AS TO THE ADMISSIBILITY OF
Application No. 14699/89
by Georg and Helmut MEUSBURGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 17 January 1989
by Georg and Helmut MEUSBURGER against Austria and registered on
27 February 1989 under file No. 14699/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the Commission's decision of 6 April 1993 to
declare the application inadmissible;
Having regard to the submissions of the applicants' counsel of
10 August 1993 and the subsequent correspondence;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are brothers, born in 1936 and 1938 respectively.
They are Austrian citizens, living in Dornbirn and Schwarzach
respectively. In the proceedings before the Commission they are
represented by Mr. W. Weh, a lawyer practising in Bregenz.
On 20 September 1984 the applicants offered the highest bid
(Meistgebot) for the forced sale (Zwangsversteigerung) of farmland
situated in Hörbranz.
Under the applicable Real Property Transaction Act
(Grundverkehrsgesetz) the transfer of agricultural property requires
approval by a Real Property Transaction Commission (Grundverkehrs-
kommission).
On 29 January 1985 the competent Commission refused approval of
the applicant's bid. In these and the subsequent proceedings the
applicants were represented by Mr. Weh.
On 9 July 1985 the Provincial Real Property Transaction Senate
(Grundverkehrs-senat) dismissed the applicants' appeal. It found that
the first applicant was the owner and general manager of a medium-size
commercial enterprise, in which the second applicant also held a
management position. Given their present profession and the fact that
their time was taken by the management of their enterprise, they had
failed to show that they would use the property at issue for farming
purposes. The purchase was, thus, contrary to the Real Property
Transaction Act.
On 27 August 1985 the applicants lodged a constitutional
complaint. They complained inter alia about the composition of the
Provincial Real Property Transaction Senate and the way it was set up.
They submitted in particular that the Senate had its seat in the Office
of the Land Government, where it also held its meetings, and argued
that this created the impression that the Senate was not independent
from the executive. Further they argued that it was contrary to the
Real Property Transaction Act to appoint a civil servant of the Land
as President. At present there existed the impression among practising
lawyers that the President of the Senate sometimes held meetings with
the competent member of the Land Government before the sessions of the
Senate. Further, the said Act provided that the Rapporteur had to be
a civil servant of the Land, which also cast doubt on the independence
of the Senate. There were no objections as regards the two judges who
were members of the Senate. As to the representatives of different
interest groups, it was not clear, which interests they had to defend
in the Senate. Finally, one member had to be an expert for agriculture
and forestry. There were doubts as to his impartiality as he had to
give an expert opinion first and then had to vote on it. In the present
case, this expert was a senior civil servant at the District Agrarian
Authority (Agrarbezirksbehörde) and as such the subordinate of the
chairman of the Real Property Transaction Commission, who was head of
the District Agrarian Authority. In conclusion, the applicants found
that the Provincial Agrarian Senate could not be regarded as an
independent and impartial tribunal within the meaning of Article 6 of
the Convention. The applicants also complained that the Senate's
decision violated their right to property.
Meanwhile, the applicants requested anew that their bid be
approved. They claimed that new facts had arisen in that the Hörbranz
community had bought the adjacent plot of land. They claimed that the
said community intended to change the designation of the neighbouring
land. The Real Property Transactions Commission refused the request on
the ground that it concerned the same matter as had already been
decided.
On 25 March 1996 the Provincial Real Property Transaction Senate
dismissed the applicants' appeal. It found that there were no relevant
new facts.
On 14 May 1986 the applicants lodged a constitutional complaint
against this decision. They referred to their complaint in the first
set of proceedings. They added in particular that their request that
the major of Hörbranz be heard had been refused.
On 17 May 1986 the applicants supplemented their complaint of
27 August 1985. They referred to their submissions as regards the
impression that the President of the Provincial Real Property
Transaction Senate sometimes discussed matters with the competent
member of the Land Government and stated explicitly that they had
reported a personal impression and not alleged a fact. However, there
was a certain basis for this impression: Following the hearing of
30 January 1986 in the proceedings relating to their second request for
approval of their bid, they had confronted the President of the Senate
with their allegation that he had had a conversation with the member
of the Land Government responsible for agricultural matters exactly one
year ago. The President had remembered such a conversation and that it
had concerned the interpretation of the term "farmer", but without any
connection to particular proceedings. They further complained that they
felt that the Senate's decision was arbitrary in the sense that
stricter measures were applied in their case than in other cases. Thus,
they had requested access to two files. However, the Senate had refused
their request without giving reasons.
On 1 December 1986 the Constitutional Court (Verfassungs-
gerichtshof) quashed the Senate's decisions of 9 July 1985 and
25 March 1986. It noted that in principle the Senate's organisation was
in conformity with Article 6 of the Convention. The Real Property
Transactions Act provided that its members were not to be given
instructions from the executive. They were appointed for a period of
five years, during which they could not be removed from office. There
were no objections from a constitutional point of view against
appointing a civil servant of the Land as Rapporteur. However, in the
present case there were legitimate reasons to fear a lack of
impartiality as regards one of the members of the Senate. The court
found in particular that the said member was in a subordinate position
to the chairman of the Real Property Transaction Commission, i.e. the
authority of first instance. Moreover, the same member had in his
function as a civil servant given an expert opinion on the value of the
property at issue.
The case was referred back to the Provincial Real Property
Transaction Senate for a new decision.
On 4 February 1987 the applicants requested that an oral hearing
be held, and that the mayor of Hörbranz be heard as a witness. Further,
they requested to have access to two particular decisions of the
Senate.
On 19 March 1987 the Provincial Real Property Transaction Senate,
recomposed, held an oral hearing, in presence of the second applicant
and the applicants' counsel. Counsel for the applicants submitted their
arguments, in particular that they grew up on their parents' farm where
they also worked as adolescents and that they intended to breed horses
on the property at issue. At the close of the hearing counsel for the
applicants stated that his request that the mayor of Hörbranz be heard
had been dealt with, whereas his request for access to two particular
decisions of the Senate was still open.
On 22 May 1987 the Provincial Real Property Transaction Senate
again dismissed the applicants' appeal. It confirmed the reasons given
in its earlier decision. As regards the applicants' request for
transmission of decisions of the Senate, it pointed out that there was
no obligation under constitutional law to make its decisions available
to the public.
On 10 July 1987 the applicants again lodged a constitutional
complaint. Inter alia, they complained again about the composition of
the Provincial Real Property Transaction Senate and submitted that the
fact that the Rapporteur was a civil servant of the Land raised doubts
as to his independence. As regards the Senate's President, they
referred to their first constitutional complaint. He had, while their
case was pending, discussed the main legal issue raised by their case
with a member of the Land Government. They also alleged that the
presence of members of various interest groups was contrary to
Article 6 of the Convention. Further, they argued that the Senate's
decision was arbitrary and that the proceedings violated their right
to a fair trial as the Senate's decisions are not published and they
could, therefore, not consult decisions which, in their view, concerned
comparable cases. Thus, they had no possibility to show that the Senate
had decided differently in similar cases. They requested that the court
order the Senate to submit three files, which they specified. They also
complained that the Senate's decision violated their right to property.
On 31 May 1988, after the Senate had made submissions in reply,
the applicants supplemented their complaint. They argued in particular
that the Senate's case-law conceded that the purchaser of agricultural
property did not already have to be a farmer by profession but could
become one by starting a farming activity. This followed from the three
decisions which they had requested and which the Senate had now
submitted to the Constitutional Court. With a view to these decisions,
the refusal to approve their bid was arbitrary.
On 10 June 1988 the Constitutional Court dismissed the complaint.
It found that there were no doubts as regards the independence and
impartiality of the members of the Provincial Real Property Transaction
Senate. The applicants had failed to mention specific circumstances
which would show that this body's composition was contrary to Article 6
of the Convention. Further, as regards the applicant's complaint that
the contested decision was arbitrary, the court found that the
Provincial Real Property Transaction Senate had carried out
comprehensive proceedings to establish the relevant facts and had given
detailed reasoning for its view that the applicants did not intend to
use the property at issue for agricultural purposes. There were no
indications that the Senate had decided arbitrarily. As regards the
applicants' reference to other proceedings, the court, having inspected
the respective files, found that they partly did not concern comparable
cases. Further, it referred to its constant case-law according to which
an authority's misguided decision in one case did not entitle anyone
to a misguided decision in another case. As regards the applicants'
right to peaceful enjoyment of their possessions, the court referred
to the reasons given for the refusal to approve the property
transaction, finding that they did not disclose any arbitrariness.
COMPLAINTS
The applicants allege several violations of Article 6 of the
Convention.
Firstly, they complain about the composition of the Provincial
Real Property Transaction Senate and claim that it is not independent
from the executive. They submit that it applies administrative
procedural law, that it has its headquarters and holds its meetings in
the Office of the Land Government and that its members are appointed
by the Land Government. Further, they submit in particular that the
President of the Senate was a retired civil servant of the Land and
that its Rapporteur was a civil servant of the Land. They claim that,
on 30 January 1986, these two members had a conversation with the
competent member of the Land Government about the legal issue raised
by their case, allegedly just before one of the sessions in which their
case was on the Senate's agenda. As regards the members belonging to
various interest groups they submit that it is not clear whose
interests they represent.
Further they complain that the proceedings before the Senate were
not fair. In particular, they submit that they had no possibility to
question the mayor of Hörbranz and that they were refused inspection
of files relating to similar cases.
THE LAW
1. The Commission recalls that, by its decision of 6 April 1993 it
declared inadmissible for non-observance of the six-months-rule the
applicants' complaint about the alleged lack of independence and
impartiality of the Provincial Real Property Transaction Senate and the
alleged unfairness of the proceedings.
The Commission notes that it has been brought to its attention
that the facts on which this decision was based were incorrect.
It follows that the decision of 6 April 1993, insofar as it
declared the applicants' complaints under Article 6 (Art. 6)
inadmissible for non-observance of the six-months-rule cannot be
maintained.
2. The applicants allege several violations of Article 6 para. 1
(Art. 6-1) of the Convention which, so far 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 ... ."
a. As regards the applicants' complaints about the composition of
the Provincial Real Property Transaction 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 HR., Ringeisen v. Austria
judgment of 16 July 1971 , Series A no. 13, p. 39, para. 95; Sramek v.
Austria 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 of HR., Padovani v. Italy
judgment of 26 February 1993, Series A no. 257-B, p. 20, paras. 25-27),
the Commission observes the following:
The mere fact that the President of the Senate was a retired
civil servant of the Land cannot bear out a challenge of bias: the
subjective impartiality of a judge is presumed until the contrary is
proven (Eur. Court HR., Hauschildt judgment v. Denmark judgment of
24 May 1989, Series A no. 154, p. 21, para. 47). Furthermore, this fact
is in itself not sufficient to warrant legitimate doubts as to his
impartiality.
As regards the Rapporteur of 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 (Ringeisen judgment loc. cit., pp. 39-40, paras. 95-97).
Moreover, in the present case, the Land Government was not a party to
the proceedings (Sramek judgment loc, cit., pp. 19-20, paras. 41-42).
The applicants further allege that the President and the
Rapporteur of the Senate had a conversation with the competent member
of the Land Government about the legal issue raised by their case,
allegedly just before one of the sessions in which their case was on
the Senate's agenda. The Commission firstly notes that there are some
inconsistencies between the applicants' submissions before the
Commission and those before the domestic authorities, as regards the
date of this conversation (30 January 1986 or a year earlier, as
indicated in the applicants' submissions of 17 May 1986 to the
Constitutional Court), the persons participating (only the President
or also the Rapporteur) and the issue discussed. In any case, the
Commission, referring to its above finding that the Land Government was
not a party to the proceedings and having regard to the lapse of time
between the conversation at issue and the Senate's final decision of
22 May 1987, finds that the applicants' fear as regards a lack of
impartiality of the Senate cannot be regarded as objectively justified.
Finally, the Commission does not consider that the applicants'
further submissions of a more general nature, including the complaint
that the Senate's members are appointed by the Land Government raise
any issue as to either the objective or the subjective impartiality or
independence of the Senate (Sramek judgment loc. cit., p. 18,
para. 38).
b. The applicants also complain that the proceedings before the
Senate were not fair. In particular, they submit that they had no
possibility to question the mayor of Hörbranz and that they were
refused inspection of files relating to similar cases.
The Commission recalls that its task is to ascertain whether the
proceedings, considered as a whole, were fair (Eur. Court HR., Lüdi v.
Switzerland judgment of 15 June 1992, Series A no. 238, p. 20,
para. 43).
As regards the questioning of the mayor of Hörbranz, the
Commission notes that the applicants' counsel at the end of the hearing
of 19 March 1987 stated that his request as regards hearing the mayor
had been dealt with. He did not claim that the applicants had had no
possibility to question him, nor did the applicants raise this
complaint with the Constitutional Court. As regards the inspection of
files relating to similar cases, the Commission notes that the Senate
submitted the decisions requested by the applicants to the
Constitutional Court. It follows from the applicants' submissions of
31 May 1988 that they had access to these decisions and in fact
referred to them to support their argument that the Senate had taken
different decisions in comparable cases. In these circumstances, the
Commission finds that there is no indication that the applicants,
represented by counsel, could not duly present their arguments or that
the proceedings were otherwise unfair.
It follows that the applicants' complaints under Article 6
(Art. 6) of the Convention are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO RE-OPEN THE PROCEEDINGS IN THIS CASE, insofar as the
application concerned the applicants' complaint about the alleged
lack of independence and impartiality of the Provincial Agrarian
Senate and the alleged unfairness of the proceedings;
DECLARES THIS COMPLAINT INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy