 1984 and the letter of the

Lower Austrian Farmers' Federation of 28 May 1984.

     On 21 June 1993 a hearing was held before the St. Pölten District

Court in the proceedings between the applicant and the Neiding

Municipality.  Since neither of the parties appeared before the court

proceedings were suspended (Ruhen des Verfahrens).

2.   The real estate partition proceedings

     On the request of the Neiding Municipality of 14 April 1992 the

St. Pölten Surveyor's Office (Vermessungsamt) instituted proceedings

under Section 15 of the Real Estate Partition Act (Liegenschafts-

teilungsgesetz) with regard to the land at issue in the civil

proceedings.  The Municipality submitted that it had already in 1983

acquired possession of this land and requested that the land register

be corrected accordingly.  On 12 March 1992 the applicant requested the

Surveyor's Office to suspend these proceedings in view of the civil law

suit pending before the St. Pölten District Court.  The Surveyor's

Office granted this request on 14 October 1992.  Subsequently, the

proceedings were nevertheless continued.

     On 30 November 1992 the Surveyor's Office issued a notification

form (Anmeldungsbogen) requesting an amendment of the land register

concerning the applicant's land.

     On 5 January 1993 the applicant filed an appeal against the

notification form of the Surveyor's Office, submitting in particular

that the surface of the piece of land concerned was much larger than

93 square metres i.e. approximately 250 square metres.  Even assuming

an area affected of 93 square metres, the value of this land had to be

estimated at some 90.000 AS.  The Surveyor's Office had also failed to

enquire whether the Municipality had acted lawfully when it covered

with asphalt the surface concerned.

     On 29 July 1993 the Federal Office of Weights, Measures and

Surveying (Bundesamt für Eich- und Vermessungswesen) rejected the

applicant's appeal of 5 January 1993.  The Federal Office found that

the notification form was not a decision (Bescheid) but a public

certificate (öffentliche Urkunde) which was not subject to appeal.  In

any event, the notification form had been issued in accordance with the

law.  In this respect the Federal Office noted that on 20 November 1992

the Surveyor's Office had carried out an inspection of the location and

established that the map submitted by the Neiding Municipality was

correct.  Furthermore, according to the transcript of the session of

the Neiding Municipal Council (Gemeinderat) of 23 June 1992 the road

had already been constructed in 1983.  At that time the owners of the

land were Mr. and Mrs. A. from whom the applicant had bought the land.

These persons had confirmed before the Surveyor's Office that the road

had been constructed following an oral agreement concluded in 1983 with

the Neiding Municipality and with their consent.  The Surveyor's Office

therefore had reasonably concluded that the conditions set out in

Section 15 of the Real Estate Partition Act had been complied with, as

the construction at issue was a road, built with the agreement of the

former owners and the change of possession had already taken place.

     On 17 January 1994 the Federal Minister for Economic Affairs

(Bundesminister für wirtschaftliche Angelegenheiten) dismissed the

applicant's appeal of 18 August 1993 and confirmed the Federal Office's

decision.

     On 23 March 1994 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof) against the Minister's

decision.

     On 13 June 1995 the Constitutional Court  refused to entertain

the applicant's complaint for lack of prospect of success.

3.   The land register proceedings

     On 10 December 1992 the St. Pölten District Court, acting as land

register court, ordered that in accordance with the St. Pölten

Surveyor's Office's notification form of 30 November 1992, the

Dietersberg land register be amended to the effect that 93 square

metres, as specified in the attached plan, of parcel No. 319 be

ascribed to parcel No. 366.  The District Court added that possible

claims for compensation of the persons affected by this order had to

be filed within three years.

     On 5 January 1993 the applicant appealed against the District

Court's decision of 10 December 1992.  He submitted in particular that

the conditions of Section 15 et seq. of the Real Estate Partition Act

were not fulfilled, as the value of the land concerned exceeded the

maximum amount mentioned in Section 17 para. 1 of the Real Estate

Partition Act and that the Neiding Municipality had unlawfully taken

possession of the land.  He also invoked Article 6 para. 1 of the

Convention.

     On 17 February 1993 the St. Pölten Regional Court (Landesgericht)

dismissed the applicant's appeal against the District Court's decision

of 10 December 1992.  The Regional Court found that the requirements

of Section 15 et seq. of the Real Estate Partition Act were met and

that the notification form did not contain any formal mistakes.  It was

not the task of the courts to check the correctness of the

circumstances certified by the Surveyor's Office in the notification

form.  Thus, the only issue which the District Court had to verify

itself was whether the value of the land concerned exceeded the maximum

amount of 50.000 AS mentioned in Section 17 para. 1 of the Real Estate

Partition Act.  The District Court had noted in the file that the

applicant had bought the land in March 1991 and, after having

calculated the price per square metre, concluded that the value of the

land concerned did not exceed 50.000 AS.  Since the applicant had

bought the land only recently, the District Court had acted correctly

when it based its findings on this contract.  The Regional Court noted

further that the Supreme Court in its case-law had found that the

summary proceedings under Section 15 of the Real Estate Partition Act

were in compliance with Article 6 para. 1 of the Convention.

B.   Relevant domestic law

1.   Under Section 431 of the Civil Code (Allgemeines Bürgerliches

Gesetzbuch) the procedure for the assignment of real property is the

entry of the acquisition title in the land register (see also Section 4

of the Land Register Act - Grundbuchsgesetz).  This is called the

principle of registration (Eintragungsgrundsatz).   There are, however,

exceptions, like prescription (Ersitzung) or expropriation

(Enteignung), to which this principle does not apply.

     Land register entries are subject to the principle of reliance

(Vertrauensgrundsatz).  The purpose of this principle is to ensure that

persons acting in good faith may rely on the fact that the entries are

correct (Section 28 and 63 et seq. of the Land Register Act).  A person

acquiring real property is however only acting in good faith if he

acted without fault or negligence.  Good faith can only be assumed if

there are no circumstances which, upon due scrutiny, should have given

rise to doubt as to the correctness of a land register entry.  The

principle of reliance in connection with the land register may not be

invoked by a person who could have noticed, with due scrutiny, that

there was an inconsistency between the land register and the actual

situation.

2.   Section 417 et seq. of the Civil Code regulate the ownership of

constructions and of the land on which they are erected in case the

owner of the land and the builder are not the same person.   Section

418 leg. cit. provides in particular that in case a person constructs

with own material on the land of another person the latter acquires

property over the building if this building had been erected without

his knowledge.  If, however, the owner of the land knows that the

building is erected and if he does not immediately oppose the

construction, he can only claim compensation for the value of the land.

Ownership over the land in this case is transferred to the builder.

Transfer of ownership occurs by erecting the building and the principle

of transfer of ownership over real property by entry into the land

register does not apply.

3.   The Real Estate Partition Act (Liegenschaftsteilungsgesetz)

deals with the procedure by which plots of land are divided

(grundbücherliche Teilung) and parts of land are ascribed from one plot

to another (Abschreibungen) and the registration of such changes in the

land register (Grundbuch).

     Sections 15 to 22 of the Real Estate Partition Act provide for

summary proceedings for the registration of minor changes concerning

land used for the construction, enlargement and maintenance of a road,

path, railway or watering plant.  The purpose of these provisions is

to maintain the correctness of the land register in cases where the

construction works resulted in minor changes of possession.

     The Surveyor's Office (Vermessungsamt) has to draw up a

notification form (Anmeldungsbogen) in which it certifies that the

construction at issue is a road, path, railway or watering plant

(Section 16).  The Land Register Court, after having received the

notification form, has to verify whether the value of the piece of land

concerned does not exceed the maximum amount of 50.000 AS (Section 17).

If the value of the land concerned is below the maximum amount the Land

Register Court has to amend the land register and need not obtain the

consent of the former owner of the land (Section 18).

     According to Section 20 of the said Act the former owners or

other persons holding a registered right have to raise possible claims

for compensation within three years.

COMPLAINTS

     The applicant complains under Article 6 para. 1 of the Convention

that in the proceedings under the Real Estate Partition Act, in which

he was deprived of the strip of land at issue, his right to a fair

hearing by an impartial and independent tribunal had been violated.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 2 November 1993 and registered

on 14 December 1993.

     On 6 April 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on 20 July

1995, after an extension of the time-limit fixed for that purpose.  The

applicant replied on 27 September 1995.

THE LAW

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

Convention that in the proceedings under the Real Estate Partition Act

his right to a fair hearing by an impartial and independent tribunal

was violated.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides 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 previous owners of parcel No. 319

of the Dietersberg land register had assigned parts of this parcel to

the Neiding Municipality for improving the adjacent municipal road and

had renounced their property rights as regards the piece of land at

issue although the land register had not been amended accordingly.  The

Neiding Municipality had acquired property over this piece of land

before the applicant concluded the sales contract with J.A. and A.A.

The applicant had been aware of the existence and the lay-out of the

municipal road adjacent to parcel No. 319.  He had attended the hearing

of 29 November 1984 before the St. Pölten District Administrative

Authority and express reference to the road was made in the sales

contract of 1991.  He therefore could not have acquired property over

the strip of land at issue by invoking the principle of reliance under

the Land Register Act, as he had, in this respect, not acted in good

faith.

     The question of ownership over the strip of land and in

particular the question of whether the former owners had consented to

the construction works was the subject matter in the court proceedings

between the applicant and the Neiding Municipality.  These proceedings

were suspended and the applicant failed to request the continuation of

these proceedings.  Therefore, the Government submit that in this

respect he did not exhaust domestic remedies under Article 26

(Art. 26) of the Convention.

     As regards the procedures under Section 15 et seq. of the Real

Estate Partition Act the Government submit that these proceedings

concern the amendment of the land register in respect of minor property

changes that have already taken place in reality.  Even where a formal

mistake has occurred in connection with the land transfer the loss of

property is brought about by the construction of the work and not by

the subsequent amendment of the land register.  If in the present case

any damage had occurred, it had not been caused by the land register

procedure but by the construction of the road.  In this respect, the

Government refer to the possibility of filing a court action under

Section 20 of the Real Estate Partition Act claiming compensation for

any damage which might have resulted from the decision in the real

estate partition proceedings.

     This is disputed by the applicant.  He submits that the Neiding

Municipality could not have acquired property over the part of parcel

No. 319 at issue, because this would have required a decision by the

Municipal Council pursuant to the relevant provisions of the

Municipalities Organisation Act.  No such decision had ever been taken

by the Neiding Municipal Council.  Moreover, before asphalting a road

the Municipality should have held a public hearing in order to inform

the neighbours of the road of this project.  Such a hearing had never

taken place.  Before the decision in the real estate partition

proceedings he had been entered as owner of parcel No. 319 in the

Dietersberg land register.  He must have been the owner of the land at

issue as an expropriation could only be carried out against the owner.

     As regards the Government's argument under Article 26

(Art. 26) of the Convention, the applicant submits that there was no

use in continuing the proceedings against the Neiding Municipality

before the District Court, because a successful claim would have

required that he was the actual owner of the land at issue.  However,

he had been deprived of ownership in the real estate partition

proceedings.

     In the proceedings under the Real Estate Partition Act his right

under Article 6 para. 1 (Art. 6-1) of the Convention to a fair hearing

by an impartial and independent tribunal had been violated.  The

District Court had relied in its decision of 10 December 1992 merely

on the notification form while he had not been a party to the

proceedings for issuing the notification form.  Moreover, in these

proceedings no sufficient possibilities of being heard and no effective

appeal existed with regard to the argument that the maximum amount of

50.000 AS had been exceeded.  He had given arguments in this respect

in his appeal of 5 January 1993 but these arguments had been

disregarded by the Court.

     In the present case the municipal road on parcel No. 366 of the

Dietersberg land register had been asphalted in 1982 and 1983.  The

owners of the adjacent parcel No. 319 had allegedly assigned parts of

their land for this construction work to the Neiding Municipality but

the land register had not been amended accordingly.  In 1991 the

applicant had bought, inter alia, parcel No. 319 and express reference

to the constructed road had been made in the sales contract.  The

applicant was entered as the new owner of parcel No. 319 in the land

register. On 23 October 1991 he filed a civil law action against the

Neiding Municipality claiming that the Municipality should remove the

asphalt from a strip of parcel No. 319 which was allegedly his

property.  Following proceedings under Section 15 of the Real Estate

Partition Act the St. Pölten District Court, on 10 December 1992,

amended the land register and ascribed a part of parcel No. 319 to

parcel No. 366 owned by the Neiding Municipality.  The civil

proceedings against the Municipality were stayed and the applicant took

no steps to further pursue these proceedings.

     The Commission finds that the proceedings under the Real Estate

Partition Act and those in the applicant's action against the

Municipality before the District Court must be considered separately.

     As regards the proceedings before the District Court on the

applicant's action against the Municipality, the Commission finds that

in these proceedings the applicant could have sought the determination

of the question of whether he had acquired a claim to ownership over

the land by virtue of the contract concluded with J.A. and A.A. and in

which case the Neiding municipality would have had to remove the

asphalt from the strip of land at issue.  The applicant did not pursue

these proceedings.  He claims that this action was devoid of prospects

of success after the land register had been amended.  However, he has

not shown that by virtue of the amendment of the land register he was

prevented under the law from raising his claim to property over the

strip of land at issue or from arguing his case effectively, which

could have led to a finding by the Court that he was the real owner

over the land at issue.

     The proceedings under the Real Estate Partition Act which led to

the amendment of the land register by the District Court on 10 December

1992 merely concerned the question of whether the land register had to

be formally corrected according to the factual situation of possession

existing in reality at that location and, in the circumstances of the

present case, did not involve the determination of ownership over the

land at issue.

     Moreover, the applicant has not filed an action for compensation

under Section 20 of the Real Estate Partition Act.  Indeed, Section 20

of this Act expressly provides that the former owner is entitled to

compensation if any damage occurred.  In these circumstances the

applicant has not shown that he was the owner of the strip of land at

issue of which he was allegedly deprived.

     In these circumstances, the Commission 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.

     It follows that the application is manifestly ill-founded within

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

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)