Lexploria

FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 16348/90

by Walter HANNAK

against AUSTRIA

The European Commission of Human Rights sitting in private on

8 January 1993, the following members being present:

MM. J.A. FROWEIN, President

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

Mrs. M. F. BUQUICCHIO, Secretary to the First 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 12 December 1989

by Walter HANNAK against Austria and registered on 26 March 1990 under

file No. 16348/90;

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 is an Austrian citizen, born in 1926, who resides

in Linz.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Since 1978 the applicant had let certain premises to a company

in a building he owns. By letter of 21 February 1985 the applicant

allowed the company to use until 31 December 1987 additional premises

free of rent against reimbursement of charges.

Subsequently the applicant started negotiations with the company

on a possible purchase of the whole of the applicant's building. Such

a contract, however, was not concluded and on 23 June 1988 the company

gave notice for all of the premises rented from the applicant with

effect from 31 December 1988.

By letter of 21 September 1988 the applicant charged rent for the

additional premises between 1 January and 31 December 1988. The

company refused to pay.

In October and November 1988 the applicant instituted civil

proceedings against the firm for eviction from the additional premises

and also for payment of rent for these premises as from 1 January 1988.

The applicant submitted that the permission to use these additional

premises free of rent had been renewed orally in December 1987 only on

the condition that the company would buy the applicant's building. As

it did not do so the applicant was entitled to rent. This was

contested by the company, which submitted that the applicant only

started to charge rent for the additional premises in 1988, at a time

when the arrangement had already been tacitly prolonged.

On 16 February 1989 an oral hearing took place before the Linz

District Court (Bezirksgericht). According to the transcript of the

hearing the manager of the firm and the applicant were heard. Counsel

for the applicant then extended the applicant's claim and Counsel for

the defendant submitted his final observations, whereupon the court

decided not to take further evidence. No formal request by the

applicant for the taking of further evidence is recorded in the

transcript.

On 21 March 1989 the District Court dismissed the applicant's

claim. The Court found in particular that concerning the additional

premises the parties had not agreed in February 1985 on a non-binding

bailment which could be revoked at any time (Prekarium), as necessary

elements of such an arrangement were lacking, but had extended the

original rent contract to additional premises. This temporary

extension of the contract was, however, tacitly prolonged at the end

of 1987 since no explicit arrangement to the contrary was made.

Moreover, no discussions on a possible rent claim for the additional

premises had taken place in December 1987. In 1988 the applicant

therefore could no longer unilaterally terminate the contract or charge

rent for the additional premises.

On 3 April 1989 the Court's judgment as well as a transcript of

the oral hearing of 16 February 1989 were served on the applicant's

lawyer. On 4 April 1989 the applicant raised objections against the

transcript of the court hearing of 16 February 1989, claiming in

particular that he had been prevented from submitting further written

evidence during the hearing, questioning the manager of the firm, and

from making further statements while he himself was heard by the court.

In his objections the applicant also included those statements which

he allegedly could not deposit during the hearing. The request for

rectification of the transcript was accompanied by an affidavit of the

applicant's lawyer, dated 26 February 1989, in which the lawyer stated

that the applicant had been prevented by the court to ask the witness

certain questions, to submit further written evidence and to deposit

further statements. The District Court refused to rectify the

transcript.

On 5 July 1989 the Linz Regional Court (Landesgericht) dismissed

the applicant's appeal. It noted in particular that the District Court

had dismissed the applicant's request for rectification of the

transcript as being unfounded. The transcript had to be regarded as

challenged by the parties, and was not binding but, according to

Section 212 para. 1 and Section 498 para. 2 of the Code of Civil

Procedure, it was subject to assessment by the court. As the applicant

had been represented by a lawyer either the applicant himself or his

lawyer should have made the necessary formal requests for evidence if

the proceedings had been incomplete. Even if the applicant had failed

to make certain requests for evidence because he had been surprised by

the development of the proceedings, or if such requests had erroneously

not been mentioned in the transcript, he had in any event been given

ample opportunity to present his case, which could already be seen from

the transcript of the hearing of the applicant which itself comprised

13 pages of the transcript. The request to rectify the transcript of

the court hearing had, therefore, to be regarded as an attempt to

submit new facts in the course of appeal proceedings which had not been

submitted during the proceedings at first instance. However, the

raising of such new facts in the course of appeal proceedings was not

admissible (Neuerungsverbot).

COMPLAINTS

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

that the Austrian courts had refused to hear certain arguments and to

accept further evidence of importance for his case and that the

rectification of the transcript of a court hearing was refused without

reasons by the courts.

2. He further complains under Article 1 of Protocol No. 1 to the

Convention that his right to peaceful enjoyment of his possessions had

been violated as the decision dismissing his claim for rent amounted

to a confiscation of his property.

THE LAW

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

Convention which, in its relevant part reads as follows:

"In the determination of his civil rights ...

everyone is entitled to a fair and public

hearing within a reasonable time by an

independent and impartial tribunal established

by law."

The applicant claims that this provision was violated because the

courts refused to hear certain arguments from him and to accept

relevant evidence.

The Commission, having regard to the conduct of the court hearing

on 16 February 1989 as recorded in the transcript as well as to the

findings of the Linz Regional Court in its judgment of 5 July 1989

considers that there is no indication that the applicant could not duly

present his arguments or that the proceedings were otherwise unfairly

conducted. In particular the Commission considers that there is

nothing to show that at first instance the applicant, who was

represented by Counsel, could not have made a formal request for the

taking of further evidence at the end of the hearing.

As regards the appeal proceedings the Commission notes that the

Linz Court of Appeal refused to take into account the arguments put

forward by the applicant in his request for rectification of the

transcript of the hearing of 16 February 1989. The Commission recalls

that the manner of application of Article 6 para. 1 (Art. 6-1) of the

Convention to proceedings before courts of appeal depends on the

special features of the proceedings involved (Eur. Court H. R., Helmers

judgment of 29 October 1991, Series A no. 212-A, p. 15, para. 31; Pardo

v. France, Comm. Report 1.4.92, para. 41, not yet published).

The Commission considers that in this context it is not

objectionable if a State chooses to limit appeal proceedings in

principle to the discussion of issues of procedural and substantive

law. A rule according to which new facts and evidence cannot be taken

into account in appeal proceedings does not therefore raise doubts as

to the fairness of the appeal proceedings within the meaning of

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

The Commission therefore finds that the applicant's complaint

does not disclose any appearance of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

Consequently, this part of the application must be rejected as

being manifestly ill-founded in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains under Article 1 of Protocol No. 1

(P1-1) to the Convention that his right to peaceful enjoyment of his

possession has been violated because the courts' decisions dismissing

his claim for rent amounted to a confiscation of his property.

According to Article 1 para. 1, first sentence, of Protocol No.

1 (P1-1-1) "every natural or legal person is entitled to the peaceful

enjoyment of his possessions".

The Commission notes that the applicant's rent claim was

dismissed by the domestic courts because he had failed to prove the

existence of such a claim. Under these circumstances the Commission

considers that the applicant's claim for rent cannot be considered as

a possession within the meaning of Article 1 of Protocol No.1 (P1-1).

It follows that this part of the application is also 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) (J. A. FROWEIN)

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HANNAK v. AUSTRIA

HANNAK v. AUSTRIA

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