EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 17588/90
F. and M. L.
against
Austria
REPORT OF THE COMMISSION
(adopted on 6 September 1994)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-15)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-10)1
C.The present Report
(paras. 11-15)2
II.ESTABLISHMENT OF THE FACTS
(paras. 16-21)3
A.The particular circumstances of the case
(paras. 16-19)3
B.Relevant domestic law
(paras. 20-21)3
III.OPINION OF THE COMMISSION
(paras. 22-61)5
A.Complaints declared admissible
(para. 22)5
B.Points at issue
(para. 23)5
C.As to the applicability of Article 6 para. 1
of the Convention
(paras. 24-35)5
D.As to compliance with Article 6 para. 1
of the Convention
(paras. 36-59)7
a.The scope of review by the administrative Court
(paras. 36-42).7
CONCLUSION (para. 43)7
b.The absence of a hearing before the
Administrative Court(paras. 44-58)8
CONCLUSION (para. 59)10
E.Recapitulation
(paras. 60-61)10
TABLE OF CONTENTS
Page
PARTIALLY CONCURRING AND PARTIALLY DISSENTING
OPINION OF MRS. LIDDY11
APPENDIX I : HISTORY OF THE PROCEEDINGS13
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION14
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicants are Austrian citizens, resident in Nussbach, in Upper
Austria. They are represented before the Commission by Mr. W.L. Weh, a lawyer
practising in Bregenz.
3.The application is directed against the Republic of Austria whose
Government were represented by their Agent, Ambassador F. Cede, head of the
International Law Department of the Federal Ministry for Foreign Affairs.
4.The case concerns court proceedings by which the applicants challenged a
partial refusal of a request to have fencing erected around their land to
protect it from damage by game. The applicants invoke Article 6 para. 1 of the
Convention.
B.The proceedings
5.The application was introduced on 23 November 1990 and registered on 21
December 1990.
6.On 11 May 1992 the Commission decided, pursuant to Rule 48 para. 2 (b) of
its Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on its
admissibility and merits.
7.The Government's observations were submitted on 2 October 1992. The
applicants replied on 5 January 1993.
8.On 8 September 1993 the Commission declared the application admissible and
transferred it to the First Chamber for further consideration.
9.The text of the Commission's decision on admissibility was sent to the
parties on 15 September 1993 and they were invited to submit such further
information or observations on the merits as they wished. No such observations
were submitted.
10.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, also placed itself at the
disposal of the parties with a view to securing a friendly settlement. In the
light of the parties' reaction, the Commission now finds that there is no basis
on which such a settlement can be effected.
C.The present Report
11.The present Report has been drawn up by the Commission (First Chamber) in
pursuance of Article 31 of the Convention and after deliberations and votes, 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
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
12.The text of this Report was adopted on 6 September 1994 by the Commission
and is now transmitted to the Committee of Ministers of the Council of Europe,
in accordance with Article 31 para. 2 of the Convention.
13.The purpose of the Report, pursuant to Article 31 of the Convention, is :
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
14.A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's decision on the
admissibility of the application as Appendix II.
15.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.The particular circumstances of the case
16.On 27 February 1987 the Steyr District Authority (Bezirkshaupt-mannschaft)
granted the applicants' request that the local hunting association
(Jagdgesellschaft) be required to fence in some 1.5 hectares of their land in
order to prevent game from entering and damaging young native trees. The
applicants' request had been made pursuant to Section 64 of the Upper Austrian
Hunting Act (Jagdgesetz) which provides that, where an agricultural unit suffers
game damage to forestry, application can be made to require the persons entitled
to hunt to take necessary preventive measures. The authorities considered that
a 1.5 metre fence was sufficient. The authority also found that the applicants
were responsible for clearing the land of weeds and for payment of costs for re-
forestation. The applicants and the hunting association appealed.
17.On 28 July 1988 the Upper Austrian Government Authority (Amt der
oberösterreichischen Landesregierung) amended the decision of 27 February 1987
to provide for fencing of a smaller area with, in part, more effective fencing.
18.The applicants made a constitutional complaint to the Constitutional Court
(Verfassungsgerichtshof) concerning the refusal to require fencing of the larger
area. In the complaint they alleged a violation of their right to a decision
from an independent and impartial court. They also complained of the
application of ordinary law which was in violation of Article 6 of the
Convention. The Constitutional Court rejected the complaint on 12 December 1988
as it had no reasonable prospects of success and no problems of constitutional
law arose. It remitted the case to the Administrative Court
(Verwaltungsgerichtshof).
19.The Administrative Court dismissed the applicants' administrative
complaint on 2 April 1990 (the decision was received by the applicants' lawyer
on 1 June 1990) on the ground that there was no indication that the challenged
decision was unlawful. The Administrative Court refused the applicants' request
for a hearing by reference to Section 39(2) 6 of the Administrative Court Act
(Verwaltungsgerichtshofgesetz). In particular, the Administrative Court noted
that the type of tree (blue spruce) which the applicants had allegedly planted
merely as a "preliminary culture" (Vorkultur) to support other, indigenous
trees, was itself included in the list of trees appropriate for the particular
type of forest. There had therefore been no need for the administrative
authorities to consider the other types of tree which had been planted but which
had allegedly been damaged by game. Accordingly, for the area where blue spruce
grew, the administrative authorities' decision not to require fencing could not
be seen to be unlawful.
B.Relevant domestic law
20.Section 33 (1) of the Forestry Act (Forstgesetz) provides, subject to
exceptions, that anyone may enter and remain in forest land for recreative
purposes.
21.Section 64 of the Upper Austrian Hunting Act (Jagdgesetz) provides as
follows:
"Keeping game away; preventing damage by game.
(1)The land owner and the hunting licensee - the latter only with the
consent of the former - are entitled to keep game away from cultures by
protective measures, and in order to do so may establish fences, lattices,
walls, etc. (for an overall protection) or may protect individual plants by
adequate means.
(2)If the output of an agricultural unit is declining constantly and
considerably as a result of game damage to cultures, the District Authority,
upon a request by the person suffering damage or by the District Agricultural
Chamber (Bezirksbauernkammer) and after consultation with the district hunting
adviser, shall order the person or association entitled to hunt to take the
necessary protective measures (Sub-section (1)) or to reduce the game population
(Section 49 (2)).
(3)Hunting and game keeping must be such as not to endanger the
preservation of the forest, which also serves as an amenity and place of resort
for the general public.
(4)A forest is endangered within the meaning of Sub-section 3, if as a
result of browsing, rubbing or peeling by game (Verbiß, Verfegen oder Schälen)
a)there are glades (Blößen) within the stands or if a healthy
development of stands is impossible on a larger scale, or
b)afforestation or natural regeneration in areas requiring
afforestation is not guaranteed within the periods of time laid
down in the forest regulations, or
c)afforestation for the creation of new forested land within a
period of time which, having regard to the local situation, is to be
considered reasonable, is not guaranteed, or
d)young trees will not grow in regeneration stands.
(5)If the forest is endangered within the meaning of Sub-section (4),
the District Authority, in co-operation with its forest engineering department,
shall proceed in accordance with the provisions of Sub-section (2).
(6)The protective measures to be taken by the person or association
entitled to hunt for the purpose of keeping game away, must not obstruct the
cultivation and use of the land. The protective measures against intruding game
must not be such as to endanger the life of the game in case of floods.
(7)Anyone is entitled to expel and keep away game from his land by
adequate means. He must not, however, resort to such measures as using
firearms, firing shots in the air or chasing the game with dogs. Should game be
injured or perish as a result of lawful measures intended to keep it away, the
person or association entitled to hunt cannot claim compensation.
(8)If game penetrates from unfenced areas into areas where fences have
been established in order to keep it away, measures shall be taken in accordance
with the provisions of
Section 49 (2) unless redress can be obtained otherwise."
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
22.The Commission has declared admissible the applicants' complaints that
they were not able to have a hearing on the issue of the refusal to erect
fencing which they wanted before a court which complied with Article 6 para. 1
(Art. 6-1) of the Convention.
B.Points at issue
23.The issues to be determined are
- whether there has been a violation of the applicants' right to have their
case determined by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention, and
- whether the absence of an oral hearing before the Administrative Court
violated Article 6 para. 1 (Art. 6-1) of the Convention.
C.As to the applicability of Article 6 para. 1 (Art. 6-1) of the Convention
24.Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,
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 established by law."
25.In the above court proceedings the applicants attempted to challenge the
decision of the Upper Austrian Government Authority of 28 July 1988 in which the
Authority provided for the fencing of a smaller area than the applicants wanted.
26.The applicants submit that Article 6 para. 1 (Art. 6-1) of the Convention
applies to these proceedings. For them, the protection of property against
outside influences is one of the most classical of all rights an owner of land
possesses. They consider that an application for "necessary preventive
measures" affects their property as much as an action for damage caused by game
in that it enables them to deal with their land as they wish. In particular,
they are attempting to re-establish an environmentally desirable mix of trees,
which involves local types and a mix of deciduous and coniferous trees. Without
the appropriate fencing to protect those trees, the young trees are promptly
severely damaged by game. The applicants conclude that civil rights were
clearly involved.
27.The respondent Government submit that the mere possibility of requiring
the person entitled to hunt to undertake necessary protective measures in order
to serve the public interest in preserving the forest does not amount to a right
to protection against game damage. They consider it quite natural that a forest
may be endangered by the game living there. Accordingly, they conclude that the
challenged decision does not directly affect the applicants' property rights as
forest owners, their professional activities or any contracts which may have
been concluded under private law in connection with their forest ownership. In
addition, the Government refer to the case-law of the Constitutional Court to
the effect that in cases relating not to the traditional "core" of civil law,
but to matters only concerning civil rights in their effects (namely the
relationship between citizens and the general public), a "differentiated
interpretation of the requirements laid down in Article 6 para. 1 (Art. 6-1) of
the Convention" must be applied.
28.The Commission must first determine whether the case involves a dispute
over a "right" which can be said, at least on arguable grounds, to be recognised
under domestic law (see, for example, Eur Court H.R., Zander judgment of 25
November 1993, Series A no. 279-B, p. 38, para. 22).
29.Section 64 (2) of the Upper Austrian Hunting Act provides a mechanism
whereby aggrieved farmers can request the District Authority to order the person
or association entitled to hunt to take protective measures if an agricultural
unit's output is in decline. Such measures are created as part of the general
regulation of woodland and game management: a landowner's right to exclude game
(by erecting fences himself) is limited because of the need for game to be able
to circulate, but the landowner can request the "necessary protective measures"
to the taken.
30.The Commission notes that the applicants, as owners of land subject to
game damage, had standing under Austrian law to ask the District Authority to
require the person entitled to hunt to take necessary protective measures. In
addition, both they and the hunt association could (and did) appeal to the
Regional Government against the District Authority's decision in this respect.
The applicants further put the matter before the Constitutional and
Administrative Courts. The District Authority indeed acceded to the applicants'
request in part.
31.Having regard to the foregoing, the Commission is satisfied that the
applicants could arguably maintain that they were entitled under Austrian law to
protection against their trees being damaged by game.
32.The outcome of the proceedings was thus directly decisive for the
applicants' entitlement to have fencing erected by the persons entitled to hunt.
The proceedings therefore involved a "determination" of one of the applicants'
"rights" for the purposes of Article 6 para. 1 (Art. 6-1) (see the above-
mentioned Zander judgment, pp. 39, 40, paras. 24, 25).
33.The Commission must next determine whether the applicants' right was a
"civil right".
34.The Commission notes that the applicants' claim was directly concerned
with their ability to plant on their land the type of trees they wished. This
ability was one facet of their right as owners of the land. The right of
property is clearly a "civil right" within the meaning of Article 6 para. 1
(Art. 6-1) (see the above-mentioned Zander judgment, p. 40, para. 27).
Consequently, notwithstanding the public-law aspects of the case, as adumbrated,
for example, in the Constitutional Court's case-law referred to by the
Government, the Commission considers that the entitlement in issue was a "civil
right".
35.The Commission therefore finds that Article 6 para. 1 (Art. 6-1) of the
Convention was applicable to the proceedings by which the applicants challenged
the decision of the Upper Austrian Government not to require all the fencing the
applicants had requested.
D.As to compliance with Article 6 para. 1 (Art. 6-1) of the Convention
a.The scope of review by the Administrative Court
36.The applicants consider that the administrative authorities themselves are
not independent tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention. They further consider that the scope of review of the
Constitutional Court and Administrative Court is inadequate to comply with the
provision. They point out that if the Constitutional Court, in its case-law,
had considered that Article 6 was complied with by the Administrative Court,
there would have been no need to create the Independent Administrative Senates
(Unabhängige Verwaltungssenate), and add that, in any event, the Administrative
Court could not possibly handle the volume of work involved in acting as an
Article 6 tribunal in the many cases submitted to it.
37.The Government consider that the control exercised by the Administrative
Court, taken together with the control by the Constitutional Court, complies
with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.
38.The European Court of Human Rights has considered the scope of review of
administrative decisions by the Administrative Court, most recently in the case
of Zumtobel (Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A
no. 268-A). It considered that in that case, regard being had to the respect
which must be accorded to decisions taken by the administrative authorities on
grounds of expediency and to the nature of the complaints made by the applicants
in the case, the review afforded by the Administrative Court fulfilled the
requirements of Article 6 of the Convention.
39.In the present case, too, the Administrative Court was dealing with an
administrative power which was circumscribed, as are all administrative powers,
by the legislation creating it. To the extent that those powers were exceeded
or wrongly applied, or applied in contravention of constitutional rights
(including the Convention), the applicant could make administrative and
constitutional complaints.
40.There remained a discretion in the hands of the authorities. In
particular, the question of what protective measures were "necessary" was a
matter which called for the exercise of a discretion.
41.In the event, the Administrative Court answered all the applicants'
complaints directly, by pointing out, for example, that where blue spruce grew,
there was no need for the administrative authorities to consider whether fencing
was "necessary" because blue spruce was a type of tree that did not require
fencing. The Administrative Court did not decline jurisdiction at any point of
the judgment.
42.The applicants' case was therefore heard by a tribunal within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
43.The Commission concludes, by 11 votes to 1, that there has been no
violation of the applicants' right to have their case determined by a tribunal
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
b.The absence of a hearing before the Administrative Court
44.The applicants see the Austrian reservation to Article 6 as not complying
with Article 64 of the Convention. In any event, they consider that
reservations are intended to be limited in time. They further consider that the
reservation cannot be intended to cover administrative procedures because, at
the time it was made, hardly anybody could have envisaged Article 6 applying to
such proceedings. They also refer to the position of Article 90 of the Federal
Constitutional Law (Bundes-Verfassungsgesetz) in that Law, that is, in the
section relating to the activities of the courts, rather than that dealing with
the Administration. They consider that, if it is purported that the reservation
deals with administrative cases, then it lacks the necessary precision to comply
with Article 64 of the Convention.
45.On the assumption that the reservation to Article 6 of the Convention is
invalid or inapplicable, the applicants see the absence of an oral hearing
before the Administrative Court as an example of how that Court's review is
ineffective and in violation of human rights.
46.The Government refer to the Austrian reservation to Article 6 of the
Convention which, they consider, is valid and applies to administrative
proceedings as well as criminal and civil proceedings. Accordingly, they
consider that Article 6, as applicable in the case of Austria, did not require
an oral hearing in the present case. They accept that when the reservation was
made only fundamental provision existed for the conduct of an oral hearing
before the Administrative Court, and that exceptions (including that applied in
the present case) were added in 1982, but consider that those extensions amount
to exceptions "of the same nature" as those in force at the date of reservation,
and that they therefore comply with Article 64 of the Convention.
aa. The Austrian reservation
47.The Austrian reservation to Article 6 of the Convention provides as
follows:
"The provisions of Article 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."
48.Article 64 of the Convention provides as follows:
"1.Any State may, when signing this 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.
2.Any reservation made under this Article shall contain a brief
statement of the law concerned."
49.The Commission recalls that the European Court of Human Rights has
considered the question of the compatibility of declarations and reservations
with Article 64 of the Convention on several occasions (see, for example, Eur.
Court H.R., Belilos judgment of 29 April 1988, Series A no. 132; Eur. Court
H.R., Weber judgment of 22 May 1990, Series A no. 177; Eur. Court H.R., Chorherr
judgment of 25 August 1993, Series A no. 266-B). The Court found that Article
64 para. 1 of the Convention requires "precision and clarity", and that Article
64 para. 2 is not a "purely formal requirement but a condition of substance"
which "constitutes an evidential factor and contributes to legal certainty"
(aforementioned Belilos judgment, pp. 26-28, paras. 55 and 59). The Commission
has itself applied these principles to a refusal by the Administrative Court to
hold a hearing, and found that the Austrian reservation to Article 6 of the
Convention did not prevent the Commission from examining the applicant's
complaint in that case that the refusal to hold a hearing before the
Administrative Court violated Article 6 of the Convention, because the provision
by which the refusal was made was not "in force" at the time the reservation was
made (Fischer v. Austria, No. 16922/90, Comm. Rep. 9.9.93, pending before the
European Court of Human Rights).
50.In the present case, too, the Commission finds that Section 39 (2) 6 of
the Administrative Court Act, which entered into force only in 1982, was not "in
force", either formally or in substance, at the time the reservation was entered
in 1958. Accordingly, the reservation cannot prevent the Commission from
examining the complaint concerning a refusal to hold a hearing.
bb.Application of Article 6 para. 1 (Art. 6-1)
51. The Commission must next consider whether the absence of a hearing before
the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the
Convention.
52.For the purposes of Article 6 of the Convention, the Administrative Court
was the only tribunal which dealt with the merits of the applicants' complaint.
The applicants were accordingly entitled to a public hearing before that court,
as none of the exceptions laid down in the second sentence of Article 6 para. 1
(Art. 6-1) applied (cf. Eur. Court H.R., Håkansson and Sturesson judgment of 21
February 1990, Series A no. 171, p. 20 para. 64). The principle has also been
expressed as "in proceedings before a court of first and only instance the right
to a 'public hearing' may entail an entitlement to an oral hearing" (Eur. Court
H.R., Fredin No. 2 judgment of 23 February 1994, Series A no. 280-A, para. 21).
53.In the present case, there is no question of a waiver by the applicants of
their right to an oral hearing: they requested and were refused a hearing by the
Administrative Court.
54.The Commission recalls the European Court of Human Rights has found that a
complete absence of an oral hearing may, in certain circumstances, not be in
violation of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court H.R.,
Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, pp. 19,20, paras.
56-58).
55. The present case must be distinguished from the Schuler-Zgraggen case.
First, although the dispute at issue related to the revocation of a "public law"
licence, the private-law considerations of a financial nature at the heart of
the matter make it quite different from the social security questions dealt with
in that case. Secondly, the issue of waiver does not arise in the present case.
Whilst the Commission does not underestimate the necessity for procedures which
run efficiently, it remains for the respondent State to comply with its
obligations under the Convention by organising its legal system so as to ensure
compliance with Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court
H.R., Guincho judgment of 10 July 1984, Series A no. 81, p. 16 para. 38).
56.In the above-mentioned case of Fredin No. 2, although the Court accepted
that an oral hearing may not always be required by Article 6 para. 1 (Art. 6-1)
of the Convention, it nevertheless found a violation of the provision in
connection with the absence of an oral hearing. The Court referred inter alia
to the fact that the Supreme Administrative Court's jurisdiction was not limited
to matters of law (paras. 21, 22).
57.In the present case, too, the applicants requested and were refused a
hearing before the only court which considered the case, and that court had the
"full jurisdiction" required of a tribunal which has to comply with Article 6 of
the Convention (see the above-mentioned Zumtobel judgment, p. 13, para. 29 with
further references). In these circumstances, the Commission finds that the
absence of an oral hearing was incompatible with the requirements of Article 6
para. 1 (Art. 6-1) of the Convention.
58.In these circumstances the Commission is not required to consider other
objections to the reservation, for example that it is of a "general character",
or that it only applies to civil and criminal cases and not administrative
cases, or that it does not provide the "brief statement of the law concerned"
called for by Article 64 para. 2 of the Convention.
CONCLUSION
59.The Commission concludes, unanimously, that the absence of an oral hearing
before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the
Convention.
E.Recapitulation
60.The Commission concludes, by 11 votes to 1, that there has been no
violation of the applicants' right to have their case determined by a tribunal
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 43).
61.The Commission concludes, unanimously, that the absence of an oral hearing
before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the
Convention (para. 59).
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
(Or. English)
PARTLY CONCURRING and PARTLY DISSENTING OPINION OF Mrs. J. LIDDY
The majority of the Commission consider that the scope of review by the
Administrative Court in this case was adequate to comply with the requirements
of Article 6. They rely on the Zumtobel judgment of 21 September 1993 where, on
very different facts, the Court found no violation.
The Zumtobel case concerned expropriation proceedings which were
permissible only if it was not possible to construct or retain a section of the
highway "more suitable" from the point of view of traffic requirements,
environmental protection and financial implications. The judgment recites
Section 41 of the Administrative Court Act, providing that the Administrative
Court must examine the contested decision on the basis of the facts as accepted
by the Authority against which the appeal is directed, and Section 42, which
enables the Administrative Court to quash the contested decision as being
unlawful due to procedural defects, including where the findings of fact are
contradicted by the case-file. The Court concluded that "Regard being had to
the respect which must be accorded to decisions taken by the administrative
authorities on grounds of expediency and to the nature of the complaints made by
the Zumtobel partnership, the review by the Administrative Court accordingly, in
this instance, fulfilled the requirements of Article 6 para. 1".
I do not think that the present case concerned an administrative decision
taken on grounds of expediency. It concerned Section 64 (2) of the Upper
Austrian Hunting Act whereby a landowner was entitled to a decision from an
administrative authority directing a hunting licensee to undertake protective
measures in certain circumstances. The dispute concerned what were the measures
"necessary" to protect the landowners' trees. As noted by the majority at para.
34 of the Report, the applicants' claim was directly concerned with their
ability to plant on their land the type of trees they wished. The costs of the
protective measures would be borne in principle by another private party gaining
a benefit from other parts of the land. I consider that the nature of the
dispute was close to a private-law dispute of a traditional kind, that it did
not involve questions of administrative expediency and is clearly
distinguishable from that at issue in the Zumtobel case. In the present case,
the applicants were entitled to a decision by a tribunal with power to make
findings of fact for itself and to decide, on the basis of those facts, on the
necessity or otherwise of protectionary measures.
Section 41 of the Administrative Court Act is ameliorated but not
nullified by Section 42, and the effect was that the Administrative Court did
not, in this case, have the full jurisdiction required by Article 6 para. 1.
There has accordingly been a violation of that provision.
Even assuming that the applicant's case was determined by a tribunal, the
absence of an oral hearing before the Administrative Court violated Article 6
para. 1, and in this respect I am in agreement with the conclusion at para. 59
of the Report. However, I do not follow the particular reasoning given at para.
50 for not having regard to the Austrian reservation to Article 6 para. 1. My
own view is that the reservation is invalid because it does not satisfy the
requirements of Article 64 of the Convention. My reasons for reaching this
conclusion were given in my separate opinion in the Fischer case (Comm. Report
9.9.93).
APPENDIX I
HISTORY OF THE PROCEEDINGS
DateItem
_________________________________________________________________
23 November 1990Introduction of application
21 December 1990Registration of application
Examination of admissibility
11 May 1992Commission's decision to communicate the case to
the respondent Government and to invite the parties to submit observations
on admissibility and merits
2 October 1992Government's observations
5 January 1993Applicant's observations in reply
8 September 1993Commission's decision to declare application admissible
and transfer
to First Chamber for further consideration
Examination of the merits
15 September 1993Decision on admissibility transmitted to parties.
Invitation to parties to submit further observations on the merits
18 January 1994Commission's consideration of state of proceedings
17 May 1994Commission's consideration of state of proceedings
31 August 1994Commission's deliberations on the merits, final
vote and consideration of text of the Report
6 September 1994Adoption of Report
Full & Egal Universal Law Academy