AS TO THE ADMISSIBILITY OF
Application No. 22426/93
by Hermann and Edith HOLZER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the 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 2 August 1993 by
Hermann and Edith Holzer against Austria and registered on
5 August 1993 under file No. 22426/93;
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 applicants are Austrian citizens, both born in 1950 and
residing in Lustenau/Austria. Before the Commission, they are
represented by Mr. W. Weh, a lawyer practising in Bregenz.
The facts, as they have been submitted by the applicants, may be
summarised as follows.
On 20 June 1991 the applicants applied to the Vorarlberg Regional
Real Property Commission (Grundverkehrs-Landeskommission) for an
authorization to purchase a building plot, at the time used for farming
purposes, which they intended to reserve for future use of their three
children, two of which were born in 1986 and another in 1986.
On 8 August 1991 the Regional Real Property Commission, referring
in particular to S. 5 para. 1 and S. 6 subpara (a) of the Vorarlberg
Real Property Transactions Act (Grundverkehrsgesetz) refused the
requested authorization. It held that the purchase of building plots
in order to reserve them for future use contravenes the interests of
maintenance of economically sound farming entities, as the communal
authorities, for the lack of sufficient building plots to satisfy the
future demand, would be forced to change the designation of farming
areas into building land. Thus, building plots only should be awarded
to people who really intend to construct houses on such plots.
SS. 5 and 6 of the Vorarlberg Real Property Act provide inter
alia that an acquisition of farmland only may be approved if it does
not contravene the aim of maintenance of an economically sound
structure of small and middle size farming entities. In particular, the
authorization is to be refused, if an estate were withdrawn from
agricultural exploitation without any important reason.
On 3 July 1992 the Vorarlberg Real Property Transactions Senate
(Grundverkehrssenat), also referring to S. 7 of the Real Property
Transactions Act, confirmed the findings of the Real Property
Transactions Commission, as the estate had currently been used for
farming purposes and dismissed the appeal.
S. 7 of the Real Property Act provides, inter alia that the
interests in the new use of estates must outweigh the interests in
maintaining the current exploitation.
The Senate was presided over by a former member of the Regional
Government and consisting of two judges, four members nominated by
special interest organisations (the Regional Agricultural Chamber
(Landwirtschaftskammer), the Industrial Chamber (Kammer der
gewerblichen Wirtschaft), the Chamber for Workers and Employees (Kammer
für Arbeiter und Angestellte) and the Regional Association of
Municipalities (Vorarlberger Gemeindeverband)) and an employee of the
Office of the Regional Government as rapporteur.
On 30 November 1992 the Constitutional Court (Verfassungs-
gerichtshof) dismissed the applicants' complaint challenging some
members of the Vorarlberg Real Property Transactions Senate on account
of their alleged lack of impartiality. It further found that the
applicants had not sufficiently substantiated their complaint as to a
violation of their right to respect of their property. The decision was
served upon the applicants on 2 February 1993.
COMPLAINTS
1. The applicants complain under Article 6 para. 1 of the Convention
that the Senate, in view of its composition, could not be considered
as an independent and impartial tribunal. They submit in particular
that its President had formerly been a member of the Vorarlberg
Regional Government, one of its members was also President of the
Regional Agricultural Chamber and that the Rapporteur was at the same
time an employee of the Office of the Regional Government.
2. The applicants further refer to their submissions before the
Constitutional Court, where they complained under Article 1 of Protocol
No. 1 about the refusal to purchase the property concerned.
THE LAW
1. The applicants complain that the Vorarlberg Real Property
Transactions Senate cannot be regarded as an impartial and independent
tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission recalls that the organisation of the authorities
responsible for the control of land acquisition in Austria does not,
in principle, raise any problems regarding the judicial character or
the independence of these authorities (Eur. Court H.R., Ringeisen
judgment of 16 July 1971, Series A no. 13, p. 39, para. 95; Sramek
judgment of 22 October 1984, Series A no. 84, pp. 17-20, paras. 36-42).
As regards the question whether the members of the Senate in the
applicants' case satisfied the requirements of impartiality, both
subjectively and objectively (see Eur. Court H.R., Langborger judgment
of 22 June 1989, Series A no. 155, p. 16, para. 32), the Commission
observes the following :
The fact that the President of the Senate had previously been a
member of the Regional Government for 25 years cannot bear out a
challenge of bias: the subjective impartiality of a judge is presumed
until the contrary is proven (Eur. Court H.R., Hauschildt judgment of
24 May 1989, Series A no. 154, p. 21, para. 47). Furthermore, this fact
in itself is not sufficient to warrant legitimate doubts as to his
impartiality.
Moreover, there is no indication that the Senate member who was
at the same time president of the Regional Agricultural Chamber was
personally biased, and there is no reason to question his objective
impartiality. In the latter respect, the Commission recalls that there
was no element of bias in respect of a comparable body, namely the
Regional Real Property Transactions Commission (Landesgrundverkehrs-
kommission) of Upper Austria, on account of the fact that one of its
members had been nominated by the local chamber of agriculture
(Eur. Court H.R., Ringeisen judgment, loc. cit., p. 40, para. 97). The
fact that, in the present case, the appointment of the President of the
Chamber was concerned does not, in the opinion of the Commission,
warrant a different conclusion, as it is not enough to create any
legitimate doubts that the balance of interests inherent in the
composition of the Senate was upset in the applicants' case (cf.
Eur. Court H.R., Langborger judgment, loc. cit., p. 16, para. 35). In
this context the Commission notes that the protection of the interests
of the local farmers was explicitly recognised by the legislation in
question as a legitimate interest under the law (cf.
De Moor v. Belgium, Comm. Report 8.1.93, paras. 58-59, to be
published).
As regards the Rapporteur in the Senate, the Commission recalls
that the presence of civil servants on the comparable Upper Austrian
Regional Commission was found to be compatible with the Convention (see
Eur. Court H.R., Ringeisen judgment, loc. cit., pp. 39-40, paras.
95-97) and that the Regional Government itself was not a party to the
present proceedings (cf. Eur. Court H.R., Sramek judgment, loc. cit.,
pp. 19-20, paras. 41-42). In the light hereof, the Commission does not
consider that this complaint raises any issue as to either the
objective or subjective impartiality or independence of the Senate.
Accordingly, there is no indication of a violation of the
applicants' right to an impartial tribunal under Article 6 para. 1
(Art. 6-1).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants also refer to their complaint under Article 1 of
Protocol No. 1 (P1-1), which they had raised before the Constitutional
Court.
The Commission observes that the applicants in invoking Article 1
of Protocol No. 1 (P1-1) have referred to their submissions before the
Constitutional Court. The Commission finds that mere references to
submissions in the domestic proceedings are insufficient for the
purposes of the proceedings before the Convention organs.
It follows that this complaint is likewise manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Accordingly, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy