CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.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. 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)