CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 janvier 1993

.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 }                            FIRST CHAMBER                     AS TO THE ADMISSIBILITY OF                       Application No. 16348/90                     by Walter HANNAK                     against AUSTRIA        The European Commission of Human Rights sitting in private on 8 January 1993, the following members being present:             MM.   J.A. FROWEIN, President                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Sir   Basil HALL           Mr.   C.L. ROZAKIS           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                 Mrs. M. F. BUQUICCHIO, Secretary to the First 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 12 December 1989 by Walter HANNAK against Austria and registered on 26 March 1990 under file No. 16348/90;        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 applicant is an Austrian citizen, born in 1926, who resides in Linz.        The facts of the case, as submitted by the applicant, may be summarised as follows.        Since 1978 the applicant had let certain premises to a company in a building he owns.   By letter of 21 February 1985 the applicant allowed the company to use until 31 December 1987 additional premises free of rent against reimbursement of charges.        Subsequently the applicant started negotiations with the company on a possible purchase of the whole of the applicant's building.   Such a contract, however, was not concluded and on 23 June 1988 the company gave notice for all of the premises rented from the applicant with effect from 31 December 1988.        By letter of 21 September 1988 the applicant charged rent for the additional premises between 1 January and 31 December 1988.   The company refused to pay.        In October and November 1988 the applicant instituted civil proceedings against the firm for eviction from the additional premises and also for payment of rent for these premises as from 1 January 1988. The applicant submitted that the permission to use these additional premises free of rent had been renewed orally in December 1987 only on the condition that the company would buy the applicant's building.   As it did not do so the applicant was entitled to rent.   This was contested by the company, which submitted that the applicant only started to charge rent for the additional premises in 1988, at a time when the arrangement had already been tacitly prolonged.        On 16 February 1989 an oral hearing took place before the Linz District Court (Bezirksgericht).   According to the transcript of the hearing the manager of the firm and the applicant were heard.   Counsel for the applicant then extended the applicant's claim and Counsel for the defendant submitted his final observations, whereupon the court decided not to take further evidence.   No formal request by the applicant for the taking of further evidence is recorded in the transcript.        On 21 March 1989 the District Court dismissed the applicant's claim.   The Court found in particular that concerning the additional premises the parties had not agreed in February 1985 on a non-binding bailment which   could be revoked at any time (Prekarium), as necessary elements of such an arrangement were lacking, but had extended the original rent contract to additional premises.   This temporary extension of the contract was, however, tacitly prolonged at the end of 1987 since no explicit arrangement to the contrary was made. Moreover, no discussions on a possible rent claim for the additional premises had taken place in December 1987.   In 1988 the applicant therefore could no longer unilaterally terminate the contract or charge rent for the additional premises.        On 3 April 1989 the Court's judgment as well as a transcript of the oral hearing of 16 February 1989 were served on the applicant's lawyer.   On 4 April 1989 the applicant raised objections against the transcript of the court hearing of 16 February 1989, claiming in particular that he had been prevented from submitting further written evidence during the hearing, questioning the manager of the firm, and from making further statements while he himself was heard by the court. In his objections the applicant also included those statements which he allegedly could not deposit during the hearing.   The request for rectification of the transcript was accompanied by an affidavit of the applicant's lawyer, dated 26 February 1989, in which the lawyer stated that the applicant had been prevented by the court to ask the witness certain questions, to submit further written evidence and to deposit further statements.   The District Court refused to rectify the transcript.        On 5 July 1989 the Linz Regional Court (Landesgericht) dismissed the applicant's appeal.   It noted in particular that the District Court had dismissed the applicant's request for rectification of the transcript as being unfounded.   The transcript had to be regarded as challenged by the parties, and was not binding but, according to Section 212 para. 1 and Section 498 para. 2 of the Code of Civil Procedure, it was subject to assessment by the court.   As the applicant had been represented by a lawyer either the applicant himself or his lawyer should have made the necessary formal requests for evidence if the proceedings had been incomplete.   Even if the applicant had failed to make certain requests for evidence because he had been surprised by the development of the proceedings, or if such requests had erroneously not been mentioned in the transcript, he had in any event been given ample opportunity to present his case, which could already be seen from the transcript of the hearing of the applicant which itself comprised 13 pages of the transcript.   The request to rectify the transcript of the court hearing had, therefore, to be regarded as an attempt to submit new facts in the course of appeal proceedings which had not been submitted during the proceedings at first instance. However, the raising of such new facts in the course of appeal proceedings was not admissible (Neuerungsverbot).     COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that the Austrian courts had refused to hear certain arguments and to accept further evidence of importance for his case and that the rectification of the transcript of a court hearing was refused without reasons by the courts.   2.    He further complains under Article 1 of Protocol No. 1 to the Convention that his right to peaceful enjoyment of his possessions had been violated as the decision dismissing his claim for rent amounted to a confiscation of his property.       THE LAW   1.    The applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention which, in its relevant part reads as follows:             "In the determination of his civil rights ...           everyone is entitled to a fair and public           hearing within a reasonable time by an           independent and impartial tribunal established           by law."        The applicant claims that this provision was violated because the courts refused to hear certain arguments from him and to accept relevant evidence.        The Commission, having regard to the conduct of the court hearing on 16 February 1989 as recorded in the transcript as well as to the findings of the Linz Regional Court in its judgment of 5 July 1989 considers that there is no indication that the applicant could not duly present his arguments or that the proceedings were otherwise unfairly conducted.   In particular the Commission considers that there is nothing to show that at first instance the applicant, who was represented by Counsel, could not have made a formal request for the taking of further evidence at the end of the hearing.        As regards the appeal proceedings the Commission notes that the Linz Court of Appeal refused to take into account the arguments put forward by the applicant in his request for rectification of the transcript of the hearing of 16 February 1989.   The Commission recalls that the manner of application of Article 6 para. 1 (Art. 6-1) of the Convention to proceedings before courts of appeal depends on the special features of the proceedings involved (Eur. Court H. R., Helmers judgment of 29 October 1991, Series A no. 212-A, p. 15, para. 31; Pardo v. France, Comm. Report 1.4.92, para. 41, not yet published).        The Commission considers that in this context it is not objectionable if a State chooses to limit appeal proceedings in principle to the discussion of issues of procedural and substantive law.   A rule according to which new facts and evidence cannot be taken into account in appeal proceedings does not therefore raise doubts as to the fairness of the appeal proceedings within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission therefore finds that the applicant's complaint does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.        Consequently, this part of the application must be rejected as being manifestly ill-founded in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.     2.    The applicant further complains under Article 1 of Protocol No. 1 (P1-1) to the Convention that his right to peaceful enjoyment of his possession has been violated because the courts' decisions dismissing his claim for rent amounted to a confiscation of his property.        According to Article 1 para. 1, first sentence, of Protocol No. 1 (P1-1-1) "every natural or legal person is entitled to the peaceful enjoyment of his possessions".        The Commission notes that the applicant's rent claim was dismissed by the domestic courts because he had failed to prove the existence of such a claim. Under these circumstances the Commission considers that the applicant's claim for rent cannot be considered as a possession within the meaning of Article 1 of Protocol No.1 (P1-1).        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the First Chamber        President of the First Chamber       (M. F. BUQUICCHIO)                    (J. A. FROWEIN)