Absence of outside influence
II. RELEVANT LEGISLATION 20. Under Article 15 of the Federal Constitution, as interpreted by the Constitutional Court, the regulation of real property transactions is a matter coming within the jurisdiction of the Länder. Most of the Länder have enacted legislation whereby all contracts relating to agricultural or forestry land and also, in some cases, real property transactions with foreigners have to be approved by special authorities. 21. In the Tyrol (see paragraph 9 above), section 15(1) of the 1970/1973 Act obliges the purchaser to seek such approval within two months of the conclusion of the contract. No entry can be made in the land register until the transaction has been approved by the competent authority (section 1(4)). If approval is withheld, the acquisition is null and void (section 16(1)). 22. When the contract relates to agricultural or forestry land and irrespective of the purchaser ’ s nationality, the first-instance authority is the Höfekommission ("Farm Commission") (section 13(1)(a)). The Farm Commission is established at the seat of the District Administration and has three members: the head of the District Administration, or a legally qualified (rechtskundig) official of that Administration appointed by him, as chairman; a person designated by the chamber of agriculture of the district; and another person, designated by the municipality in question, who is engaged in agriculture or forestry (section 9 of the Tyrolean Farms Act of 12 June 1900; Gesetz betreffend die besonderen Rechtsverhältnisse geschlossener Höfe). The decisions of the Farm Commission are taken by majority vote (section 13(2) of the 1970/1973 Act); they are subject to appeal to the Regional Authority (see paragraph 24 below) by, amongst others, the parties to the contract or the Transactions Officer (section 13(3)). 23. The Transactions Officer, who is appointed for three years by the Government of the Tyrol, must be a person who is experienced in real property transaction matters (section 14). His secretariat is provided by a division of the Office of the said Government. 24. If the case is referred to it, the Regional Real Property Transactions Authority established at the Office of the Land Government takes a decision as the second and final instance (section 13(4)). Its membership varies according to the subject-matter of the contract to be examined. In the case of agricultural or forestry land - whether the buyer be Austrian or foreign - its voting members are (section 13(4), no. 1): "(a) a person experienced in real property transaction matters, who shall act as chairman; (b) a member of the judiciary (Richterstand); (c) a legally qualified civil servant from the Office of the Regional Government, with training in real property transaction matters, who shall act as rapporteur; (d) a senior civil servant from the Agricultural Services Department (technischer Agrardienst) of the Office of the Regional Government; (e) a senior civil servant from the Forestry Services Department (forsttechnischer Dienst); (f) an agricultural expert; (g) a lawyer (Rechtsanwalt or Notar)." 25. The above-cited provision, which was introduced by the Act of 28 November 1973 (see paragraph 9 above), replaced a text which the Constitutional Court had held to be incompatible with Article 6 (art. 6) of the Convention, as interpreted by the European Court in its Ringeisen judgment of 16 July 1971 (Series A no. 13). The Constitutional Court had ruled that the Regional Authority, as it was constituted under the original Act of 1970, could not be considered an "independent and impartial" tribunal because its members included, as chairman, one of the members of the Government of the Tyrol (section 13(1), no. 1(a), former version). Furthermore, so the Constitutional Court held, the Act did not fix the duration of the members ’ term of office, conferred on the said Government the power of appointing the members (save for a judge, who was appointed by the Federal Minister of Justice) and did not lay down the circumstances in which members might be removed from office (judgment of 29 June 1973, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1973, vol. 38, no. 7099). 26. Following this judgment, the Tyrolean legislature amended, by the same Act of 28 November 1973, the provisions in section 13 concerning, inter alia, exercise of the office of member of the Regional Authority. Sub-sections 5 to 13 of that section read as follows: "(5) The member of the Regional Real Property Transactions Authority appointed from the judiciary (sub-section 4, no. 1 (b)), shall be appointed by the Federal Minister of Justice and the remaining members, by the Regional Government. For each member a substitute member shall be similarly appointed. (6) Only Austrian citizens who have reached the age of 25 years and are in full possession of their legal rights shall be eligible for appointment as members or substitute members. Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible. (7) Members and substitute members shall hold office for three years. Members or substitute members who are appointed within the general three-year term of office shall cease to hold office at the end of that term. Re-appointment is possible. Members and substitute members shall continue to perform their duties after expiry of their term of office until they have been replaced. (8) The quorum of the Regional Real Property Transactions Authority shall be constituted if the chairman, the member appointed from the judiciary, the rapporteur and at least two other members are present. Decisions shall be taken by majority vote. If the votes are equally divided, the chairman shall have a casting vote. Abstention shall count as a negative vote. (9) In the performance of their duties the members of the Regional Real Property Transactions Authority shall not be subject to any instructions; the executive may neither annul nor vary their decisions. (10) The details of the Real Property Transactions Authorities ’ procedure (such as the convening of sittings, summoning of substitute members, conduct of voting, keeping of minutes and signing of decisions) shall be laid down by the Regional Government in rules of procedure (Geschäftsordnung) for the said Authorities. (11) Unless they are civil servants, members of the Real Property Transactions Authorities shall receive for their work remuneration and a travel allowance, the amount of which shall be laid down in regulations made by the Regional Government. (12) A member or substitute member shall be removed from office, before the end of his term of office, if: (a) circumstances intervene which would have made him ineligible for appointment; (b) the regular performance of his duties becomes per 80 manently impossible. (13) If an official of a "territorial" authority (Gebietskörperschaft) is suspended from duty under the regulations governing his employment, he shall cease to exercise his functions as a member or substitute member of a Real Property Transactions Authority for the duration of the suspension." Sub-section (9), cited above, corresponds to Article 20 para. 2 of the Constitution, which reads: "If a Federal or a Land Act makes provision for the last-instance decision to be given by a collegiate body at least one of whose members is a judge and whose decisions cannot be annulled or varied by the executive, the other members of that body shall also not be subject to any instructions." Article 20 para. 3 of the Federal Constitution obliges the members of the Regional Authority not to disclose facts which have come to their knowledge in the exercise of their functions, if the interests of a "territorial" authority or of the parties so require (Amtsverschwiegenheit). 27. Procedure before the Real Property Transactions Authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz). The parties are entitled to consult the case-file (section 17) and must be given an opportunity of presenting their arguments (section 37). The competent authority may decide to hold a hearing (section 39(2)), which will not take place in public; the parties have the right to be heard (rechtliches Gehör) and, inter alia, to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing, witnesses or experts (section 43(3)). In certain circumstances which may give reason to doubt his impartiality, the civil servant concerned must arrange to be replaced (section 7). 28. By an order (Verordnung) of 13 September 1966, the Government of the Tyrol issued rules of procedure for the Real Property Transactions Authorities. Under Article 3 para. 1, the Authorities shall deliberate and vote in the absence of the parties, if appropriate after oral hearings. The deliberations shall be recorded in minutes to which the right to consult the case-file (Akteneinsicht), guaranteed by Article 17 of the General Administrative Procedure Act, does not extend (Article 3 para. 3). The Authorities ’ resolutions (Beschlüsse) must be recorded, but may be altered as long as they remain unpublished (nicht nach aussen in Erscheinung getreten) (Article 3 para. 4). Their decisions (Bescheide), which are to be reached on the basis of those resolutions (Article 4 para. 1), shall be given in writing but may in case of urgency be given orally by the chairman (Article 4 para. 2). Before the Regional Real Property Transactions Authority, the rapporteur shall, after setting out and commenting on the results of the investigation (Ermittlungsverfahren), present conclusions (Antrag); those who wish to propose alternative conclusions (Gegen- oder Abänderungsanträge) shall give reasons for them (Article 9 para. 2). The chairman shall decide the order in which voting on the conclusions is to take place (Article 9 para. 3). 29. Decisions of a Regional Authority may be challenged before the Constitutional Court but not before the Administrative Court (Verwaltungsgerichtshof; Articles 133 para. 4 and 144 of the Federal Constitution). PROCEEDINGS BEFORE THE COMMISSION 30. In her application of 19 September 1979 to the Commission (no. 8790/79), Mrs. Sramek alleged that she had not received a fair and public hearing by an independent and impartial tribunal established by law; she relied on Article 6 para. 1 (art. 6-1) of the Convention. 31. On 4 March 1982, the Commission declared the application admissible. In its report of 8 December 1982 (Article 31) (art. 31), the Commission expressed the opinion, by eleven votes to one, that there had been a violation of Article 6 para. 1 (art. 6-1). The full text of the Commission ’ s opinion and of the separate opinion contained in the report is reproduced as an annex to the present judgment . FINAL SUBMISSIONS PRESENTED BY THE GOVERNMENT 32. At the close of the hearings on 24 January 1984, the Government requested the Court "to hold that in the present case the provisions of paragraph 1 of Article 6 (art. 6-1) of the Convention ... were not violated and that, as a consequence, the facts underlying the dispute do not indicate any breach by the Republic of Austria of its obligations under the Convention". AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 33. Article 6 para. 1 (art. 6-1) of the Convention reads as follows: "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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." In the submission of the applicant, the Regional Real Property Transactions Authority was not an "independent and impartial tribunal"; in addition, it had not afforded her a "fair" and "public" hearing. The Government disputed all these contentions; the Commission, for its part, upheld them in so far as they related to an absence of independence and impartiality. A. Applicability of Article 6 para. 1 ( art. 6-1) 34. Having purchased a plot of land, Mrs. Sramek was entitled to have the sale contract approved if, as she maintained, it satisfied the statutory conditions. An unfavourable decision in the matter would - and did - mean that the transaction was null and void. Accordingly, the outcome of the proceedings at issue was "decisive for private rights and obligations" (see the Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94), with the result that Article 6 para. 1 (art. 6-1) was applicable in the present case; this was, in fact, accepted by the Government. 35. Mrs. Sramek ’ s case came before three bodies, namely the District Real Property Transactions Authority for Hopfgarten, then the Regional Real Property Transactions Authority and finally the Constitutional Court. The Hopfgarten District Authority is not relevant for the present purposes: it had approved the contract and was not the subject of any complaint on the part of the applicant. The Constitutional Court was not called upon to determine the actual merits of the dispute ("contestation"), but solely to review the Regional Authority ’ s decision for conformity with constitutional law (see, mutatis mutandis, the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48). The question which has to be decided, therefore, is whether the requirements of Article 6 para. 1 (art. 6-1) of the Convention were met by the Regional Authority. B. Compliance with Article 6 para. 1 (art. 6-1) 1. "Tribunal established by law" 36. Under Austrian law, the Regional Authority is not classified as one of the courts of the respondent State. For the purposes of Article 6 (art. 6), however, it comes within the concept of a "tribunal" in the substantive sense of this expression: its function is to determine matters within its competence on the basis of rules of law, following proceedings conducted in a prescribed manner (see paragraph 71 of the Commission ’ s report and, mutatis mutandis, the Campbell and Fell judgment of 28 June 1984, Series A no. 80, p. 39, para. 76). The Regional Authority is also a tribunal "established by law", that is to say, by the 1970/1973 Act. 2. "Independent and impartial tribunal" 37. In addition to the foregoing, it has to be shown that the Regional Authority exhibits the independence and impartiality which are required by Article 6 para. 1 (art. 6-1). In the submission of Mrs. Sramek, this condition was not satisfied on account, inter alia, of the composition of the Authority and the manner of appointment of its members; of the position of the Transactions Officer - representing the Land Government, in their capacity as a party to the case - vis-à-vis the civil-servant members; of the brevity of the members ’ term of office (three years); and of the three-fold fact that the Authority has its headquarters in the Office of the Land Government, that the Land Government lays down the Authority ’ s rules of procedure and that the Land Government remunerates the Authority ’ s members. The Government compared the Tyrolean Regional Authority with the Upper Austrian Regional Real Property Transactions Commission. They contended that the independence of the former was even more extensive than that of the latter, a body which had been recognised by the Court to be independent in its above-mentioned Ringeisen judgment (Series A no. 13, p. 39, para. 95). According to the Government, this was shown by the composition of the Authority; by the length of its members ’ term of office; by the fact that they cannot be removed, save for reasons laid down by statute; by the rules expressly forbidding the giving of instructions to the members; and by the absence of any "functional and organisational link" between the Transactions Officer and the civil-servant members. In the Commission ’ s view, the present case gave rise to more issues of principle than did the Ringeisen case. The Commission considered that certain of the factors relied on by the Government were not without relevance, but nevertheless did not ensure full independence and impartiality of the members of the Regional Authority. In particular, the composition of the Regional Authority and the position of the Transactions Officer vis-à-vis the rapporteur prevented the Regional Authority from being regarded as sufficiently independent of the executive and of the appellant. 38. In the opinion of the Court, the Tyrolean Act, as modified following a judgment by the Constitutional Court (see paragraphs 25-26 above), satisfies the requirements of Article 6 (art. 6) as regards the length of the term of office of the members of the Regional Authority and the - limited - possibility of removing them. Again, the procedure applicable under the General Administrative Procedure Act 1950 involves the participation of both parties (revêt un caractère contradictoire) (see paragraph 27 above). Although the power of appointing the members - other than the judge - is conferred on the Land Government, this does not suffice, of itself, to give cause to doubt the members ’ independence and impartiality: they are appointed to sit in an individual capacity and the law prohibits their being given instructions by the executive (see paragraph 26 above). 39. As far as the membership of the "tribunal" was concerned, the Regional Authority was composed of a farmer, who was the mayor - elected by universal suffrage - of a municipality in the Tyrol, as chairman; a judge of the Innsbruck Court of Appeal; another farmer, sitting as an agricultural expert; a lawyer; and three civil servants from the Office of the Land Government, one of whom acted as rapporteur (see paragraphs 13 and 24 above). 40. No question arises as to the independence and impartiality of the judge. The same applies to the agricultural expert. As for the lawyer, the applicant argued that he might on occasion have received instructions from the Land Government if he had been engaged to represent them in legal proceedings. However, even if he had - an eventuality that can in fact be discounted since it does not appear to have materialised in the present case -, his impartiality could not be called in question on that score alone. Neither is there any problem as regards the fact that the person who, by reason of his experience in real estate matters, acted as chairman of the Regional Authority happened to be a mayor. It is true that the municipalities in Austria exercise their powers - whether in their own right or under delegation - subject to the supervision of the Land or the Federation (see Articles 119 and 119 (a) of the Constitution and paragraph 77 in fine of the Commission ’ s report); however, it cannot be concluded from this that their mayors do not act independently in matters which - like those involved here - fall outside the ambit of those powers. 41. There remain the three civil servants from the Office of the Land Government who, in accordance with the 1970/1973 Act (see paragraph 24 above), were, and had to be, included amongst the members of the Regional Authority. In considering their position, it has to be recalled that it was held in the above-mentioned Ringeisen judgment that the presence of civil servants on the Upper Austrian Regional Commission was compatible with the Convention (Series A no. 13, pp. 39-40, paras. 95-97). Furthermore, in proceedings of the kind at issue the Government of the Tyrol are prevented by law from giving their civil servants instructions on carrying out their judicial functions. However, the present case is distinguishable from the Ringeisen case in that the Land Government, represented by the Transactions Officer, acquired the status of a party when they appealed to the Regional Authority against the first-instance decision in Mrs. Sramek ’ s favour, and in that one of the three civil servants in question had the Transactions Officer as his hierarchical superior (see paragraph 12 above). That civil servant occupied a key position within the Authority: as rapporteur, he had to set out and comment on the results of the investigation and then to present conclusions; the secretariat was provided by his department, namely division III b. 3 (see paragraphs 13 in fine, 14 and 28 in fine above). As was pointed out by the Government, the Transactions Officer could not take advantage of his hierarchical position to give to the rapporteur instructions to be followed in the handling of cases (see paragraph 26 above), and there is nothing to indicate that he did so on the present occasion. 42. Nonetheless, the Court cannot confine itself to looking at the consequences which the subordinate status of the rapporteur vis-à-vis the Transactions Officer might have had as a matter of fact. In order to determine whether a tribunal can be considered to be independent as required by Article 6 (art. 6), appearances may also be of importance (see, mutatis mutandis, the above-mentioned Campbell and Fell judgment, Series A no. 80, pp. 39-40, para. 78, and the Piersack judgment of 1 October 1982, Series A no. 53, pp. 14-15, para. 30). Where, as in the present case, a tribunal ’ s members include a person who is in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person ’ s independence. Such a situation seriously affects the confidence which the courts must inspire in a democratic society (see, mutatis mutandis, the above-mentioned Piersack judgment, Series A no. 53, pp. 14-15, para. 30). There was accordingly a violation of Article 6 para. 1 (art. 6-1). 3. Fair and public trial 43. The applicant further contended that she did not receive a fair hearing and objected to the fact that the proceedings were not conducted in public. The conclusion in the preceding paragraph renders it unnecessary for the Court to rule on these complaints (see paragraph 83 of the Commission ’ s report and, mutatis mutandis, the above-mentioned Piersack judgment, p. 16, para. 33). II. APPLICATION OF ARTICLE 50 (art. 51) 44. Under Article 50 (art. 50) of the Convention, "if the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party". 45. The applicant claimed, for pecuniary loss, compensation which she quantified provisionally at 1,000,000 schillings. She alleged that she would have to pay 1,200,000 schillings to buy a similar plot of land today, as compared with 120,000 schillings at the time in question, and that, taking into account the interest which she could have earned on the latter sum in the meantime, she had suffered a loss of one million schillings. Moreover, she added, the construction of the residence which she had had in mind would now cost her 490,000 schillings more than formerly and her inability to implement this project had caused her a loss of income of at least 500,000 schillings. However, she made no immediate claim for the last two amounts. Mrs. Sramek also sought reimbursement of 100,000 schillings for legal costs before the Austrian authorities - notably the Real Property Transactions Authorities of the Tyrol, the Ministry of Foreign Affairs and the Constitutional Court - and the Strasbourg institutions; according to her, she had actually spent more than this. The Government submitted, in essence, that the applicant had not suffered any pecuniary loss; they did not comment on the claim for legal costs. The Commission, for its part, expressed no opinion on any of the claims. 46. The Court considers that the question is ready for decision (Rule 53 para. 1, first sentence, of the Rules of Court). As far as material damage is concerned, Mrs. Sramek ’ s claims proceed solely from the assumption that if the Regional Authority had constituted an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1), it would have approved the contract of sale. However, the evidence in the file does not warrant the conclusion that had it been differently composed the Regional Authority would have arrived at a decision in Mrs. Sramek ’ s favour and it is not for the Court to inquire whether, under Austrian law, the Regional Authority ought to have given such a decision. The applicant ’ s allegations as to pecuniary loss cannot therefore be upheld. On the other hand, the Court allows the claims for legal costs, which were not contested by the Government: it sees no reason to doubt that they satisfy the criteria which emerge from its case-law on the subject (see, amongst other authorities, mutatis mutandis, the Zimmermann and Steiner judgment of 13 July 1983, Series A no. 66, pp. 14-15, paras. 36 and 38).
The Court noted in particular that, in order to determine whether a tribunal could be considered to be independent as required by Article 6 of the Convention, appearances may also be of importance. It held that there had been a violation of Article 6 § 1 of the Convention in respect of the applicant, finding in particular that, where, as in the present case, a tribunal’s members included a person who was in a subordinate position, in terms of his duties and the organisation of his service, vis-à-vis one of the parties, litigants may entertain a legitimate doubt about that person’s independence. Such a situation, the Court stressed, seriously affected the confidence which the courts must inspire in a democratic society.