THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30427/96 by Christian HECKER against Austria

The European Court of Human Rights (Third Section) , sitting on 5 September 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 February 1996 and registered on 13 March 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a German national, born in 1942 and living in Germany. He is represented before the Court by Mr K. Reisch, a lawyer practising in Kitzbühel.

A. The circumstances of the case [Note1]

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

On 28 December 1973 the applicant concluded a tenancy-agreement ( Mietvertrag ) with the owner of an apartment in Tyrol, Mr. T.P. According to this agreement its duration was fixed with 99 years, the rent was one Austrian schilling per month and was considered as having already been paid as part of the contribution to the costs of construction. The tenancy contract automatically extended to future heirs. T.P. would accept any successor named by the applicant or his heirs as tenant and granted him a right to pre-emption.

In 1978 the agreement was entered in the Land Register ( Grundbuch ).

In 1979 P., in a codicil ( Kodizill ), conferred the apartment as a legacy to the applicant. After P. died in 1983 in a car accident, the applicant requested a declaration from the Kitzbühel Real Property Transaction Authority ( Grundverkehrsbehörde ) that the transfer of property did not require the consent of that authority. On 18 December 1990 this so-called “negative declaration” was issued.

On 10 April 1992, upon an appeal lodged by the Tyrol Real Property Transactions Officer ( Landesgrundverkehrsreferent ), the Regional Real Property Transactions Authority ( Landesgrundverkehrsbehörde ) quashed the decision. It found that the legacy was a transaction intended to circumvent provisions of the Real Property Transactions Act ( Umgehungsgeschäft ) and therefore should be considered void.

On 9 December 1992 the Constitutional Court ( Verfassungsgerichtshof ) dismissed the applicant’s further complaint as it considered that the Regional Real Property Transactions Authority had acted correctly when it rejected the applicant’s request .

On 19 October 1992 the Real Property Transactions Officer filed an action with the Innsbruck Regional Court ( Landesgericht ) against the applicant requesting the court to declare void ( Feststellung der Nichtigkeit ) the 1973 tenancy agreement.

On 4 November 1993 the Regional Court declared the agreement void. It found that the intention of the parties when concluding the contract of 1973 had been to transfer a status tantamount to that of an owner on the applicant, as was apparent from the conditions set out in the contract although it had the form of a tenancy agreement. In view of the number of foreign land owners in Kitzbühel , the real property transaction authorities would not have given their consent to a sales contract. The 1973 tenancy agreement was therefore a sham and had to be declared void under Section 879 of the Civil Code, which provides that a contract concluded in violation of a prohibition established by law is void.

Upon the applicant’s appeal, on 17 February 1994, the Innsbruck Court of Appeal ( Oberlandesgericht ) confirmed the Regional Court’s judgment. On 5 April 1994 the applicant filed a further appeal on points of law ( Revision ) with the Supreme Court ( Oberster Gerichtshof ) in which he argued that the invalidation of the tenancy contract violated his rights under Article 1 of Protocol No. 1, as the Regional Court’s decision interfered with a legal position he had enjoyed over many years. It was not acceptable that the Real Property Transaction Office could interfere with contracts which had been concluded many years ago.

On 13 July 1995 the Supreme Court dismissed the applicant’s further appeal. It found that it had no doubts about the constitutionality of Section 16a of the Real Property Transactions Act as nobody could expect that a status acquired by an unlawful act could become one protected by the law in the future. The fact that the Real Property Transaction Officer could file actions against sham contracts which had been concluded long ago did not interfere with acquired rights ( wohlerworbenen Rechten ), the only limit being prescription after thirty years.

B. Relevant domestic law

Under the Tyrol Real Property Transactions Act 1970 ( Grundverkehrsgesetz ), a contract concerning the transfer of ownership over real property was subject to approval by the Real Property Transaction Commission if agricultural and forestry land was concerned or if the purchaser did not possess Austrian nationality (Section 1 and 3). Such a contract could only take effect if it was approved by the real property transaction authorities (Sections 3 and 16). The purchaser of land was obliged to seek approval of the contract within two months (Section 15 § 1). If approval was withheld, the acquisition was null and void (Section 16 § 1). The conclusion of a tenancy did not require such consent, neither did an acquisition under a will.

According to an amendment to the Real Property Transactions Act of 28 November 1973, Regional Law Gazette No. 6 of 1974, which entered into force on 1 January 1994, tenancy agreements concluded with a foreigner could only be entered in the Land Register after the Real Property Transaction Commission had given its consent.

A further amendment to the Real Property Transactions Act of 3 July 1991 enabled the Real Property Transactions Officer to request a court decision declaring void a contract which constituted a circumvention of the requirement of consent under that Act (Section 16a). This right of the Real Property Transaction Officer also related to transactions which had been concluded before that amendment entered into force (Article II § 4).

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that the decisions of the Austrian courts declaring void the tenancy contract he had concluded in 1973 violated his right to property, as the decisions amounted to an expropriation which was not justified by any public interest and was enforced without compensation.

Under Article 6 of the Convention, he complains that the Real Property Transactions Officer, who is a public officer subject to instructions from the Regional Government, could not be regarded as impartial.

THE LAW

1 . The applicant complains under Article 1 of Protocol No. 1 that the decisions of the Austrian courts declaring void the tenancy contract he had concluded in 1973 violated his right to property.

The relevant part of Article 1 of Protocol No. 1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The Court consi d ers that it cannot, on the basis of the file at the present stage, determine the admissibility of this complaint and that it is, therefore, necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. The applicant further complains that the Real Property Transactions Officer was biased. He invokes Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 23, § 49).

However, in the present case the Real Property Transactions Officer did not act as an organ of the judiciary but as a mere party to the proceedings, i.e. as the applicant’s opponent. He was not involved in the taking of the decision at issue. Therefore the Court can find no appearance of a violation of Article 6 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint that the decisions of the Austrian courts declaring void his 1973 tenancy contract violated his right to property;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.