CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1997

.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. 23962/94                       by Marie-Luise BEER                       against Austria          The European Commission of Human Rights (Second Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, 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 March 1994 by Marie-Luise BEER against Austria and registered on 25 April 1994 under file No. 23962/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      17 July 1996 and the observations in reply submitted by the      applicant on 4 October 1996;        Having deliberated;        Decides as follows:     THE FACTS        The applicant is a German citizen, born in 1947 and residing in Kirchdorf (Tyrol).   Before the Commission she is represented by Mr. A. Feichtner, a lawyer practising in Kitzbühel (Tyrol).        The facts of the case, as they have been submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        On 16 July 1991 the applicant concluded a sales contract for a parcel of land situated in Kirchdorf.        On 23 July 1991 she requested the local Real Property Transaction Authority for Kirchdorf (Grundverkehrsbehörde) to approve the above sales contract.        On 31 March 1992 the local Authority, without having held a hearing, refused the applicant's request.   It found that the transaction ran counter to the public interest as defined in Section 4 para. 2 of the Real Property Transaction Act (Grundverkehrsgesetz) as the applicant had the intention to purchase a holiday residence while the land at issue was particularly suited for satisfying the need for housing of the local population.        On 15 April 1992 the applicant appealed.        On 17 September 1992 the Regional Authority dismissed the applicant's appeal without a hearing.   It found that the transaction ran counter to the public interest as in view of the high percentage of foreign land owners in Kirchdorf the danger of foreign domination (Überfremdung) existed.   Furthermore, the applicant had only her secondary residence in Kirchdorf and was staying there during weekends so that she merely had the intention to acquire a holiday residence.        On 24 November 1992 the applicant introduced a complaint to the Constitutional Court (Verfassungsgerichtshof).   She complained that the real property transaction authorities could not be considered as tribunals within the meaning of Article 6 para. 1 of the Convention, and that no oral hearing had been held in the proceedings on her request.   Furthermore, the fact that she could not acquire the land at issue violated her right to property under Article 1 of Protocol No. 1.        On 21 June 1993 the Constitutional Court dismissed the applicant's complaint.   Referring to its previous case-law, it found that the organisation of the real property transaction authorities in the Tyrol was in accordance with constitutional law.   Moreover, the proceedings at issue did not violate her right to property.   This decision was served on the applicant on 6 September 1993.   B.    Relevant domestic law   1.    Under the Tyrolean Real Property Transaction Act (Grundverkehrs- gesetz), as in force at the relevant time, a sales contract concerning real property was subject to approval by the real property transaction authorities if agricultural and forestry land was concerned or if the purchaser did not possess Austrian nationality (Sections 1 and 3).   A sales contract could only take effect if it was approved by the real property transaction authorities (Sections 3 and 16).   The purchaser of land was obliged to seek approval within two months of the approval of the contract (Section 15 para. 1).   No entry could be made in the land register (by which property is acquired) until the transaction had been approved by the competent authority (Section 1 para. 3).   If approval was withheld, the acquisition was null and void (Section 16 para. 1).   2.    The procedure before the real property transaction authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz).        Section 40 of the General Administrative Procedure Act deals with oral hearings and provides as follows:   [Translation]        "(1) Oral hearings shall be held in the presence of all known      parties and the necessary witnesses and experts.   If oral      hearings have to be combined with an inspection of the location,      they should, if possible, be held there or otherwise at the seat      of the authority or another location which in the circumstances      appears most suitable.        (2) The authority must ensure that an inspection of the location      is not abused for the discovery of a professional secret."   [German]        "(1) Mündliche Verhandlungen sind unter Zuziehung aller bekannten      Beteiligten sowie der erforderlichen Zeugen und Sachverständigen      vorzunehmen und, sofern sie mit einem Augenschein verbunden sind,      womöglich an Ort und Stelle, sonst am Sitz der Behörde oder an      dem Ort abzuhalten, der nach der Sachlage am zweckmäßigsten      erscheint.        (2) Die Behörde hat darüber zu wachen, daß die Vornahme eines      Augenscheins nicht zur Verletzung eines Kunst-, Betriebs- oder      Geschäftsgeheimnisses mißbraucht wird."        It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise as it is commonly understood that the principle of publicity does not extend to administrative proceedings (see WALTER/MAYER, Grundriß des österreichischen Verwaltungsverfahrensrechts, sixth edition, Vienna 1995, pp. 114-115).     COMPLAINTS        The applicant's remaining complaint under Article 6 para. 1 of the Convention concerns the lack of a public hearing in the proceedings before the real property transaction authorities.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 2 March 1994 and registered on 25 April 1994.        On 12 April 1996 the Commission decided to communicate the applicant's complaint concerning the lack of a public hearing to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 17 July 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 4 October 1996.     THE LAW        The applicant complains that in the proceedings at issue the real property transaction authorities did not hold a public hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law. ..."        The Government consider that the applicant's complaint regarding the lack of a public hearing in the real property transaction proceedings is covered by the Austrian reservation to Article 6 (Art. 6) of the Convention which provides as follows:        "The provision of Article 6 (Art. 6) of the Convention shall be      so applied that there shall be no prejudice to the principles      governing public court hearings laid down in Article 90 of the      1929 version of the Federal Constitutional Law."        The Government submit that the Austrian reservation is in accordance with Article 64 (Art. 64) of the Convention.   The reservation is sufficiently specific for the purpose of Article 64 (Art. 64) of the Convention.   As regards the requirement of the "brief statement of the law" the reservation outlines the contents of Article 90 of the Federal Constitution, i.e. the constitutional provision referred to.        According to the Government Article 90 of the Federal Constitution only relates to public hearings in civil and criminal cases before a court of law.   However, it must be assumed that this provision also extended to proceedings which under domestic law would qualify as administrative ones provided that they fell under Article 6 (Art. 6) of the Convention.   In the Government's opinion any other interpretation would be inconsistent because it would mean that exemptions from the principle of publicity would be allowed in civil and criminal cases dealt with in ordinary courts while in respect of matters which only in the light of an evolutive interpretation of the term "civil rights" are covered by Article 6 (Art. 6) of the Convention stricter publicity requirements would prevail.        The Government further submit that the applicant has waived his right to a public hearing because she had not requested an oral hearing before the administrative authorities.   They acknowledge, however, that the General Administrative Procedure Act neither provides for public hearings to be held nor for a right to request public hearings.        The applicant contests this view.        After an examination of this issue in the light of the parties' submissions, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits. It follows that this complaint cannot be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for inadmissibility have been established.          For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE THE REMAINDER OF THE APPLICATION, without      prejudging the merits.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber