CASE OF STALLINGER AND KUSO v. AUSTRIA



        In the case of Stallinger and Kuso v. Austria (1),

        The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court B (2), as a Chamber composed of

the following judges:

        Mr  R. Bernhardt, President,

        Mr  F. Matscher,

        Mr  C. Russo,

        Mrs E. Palm,

        Mr  I. Foighel,

        Mr  J. Makarczyk,

        Mr  D. Gotchev,

        Mr  P. Jambrek,

        Mr  P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

        Having deliberated in private on 30 November 1996 and

18 March 1997,

        Delivers the following judgment, which was adopted on the

last-mentioned date:

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Notes by the Registrar

1.  The case is numbered 12/1996/631/814-815.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2.  Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1.      The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 26 January 1996, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47).  It originated in two applications

(nos. 14696/89 and 14697/89) against the Republic of Austria lodged

with the Commission under Article 25 (art. 25) by

four Austrian nationals, Mr Alois Stallinger and Mrs Amalia Stallinger

and Mr Johann Kuso and Mrs Elisabeth Kuso, on 16 November 1988 and

27 February 1989 respectively.

        The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46).  The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 of the Convention (art. 6-1).

2.      In response to the enquiry made in accordance with Rule 35

para. 3 (d) of Rules of Court B, the applicants stated that they wished

to take part in the proceedings and designated the lawyer who would

represent them (Rule 31).  The lawyer was given leave by the President

of the Chamber to use the German language (Rule 28 para. 3).

3.      The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality (Article 43

of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)).  On 8 February 1996, in the

presence of the Registrar, the President of the Court, Mr R. Ryssdal,

drew by lot the names of the other seven members, namely Mr B. Walsh,

Mr C. Russo, Mrs E. Palm, Mr F. Bigi, Mr D. Gotchev, Mr P. Jambrek and

Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 5)

(art. 43).  Subsequently Mr I. Foighel and Mr J. Makarczyk,

substitute judges, replaced Mr Bigi, who had died, and Mr Walsh, who

was unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4.      As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the

Austrian Government ("the Government"), the applicants' lawyer and the

Delegate of the Commission on the organisation of the proceedings

(Rules 39 para. 1 and 40).  Pursuant to the order made in consequence,

the Registrar received the Government's and the applicants' memorials

on 1 October and 3 October 1996 respectively.  The Commission produced

the file on the proceedings before it, as requested by the Registrar

on the President's instructions.

5.      In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

26 November 1996.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) for the Government

    Mr  W. Okresek, Head of the International Affairs

        Division, Constitutional Department, Federal

        Chancellery,                                           Agent,

    Mr  D. Hunger, Federal Ministry of Agriculture

        and Forestry,

    Mrs E. Bertagnoli, International Law Department,

        Federal Ministry for Foreign Affairs,

    Mrs I. Siess, Constitutional Department,

        Federal Chancellery,                                Advisers;

(b) for the Commission

    Mr  A. Weitzel,                                         Delegate;

(c) for the applicants

    Mr  E. Proksch, Rechtsanwalt, of the Vienna Bar,         Counsel.

        The Court heard addresses by Mr Weitzel, Mr Proksch and

Mr Okresek and also replies to its questions.

AS TO THE FACTS

I.      The circumstances of the case

6.      The applicants are farmers.  Mr and Mrs Stallinger live in

Rohrbach, Upper Austria; Mr and Mrs Kuso live in Au am Leithagebirge,

Lower Austria.

        Their land was involved in agricultural land-consolidation

proceedings (Zusammenlegungsverfahren).

    A.  The case of Mr and Mrs Stallinger

7.      In December 1980 the Linz District Agricultural Authority

(Agrarbezirksbehörde - "the District Authority") published a

consolidation scheme concerning the Harrau-Rohrbach area.  Following

various appeals from the applicants the scheme was amended on

two occasions.  The amended schemes were published in September 1983

and February 1986.

8.      On 16 October 1986, the Upper Austria Land Reform Board

(Landesagrarsenat - "the Regional Board"), which included

five civil servants and three judges (see paragraph 24 below),

dismissed a further appeal by the applicants against the

third consolidation scheme.  The decision was rendered after an

oral hearing had been held in camera.  The applicants, assisted by

counsel and other interested parties, including the mayor of Rohrbach,

appeared before the Board.

9.      Having regard to an official expert opinion and a

private expert opinion submitted by the applicants as well as to

further evidence including the result of investigations carried out on

the spot by the expert members of the Regional Board in the absence of

the parties, the Board found that the compensatory parcels allotted to

the applicants constituted adequate compensation in exchange for their

former properties.

        The applicants' allegation that some of their former plots had

a higher value because of future construction possibilities was

considered to be unproven in view of the fact that the land in question

was classified as agricultural and was used as such.  Furthermore, it

followed from statements made by community officials that no change was

foreseen for the future.  The fact that a certain K., named as a

witness by the applicants, was willing to pay an important price for

the plots in question was therefore considered to be irrelevant.

10.     On 24 September 1987 the Constitutional Court

(Verfassungsgerichtshof), holding that the applicants' complaint did

not have sufficient prospects of success, declined to accept it for

adjudication and referred the case to the Administrative Court

(Verwaltungsgerichtshof).  The Constitutional Court made reference to

the European Court of Human Rights' Ettl and Others v. Austria judgment

of 23 April 1987 (Series A no. 117).

11.     On 3 May 1988 the Administrative Court dismissed the complaint,

rejecting at the same time, in accordance with section 39 (2) no. 6 of

the Administrative Court Act (see paragraph 28 below), the applicants'

request for an oral hearing.

        Whereas the applicants had argued that the expert members of

the Regional Board were prejudiced by their own expert opinion when,

as in the case at issue, the Regional Board had set aside a

consolidation scheme and subsequently dealt with a complaint against

the new scheme, the Administrative Court referred to its own case-law

and that of the Constitutional Court as well as to the above-mentioned

Ettl and Others judgment according to which the participation of

expert members in the decisions of the regional boards was legally

unobjectionable.

        In so far as the applicants had complained that expert members

of the Regional Board had effected an investigation on the spot in the

applicants' absence, the Administrative Court stated that the procedure

followed was in line with procedural law.  It also pointed out that,

at the time they were summoned to the appeal hearing, the applicants

were notified the result of the investigation and could make the

relevant observations at that hearing.

        The Administrative Court further found that no objections could

be raised against the Regional Board's assessment as to whether

building on some of the applicants' former properties was likely to be

subsequently allowed.

    B.  The case of Mr and Mrs Kuso

12.     In May 1974 the Lower Austria Agricultural District Authority

(Agrarbezirksbehörde - "the District Authority") published a

provisional consolidation scheme concerning the Au am Leithagebirge

area.  Following an appeal from the applicants, the scheme was amended.

13.     On 9 September 1975 the District Authority issued a new

consolidation scheme.

14.     On 31 January 1979, after a series of appeals, the

Lower Austria Land Reform Board (Landesagrarsenat -

"the Regional Board") partly granted the appeal but dismissed the

applicants' complaint that the parcels of land allotted to them were

insufficient and that they had therefore received inadequate

compensation.

15.     On 5 November 1980, on the applicants' further appeal, the

Supreme Land Reform Board (Oberster Agrarsenat) quashed the

Regional Board's decision and referred the case back to the

District Authority on the ground that some of the compensatory parcels

allotted to the applicants appeared to be insufficient.

16.     On 30 January 1984 the District Authority published a new

scheme which was confirmed by the Regional Board on 18 December 1984.

The Board considered that the applicants had received adequate

compensatory plots.

17.     On 26 November 1985 the Administrative Court set the decision

of 18 December 1984 partly aside on account of a breach of procedural

provisions.

18.     On 17 February 1987 the Regional Board after an in camera

hearing but without having carried out supplementary investigations

again dismissed the applicants' appeal against the consolidation scheme

of 30 January 1984.

19.     On 24 September 1987 the Constitutional Court declined to

accept for adjudication the applicants' complaint on the ground that

it had no chances of success and referred it to the

Administrative Court.

20.     On 19 April 1988 the Administrative Court dismissed the

complaint rejecting at the same time, in accordance with

section 39 (2) no. 6 of the Administrative Court Act (see paragraph 28

below), the applicants' request for an oral hearing.

        In dealing with the applicants' complaints that the hearing

before the Regional Board had not been public, the Administrative Court

referred to the case of Ettl and Others mentioned above, and held that

such hearings were covered by Austria's reservation in respect of

Article 6 of the Convention (art. 6).  It further rejected the

allegation that the Board, which was called to decide on two

consecutive appeals in the same matter, was not on that account an

impartial tribunal within the meaning of Article 6 (art. 6).

21.     The Administrative Court further considered that the Board had

remedied the procedural shortcomings in respect of which its earlier

decision had to be set aside.  In fact it had now given a detailed and

unobjectionable assessment of the respective value of the applicants'

former properties as compared with the compensatory parcels.  The court

also considered that further evidence offered by the applicants in this

respect had correctly been rejected by the Board as being irrelevant.

22.     In so far as the applicants had submitted that their case had

not been sufficiently discussed at the hearing and that substitute

members (Ersatzmitglieder) of the Regional Board had therefore not

sufficiently been informed of all the issues, the court first pointed

out that only one of the members of the Board participating in the

hearing of the applicants' appeal had been a supplementary member and

in any case all members as well as the parties had had the opportunity

to put questions in order to see to it that the facts were exhaustively

and correctly established.

II.     Relevant domestic law and practice

    A.  Article 90 para. 1 of the Federal Constitution

23.     Article 90 para. 1 of the Federal Constitution provides:

        "Hearings by trial courts in civil and criminal cases shall be

        oral and public.  Exceptions may be prescribed by law."

    B.  Composition of the regional land reform boards

24.     Regional land reform boards are composed of eight members, all

appointed by the government of the Land of the Austrian Federation in

which it exercises jurisdiction (see section 5 (2) and (4) of the

Federal Agricultural Authorities Act (Agrarbehördengesetz) 1950, as

amended in 1974).  These are:

        one Land civil servant, who is legally qualified

(rechtskundig), and acts as chairman;

        three judges;

        a legally qualified Land civil servant with experience in

land reform, who acts as rapporteur;

        a senior Land civil servant (Landesbeamter des höheren

Dienstes) with experience in agronomic matters;

        a senior Land civil servant with experience in forestry

matters; and

        an agricultural expert within the meaning of section 52 of the

General Administrative Procedure Act (Allgemeines

Verwaltungsverfahrensgesetz).

        For each of the above members a substitute member has to be

appointed (section 5 (3) of the Federal Agricultural Authorities Act).

    C.  Hearings before land reform boards

25.     Section 9 (1) of the Federal Agricultural Proceedings Act

(Agrarverfahrensgesetz) provided as follows:

        "Land reform boards take their decisions after an oral hearing

        in the presence of the parties."

        It is the constant practice of administrative authorities to

hold oral hearings in camera unless the law provides otherwise.

26.     By virtue of legislation enacted in December 1993

(Bundesgesetzblatt no. 901, p. 7160), hearings before

land reform boards are now public.

    D.  Hearings before the Administrative Court

27.     Pursuant to section 36 of the Administrative Court Act

(Verwaltungsgerichshofgesetz), proceedings consist essentially in an

exchange of written pleadings. If one of the parties so requests the

Administrative Court may hold a hearing which is in principle held in

public (sections 39 (1) no. 1 and 40 (4)).

28.     Section 39 (1) of the Administrative Court Act provides that

the Administrative Court is to hold a hearing after its preliminary

investigation of the case where a complainant has requested a hearing

within the time-limit.  Section 39 (2) no. 6, which was added to the

Act in 1982, provides however:

        "Notwithstanding a party's application ..., the

        Administrative Court may decide not to hold a hearing where

        ...

        6. it is apparent to the Court from the pleadings of the

        parties to the proceedings before it and from the files

        relating to the earlier administrative proceedings that an

        oral hearing is not likely to clarify the case further."

PROCEEDINGS BEFORE THE COMMISSION

29.     Mr and Mrs Stallinger applied to the Commission on

16 November 1988; Mr and Mrs Kuso on 27 February 1989.  They relied on

Article 6 para. 1 of the Convention (art. 6-1), complaining that the

land reform boards could not be regarded as independent and impartial

tribunals established by law and that they did not have a public

hearing.  Under Article 1 of Protocol No. 1 (P1-1), the applicants

further complained that the new land assigned to them under the

consolidation arrangements yielded less than their former properties.

30.     On 17 October 1991 the applications were joined (nos. 14696/89

and 14697/89).  On 29 March 1993 the Commission declared the

applications admissible as far as the complaints under Article 6

para. 1 (art. 6-1) were concerned.  In its report of 7 December 1995

(Article 31) (art. 31), it expressed the unanimous opinion

        (a) that there had been no violation of the applicants' right

to the determination of their civil rights and obligations by "an

independent and impartial tribunal established by law";

        (b) that there had been a violation of the applicants' right

to a public hearing;

        (c) that there had been no violation of Mr and Mrs Stallinger's

right to a fair hearing.

        The full text of the Commission's opinion is reproduced as an

annex to this judgment (1).

_______________

Note by the Registrar

1.  For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-II), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

31.     The applicants asked the Court to hold that Article 6 para. 1

of the Convention (art. 6-1) had been violated in their case on account

of the composition and procedure of the land reform boards.

32.     The Government requested the Court to hold that Article 6 of

the Convention (art. 6) had not been violated in the case at issue.

AS TO THE LAW

I.      ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION

        (art. 6-1)

33.     The applicants alleged a breach of Article 6 para. 1 of the

Convention (art. 6-1), which provides:

        "In the determination of his civil rights and obligations ...,

        everyone is entitled to a fair and public hearing ... by an

        independent and impartial tribunal ..."

        Before the Court, the applicants' complaints concerned the

alleged lack of independence and impartiality of land reform boards as

well as the lack throughout the proceedings of a public hearing before

a "tribunal".

        The Government disputed these contentions; the Commission only

agreed with the applicants that their right to a public hearing had not

been respected.

    A.  Right to an "independent and impartial tribunal"

34.     The applicants submitted that the Regional and Supreme

Land Reform Boards could not be considered independent and impartial

tribunals within the meaning of Article 6 para. 1 of the Convention

(art. 6-1).  Regional boards, in particular, are administrative bodies

composed of civil servants whose task is to decide on issues arising

from land-consolidation measures which are, themselves, of an

administrative nature.  In this context, the applicants concentrated

their complaint on the role played by the expert members of the boards:

on an appeal, only they would visit the sites and draft a report which

may contain proposals for amendment of the consolidation measures;

subsequently, they would take part in the boards' secret deliberations,

where they would defend their proposals and eventually vote on their

merits.  The fact that the parties were not allowed to make allegations

in respect of such proposals - which were not even communicated to them

- meant that the proceedings could not be considered adversarial.

35.     The Government pointed out that the expert members of the

regional boards were not to be confounded with the ad hoc experts that

the boards could appoint in accordance with the provisions on

administrative procedure.  They invited the Court to reach the same

conclusion as it did in the case of Ettl and Others v. Austria

(judgment of 23 April 1987, Series A no. 117) and dismiss the

complaint.

36.     The Commission did not find any circumstances in the

present case that would justify departing from the existing case-law,

in particular reference to the principles established in the

Ettl and Others judgment (ibid.).

37.     The Court notes that, with regard to the membership of and

procedure before land reform boards, the legal situation obtaining in

the present case was identical to that which it was called on to

examine in the case of Ettl and Others.  The present applicants placed

particular emphasis on the characteristics of the role of the

expert members of the regional boards, which allegedly call into

question the boards' impartiality and the adversarial character of the

proceedings before them.  However, as stated in the

Ettl and Others judgment (pp. 18-19, para. 40), "such experts are

needed in cases concerning land consolidation, which is an operation

that raises issues of great complexity and affects not only the owners

directly concerned but the community as a whole."  On that occasion the

Court found that the fact that civil servants sat on account of their

experience of agronomy, forestry and agriculture, could not give rise

to doubts about the independence and impartiality of the boards

(ibid.).  Furthermore, the Court noted that where these civil servants

prepare a written opinion on a given issue, the law requires "that it

be communicated to the parties, who must be given an opportunity to

submit their comments" (ibid.).  Against that background the Court held

that the adversarial nature of the proceedings before the boards was

"unaffected by the participation of the 'civil-servant experts'"

(ibid.).

        The applicants have failed to identify any convincing reason

why the Court should depart from its case-law.  The Court therefore

finds no breach of the applicants' right under Article 6 para. 1

(art. 6-1) to have their case determined by "an independent and

impartial tribunal".

    B.  Right to a "public hearing"

38.     The applicants further complained that the hearings before the

regional boards were not public and that the Administrative Court had

refused to hold a hearing.

39.     Hearings in civil matters are subject in principle to a

reservation Austria made when ratifying the Convention.  Although the

lack of a public hearing was held by the Court in its

Ettl and Others judgment (cited above, p. 19, para. 42) to be covered

by the Austrian reservation, the application of the latter in the

present case as well as its validity under the Convention have been

contested.  The Court will therefore first have to ascertain if the

reservation in issue applies in the present case.

        1.  Austria's reservation

40.     Austria's reservation in respect of Article 6 of the Convention

(art. 6) reads as follows:

        "The provisions of Article 6 of the Convention (art. 6) 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." (see paragraph 23 above)

41.     Article 64 of the Convention (art. 64) provides:

        "1. Any State may, when signing [the] Convention or when

        depositing its instrument of ratification, make a reservation

        in respect of any particular provision of the Convention to the

        extent that any law then in force in its territory is not in

        conformity with the provision.  Reservations of a general

        character shall not be permitted under this Article (art. 64).

        2.  Any reservation made under this Article (art. 64) shall

        contain a brief statement of the law concerned."

42.     In the Commission's view, Austria's reservation in respect of

Article 6 of the Convention (art. 6) is invalid for failure to comply

with the requirements of Article 64 para. 2 (art. 64-2), in that it

does not contain a "brief statement" of the laws concerned.  In those

circumstances, the Commission did not find it necessary to examine

whether the reservation complied with the other requirements of

Article 64 (art. 64).

43.     The Government again drew a parallel between the instant case

and that of Ettl and Others (cited above), in which the Court had held

that the reservation applied in proceedings before a court dealing with

issues of land consolidation.  In their view, even if Article 90 of the

Federal Constitution (see paragraph 23 above) referred only to "civil

and criminal cases", the reservation was also applicable to cases

before administrative courts when those courts determined questions of

"civil rights", as that concept has been interpreted by the

Convention organs.  The same conclusion could be reached by looking at

the intention of the Federal Government at the time of making the

reservation.

44.     The Government further sought to distinguish the present case

from that of Belilos v. Switzerland (judgment of 29 April 1988,

Series A no. 132), where the Court had held, inter alia, that the

requirement that the reservation contain a brief statement of the law

concerned, as "a condition of substance", had not been respected

(pp. 27-28, para. 59).  In their submission, the reservation in issue

refers to all forms of procedures where a decision is taken which

concerns civil rights or criminal charges.  The requirements of legal

certainty were thus satisfied.

45.     The Court must therefore ascertain whether Austria's

reservation in respect of Article 6 (art. 6) covers the applicants'

alleged right to a "public hearing" in the present case.

46.     By virtue of section 9 (1) of the

Federal Agricultural Proceedings Act (see paragraph 25 above), at the

material time hearings before land reform boards were only open to the

parties concerned and not to the public at large.  However, in order

to comply with the requirements of Article 6 para. 1 (art. 6-1) it is

sufficient if that shortcoming is remedied in the course of subsequent

control to be carried out by a "judicial body that has full

jurisdiction" (see, mutatis mutandis, the Albert and Le Compte

v. Belgium judgment of 10 February 1983, Series A no. 58, p. 16,

para. 29; and the Ortenberg v. Austria judgment of 25 November 1994,

Series A no. 295-B, pp. 49-50, para. 31).  It has not been suggested

that in the instant case the scope of the Administrative Court's

control was not sufficient.

47.     The Court notes that the applicants expressly requested a

hearing before the Administrative Court but were refused

(see paragraphs 11 and 20 above).  It thus has to be determined whether

the powers under which the Administrative Court acted, namely

section 39 (2) no. 6 of the Administrative Court Act (see paragraph 28

above), are covered by Austria's reservation.

48.     In this respect the Court observes that that provision came

into force in 1982, whereas Austria ratified the Convention and made

the reservation in question in 1958.  Under Article 64 para. 1

(art. 64-1) only laws "then in force" in the State's territory can be

the subject of a reservation.  It must therefore be concluded that the

applicants' complaint that the Administrative Court did not hold a

hearing is not excluded from review by the European Court on account

of the above reservation, since the provision on which the refusal to

hold such a hearing was based was not in force at the time the

reservation was made (see the Fischer v. Austria judgment of

26 April 1995, Series A no. 312, pp. 19-20, para. 41).

49.     In view of this conclusion, the Court does not consider it

necessary to examine the validity of the reservation in the light of

the other conditions laid down in paragraphs 1 and 2 of Article 64 of

the Convention (art. 64-1, art. 64-2) (ibid., p. 20, para. 42).

        2.  Compliance with Article 6 para. 1 of the Convention

        (art. 6-1)

50.     It remains to be examined whether in the present case Article 6

para. 1 (art. 6-1) conferred on the applicants the right to a public

hearing.

51.     As stated above (see paragraph 46), only hearings in the

Administrative Court are at stake, hearings before land reform boards

not being open to the public.  The Court notes that the practice of the

Administrative Court is not to hear the parties unless one of them asks

it to do so (see paragraphs 27 and 28 above).  However, the present

applicants expressly requested an oral hearing in the

Administrative Court.  This was refused on the ground that it was not

likely to clarify the case further (see paragraph 28 above).

        Since the Government have not identified any exceptional

circumstances that might have justified dispensing with a hearing, the

Court considers that the Administrative Court's refusal amounted to a

violation of the applicants' Article 6 (art. 6) right to a "public

hearing".

    C.  Other complaints

52.     Before the Commission Mr and Mrs Stallinger complained that the

fact that they were never summoned to the in situ inspection of the

land by the expert members of the Regional Board infringed their right

to a fair hearing.  This complaint has not been pursued before the

Court, which sees no reason to entertain it of its own motion.

    D.  Conclusion

53.     The Court finds that there has been a violation of Article 6

para. 1 of the Convention (art. 6-1).

II.     APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

54.     Article 50 of the Convention (art. 50) reads:

        "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."

    A.  Damage

55.     The applicants submitted that the damage resulting from the

improper procedure to which they were subject amounted to a total of

400,000 Austrian schillings (ATS).

56.     In the Government's submission, compensation could not be

awarded on the basis of speculating as to what the outcome of the

proceedings would have been had a public hearing taken place.

57.     Like the Delegate of the Commission, the Court observes that

the applicants have not sought to substantiate their claim for just

satisfaction under Article 50 (art. 50).  Similarly, no

characterisation of the damage allegedly suffered has been put forward.

In any event, in so far as the claim may concern damage of a pecuniary

nature, the Court cannot speculate as to the outcome of the proceedings

had a public hearing taken place before the Administrative Court; the

claim must therefore be rejected.  As to any non-pecuniary damage that

may have been sustained, the Court considers that the finding of a

violation of the Convention provides sufficient just satisfaction for

the purposes of Article 50 (art. 50).

    B.  Costs and expenses

58.     The applicants further claimed ATS 200,000 in respect of costs

and expenses incurred in the domestic proceedings and in those before

the Strasbourg institutions.

59.     The Government found the sum excessive.  In their contention,

a global sum of ATS 30,000 would represent a reasonable compensation

for all relevant costs and expenses.

        The Delegate of the Commission submitted that the amount

claimed under this head did not seem to be exaggerated.

60.     The Court notes that, as to the costs incurred in the

domestic proceedings, only those related to the request for a public

hearing are of relevance.  Since only one of the three complaints

declared admissible by the Commission has led to the finding of a

violation, the Court, making an assessment on an equitable basis as

required by Article 50 (art. 50), awards the applicants ATS 120,000 in

respect of costs and expenses.

    C.  Default interest

61.     According to the information available to the Court, the

statutory rate of interest applicable in Austria at the date of

adoption of the present judgment is 4% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.      Holds that there has been no violation of Article 6 para. 1 of

        the Convention (art. 6-1) as regards the applicants' complaint

        that they were not able to bring their case before an

        independent and impartial tribunal;

2.      Holds that there has been a violation of Article 6 para. 1 of

        the Convention (art. 6-1) on account of the lack of a public

        hearing before the Administrative Court;

3.      Holds that the present judgment in itself constitutes

        sufficient just satisfaction for any non-pecuniary damage

        sustained;

4.      Holds

        (a) that the respondent State is to pay the applicants, within

        three months, in respect of costs and expenses,

        120,000 (one hundred and twenty thousand) Austrian schillings;

        (b) that simple interest at an annual rate of 4% shall be

        payable from the expiry of the above-mentioned three months

        until settlement;

5.      Dismisses the remainder of the applicants' claim for just

        satisfaction.

        Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 23 April 1997.

Signed: Rudolf BERNHARDT

        President

Signed: Herbert PETZOLD

        Registrar

 

Full & Egal Universal Law Academy