Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15517/89

by M. G.

against Austria

The European Commission of Human Rights sitting in private

on 2 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission,

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 May 1989

by G. against Austria and registered on 18 September 1989 under file

No. 15517/89;

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

summarised as follows.

The applicant, born in 1911, is an Austrian citizen and

resident in Vienna. Before the Commission she is represented by

Mr. E. Proksch, a lawyer practising in Vienna.

It appears that on 24 February 1982 the applicant concluded a

preliminary contract with the Nauders Municipality (Gemeinderat)

concerning the sale of a plot of land, used for agricultural purposes,

to the Municipality for AS 101,200. The preliminary contract was

confirmed by the Nauders Municipality on 30 March 1982.

On 30 November 1983 the Mayor of Nauders informed the

applicant that the Municipality, having regard to its bad financial

situation, could not fulfil the contract.

On 19 December 1983 the applicant objected to the

Municipality's decision to withdraw from the contract.

On 21 December 1983 the Municipality proposed to pay in five

annual instalments beginning with 1984.

On 5 September and 4 November 1985 a contract to that effect

was signed by the applicant and representatives of the Municipality.

On 25 November 1985 the applicant's lawyer, authorised also by

the Municipality, applied to the Nauders Real Property Transactions

Authority (Grundverkehrsbehörde), established at the Landeck District

Administrative Authority (Bezirkshauptmannschaft), for approval of the

contract under the Tyrolean Real Property Transactions Act

(Grundverkehrsgesetz), without which the contract could not take

effect. He submitted that the purchasing municipality intended to

lease the plot of land in question to an agricultural community

(Agrargemeinschaft).

On 26 February 1986 the District Administrative Authority

informed the lawyer by telephone that the contract would be approved.

In a letter of the same day, however, the lawyer was informed

that contrary to the information given by telephone, the Nauders Real

Property Transactions Authority in its session of 4 February 1986 had

provisionally decided not to approve the contract ("Zustimmung

vorläufig nicht erteilt") on the ground that the Municipality did not

run a farm. The lawyer was invited to comment within four weeks.

By letter of 24 April 1986 the Mayor of Nauders informed the

lawyer that the Municipal Council, in view of the decision of the

Nauders Real Property Transactions Authority of 4 February 1986 not to

approve the contract in question, would refrain from buying the plot

of land. The Mayor added that the Municipality did not intend to use

the plot of land for agricultural purposes. This information was also

given to the District Administrative Authority.

On 17 June 1986 the Nauders Real Property Transactions

Authority refused to approve the contract on the grounds that the

Nauders Municipality did not run a farm and did not intend to use the

plot of land for agricultural purposes.

On 2 July 1986 the applicant lodged an appeal with the

Regional Real Property Transactions Authority (Landes-

grundverkehrsbehörde) and submitted in particular that members of the

Nauders Municipal Council sat on the Nauders Real Property

Transactions Authority. She argued that the Municipality had changed

its initial intention to lease the plot of land to an agricultural

community, and aimed at withdrawing from the contract. She considered

that the investigation proceedings and the composition of the local

authority were unlawful.

On 12 October 1987 the Regional Real Property Transactions

Authority at the Tyrol Government Office (Amt der Tiroler

Landesregierung) dismissed the applicant's appeal on the ground that

the Municipality did not intend to use the plot of land in question

for agricultural purposes. The question whether the Municipality had

changed its intention was irrelevant.

In accordance with Section 13 of the Tyrolean Real Property

Transaction Act (Grundverkehrsgesetz) the Regional authority was

composed of an expert in real estate matters (as chairman), a judge

of the Innsbruck Court of Appeal, three civil servants from the Office

of the Regional Government (Amt der Landesregierung), a farmer and a

lawyer.

On 10 December 1987 the applicant filed a complaint against

this decision with the Constitutional Court (Verfassungsgerichtshof)

challenging the composition of the Regional Real Property Transactions

Authority and its lack of impartiality. Furthermore she alleged a

violation of Article 6 of the Convention because there was no public

hearing.

On 26 September 1988 the Constitutional Court dismissed the

applicant's complaint. It considered, inter alia, that the tribunal

of second instance (the Regional Real Property Transactions Authority)

was impartial within the meaning of Article 6 of the Convention. As

regards the absence of a public hearing the Constitutional Court noted

that this was covered by the Austrian reservation in respect of

Article 6 of the Convention. This decision was served on the parties

on 21 November 1988.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention that she did not have a fair and public hearing before an

independent and impartial tribunal. In particular, she complains

about the fact that the Nauders Real Property Transactions Authority

was composed of representatives of the other party to the sales

contract, who knew the result of the proceedings before the final

decision was taken. She furthermore complains that the Regional Real

Property Transactions Authority was not independent and did not grant

her a public hearing.

The applicant also alleges a violation of Article 1 para. 1 of

Protocol No. 1 to the Convention.

THE LAW

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

the Convention that in the proceedings before the Nauders Real

Property Transactions Authority she did not have a fair hearing before

an independent and impartial tribunal. Article 6 para. 1 (Art. 6-1)

in so far as relevant reads:

"In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law."

The Commission recalls that Article 6 para. 1 (Art. 6-1) does

not require that in administrative proceedings dealing with civil

rights there must be an independent and impartial tribunal at first

instance, and it is therefore not excluded that such administrative

proceedings precede the determination of civil rights by a tribunal

(Ettl and others v. Austria, Comm. Report 3.10.85, paras. 77-78, p.

25, Eur. Court H.R., Series A no. 117, p. 23; Sramek v. Austria,

Comm. Report 8.12.82, para. 69, Eur. Court H.R. Series A no. 84, p.

31). In the present case administrative proceedings were instituted

at first instance before the Nauders Real Property Transactions

Authority. Its decisions were subject to a full review by the

Regional Real Property Transactions Authority.

It follows that Article 6 (Art. 6) was not applicable to the

administrative proceedings before the Nauders Real Property

Transactions Authority. The applicant's complaints concerning this

part of the proceedings must therefore be rejected as incompatible

ratione materiae with the Convention within the meaning of Article 27

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

2. The applicant also complains under Article 6 (Art. 6) of the

Convention that the Regional Real Property Transactions Authority was

not an independent tribunal as three members were civil servants of

the Tyrolean Provincial Government.

The Commission recalls that the presence of civil servants in

a Regional Real Property Transactions Authority is in principle

compatible with the Convention (Eur. Court H.R., Sramek judgment of 22

October 1984, Series A no. 84, p. 10, para. 41; Eur. Court H.R.,

Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 39-40, paras.

95-97). Unlike the situation in the above-mentioned case of Sramek v.

Austria, none of the members was subordinated to one of the parties

(ibid., p. 20, para. 42).

In the present case the applicant's submissions do not

disclose any indication that the Regional Authority did not act in an

impartial and independent manner.

Consequently, this complaint must be rejected as manifestly

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

Convention.

3. The applicant further alleges a violation of Article 6

(Art. 6) of the Convention in that she did not have a public hearing

in the above proceedings.

The absence of a public hearing before an administrative

authority which determines civil rights is covered by the Austrian

reservation concerning Article 6 (Art. 6) (Eur. Court H.R., Ringeisen

judgment of 16 July 1971, Series A no. 13, pp. 40-41, para. 98; Eur.

Court H.R., Ettl and others judgment of 23 April 1987, p. 19, paras.

42-43).

It follows, that this complaint is incompatible ratione

materiae with the provisions of the Convention within the meaning of

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

4. The applicant also alleges a violation of Article 1 of

Protocol No. 1 (P1-1) in that her contract was not approved by the

Real Property Transactions Authorities.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

The Commission finds that the applicant did not substantiate

her complaints in the proceedings before the Constitutional Court. In

this respect the applicant has failed to exhaust domestic remedies.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and her application

must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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