AS TO THE ADMISSIBILITY OF
Application 18991/91
Ferdinand and Maria-Théresia KOHLER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 13 October 1993, 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
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 8 October 1991 by
Ferdinand and Maria-Théresia KOHLER against Austria and registered on
24 October 1991 under file No. 18991/91;
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 the mayor of Andelsbuch and his wife. They are
both Austrian citizens and own and exploit an agricultural estate in
Alberschwende-Müselbach, Austria. Before the Commission the applicants
are represented by Mr. Ludwig Weh, a lawyer practising in Bregenz,
Austria.
The facts of the case as submitted by the applicants may be
summarised as follows.
On 6 March 1989 the applicants applied to the Vorarlberg
Regional Real Property Transactions Commission (Landesgrundverkehrs-
kommission), hereinafter the Property Commission, for permission to buy
another, almost adjacent, forestry estate of 5251 m2 for a price of
approx. 400.000 ÖS, i.e. 76 ÖS per m2.
As a result of the application, the Property Commission had an
official expert, Dipl. Ing. Z., Head of the Forestry Department of the
Agricultural Authority (Leiter der Abteilung Forstwesen bei der
Agrarbezirkbehörde) of Bregenz, valuate the property. The valuation,
dated 25 August 1989, indicated that the land was worth 125.740 ÖS
based on its yield capacity, i.e. 24 ÖS per m2, with a possible
increase of 10 ÖS per m2 if certain opening up measures were taken. In
his reply the applicant criticised the valuation inter alia as regards
the price of wood chosen, which was based on the very low wood prices
in 1990 following important wind fellings, as a basis for the valuation
and the absence of any consideration of sales of similar properties in
the region. The applicants furthermore pointed at their personal
interests in acquiring the property, which was conveniently located,
in order to leave a viable estate to their 19 year old son.
By decision of 10 April 1990 the Property Commission refused the
application after having received the negative opinion of the local
real estate commission (Grundverkehrs-Ortskommission) of Alberschwende
and of the two local valuers, because of the purchase price which it
found excessive in the light of the provisions contained in section 5,
para. 1, and section 6 sub-para. (d) of the Vorarlberg Real Property
Transaction Act (Grundverkehrsgesetz, LGBl. Nr. 18/1977, as amended
LGBl 63/1987). These provisions read :
(translation)
"An acquisition in accordance with section 1, para. 1, sub-para.
(a) may only be approved if it promotes the general interest in
having an efficient farming structure and, to the extent this is
not possible to achieve, if it does not go against the creation
or maintenance of an economically sound structure of small and
middle-size farming entities, and furthermore, if the acquisition
concerns land to be used exclusively for forestry purposes, only
if it does not go against the general economic well-being of the
country."
"The authorisation is in particular to be refused if
...
(d) the price considerably exceeds the ordinary local price of
the property in question."
The applicant appealed to the Vorarlberg Real Property
Transactions Senate (Grundverkehrssenat), a body presided over by a
former member of the Land 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) and the chamber for workers and
employees (Kammer für Arbeiter und Angestellte) and one member
nominated by the regional association of municipalities (Voralberger
Gemeindeverband)) and an employee of the Land Government as rapporteur.
In their appeal the applicants stressed the high quality of the
new estate and the fact that several regions in the vicinity had
accepted prices of the same, and even higher, level as that in question
in the case at bar.
A new valuation dated 5 July 1990 and carried out by Dipl. Ing.
D., the responsible forest officer at the Vorarlberg local government
(Leiter der Forstabteilung beim Amt), stated the value of the land to
be 172,000 ÖS or 33 ÖS per m2, calculated on the basis of yield. The
forest officer pointed out that the increase in value was only due to
the planned construction of a new road which would facilitate access
to the land.
At the oral hearing held on 25 July 1990, the applicants
criticised the new valuation on the ground that it had not attempted
any comparison with other similar transactions in the region as they
claimed it should have done according to constant case-law in valuation
matters. Stating that they had not had time to organise a private
valuation in time for the hearing, the applicants requested the Senate
to be allowed two months to submit a private valuation of the property.
On 8 August 1990 the Senate rejected the appeal.
The Senate found no reason to grant the applicant's request to
be allowed to submit a private valuation. On the one hand the Senate
had already two valuations at its disposal; on the other, the applicant
had already had sufficient time to submit a private valuation since he
had been aware of the first instance valuation already in March 1990
and since he had received the second official valuation already two
weeks before the oral hearing held on 25 July 1990. In addition,
neither the General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrengesetz) nor the Real Property Transactions Act
contained any right for the parties to submit such requests. It was for
the Senate to decide, ex officio, about the procedure to be followed
(section 39, para. 2 of the General Administrative Procedure Act).
As to the official valuations made, it found no reason to
question either the impartiality or competence of the valuers or the
conclusions they had reached. It pointed out that the higher value
mentioned in the latest certificate was caused by the fact that the
property had been improved after the first valuation had been made and
that the wood price used by both valuers was the average price over the
last few years and not the low prices occasioned by the wind fellings
in 1990 as the applicants had alleged. It found that the ordinary local
price of the land was best represented by the last valuation and noted
that the purchase price exceeded this price by more than 100 %. It
concluded that the requested acquisition permission could not be
granted as this would, as had been found already at first instance,
increase the price level in the region so much that small and middle
size farm units would no longer be able to acquire the necessary land
at economically justifiable prices.
The applicants availed themselves of their right of appeal to the
Constitutional Court (Verfassungsgerichthof). They first complained
about a lack of independence on the part of the official valuers
pointing out that the first instance valuer was hierarchically
subordinate to the President of the Property Commission, who, in his
turn, was subordinate to the second instance valuer. None of them, so
alleged the applicants, were protected by law against orders from their
superior in the accomplishment of their task in the applicants' case.
In addition, the applicants complained of the refusal to allow them two
months to file a private valuation of the land in question. Furthermore
they maintained that the composition of the Senate violated Article 6
of the Convention: its President had been a member of the local
government for 25 years before his appointment to the Senate; one of
its members was President of the local farmers' union; the rapporteur
was an official of the regional government and under the orders of this
government. The applicants, finally, complained about the valuation
method used by the Senate. In support of the last claim they submitted
a new valuation, dated 10 October 1990, and signed by Ing. S.,
according to which the market value of the land in question should be
evaluated mainly by comparison with other sales of similar land. The
new valuation concluded that the piece of land which the applicants'
wished to buy was worth in between 65 and 100 ÖS in the light of six
other transactions and valuations made in the region.
The Constitutional Court rejected, after having heard the
applicants and the Senate, the appeal. As regards the composition of
the Senate it referred to its earlier case-law on the point which had
rejected similar complaints. It added that there were no particular
circumstances in the case at bar warranting another conclusion. As
regards the valuation method chosen the Court noted that there was
nothing in the relevant legislation to prohibit a valuation method
based on yield. The Court found it outside its jurisdiction to go into
the details of the valuation in the instant case.
COMPLAINTS
1. The applicants allege several violations of Article 6 para. 1 of
the Convention. They maintain that the Senate could not be considered
as an independent and impartial tribunal in view of its composition:
its President had previously been a member of the Land Government for
25 years, one of its members was also president of the regional
agricultural chamber, an organisation with a vested interest in low
prices, and the rapporteur was at the same time an employee of the Land
Government.
They also claim that they did not receive a fair trial before
either the Regional Commission or the Senate because the official
experts engaged by these bodies were not impartial and because the
Senate refused to accord them the time necessary to submit a valuation
of an expert of their own choice.
2. The applicants also allege a violation of their right to the
peaceful enjoyment of their property guaranteed in Article 1 of
Protocol No. 1.
THE LAW
1. The applicants allege several violations of Article 6 para. 1
(Art. 6-1) of the Convention which provision reads, in its relevant
parts:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal ... ."
As regards the complaints related to the composition of the
Senate, the Commission recalls at the outset that the Convention organs
have on several occasions found 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 (see, inter alia,
Eur. Court of H.R., Ringeisen judgment of 16 july 1971, Series A No.
13, p. 39, para. 95; and 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 mere fact that the President of the Senate had previously
been a member of the Land 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.
As regards the Senate member who was at the same time president
of the regional agricultural chamber, the Commission finds no proof of
any absence of subjective impartiality on his part. The Commission also
finds no reason to question his objective impartiality. The European
Court of Human Rights found no element of bias in respect of another
comparable body, the Regional Real Property Transactions Commission
(Landesgrundverkehrskommission) 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 of 16 July 1971,
Series A No. 13, p. 40, para. 97). The fact that, in the present case,
it was the president of the chamber who had been appointed does not,
in the opinion of the Commission, warrant a different conclusion. This
fact 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 of 22 June
1989, Series A No. 155, p. 16, para. 35). In this context the
Commission notes in particular 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).
As regards the rapporteur on the Senate, the Commission recalls
that the Court has held that the presence of civil servants on the
comparable Upper Austrian Regional Commission was compatible with the
Convention (see the above mentioned Ringeisen judgment, Series A No.
13, pp. 39-40, paras. 95-97) and that the Land Government itself was
not a party to the present proceedings (cf. Eur. Court H.R. above
mentioned Sramek judgment, 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.
The Commission, accordingly, finds no indication of any violation
of the applicants' right to an impartial tribunal.
As regards the applicants' complaint that they did not receive
a fair trial, the Commission limits its examination to the Senate as
this body was the last national organ to determine both the questions
of fact and the legal issues in dispute (see, Eur. Court H.R., above
mentioned Langborger judgment, Series A No. 155, p. 15, para. 30). The
Commission observes that if it were established that the applicants
could have entertained legitimate doubts as to the impartiality of the
officially appointed valuers in their case, the applicants ought, in
principle, to have been entitled to submit to the Senate a valuation
by an expert of their own choice and to have this new valuation
considered on equal footing with the others (cf. Eur. Court H.R.,
Brandstetter judgment of 28 August 1991, Series A No. 211, pp. 25-27,
paras. 61-63; also Firma F.M. Zumtobel and Martin Zumtobel v. Austria,
Comm. Report 30.6.1992, paras. 84-88). The Commission notes, however,
that the Senate did not exclude such an entitlement on the part of the
applicants, although it rejected the applicants' request to be allowed
to submit such a valuation on procedural grounds as it had been
formulated too late. The Commission sees no reason to question the
Senate's assessment on this point and concludes, accordingly, that
there is no appearance of a violation of the applicants' right to a
fair trial in Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the complaints under Article 6 para. 1
(Art. 6-1) have to be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also allege a violation of Article 1 of Protocol
no. 1 (P1-1) to the Convention, which reads:
"Every natural and 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 to secure the payment of taxes or other contributions
or penalties."
The Commission finds that there may, in the present case, be a
question whether the contract for the sale of the land at issue really
gave the applicants a right protected by Article 1 of Protocol No. 1
(P1-1) before its approval by the competent authorities (cf. Eur. Court
H.R., Van der Mussele judgment of 23 November 1983, Series A No. 70 p.
23, para. 48). The Commission does not, however, find it necessary to
examine this problem in the circumstances of the present case as it has
found that, in any event, the applicants' complaints under the said
Article 1 (Art. 1) are manifestly ill-founded and this for the
following reasons.
It is clear that, as a result of the approval system in force,
the applicants cannot reasonably have expected to obtain more than a
conditional title to the property through the contract which they
entered into with the sellers of the land. The possibility that
approval could eventually be refused must have been reasonably
foreseeable. The Commission notes in particular that the refusal was
found to be lawful by the Constitutional Court. Furthermore, there are
no indications to the effect that the refusal imposed any
disproportionate burden on the applicants or otherwise upset the fair
balance which has to be struck between the demands of the general
interest of the community and the requirements of the protection of the
individual's fundamental rights (cf. Eur. Court H.R., Sporrong and
Lönnroth judgment of 23 September 1982, Series A No. 52, p. 26,
para. 59).
The Commission, accordingly, finds no indication of any violation
of Article 1 of Protocol No. 1 (P1-1). It follows that this complaint
must also be rejected as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy