Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22426/93

by Hermann and Edith HOLZER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 August 1993 by

Hermann and Edith Holzer against Austria and registered on

5 August 1993 under file No. 22426/93;

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 applicants are Austrian citizens, both born in 1950 and

residing in Lustenau/Austria. Before the Commission, they are

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

The facts, as they have been submitted by the applicants, may be

summarised as follows.

On 20 June 1991 the applicants applied to the Vorarlberg Regional

Real Property Commission (Grundverkehrs-Landeskommission) for an

authorization to purchase a building plot, at the time used for farming

purposes, which they intended to reserve for future use of their three

children, two of which were born in 1986 and another in 1986.

On 8 August 1991 the Regional Real Property Commission, referring

in particular to S. 5 para. 1 and S. 6 subpara (a) of the Vorarlberg

Real Property Transactions Act (Grundverkehrsgesetz) refused the

requested authorization. It held that the purchase of building plots

in order to reserve them for future use contravenes the interests of

maintenance of economically sound farming entities, as the communal

authorities, for the lack of sufficient building plots to satisfy the

future demand, would be forced to change the designation of farming

areas into building land. Thus, building plots only should be awarded

to people who really intend to construct houses on such plots.

SS. 5 and 6 of the Vorarlberg Real Property Act provide inter

alia that an acquisition of farmland only may be approved if it does

not contravene the aim of maintenance of an economically sound

structure of small and middle size farming entities. In particular, the

authorization is to be refused, if an estate were withdrawn from

agricultural exploitation without any important reason.

On 3 July 1992 the Vorarlberg Real Property Transactions Senate

(Grundverkehrssenat), also referring to S. 7 of the Real Property

Transactions Act, confirmed the findings of the Real Property

Transactions Commission, as the estate had currently been used for

farming purposes and dismissed the appeal.

S. 7 of the Real Property Act provides, inter alia that the

interests in the new use of estates must outweigh the interests in

maintaining the current exploitation.

The Senate was presided over by a former member of the Regional

Government and consisting of two judges, four members nominated by

special interest organisations (the Regional Agricultural Chamber

(Landwirtschaftskammer), the Industrial Chamber (Kammer der

gewerblichen Wirtschaft), the Chamber for Workers and Employees (Kammer

für Arbeiter und Angestellte) and the Regional Association of

Municipalities (Vorarlberger Gemeindeverband)) and an employee of the

Office of the Regional Government as rapporteur.

On 30 November 1992 the Constitutional Court (Verfassungs-

gerichtshof) dismissed the applicants' complaint challenging some

members of the Vorarlberg Real Property Transactions Senate on account

of their alleged lack of impartiality. It further found that the

applicants had not sufficiently substantiated their complaint as to a

violation of their right to respect of their property. The decision was

served upon the applicants on 2 February 1993.

COMPLAINTS

1. The applicants complain under Article 6 para. 1 of the Convention

that the Senate, in view of its composition, could not be considered

as an independent and impartial tribunal. They submit in particular

that its President had formerly been a member of the Vorarlberg

Regional Government, one of its members was also President of the

Regional Agricultural Chamber and that the Rapporteur was at the same

time an employee of the Office of the Regional Government.

2. The applicants further refer to their submissions before the

Constitutional Court, where they complained under Article 1 of Protocol

No. 1 about the refusal to purchase the property concerned.

THE LAW

1. The applicants complain that the Vorarlberg Real Property

Transactions Senate cannot be regarded as an impartial and independent

tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission recalls 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 (Eur. Court H.R., Ringeisen

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

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 H.R., Langborger judgment

of 22 June 1989, Series A no. 155, p. 16, para. 32), the Commission

observes the following :

The fact that the President of the Senate had previously been a

member of the Regional Government for 25 years cannot bear out a

challenge of bias: the subjective impartiality of a judge is presumed

until the contrary is proven (Eur. Court H.R., Hauschildt judgment of

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

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

impartiality.

Moreover, there is no indication that the Senate member who was

at the same time president of the Regional Agricultural Chamber was

personally biased, and there is no reason to question his objective

impartiality. In the latter respect, the Commission recalls that there

was no element of bias in respect of a comparable body, namely the

Regional Real Property Transactions Commission (Landesgrundverkehrs-

kommission) of Upper Austria, on account of the fact that one of its

members had been nominated by the local chamber of agriculture

(Eur. Court H.R., Ringeisen judgment, loc. cit., p. 40, para. 97). The

fact that, in the present case, the appointment of the President of the

Chamber was concerned does not, in the opinion of the Commission,

warrant a different conclusion, as it is not enough to create any

legitimate doubts that the balance of interests inherent in the

composition of the Senate was upset in the applicants' case (cf.

Eur. Court H.R., Langborger judgment, loc. cit., p. 16, para. 35). In

this context the Commission notes that the protection of the interests

of the local farmers was explicitly recognised by the legislation in

question as a legitimate interest under the law (cf.

De Moor v. Belgium, Comm. Report 8.1.93, paras. 58-59, to be

published).

As regards the Rapporteur in the Senate, the Commission recalls

that the presence of civil servants on the comparable Upper Austrian

Regional Commission was found to be compatible with the Convention (see

Eur. Court H.R., Ringeisen judgment, loc. cit., pp. 39-40, paras.

95-97) and that the Regional Government itself was not a party to the

present proceedings (cf. Eur. Court H.R., Sramek judgment, loc. cit.,

pp. 19-20, paras. 41-42). In the light hereof, the Commission does not

consider that this complaint raises any issue as to either the

objective or subjective impartiality or independence of the Senate.

Accordingly, there is no indication of a violation of the

applicants' right to an impartial tribunal under Article 6 para. 1

(Art. 6-1).

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 applicants also refer to their complaint under Article 1 of

Protocol No. 1 (P1-1), which they had raised before the Constitutional

Court.

The Commission observes that the applicants in invoking Article 1

of Protocol No. 1 (P1-1) have referred to their submissions before the

Constitutional Court. The Commission finds that mere references to

submissions in the domestic proceedings are insufficient for the

purposes of the proceedings before the Convention organs.

It follows that this complaint is likewise manifestly

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

Convention.

Accordingly, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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HOLZER v. AUSTRIA

HOLZER v. AUSTRIA

LEXI