AS TO THE ADMISSIBILITY OF
Application No. 16568/90
by E.F. and S.F.
against Austria
The European Commission of Human Rights sitting in private on
1 December 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 April 1990 by
E.F. and S.F. against Austria and registered on 8 May 1992 under file
No. 16568/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the Government's observations dated 7 February 1992;
- the applicant's observations in reply dated 4 June 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Austrian citizens born in 1941 and 1937
respectively. They are husband and wife and together they farm land
belonging to their son. The applicants hold the land in usufruct
(Fruchtgenussrecht). The applicants are represented before the
Commission by Mr. H. Vana, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
I.
On 28 April 1988 the Minister for Economic Affairs
(Bundesminister für wirtschaftliche Angelegenheiten) granted to an
electricity supply company a permit to build and to operate
provisionally a 380 KV power line between Vienna and the
Austrian-Hungarian border leading through the land of the applicants'
son. This decision was served neither on the applicants nor on their
son, who were also not called to participate in the proceedings.
The applicants lodged a complaint against this decision with the
Constitutional Court (Verfassungsgerichtshof) after their lawyer
coincidentally came to know the decision during the expropriation
proceedings. The applicants alleged a violation of Article 6 of the
Convention because they did not have a fair hearing before an
independent and impartial tribunal.
On 26 September 1989 the Constitutional Court, with reference to
its constant case-law concerning Article 6 of the Convention, refused
to deal with the case as it lacked prospect of success.
On 30 October 1989 the Constitutional Court referred the
complaint to the Administrative Court (Verwaltungsgerichtshof).
On 26 June 1990 the Administrative Court quashed the contested
decision insofar as a permit had been granted concerning the land of
the applicants' son, on the ground that, while the applicants were
parties in the proceedings according to the law, they had not been
informed of the proceedings.
On 1 October 1990 the Minister for Economic Affairs, after
conducting an oral hearing with the applicants, again granted a permit
to build and to operate provisionally the power line over the land of
the applicants' son.
The applicants lodged a complaint with the Administrative Court.
They submitted that the decision was unlawful for breaches of
procedural rules as it contradicted Sections 6 and 7 of the Power Lines
Act (Starkstromwegegesetz). In particular, the applicants contended
that the
authority refused to hear an expert proposed by them. Moreover, they
alleged a violation of Article 6 of the Convention in that they did not
have a fair hearing before a tribunal.
On 23 April 1991 the Administrative Court dismissed the
applicants' complaint on the grounds that they did not have a right to
a particular expert, that the other expert opinions in the proceedings
were conclusive and that the applicants themselves could have submitted
an expert opinion within a reasonable time if they had so requested.
However, they had failed to do so. With regard to the allegations
concerning Article 6 of the Convention, the Administrative Court found
as follows:
[Translation]
"Finally, the applicants allege that certain provisions of the
Power Lines Act are unconstitutional. Their reasoning is that,
in the light of Article 6 of the Convention, no interference may
take place with their property rights without court proceedings.
The respondent authority rightly points out in its counter-
pleadings that according to the recent case-law of the
Constitutional Court (cf. Constitutional Cases No. 11760), it is
permissible for administrative authorities to expropriate, and
for compensation claims to be determined initially by
administrative authorities, as here, where the administrative
proceedings are followed by proceedings before a court. Indeed,
the Constitutional Court, in its decision of 30 October 1989,
which preceded the Administrative Court's decision of 26 June
1990 (..), expressed no disquiet as to this legal position. The
Administrative Court shares the legal opinion of the
Constitutional Court as thus expressed."
[German]
"Abschließend behaupten die Beschwerdeführer eine Verfassungs-
widrigkeit von Bestimmungen des Starkstromwegegesetzes mit der
Begründung, daß im Hinblick auf Art. 6 MRK ohne gerichtliches
Verfahren nicht in ihre dinglichen Rechte eingegriffen werden
dürfte. Diesem Vorbringen hält die belangte Behörde in ihrer
Gegenschrift zutreffend entgegen, daß auch nach der neueren
Rechtsprechung des Verfassungsgerichtshofes (vgl. VfSlg. 11760)
eine Enteignung durch Verwaltungsbehörden zulässig ist und über
Entschädigungsansprüche zunächst Verwaltungsbehörden entscheiden
dürfen, wenn, wie dies auch hier der Fall ist, eine sukzessive
Gerichtszuständigkeit vorgesehen ist. Tatsächlich hat ja auch
der Verfassungsgerichtshof in dem dem Erkenntnis des Verwaltungs-
gerichtshofes vom 26. Juni 1990 vorausgehenden Beschluß vom
30. Oktober 1989, Zl. B 1066/89-5, keine Bedenken gegen die hier
gegebene Rechtslage geäußert. Der Verwaltungsgerichtshof teilt
die damit zum Ausdruck kommende Rechtsanschauung des
Verfassungsgerichtshofes."
The decision of the Administrative Court was served on the
applicants on 31 May 1991.
II.
By decision of 3 March 1990 the Minister for Economic Affairs
ruled that the construction and the operation of the power line in
question were in the public interest and necessary. In expropriation
proceedings he granted the construction of the power line over the land
of the applicants' son and ordered the payment of compensation in the
amount of AS 10,139.64 to the applicants' son.
The applicants applied for a judicial decision to the Neusiedl
District Court. This application had the effect that the Minister's
decision was quashed automatically. The expropriation proceedings are
still pending.
Relevant domestic law
According to Section 6 (1) of the 1968 Power Lines Act
(Starkstromwegegesetz 1968) anyone intending to build and run an
electric power line has to apply for a permit.
Section 7 of the Power Lines Act provides for the conditions
under which a permit is to be granted. Section 7 (1), as far as
relevant, reads as follows:
[Translation]
"The authority is required to grant the building and operation
permit if the electric power line does not contravene the public
interest in supplying the population or sections of it with
electric energy. In the permit the authority shall ensure, by
imposition of conditions, that the electric power lines are in
accordance with these requirements ..."
[German]
""Die Behörde hat die Bau- und Betriebsbewilligung zu erteilen,
wenn die elektrische Leitungsanlage dem öffentlichen Interesse
an der Versorgung der Bevölkerung oder eines Teiles derselben mit
elektrischer Energie nicht widerspricht. In dieser Bewilligung
hat die Behörde durch Auflagen zu bewirken, daß die elektrischen
Leitungsanlagen diesen Voraussetzungen entsprechen..."
COMPLAINTS
The applicants complain under Article 6 of the Convention that
in the building permit proceedings under the Power Lines Act, which
were decisive for their civil rights, they did not have a fair hearing
before a tribunal.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 April 1990 and registered on
8 May 1990.
On 15 October 1991 the Commission decided to bring the
application to the notice of the respondent Government and to request
the parties' observations on its admissibility and merits.
The respondent Government submitted their observations on
7 February 1992 and the applicants' representative submitted
observations in reply on 4 June 1992.
THE LAW
The applicants allege a violation of Article 6 (Art. 6) of the
Convention which provides, so far as relevant, as follows:
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ..."
The Government submit that a mere permit to build and to operate
a power line does not interfere directly with private rights within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. In
particular, a further right of way (under Section 11 or Section 18 of
the Power Lines Act) is necessary before the power line may be erected.
The fact that a "Section 7 permit" is necessary before a Section 11 or
a Section 18 right can be obtained is irrelevant. In the alternative,
the Government submit that, if Article 6 para. 1 (Art. 6-1) is
applicable to the proceedings in the present case, then the scope of
review by the Administrative Court, taken together with the review by
the Constitutional Court, is sufficient to satisfy the requirements of
Article 6 (Art. 6) in cases of this kind.
The applicant, referring to the Bodén judgment of the European
Court of Human Rights of 27 October 1987 (Series A no. 125-B),
considers that Article 6 para. 1 (Art. 6-1) of the Convention does
apply to the present proceedings. He also considers that the scope of
review by the Administrative and Constitutional Courts is not
sufficient to comply with Article 6 para. 1 (Art. 6-1) of the
Convention, as the Administrative Court may not take evidence itself
to supplement preliminary proceedings. It had only to check whether
there has been a sereious procedural error. Moreover, the
Constitutional and Administrative courts do not have the power to take
decisions on the merits, but may only examine the validity of the
decisions of administrative authorities.
Having regard to the submissions of the parties, and to the case-
law of the Convention organs, the Commission considers that the
application raises serious issues of fact and law, the determination
of which requires an examination of the merits.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION ADMISSIBLE, without prejudging
the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NORGAARD)
Full & Egal Universal Law Academy