Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21956/93

by Irmgard Maria SCHMID

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 22 February 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 10 May 1993 by

Maria Schmid against Austria and registered on 1 June 1993 under file

No. 21956/93;

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, a pensioner (Pensionistin) is an Austrian citizen

born in 1931 and living in Linz. She is represented by Mr. B. Binder,

a lawyer practising in Linz.

It follows from her statements and the documents submitted that

the applicant's late husband was a farmer. He and the applicant

cultivated farm land which the applicant had bought in 1966. The farm

land is situated in Gramastetten. After her husband's death, the

applicant leased the farm land to another farmer, Mr. P. in Puchenau

who is a cattle raiser and uses the land as pasture.

By sales contract of 19 November 1990 (with amendments on

14 December 1990), the applicant bought 5,000 square meters of farm

land in order to round up her existing property of 48,000 square

meters. The farm land in question is contiguous to her land. The

original price was AS 30 per square meter. Another lot was sold by the

same seller, to farmer E., at the price of AS 40 per square meter.

Having obtained, inter alia, a report from the Regional Chamber

of Farmers (Bezirksbauernkammer) and having visited the spot in the

presence of the applicant's counsel the District Real Property

Transaction Authority at Urfahr (Bezirksgrundverkehrskommission),

Upper Austria, refused on 4 March 1991 the necessary authorisation for

the real estate transaction. It is stated in the decision that the

sellers are severely in debt. Their total debts amount to

approximately AS 900,000. The farm buildings are in very bad state and

their living conditions are bleak. The planned sale would not have

considerably improved the living conditions of the selling family,

rather it would have contributed to a decline of their economic

existence.

It is added that the sales contract with E. could be approved

because the buyer had eventually agreed to pay AS 40 instead of AS 30

per square meter and because the plots of land acquired by him were of

minor importance for the sellers. In the applicant's case however, the

requirements of Section 4 of the Upper Austrian Real Property

Transaction Act of 1975 (Grundverkehrsgesetz) were not given.

According to that provision, a transfer of farm land has to serve the

public interest in the maintenance and creation of agricultural or

forest property and in the maintenance and creation of an efficient

agricultural community, or for the creation of an economically sound

medium-sized or small agricultural property. The sale in question did

not serve these purposes.

The applicant appealed.

On 23 May 1991 the Regional Real Property Transaction Authority

(Landesgrundverkehrskommission) at Linz without oral hearing and

further investigations rejected the appeal. This Commission stated

that it was of no great importance whether the seller's small farm was

further reduced or enlarged by the sale in question. The only

prerequisite was that the buyer would himself farm the land. Therefore

the sale could not be authorised, regardless of the sale-price convened

between the parties because indisputably the buyer was not in a

position to farm the land herself as she did neither have a farm nor

the necessary agricultural machines and tools.

The applicant then lodged a constitutional complaint which was

rejected by the Constitutional Court (Verfassungsgerichtshof) on

7 October 1992. This decision was received by applicant's counsel on

10 December 1992.

Insofar as the applicant complained that she had not been heard

by the Appellate Authority, it is pointed out that the latter did not

carry out any investigations and therefore the applicant's hearing was

not necessary as the Appellate Authority based its findings on the

facts already established in first instance, which were not contested

by the applicant. The principle of a "fair hearing" was not violated

because the applicant had been heard in first instance and an

inspection of the site had been carried out. Insofar as the applicant

had complained that denial of the authorisation interfered with her

property right as guaranteed by Article 5 of the Basic Law

(Staatsgrundgesetz), it is stated that there was nothing to show that

the measure complained of was unlawful and arbitrary. The applicant's

argument that, in view of the excessive production in agriculture and

the necessity in the EEC to reduce agricultural production it was no

longer in the public interest to regulate the sale of agricultural

land, was considered to be irrelevant. The Court reiterated its

consistent case-law according to which it is in the public interest

that the buyer farms the acquired property himself.

Concluding that the measure complained of did not violate any

constitutional right the Constitutional Court added that even though

in accordance with Article 133 (4) of the Federal Constitution

(Bundesverfassungs-Gesetz) no appeal to the Administrative Court was

available for the applicant it did not have to examine whether the

(non-constitutional) law had been correctly applied.

COMPLAINTS

The applicant submits that she agreed to a higher price, namely

AS 40 per square meter. She considers that denial of an authorisation

of the sale violates her right to peaceful enjoyment of possessions as

guaranteed by Article 1 of Protocol No. 1. She also alleges a

violation of her right to a fair trial as guaranteed by Article 6 para.

1 of the Convention. She points out that upon appeal completely

different reasons were given for refusal of the authorisation and

therefore she considers that she should have been heard orally on

appeal. She also argues that domestic law was wrongly applied as in

her submission it does not matter whether the buyer of agricultural

land manages the farm himself or via a third party. She further argues

that the aim of the Upper Austrian Real Property Transaction Act is to

maintain big agricultural entities while this aim is no longer in the

public interest in view of the excess of agricultural production in

Europe.

Finally she invokes Article 13 which she considers violated

because she could not submit her case to the Administrative Court.

THE LAW

1. The applicant mainly complains that the refusal by the competent

Austrian authorities to approve the sale to her of a plot of

agricultural land amounted to a violation of Article 1 of Protocol No.

1 (P1-1) which guarantees the right to the peaceful enjoyment of

possessions.

It can be left undecided whether this provision can be invoked

by the applicant although, in principle, it does not guarantee a right

to acquire possessions (Dec. 9.5.86, No. 11628/85, D.R. 47, 270).

In any event the use of property may be subject to regulations

under the conditions set out in Article 1 para. 2 of Protocol No. 1

(P1-1-2).

It has not been disputed that the measure complained of is based

on domestic law.

The law in question serves the purpose of safeguarding

agriculture and forestry and must therefore be considered to be in the

general public interest.

In the present case the refusal was found to be lawful by the

Constitutional Court and there is nothing to show that the domestic

decisions complained of arbitrarily disregard any vital interests of

the applicant such as to upset the fair balance which has to be struck

between the demands of the public interest of the community and the

requirements of protection of the individual's fundamental rights (cf.

Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,

Series A no. 52, p. 26 para. 59).

The Commission accordingly finds no indication of a violation of

Article 1 of Protocol No. 1 (P1-1) as the interference complained of

is justified under para. 2 of that provision. It follows therefore

that the complaint must be rejected as being manifestly ill-founded

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

2. The applicant has next complained that Article 6 para. 1

(Art. 6-1) was violated in her case because she was not orally heard

in the proceedings before the Regional Real Property Transaction

Authority which examined her appeal against the decision of the

District Real Property Commission of 4 March 1991.

The Commission notes that the application of Article 6

(Art. 6) to proceedings before courts of appeal does depend on the

special features of the proceedings involved. Account must be taken of

the entirety of the proceedings in the domestic legal order and of the

role of the appellate court therein (Eur. Court H.R., Ekbatani judgment

of 26 May 1988, Series A no. 134, p. 13 para. 27). In the present case

it has been pointed out by the Austrian Constitutional Court that the

Appellate Authority based its findings on the facts already established

in first instance after an oral hearing. This was not contested by the

applicant. It follows that in the present case the Appellate Authority

limited its control to points of law and in these particular

circumstances oral argument was unnecessary (cf. Eur. Court H.R., Axen

judgment of 8 December 1983, Series A no. 72, p. 12-13, para. 28;

Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263 p. 20

para. 58).

There is furthermore nothing to show that the applicant had not

been given adequate opportunity to argue her case.

It follows that this part of the application has to be rejected

in accordance with Article 27 para. 2 (Art. 27-2) as being manifestly

ill-founded.

3. Insofar as the applicant invokes Article 13 (Art. 13) of the

Convention according to which everyone whose rights and freedoms are

set forth in the Convention are violated shall have an effective remedy

it has to be noted that the applicant did have the possibility to

complain to the Regional Real Property Transaction Authority as well

as to the Austrian Constitutional Court. There is nothing to show in

the present case that these instances did not have adequate competence

of control with regard to alleged violation of Convention rights. It

can therefore not be found that the remedies in question were

ineffective.

It follows that this part of the application likewise has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

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)

Menu

SCHMID v. AUSTRIA

SCHMID v. AUSTRIA

LEXI