Final Resolution ResDH (2001)81 Human Rights Application No. 23962/94 Beer Marie- Luise against Austria

(Adopted by the Committee of Ministers on 23 July 2001 at the 760 th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (98) 206, adopted on 10 Ju ly 1998 in the case of Beer Marie- Luise against Austria, in which the Committee of Ministers decided that there had been a violation of Article 6, paragraph 1, of the Convention on account of the absence of a public hearing in the proceedings before the authorities competent for real property transactions, and to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 30 March 1999;

Whereas at the 677th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 15 July 1999, in accordance with former Article 32, paragraph 2, of the Convention, that the Government of the respondent state was to pay the applicant as just satisfaction, within three months, 10 000 Austrian schillings in respect of non-pecuniary damage and 30 000 Austrian schillings in respect of costs and expenses, namely a total sum of 40 000 Austrian schillings, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the Government of the respondent state to inform it of the measures taken following its decisions of 10 July 1998 and 15 July 1999, having regard to Austria’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent state accordingly gave the Committee information about the general measures taken in consequence of the Committee’s decisions to avoid new violations similar to that found in this case (this information appears in the appendix to this resolution);

Whereas the Committee of Ministers satisfied itself that on 28 September 1999, within the time-limit set, the Government of the respondent state had paid the applicant the total sum of 40 000 Austrian schillings as just satisfaction,

Declares, after having taken note of the measures taken by the Government of Austria, that it has exercised its functions under former Article 32 of the Convention in this case.

Information provided by the Government of Austria during the examination of the Beer Marie- Luise case by the Committee of Ministers

The Government recalls that the Tyrolean Real Property Transaction Act, which was in force at the time of the facts of the present case, lacked precision with regard to the necessity of holding a public hearing in proceedings before the real property transactions authorities ( Grundverkehrskommission ). Consequently, these authorities were following the general practice of the administrative authorities under Section 40 of the General Administrative Procedure Act, according to which a hearing is not held in public, unless the law provides otherwise.

Following the finding of the violation of Article 6 in the present case, an amendment of the Tyrolean Real Property Transaction Act adopted. This amendment, which entered into force on 31 December 1999, introduced into the aforementioned law the following new provision:

"The Real Property Transaction Authority shall hold a public hearing if the appeal is not referred back or if it appears already from the file that the appealed decision must be quashed. A hearing does not take place if all parties explicitly renounce it. A hearing may furthermore be omitted in a case in which the appeal is allowed, if it is not contrary to the request of another party or if the rights of third parties are not affected" (new Article 28, paragraph 2).

This new provision, which sets down the principle of a public hearing before the real property transactions authorities, constitutes henceforth a lex specialis to Section 40 of the General Administrative Procedure Act.

The Government notes that this problem does not arise in the other Länder .

The Government is of the opinion that the above-mentioned amendment prevents new violations similar to that found in the present case and that Austria has accordingly complied with its obligations under former Article 32 of the Convention.