THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

application no. 32805/96

by Franz KAINZ

against Austria

The European Court of Human Rights ( Third Section ) sitting on 31 August 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J.-P. Costa,

Mr L. Loucaides ,

Mrs F. Tulkens ,

Mr K. Jungwiert ,

Mrs H. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 May 1996 by Franz Kainz against Austria and registered on 28 August 1996 under file no. 32805/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1934 and living in Hard.

He is represented before the Court by Ms Berchtold-Ostermann , a lawyer practising in Vienna.

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

A. PARTICULAR CIRCUMSTANCES OF THE CASE

In 1979 the applicant concluded with M. a contract for the purchase of a plot of land situated in the Vorarlberg region.

On 16 December 1993 the applicant, represented by counsel, filed a request with the Vorarlberg Real Property Transaction Commission ( Grundverkehrs-Landeskommission ) to approve the acquisition of the plot of land by the above sales contract.

On 8 March 1994 the Real Property Transaction Commission, referring in particular to sections 5(1) and 6(a) of the 1977 Vorarlberg Real Property Transactions Act ( Grundverkehrsgesetz ), as amended in 1987, refused the approval. It found in particular that the plot of land formed part of the “ Maisäss ” (an alpine pasture at middle elevation up to about 1200 m) Zafern no. 29. The cottage on this plot, which the applicant had meanwhile renovated and transformed into a secondary residence, formed an important part of this pasture, even if it was not used for agricultural purposes. It was not in the interests of efficient peasantry and sound agricultural estates to split up this farming entity.

On 31 May 1994 the Real Property Transaction Senate ( Grundverkehrssenat ), following an oral hearing on 27 May 1994 in the presence of the applicant’s counsel, dismissed the applicant’s appeal. In its decision the Senate noted his appeal submissions, in particular his assertion that he had not known about the necessity of approval under the Real Property Transaction Act. The Senate considered that it was not credible that the vendor of the plot of land, then mayor of Fontanella , had ignored the legal situation when drawing up the written contract in 1979. It rather appeared that the contract had been concluded in 1979 in order to circumvent the Real Property Transaction Act, and that the reconstruction work had been carried out by the applicant in order to obtain approval, the cottage having been changed so as to remove any sign of its previous agricultural use. These measures contravened the general interest in maintaining an efficient peasantry and an economically sound structure for small and middle size farming entities.

On 28 July 1994 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He complained about a violation of his right to be heard by a legally competent court ( gesetzlicher Richter ), claiming that the real transaction authorities lacked competence as the Real Property Transaction Act did not apply to the plot of land in question. He further complained that the decision of the Real Property Transaction Senate was arbitrary in presuming an intention to circumvent the provisions of the Real Property Transaction Act.

On 4 October 1995 the Constitutional Court dismissed the applicant's complaint. The Constitutional Court observed at the outset that in accordance with the transitional provisions of the 1993 Real Property Transactions Act, which had entered into force in January 1994, the 1977 Act continued to apply to pending proceedings. As regards the competence of the real estate transactions authorities, the Constitutional Court noted that when the applicant had acquired the plot of land in 1979, it had been an agricultural estate as there had been a “ Maisäss ” cottage on it. Such cottages served farmers inter alia in spring and autumn for feeding purposes before and after the periods spent on the high alpine pastures. The Real Property Transaction Senate had convincingly reasoned that the reconstruction of the cottage as a secondary residence had changed the initial purpose of the plot of land, and that such action served to circumvent the legal rules. In this context, the question of intent was irrelevant, it was sufficient that, objectively seen, there was such a circumvention. On the whole, there was no appearance of arbitrariness.

The decision was served on 16 November 1995.

B. RELEVANT DOMESTIC LAW

Under the Vorarlberg Real Property Transactions Act of 1977, as amended in 1987, a contract concerning the transfer of ownership of real property was subject to approval by the real property transaction authorities if agricultural and forestry land was involved (Section 1).  If approval was withheld, the acquisition was null and void (Section 18(1)).

Sections 5 and 6 of the Real Property Act provide inter alia that an acquisition of farmland only may be approved if it serves the general interest in maintaining efficient peasantry and sound agricultural estates, and if the purchaser uses the land for farming or, if this is not the case, it does not contravene the aim of maintaining an economically sound structure for small and middle size farming entities. In particular, approval is to be refused if an estate is withdrawn from agricultural exploitation for no important reason or if there are reasons to assume that a particular transaction was concluded or changes in the use of land were made in order to obtain approval in circumvention of the Real Property Act.

The Vorarlberg Real Property Transactions Act of 1993, which entered into force in January 1994, did not apply to pending proceedings (Section II of the law amending the Real Property Transactions Act).

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the Real Property Transactions Senate and the Constitutional Court failed to hear him personally on the question whether the sales contract of 1979 had circumvented the provisions of the Real Property Transactions Act. He complains about the Constitutional Court’s failure to adopt his reasoning regarding the lack of competence of the Real Property Transactions Senate and the failure to apply a more favourable provision of the 1993 Real Property Transactions Act.

2. The applicant also considers that the above decisions amount to a deprivation of his property, contrary to Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains about the decisions taken by the Real Property Transactions Senate and the Constitutional Court, refusing his request for approval of a real property transaction. He also complains about the proceedings concerned. He invokes Article 6 § 1 of the Convention which, as far as relevant, provides as follows:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by [a] … tribunal … .”

With regard to the judicial decisions of which the applicant complains, the Court recalls that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among many other authorities, the Pérez de Rada Cavanilles v. Spain judgment of 25 September 1998, Reports of Judgments and Decisions 1998-VIII, p. 3255, § 43). Moreover, as a general rule, the assessment of the facts is within the province of the national courts (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20, § 60). Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see the above-mentioned Van de Hurk judgment, p. 19, § 59).

The Court observes at the outset that the applicant did not expressly raise the issue of his personal presence at the oral hearing before the Real Property Transactions Senate in his appeal to the Constitutional Court.

However, even assuming that the applicant may be said to have exhausted domestic remedies in compliance with Article 35 § 1 of the Convention, the Court finds that the applicant’s submissions do not disclose any appearance of unfairness in the proceedings as a whole.

The Court considers in particular that the applicant, represented by counsel, could duly present his arguments in the proceedings before the Real Property Transactions Senate and before the Constitutional Court. There is nothing to show that the assessment of the material before the domestic authorities was arbitrary.

As regards the question of the applicant’s personal presence at the hearing before the Real Property Transactions Authority, the Court notes that the applicant’s counsel, in his appeal submissions to the Real Property Transactions Senate, did not request that the applicant be personally summoned, nor at the hearing did he request that the applicant be personally heard about his intentions at the time of the sales contract. However, for the purposes of Article 6 § 1 of the Convention, the applicant must be identified with the counsel who acted on his behalf. In any event, these appeal proceedings concerned questions of fact and law which did not include any evaluation for which it was essential to the fairness of the proceedings that the applicant be present and afforded the opportunity to participate together with his counsel.  The question of whether there had been deliberate action to circumvent the provisions of the Real Property Transactions Act was, as stated by the Constitutional Court, irrelevant.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains that he could not acquire the plot of land at issue. He relies on Article 1 of Protocol No. 1, which 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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

The Court observes that, under the relevant domestic law, a contract for the transfer of ownership of real property can only take effect and be recorded in the land register if it has been approved by the competent real property transactions authorities.  The transfer of title does not occur before the entry in the land register.  The applicant thus complains that he could not acquire property rights in the land in question.   However, Article 1 of Protocol No. 1 only applies to existing possessions and does not guarantee a right to acquire possessions ( see the Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, § 48).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President