AS TO THE ADMISSIBILITY OF
Application No. 17588/90
by F.L. and M.L.
against Austria
The European Commission of Human Rights sitting in private on
8 September 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
Mr. M. de SALVIA, Deputy 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 23 November 1990
by F.L. and M.L. against Austria and registered on 21 December 1990
under file No. 17588/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
THE FACTS
The applicants are Austrian citizens. They live in Nussbach, in
Upper Austria, where they are farmers. They are represented before the
Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.
The facts of the present case, as submitted by the parties, may
be summarised as follows:
The particular circumstances of the case
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 Law (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.
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.
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,
inter alia, a 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.
The Administrative Court (Verwaltungsgerichtshof) dismissed the
applicants' administrative complaint on 2 April 1990 (decision 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.
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.
Relevant domestic law
Section 33 (1) of the Forestry Act (Forstgesetz) provides,
subject to exceptions, that anyone may enter and remain in forest land
for recreative purposes.
Section 67 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
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."
COMPLAINTS
The applicants complain that the scope of review of the
Administrative Court is not sufficient to compensate for the absence
of a court which is competent to decide the questions at issue before
the administrative authorities. They see this insufficiency in the
absence of an oral hearing, in the absence of competence to decide
factual issues and the lack of opportunity to call or question experts.
They allege a violation of Article 6 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 November 1990 and registered
on 21 December 1990.
On 11 May 1992 the Commission decided to communicate the
application to the respondent Government and to request them to submit
written observations on its admissibility and merits.
The Government's observations were submitted, after an extention
of the time-limit, on 2 October 1992 and the applicants' representative
submitted his observations in reply, also after an extention of the
time-limit, on 5 January 1993.
THE LAW
The applicants allege violation of Article 6 para. 1 (Art. 6-1)
of the Convention. This provision provides, so far as relevant, as
follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
With regard to the applicability of Article 6 (Art. 6) to the
proceedings before the administrative authorities, 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, they 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. In any event,
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.
In connection with the absence of a public hearing, the
Government refer to the Austrian reservation to Article 6 (Art. 6) of
the Convention which, they consider, is valid and applies to
administrative proceedings as well as criminal and civil proceedings.
Accordingly, they consider Article 6 (Art. 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 (Art. 64) of the Convention.
For the applicants, the protection of property against outside
influences is one of the most classical of all rights an owner of land
possesses. They conclude that civil rights were clearly involved. As
for compliance with Article 6 (Art. 6) of the Convention, the
applicants disagree with the interpretation submitted by the respondent
Government of the Constitutional Court's case-law. They point out that
if the Constitutional Court had considered that Article 6 (Art. 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 (Art. 6) tribunal in the many cases submitted to it.
As for the question of an oral hearing, the applicants regard
reservations as fundamentally limited in time, and see the Austrian
reservation to Article 6 (Art. 6) as in any event not complying with
Article 64 (Art. 64) of the Convention. They 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 (Art. 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 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 (Art. 64) of the Convention.
The Commission finds that the application raises complex issues
of law under the Convention, including questions concerning the
Austrian reservation to Article 6 (Art. 6), the examination of which
must be reserved to an examination of the merits.
The application cannot, therefore, be declared manifestly ill-
founded with the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits
of the case.
Acting Secretary to the Commission President of the Commission
(M. de SALVIA) (C.A. NØRGAARD)
Full & Egal Universal Law Academy