CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                             Application No. 15517/89                         by M. G.                         against Austria               The European Commission of Human Rights sitting in private on 2 September 1991, the following members being present:                  MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission,           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 May 1989 by G. against Austria and registered on 18 September 1989 under file No. 15517/89;           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 facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant, born in 1911, is an Austrian citizen and resident in Vienna.   Before the Commission she is represented by Mr.   E. Proksch, a lawyer practising in Vienna.           It appears that on 24 February 1982 the applicant concluded a preliminary contract with the Nauders Municipality (Gemeinderat) concerning the sale of a plot of land, used for agricultural purposes, to the Municipality for AS 101,200.   The preliminary contract was confirmed by the Nauders Municipality on 30 March 1982.           On 30 November 1983 the Mayor of Nauders informed the applicant that the Municipality, having regard to its bad financial situation, could not fulfil the contract.           On 19 December 1983 the applicant objected to the Municipality's decision to withdraw from the contract.           On 21 December 1983 the Municipality proposed to pay in five annual instalments beginning with 1984.           On 5 September and 4 November 1985 a contract to that effect was signed by the applicant and representatives of the Municipality.           On 25 November 1985 the applicant's lawyer, authorised also by the Municipality, applied to the Nauders Real Property Transactions Authority (Grundverkehrsbehörde), established at the Landeck District Administrative Authority (Bezirkshauptmannschaft), for approval of the contract under the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz), without which the contract could not take effect.   He submitted that the purchasing municipality intended to lease the plot of land in question to an agricultural community (Agrargemeinschaft).           On 26 February 1986 the District Administrative Authority informed the lawyer by telephone that the contract would be approved.           In a letter of the same day, however, the lawyer was informed that contrary to the information given by telephone, the Nauders Real Property Transactions Authority in its session of 4 February 1986 had provisionally decided not to approve the contract ("Zustimmung vorläufig nicht erteilt") on the ground that the Municipality did not run a farm.   The lawyer was invited to comment within four weeks.           By letter of 24 April 1986 the Mayor of Nauders informed the lawyer that the Municipal Council, in view of the decision of the Nauders Real Property Transactions Authority of 4 February 1986 not to approve the contract in question, would refrain from buying the plot of land.   The Mayor added that the Municipality did not intend to use the plot of land for agricultural purposes.   This information was also given to the District Administrative Authority.           On 17 June 1986 the Nauders Real Property Transactions Authority refused to approve the contract on the grounds that the Nauders Municipality did not run a farm and did not intend to use the plot of land for agricultural purposes.           On 2 July 1986 the applicant lodged an appeal with the Regional Real Property Transactions Authority (Landes- grundverkehrsbehörde) and submitted in particular that members of the Nauders Municipal Council sat on the Nauders Real Property Transactions Authority.   She argued that the Municipality had changed its initial intention to lease the plot of land to an agricultural community, and aimed at withdrawing from the contract.   She considered that the investigation proceedings and the composition of the local authority were unlawful.           On 12 October 1987 the Regional Real Property Transactions Authority at the Tyrol Government Office (Amt der Tiroler Landesregierung) dismissed the applicant's appeal on the ground that the Municipality did not intend to use the plot of land in question for agricultural purposes.   The question whether the Municipality had changed its intention was irrelevant.           In accordance with Section 13 of the Tyrolean Real Property Transaction Act (Grundverkehrsgesetz) the Regional authority was composed of an expert in real estate matters (as chairman), a judge of the Innsbruck Court of Appeal, three civil servants from the Office of the Regional Government (Amt der Landesregierung), a farmer and a lawyer.           On 10 December 1987 the applicant filed a complaint against this decision with the Constitutional Court (Verfassungsgerichtshof) challenging the composition of the Regional Real Property Transactions Authority and its lack of impartiality.   Furthermore she alleged a violation of Article 6 of the Convention because there was no public hearing.           On 26 September 1988 the Constitutional Court dismissed the applicant's complaint.   It considered, inter alia, that the tribunal of second instance (the Regional Real Property Transactions Authority) was impartial within the meaning of Article 6 of the Convention.   As regards the absence of a public hearing the Constitutional Court noted that this was covered by the Austrian reservation in respect of Article 6 of the Convention.   This decision was served on the parties on 21 November 1988.     COMPLAINTS           The applicant complains under Article 6 para. 1 of the Convention that she did not have a fair and public hearing before an independent and impartial tribunal.   In particular, she complains about the fact that the Nauders Real Property Transactions Authority was composed of representatives of the other party to the sales contract, who knew the result of the proceedings before the final decision was taken.   She furthermore complains that the Regional Real Property Transactions Authority was not independent and did not grant her a public hearing.         The applicant also alleges a violation of Article 1 para. 1 of Protocol No. 1 to the Convention.     THE LAW   1.       The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that in the proceedings before the Nauders Real Property Transactions Authority she did not have a fair hearing before an independent and impartial tribunal.   Article 6 para. 1 (Art. 6-1) in so far as relevant reads:           "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Commission recalls that Article 6 para. 1 (Art. 6-1) does not require that in administrative proceedings dealing with civil rights there must be an independent and impartial tribunal at first instance, and it is therefore not excluded that such administrative proceedings precede the determination of civil rights by a tribunal (Ettl and others v.   Austria, Comm.   Report 3.10.85, paras. 77-78, p. 25, Eur. Court H.R., Series A no. 117, p. 23;   Sramek v.   Austria, Comm.   Report 8.12.82, para. 69, Eur.   Court H.R. Series A no. 84, p. 31).   In the present case administrative proceedings were instituted at first instance before the Nauders Real Property Transactions Authority.   Its decisions were subject to a full review by the Regional Real Property Transactions Authority.           It follows that Article 6 (Art. 6) was not applicable to the administrative proceedings before the Nauders Real Property Transactions Authority.   The applicant's complaints concerning this part of the proceedings must therefore be rejected as incompatible ratione materiae with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains under Article 6 (Art. 6) of the Convention that the Regional Real Property Transactions Authority was not an independent tribunal as three members were civil servants of the Tyrolean Provincial Government.           The Commission recalls that the presence of civil servants in a Regional Real Property Transactions Authority is in principle compatible with the Convention (Eur.   Court H.R., Sramek judgment of 22 October 1984, Series A no. 84, p. 10, para. 41; Eur.   Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 39-40, paras. 95-97).   Unlike the situation in the above-mentioned case of Sramek v. Austria, none of the members was subordinated to one of the parties (ibid., p. 20, para. 42).           In the present case the applicant's submissions do not disclose any indication that the Regional Authority did not act in an impartial and independent manner.           Consequently, this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant further alleges a violation of Article 6 (Art. 6) of the Convention in that she did not have a public hearing in the above proceedings.           The absence of a public hearing before an administrative authority which determines civil rights is covered by the Austrian reservation concerning Article 6 (Art. 6) (Eur.   Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 40-41, para. 98; Eur. Court H.R., Ettl and others judgment of 23 April 1987, p. 19, paras. 42-43).           It follows, that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant also alleges a violation of Article 1 of Protocol No. 1 (P1-1) in that her contract was not approved by the Real Property Transactions Authorities.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           The Commission finds that the applicant did not substantiate her complaints in the proceedings before the Constitutional Court.   In this respect the applicant has failed to exhaust domestic remedies.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and her application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission unanimously             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)