EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 12235/86
Firma F.M. ZUMTOBEL and Martin ZUMTOBEL
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 30 June 1992)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 18) ........................................ 1
A. The application
(paras. 2 - 4) .................................. 1
B. The proceedings.
(paras. 5 - 13) ................................. 1
C. The present Report
(paras. 14 - 18) ................................ 2
II. ESTABLISHMENT OF THE FACTS
(paras. 19 - 50) ..................................... 3
A. The particular circumstances of the case
(paras. 19 - 38) ................................ 3
a. Proceedings before the Provincial Government
(paras. 19 - 24) .......................... 3
b. Proceedings before the Constitutional Court
(paras. 25 - 28) .......................... 4
c. Proceedings before the Administrative Court
(paras. 29 - 36) .......................... 4
d. Compensation proceedings
(paras. 37 - 38) .......................... 6
B. Relevant domestic law and practice
(paras. 39 - 50) ................................ 7
a. As to the expropriation
(paras. 39 - 41) .......................... 7
b. Interpretation by the Austrian Constitutional
Court of the scope of Article 6 para. 1 of the
Convention
(paras. 42 - 43) .......................... 7
c. Jurisdiction of the Austrian Constitutional
and Administrative Courts
(paras. 44 - 49) .......................... 8
d. Position of experts
(para. 50) ................................ 10
III. OPINION OF THE COMMISSION
(paras. 51 - 98) .................................... 11
A. Complaints declared admissible
(para. 51) ..................................... 11
B. Points at issue
(para. 52) ...................................... 11
C. Applicability of Article 6 para. 1 of the
Convention
(paras. 53 - 59) ................................ 11
D. Compliance with Article 6 para. 1 of the
Convention
(paras. 60 - 94) ................................ 12
a. Access to court
(paras. 61 - 77) .......................... 12
Conclusion
(para. 77) ...................................... 14
b. Lack of an oral hearing
(paras. 78 - 83) .......................... 14
Conclusion
(para. 83) ...................................... 15
c. Position of experts
(paras. 84 - 89) .......................... 15
Conclusion
(para. 89) ................................ 16
d. Consultation of documents
(paras. 90 - 94) .......................... 16
Conclusion
(para. 94) ................................ 16
E. Recapitulation
(paras. 95 - 98)................................. 16
DISSENTING OPINION OF MM. S. TRECHSEL, J.-C. SOYER,
C.L. ROZAKIS and L. LOUCAIDES .............................. 17
CONCURRING OPINION OF Sir Basil HALL ....................... 18
APPENDIX I: HISTORY OF THE PROCEEDINGS ................ 19
APPENDIX II: DECISION ON THE ADMISSIBILITY ............. 20
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 first applicant was, when filing the application, a
commercial firm at Dornbirn in Austria, established as a limited
partnership (Kommanditgesellschaft) under Austrian law. The second
applicant, an Austrian citizen, resides at Dornbirn. When filing the
application, he was the general partner (Mehrheitsgesellschaft) of the
first applicant and its manager (Geschäftsführer). Meanwhile, the
first applicant is completely owned by the second applicant. Before
the Commission the applicants are represented by Mr. W.L. Weh, a lawyer
practising in Bregenz.
3. The application is directed against the Republic of Austria whose
Government are represented by their Agent, Ambassador Helmut Türk, Head
of the International Law Department at the Federal Ministry of Foreign
Affairs.
4. The applicants complain under Article 6 para. 1 of the Convention
that in the expropriation proceedings in which they were involved they
had no access to a court with full jurisdiction on questions of law and
fact. The applicants also complain under this provision of unfairness
of the proceedings.
B. The proceedings
5. The application was introduced on 10 June 1986 and registered on
13 June 1986.
6. At that time proceedings before the Austrian Administrative Court
were pending. On 6 March 1989 the Commission decided to adjourn
further examination of the admissibility of the application until the
Administrative Court had given its decision.
7. The Administrative Court gave its decision on 22 September 1989.
The applicants filed comments thereupon on 4 December 1989.
8. On 2 April 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the application
limited to the issues under Article 6 para. 1 of the Convention and
Article 1 of Protocol No. 1.
9. The Government's observations were received by letter dated
23 July 1990 and the applicants' observations by letter dated
11 October 1990.
10. On 29 May 1991 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the applicants' complaints
under Article 6 para. 1 of the Convention.
11. The hearing took place on 15 October 1991. The Government were
represented by Mr. W. Okresek, Head of Department at the Federal
Chancellery in Vienna, and by Mr. F. Haug of the International Law
Department in the Federal Ministry for Foreign Affairs in Vienna. The
applicants were represented by their lawyer, Mr. W.L. Weh. The second
applicant and Mr. E. Girardi, signing clerk (Prokurist) for the first
applicant, were also present.
12. On 15 October 1991 the Commission declared the application
admissible in so far as it related to the complaint mentioned in
para. 4 above and inadmissible as to the remaining complaints.
13. 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 of the case. 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
14. The present report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
15. The text of this Report was adopted on 30 June 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
16. 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.
17. 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.
18. 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
a. Proceedings before the Provincial Government
19. The facts of the case concern the construction in Vorarlberg of
the L 52, a new Provincial Road (Landesstrasse) as a bypass (Umfahrung)
in the area of the Rankweil municipality.
20. In the course of the planning procedure the construction was
discussed inter alia in separate landscape proceedings concerning the
compatibility of the proposed stretch of road with environmental
requirements. The project was open for consultation, and possible
objection, by the public in the Rankweil municipal office from
1 October to 1 November 1984. The project also concerned the
applicants' property though they filed no objection thereto.
21. On 28 February 1985 the Provincial Road Administration
(Landesstrassenverwaltung) of the Vorarlberg Provincial Government
(Landesregierung) instituted expropriation proceedings in relation to
2,140 m² real property of the first applicant. The expropriation was
based on the Vorarlberg Provincial Road Act (Landesstrassengesetz) and
was to enable construction of the L 52. As a result, the first
applicant's property, formerly a continuous area of some 55,000 m², was
to be divided into two smaller areas of approximately 20,000 m² and
30,000 m² respectively. The property of other owners was only to be
marginally affected.
22. Expropriation proceedings were then conducted before the
administrative authorities of the Provincial Government. The
authorities consulted several experts. During these proceedings the
first applicant filed several requests for the taking of evidence,
concerning inter alia a report of the Court of Audit (Rechnungshofsbe-
richt); the views of an expert opinion on the protection of the
environment; the decision of the Feldkirch, Meiningen and Rankweil
municipalities on the stretch of road to be built; and an opinion by
the environmental department of the Provincial Government.
23. On 25 June 1985 a hearing was held at which the first applicant's
representative was present as well as the chairman and three experts,
i.e. for road construction, landscape protection and road traffic "of
the Office of the Provincial Government" ("vom Amt der Landesregie-
rung"). At the hearing, the experts submitted their opinions and made
further submissions thereupon. The experts for road construction and
for road traffic submitted in particular that the proposed stretch of
road was important for the traffic between Rankweil and Feldkirch, as
the existing connection between the two communities led through densely
built areas.
24. On 13 February 1986 the Office (Amt) of the Vorarlberg Provincial
Government ordered the expropriation. The first applicant was granted
compensation amounting to 620 AS per m². In its decision the Office
rejected a request of the first applicant to be fully informed of the
planning procedure as being irrelevant. The request to consult a
neutral road traffic expert on the necessity of the road was dismissed
on the ground that the particular official expert was not biased in
favour of the Provincial Road Administration and had delivered a
convincing report.
b. Proceedings before the Constitutional Court
25. Against this decision the first applicant lodged a complaint
(Beschwerde) with the Constitutional Court (Verfassungsgerichtshof).
26. With reference inter alia to Article 6 para. 1 of the Convention,
the first applicant submitted inter alia that an administrative
expropriation procedure subject to the ultimate control of the
Administrative and the Constitutional Courts was not in conformity with
this provision and violated its right of access to a court with full
jurisdiction on both questions of fact and law. The first applicant
further alleged a violation of the principle of equality of arms due
to the fact that the authority only heard the official experts attached
to it and refused to hear any independent experts.
27. On 27 November 1987 the Constitutional Court, in non-public
proceedings under Article 144 para. 2 of the Federal Constitution
(Bundes-Verfassungsgesetz), decided not to deal with the complaint as
it lacked prospects of success.
28. In its decision the Constitutional Court referred to its previous
case-law concerning the authorities' discretion when fixing the outline
of a road and concerning Article 6 of the Convention. The Court found
no indication of unconstitutionality of applicable legal rules. The
case did not appear to raise specific constitutional issues, but only
questions of lawfulness to be decided by the Administrative Court.
c. Proceedings before the Administrative Court
29. Against the decision of the Provincial Government of
13 February 1986 the first applicant also filed a complaint with the
Administrative Court (Verwaltungsgerichtshof). Therein it invoked in
essence the same arguments as before the Constitutional Court, this
time alleging violations of procedural and substantive law. The first
applicant maintained that its private interest in using the property
outweighed the public interest inasmuch as only little traffic was to
be expected on the new road. The first applicant also requested the
appointment of an expert.
30. By decision of 22 September 1989 the Administrative Court
dismissed the first applicant's complaint.
31. In its decision the Administrative Court stated that it had no
doubts concerning the organisation of the authorities competent to
decide on expropriations for road construction purposes. It refused
to refer this matter to the Constitutional Court, as raising an issue
under Article 6 of the Convention. The Administrative Court accepted
that a party to expropriation proceedings for road construction
purposes could contest the appropriateness of the project. It
considered that Section 44 para. 1 of the Vorarlberg Provincial Road
Act required the balancing of contradicting interests, namely traffic,
and landscape protection, while also taking into account the economic
suitability of the planned road.
32. The Court found that the first applicant had failed to
demonstrate that the contested decision was unlawful. The decision
states:
[Translation]
"Against the background of the object of examination falling to
the Administrative Court according to Section 41 of the
Administrative Court Act it cannot be regarded as unlawful that
the respondent authority - having regard to the interests of
traffic - based its decision on the relevant facts in particular
that no other, more expedient solution - than the one proposed
for the new construction of the L 52 in the proposed road
construction project - was possible. As can be seen from the
facts established in the contested decision, the respondent
authority took the view that it was in the interests of traffic
to remove through-traffic from the Rankweil-Brederis built-up
area, while at the same time this would create a useful
contribution to the existing road network in the Feldkirch-
Rankweil area."
[German]
"Vor dem Hintergrund der dem Verwaltungsgerichtshof nach Abs. 41
VwGG gestellten Prüfungsaufgabe kann es nicht als rechtswidrig
erkannt werden, wenn die belangte Behörde - unter dem
Gesichtspunkt der Interessen des Verkehrs - ihrem Abspruch als
maßgebenden Sachverhalt zugrunde legte, daß eine andere,
zweckmäßigere Lösung - als der vorgesehene Neubau der L 52 im
gegenständlichen Baulos - nicht möglich sei. Wie sich aus den
Feststellungen im angefochtenen Bescheid ergibt, ist die belangte
Behörde bei ihrem Abspruch davon ausgegangen, daß es im Interesse
des Verkehrs gelegen sei, den Durchzugsverkehr aus dem
besiedelten Gebiet von Rankweil - Brederis herauszuführen, wobei
auch eine sinnvolle Ergänzung des bestehenden Straßennetzes im
Raum Feldkirch - Rankweil geschaffen werde."
33. The Administrative Court further explained why, in its view, no
doubts arose in respect of the evidence provided by the official
experts. The Court also noted that the contested decision took account
of environmental protection when assessing the interests at stake. It
had been lawful to limit the proceedings to the part of the road which
affected the first applicant's property and to conduct the
expropriation proceedings before the adoption of the ordinance about
the provincial road.
34. With regard to the first applicant's complaint about the lack of
independence of the experts in the expropriation proceedings the Court
noted that the expropriating authority was in principle required to
consult its own official experts. The merely general reference to the
problem of dependency did not suffice to prove partiality, which had
to be examined in each individual case.
35. In respect of the first applicant's complaint that it could not
consult all the documents the Court noted that the first applicant had
not been a party to the landscape proceedings for which reason it was
not permitted to consult the respective case-file. With regard to a
report of the Court of Audit and other documents the Court found
nothing therein which was relevant to the first applicant's case. The
Court also noted that the expert opinion of the independent traffic
expert Be. had actually been included in the expropriation file, though
the first applicant could not claim a right to receive photocopies
therefrom.
36. The Court then addressed the first applicant's request for the
preparation of a new expert opinion by a neutral traffic expert by
referring to a ruling of the enlarged Panel of the Administrative Court
as follows:
[Translation]
"Accordingly, the Administrative Court is barred from taking
evidence which the administrative authority may have failed to
take, and from taking evidence itself in order to supplement the
facts that have been ascertained during investigations. However,
the Administrative Court may take evidence to determine whether
there has been an essential procedural defect and is therefore
authorised to take evidence for examining the question whether
a procedural defect is essential or whether the incriminated
authority might have arrived at a different decision by avoiding
the alleged procedural defect; the Administrative Court may
resort to these measures also in order to control the assessment
of evidence. With regard to the above explanations concerning
the weighing up of interests by the respondent authority and the
factual basis by which they are carried, the Administrative Court
sees no reason to accede to the request to take evidence."
[German]
"Danach ist es dem Verwaltungsgerichtshof verwehrt, in der von
der Verwaltungsbehörde behandelten Sache anstelle der belangten
Behörde eine von dieser allenfalls versäumten Beweisaufnahme
nachzuholen und in Ergänzung des Ermittlungsverfahrens zur
Feststellung des Sachverhaltes selbst Beweise aufzunehmen. Der
Verwaltungsgerichtshof kann aber Beweise aufnehmen, um zu prüfen,
ob ein wesentlicher Verfahrensmangel vorliegt, und er ist demnach
berechtigt, zur Prüfung der Frage, ob ein Verfahrensmangel
wesentlich ist oder ob die belangte Behörde unter Vermeidung des
gegebenen Verfahrensmangels zu einem anderen Bescheid hätte
kommen können, eine Beweisaufnahme durchzuführen; dies auch zum
Zwecke der Kontrolle der Beweiswürdigung. Im Hinblick auf die
obigen Darlegungen zur Interessensabwägung der belangten Behörde
und der diese tragenden Sachverhaltsgrundlagen sieht sich der
Verwaltungsgerichtshof jedoch nicht zur beantragten
Beweisaufnahme veranlaßt."
d. Compensation proceedings
37. Meanwhile, the first applicant requested the Feldkirch District
Court (Bezirksgericht) to determine the compensation for the
expropriated land. On 17 December 1987 the latter ordered the
Provincial Government to pay to the first applicant the total sum of
9,963,032.50 AS within 14 days.
38. Upon appeal (Rekurs), the Feldkirch Regional Court
(Landesgericht) reduced in its decision of 24 March 1988 the total sum
to 4,560,000 AS. The first applicant's further appeal (Revisionrekurs)
was dismissed by the Supreme Court (Oberster Gerichtshof) on
6 October 1988.
B. Relevant domestic law and practice
a. As to the expropriation
39. According to Section 5 of the Vorarlberg Provincial Road Act the
Provincial Government may declare by Ordinance (Verordnung) that roads
or parts thereof become Provincial Roads (Landesstrassen), even if they
have not yet been built. According to para. 2 of Section 5, the
Provincial Government must classify all roads as Provincial Roads which
are necessary for the traffic between communities; those roads shall
be considered necessary which are the only immediate road connection
from one community to the next and which can also be used by lorries.
40. In practice, Section 5 implies that if real property is
expropriated for the construction of a Provincial Road, the Provincial
Government must enact an Ordinance containing a short description of
the road and its approximate length. Thus, the Provincial Government
express their intention to construct the road. The Ordinance does not
describe in detail the stretch to be constructed, and the persons whose
property shall be expropriated have the right in the expropriation
proceedings to call in question the adequateness of the proposed
stretch.
41. According to Section 44 para. 1 of the Provincial Road Act an
expropriation in order to construct a Provincial Road is only
admissible if another stretch of road, or its maintenance, is not
possible which is more adequate from the point of view of traffic,
economy and protection of the environment.
b. Interpretation by the Austrian Constitutional Court of the scope
of Article 6 para. 1 of the Convention
42. The Austrian Constitutional Court pronounced itself on the
applicability and scope of Article 6 para. 1 of the Convention to
proceedings originating before Austrian administrative authorities in
its decision of 14 October 1987 (B 267/86, VfSLG 11500/1987). The
Court distinguished between decisions concerning the core of civil law
(i.e. disputes among private persons) and decisions on disputes which
only concern civil rights in their effects (namely the relationship
between the private person and the public). In order to avoid a
complete change of the Austrian state structure, the Court considered
that the requirements of a tribunal within the meaning of
Article 6 para. 1 of the Convention should depend on whether the
dispute concerned the one or the other category. With regard to
decisions concerning civil rights only in their effects the Court found
that it sufficed under Article 6 para. 1 if a tribunal undertook a mere
subsequent control of the decision.
43. The decision of the Constitutional Court continues:
[Translation]
"Such a subsequent control would in any event have to suffice if,
regardless of its nature as a merely subsequent control which did
not provide for renewed proceedings, the court effectively (and
not merely theoretically and in the abstract) has the possibility
to convince itself of the correctness of the solution as well as
of the facts and the law applied and can also execute its
judgment on the matter. Such a control falls to the Austrian
Administrative Court in the light of an understanding of the
Administrative Court Act which is oriented towards the
Constitution."
[German]
"Eine solche nachprüfende Kontrolle müsste jedenfalls dann
genügen, wenn sie ungeachtet ihres bloss nachprüfenden, nicht auf
einer Neudurchführung des Verfahrens beruhenden Charakters dem
Gericht - nicht bloss theoretisch und abstrakt, sondern im
Ergebnis auch wirksam - Gelegenheit gibt, sich von der
Richtigkeit der Lösung sowohl der Tat- wie der Rechtsfrage zu
überzeugen und sein Urteil über die Sache auch durchzusetzen, wie
dies bei einem an der Verfassung orientierten Verständnis des
Verwaltungsgerichtshofgesetzes dem österreichischen VwGH
aufgetragen ist."
c. Jurisdiction of the Austrian Constitutional and Administrative
Courts
44. According to Article 144 of the Austrian Federal Constitution
(Bundes-Verfassungsgesetz) an appeal can be filed with the
Constitutional Court in which the applicant can allege a violation of
his constitutional rights. He can also complain that his rights have
been violated on account of an unlawful ordinance, an unconstitutional
Act, or an unlawful international treaty.
45. According to Article 130 para. 1 of the Federal Constitution the
Administrative Court will review allegations of unlawfulness of an
administrative decision. According to Section 130 para. 2, "no
unlawfulness exists where legislation refrains from the establishment
of a binding rule on an administrative authority's conduct, leaving the
determination of such conduct to the authority itself, and the
authority has made use of this discretion in the spirit of the law"
("Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von einer
bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und
die Bestimmung dieses Verhaltens der Behörde selbst überläßt, die
Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch
gemacht hat"). The Administrative Court is also competent to deal with
complaints that the administrative authority has violated its duty to
take a decision (Article 132).
46. Section 41 of the Administrative Court Act provides, in so far
as relevant:
[Translation]
"(1) In so far as the Administrative Court does not find
unlawfulness on account of a lack of jurisdiction of the
authority against which the appeal is directed or on account of
a violation of procedural provisions (Section 42 para. 2 [2] and
[3]) ..., the Court must examine the contested decision on the
basis of the facts as accepted by the authority against which the
appeal is directed within the framework of the alleged complaint
... If it is of the opinion that reasons would be relevant for
the decision on the unlawfulness of the contested decision ...
which were so far not known to a party, it must hear the parties
thereupon and, if necessary, adjourn the proceedings."
[German]
"(1) Der Verwaltungsgerichtshof hat, soweit er nicht
Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder
wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42
Abs. 2 Z 2 und 3) ..., den angefochtenen Bescheid auf Grund des
von der belangten Behörde angenommenen Sachverhaltes im Rahmen
der geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist
er der Ansicht, dass für die Entscheidung über die
Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte
... Gründe massgebend sein könnten, die einer Partei bisher nicht
bekanntgegeben wurden, so hat er die Parteien darüber zu hören
und wenn nötig, eine Vertagung zu verfügen."
47. As regards the decisions of the Administrative Court,
Section 42 para. 2 of the Administrative Court provides, in so far as
relevant:
[Translation]
"(2) The contested decision must be quashed
1. on account of the unlawfulness of its content,
2. on account of unlawfulness due to the lack of
jurisdiction of the authority against which the
appeal is directed,
3. on account of unlawfulness due to a violation of
procedural provisions in particular because
a) the authority against which the appeal is
directed has determined the facts on an
important point contrary to the case-file, or
b) the facts require to be supplemented on an important
point, or
c) procedural provisions have been disregarded
which, if taken into consideration by the authority
against which the appeal is directed, could have led
to a different decision of the authority."
[German]
"(2) Der angefochtene Bescheid ist aufzuheben
1. wegen Rechtswidrigkeit seines Inhaltes,
2. wegen Rechtswidrigkeit infolge Unzuständigkeit
der belangten Behörde,
3. wegen Rechtswidrigkeit infolge Verletzung von
Verfahrensvorschriften, und zwar weil
a) der Sachverhalt von der belangten Behörde
in einem wesentlichen Punkt aktenwidrig
angenommen wurde oder
b) der Sachverhalt in einem wesentlichen
Punkt einer Ergänzung bedarf oder
c) Verfahrensvorschriften ausser acht gelassen
wurden, bei deren Einhaltung die belangte
Behörde zu einem anderen Bescheid hätte
kommen können."
48. The proceedings before the Administrative Court consist of an
exchange of written observations between the parties (Section 36) and
an oral hearing of their legal arguments (Sections 39 and 40). The
parties have a right to request a hearing (Section 39, para. 1 [1]).
49. Where the Administrative Court has granted an appeal and has
quashed the decision of the administrative authority,
Section 63 para. 1 of the Administrative Court Act provides that the
"administrative authorities are obliged in the case concerned with the
legal means at their disposal promptly to restore the legal situation
corresponding to the legal opinion expressed by the Administrative
Court" ("sind die Verwaltungsbehörden verpflichtet, in dem betreffenden
Fall mit den ihnen zu Gebote stehenden rechtlichen Mitteln unverzüglich
den der Rechtsanschauung des Verwaltungsgerichtshofes entsprechenden
Rechtszustand herzustellen").
d. Position of experts
50. With regard to the position of experts in expropriation
proceedings, Section 52 para. 1 of the Act on General Administrative
Procedure (Allgemeines Verwaltungsverfahrensgesetz) provides that if
in such cases evidence by experts is necessary, "official experts must
be employed who are attributed to the authority or are at their
disposal" ("so sind die der Behörde beigegebenen oder zur Verfügung
stehenden amtlichen Sachverständigen [Amtssachverständige]
beizuziehen"). Section 53 refers to Section 7 according to which
administrative organs must renounce office in matters concerning inter
alia their family members or "if there are other important reasons
which may raise doubts as to their full impartiality" ("wenn sonstige
wichtige Gründe vorliegen, die geeignet sind, ihre volle Unbefangenheit
in Zweifel zu ziehen").
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
51. The Commission has declared admissible the applicants' complaints
under Article 6 para. 1 (Art. 6-1) of the Convention concerning the
access to, and the fairness of the proceedings before, the
Administrative Court.
B. Points at issue
52. Accordingly, the issues to be decided are:
- whether Article 6 para. 1 (Art. 6-1) of the Convention applied
to the proceedings at issue; and if so,
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention.
C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention
53. The Commission must first examine whether Article 6 para. 1
(Art. 6-1) of the Convention applied to the proceedings at issue.
54. Article 6 para. 1 (Art. 6-1) of the Convention provides, in so
far as relevant:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law ..."
55. The Government submit that Article 6 para. 1 (Art. 6-1) of the
Convention is not applicable to expropriation proceedings which do not
relate to civil rights. Article 6 para. 1 (Art. 6-1) is directed at
the traditional core areas of private law, and it cannot be said that
the practice of the Convention States has changed this scope.
Article 6 para. 1 (Art. 6-1) does not include relations between the
individual and the general public as only the effects of these
relations concern civil rights.
56. The Commission considers that the proceedings before the
Administrative Court in which the applicants were involved concerned
a genuine and serious dispute ("contestation") over the expropriation
of real property. Moreover, the applicants were the owners of the real
property; hence, the dispute related to the actual existence of a
"right" (see Eur. Court H.R., Bodén judgment of 27 October 1987,
Series A no. 125-B, p. 39 et seq., paras. 28 et seq.)
57. The "civil" character of the right at issue is not to be
interpreted solely by reference to the respondent State's domestic law.
It is enough that the outcome of the proceedings should be decisive for
private rights and obligations (see Eur. Court H.R., Allan Jacobsson
judgment of 25 October 1989, Series A no. 163, p. 20, para.72).
58. In the present case, the outcome of the Administrative Court
proceedings in which the applicants were involved was decisive for the
very substance of the applicants' private rights and obligations in
that these proceedings determined whether or not they remained owners
of the real property concerned. The applicants' right was therefore
of a "civil nature" for the purposes of Article 6 para. 1 (Art. 6-1)
of the Convention.
59. Article 6 para. 1 (Art. 6-1) of the Convention was therefore
applicable to the proceedings at issue.
D. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention
60. The Commission must consequently examine the applicants'
complaints under Article 6 para. 1 (Art. 6-1) of the Convention
concerning the access to, and the proceedings before, the
Administrative Court.
a. Access to court
61. The Commission has first addressed the question whether the
applicants had access to a tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
62. The applicants submit that they had no access to a court with
full jurisdiction on questions of law and fact, as required by
Article 6 para. 1 (Art. 6-1) of the Convention. They contend in
particular that the Administrative Court cannot independently assess
the facts or the merits of a case; that there is no oral hearing in
these proceedings; and that this court can only quash the contested
decision. The applicants recall the indeterminate concepts stated in
Section 44 of the Provincial Road Act with which the Administrative
Court was confronted and which, in fact, were determined by official
experts.
63. The Government contend that the applicants had access to two
courts, namely the Constitutional Court and the Administrative Court.
With regard to the scope of the Administrative Court's review reference
is made to Section 42 para. 2 subpara. 3 (a) -(c) of the Administrative
Court Act according to which the Court can undertake a far-reaching
review of the facts in a concrete case. In the present case the Court
did so within the criteria established by Section 44 of the Provincial
Road Act. Finally, if the Court quashes a decision the respondent
authority is bound by its legal views.
64. The Commission recalls the Convention organs' case-law according
to which Article 6 para. 1 (Art. 6-1) of the Convention does not
require that the procedure which determines civil rights and
obligations is conducted at each of its stages before tribunals meeting
the requirements of this provision. An administrative procedure may
thus precede the determination of civil rights by the tribunal
envisaged in Article 6 para. 1 (Art. 6-1) of the Convention (see Ettl
and Others v. Austria, Comm. Report, 3.7.85, Eur. Court H.R., Series A
no. 117, p. 23, paras. 77 et seq.). As regards the determination by
this tribunal the Court has found:
"Article 6 para. 1 (Art. 6-1) draws no distinction between
questions of fact and questions of law. Both categories of
question are equally crucial for the outcome of proceedings
relating to 'civil rights and obligations'. Hence, the 'right
to a court' ... and the right to a judicial determination of the
dispute ... cover questions of fact just as much as questions of
law" (Eur. Court H.R. Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A no. 43, p. 23, para. 51,
sub-paragraph ).
65. The requirement of full jurisdiction was also underlined in the
Albert and Le Compte judgment where the Court stated:
"the Convention calls at least for one of the following systems:
either the jurisdictional organs themselves comply with the
requirements of Article 6 para. 1 (Art. 6-1), or they do not so
comply, but are subject to subsequent control by a judicial body
that has full jurisdiction and does provide the guarantees of
Article 6 para. 1 (Art. 6-1)" (see Eur. Court H.R., judgment of
10 February 1983, Series A no. 58, p.16, para. 29).
66. In the present case, the Provincial Government first conducting
the expropriation proceedings did not constitute a tribunal within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
67. The Constitutional Court next dealing with the applicants'
complaints was exclusively called upon to review the constitutionality
of the contested expropriation and could not therefore fully review the
facts, as required by Article 6 para. 1 (Art. 6-1) of the Convention
(see also Ettl and Others v. Austria, Comm. Report, loc. cit., p. 24,
para. 80).
68. There remains the Administrative Court which decided on the
applicants' complaints about the expropriation. These complaints
related inter alia to the adequacy of the envisaged stretch of road
within the meaning of Section 44 of the Provincial Road Act and thus
raised issues of both facts and law.
69. The Commission recalls that in the case of Ettl and Others it
found, having regard in particular to Section 41 of the Administrative
Court Act, that the abstract possibility of a limited review of the
facts which the Administrative Court enjoyed was not sufficient to
establish its full jurisdiction concerning the determination of the
civil rights at issue (see Comm. Report, loc. cit., p. 24, para. 85).
In the Obermeier case the Court found that, if the relevant legislation
contained no precise provisions for the decision to be taken by the
administrative authorities, and the Administrative Court could only
examine whether the authorities had used their discretion in a manner
compatible with the law, such a limited review was not an effective
judicial review under Article 6 para. 1 (Art. 6-1) of the Convention
(see Eur. Court H.R., judgment of 28 June 1990, Series A no. 179, p. 23
para. 70).
70. The Commission recalls that Section 42 para. 2 subpara. 3 of the
Administrative Court Act, relied on by the Government in the present
case, played no part in the case of Ettl and Others v. Austria. In the
present case this provision enabled the Administrative Court to quash
the contested decision as being unlawful due to procedural defects, if
the Court found that the administrative authority had determined the
facts on an important point contrary to the case-file; or that the
facts required to be supplemented on an important point; or that
procedural provisions had been disregarded which, if taken into
consideration, would have led to a different decision (cf. para. 47
above).
71. Thus, the Administrative Court was able to review the facts of
the case in that it could examine inter alia whether they had been
incorrectly or incompletely established by the Provincial Government.
While the purpose of this review was to determine any procedural
defects leading to the unlawfulness of the decision, Section 42 para. 2
subpara. 3 of the Administrative Court Act did not restrict the
Administrative Court in its power to review the facts. In particular,
this provision sets no limits in respect of the assessment and
supplementation of the facts.
72. It is true that the Administrative Court in its decision of
22 September 1989 referred to Section 41 of the Administrative Court
Act (see above, para. 32). Section 41 provides that the Court is bound
by the facts as accepted by the authority; however, this provision
expressly reserves Section 42 para. 2 subpara. 3 of the Administrative
Court Act (see above, para. 46). It follows that Section 41 does not
restrict the Administrative Court's powers under Section 42.
73. Moreover, in its decision the Administrative Court explained its
powers of review, in particular that it could "take evidence for
examining the question whether a procedural defect is essential or
whether the incriminated authority might have arrived at a different
decision by avoiding the alleged procedural defect; the Administrative
Court may resort to these measures also in order to control the
assessment of evidence" (see above, para. 36). The Commission sees no
indication here that the Administrative Court regarded itself as being
restricted in its review of the facts.
74. The Commission furthermore observes that the Administrative Court
could have quashed the contested decision of the Provincial Government
as being unlawful, if after its examination of the facts it had found
that they were incorrect or incomplete. The Provincial Government
would have been bound by the Administrative Court's decision (see
above, para. 49). Thus, the Administrative Court could have imposed
its own views as to the assessment of the facts on the administrative
authority concerned.
75. The Commission recalls that it suffices under Article 6 para. 1
(Art. 6-1) of the Convention if the decision of an administrative
authority, which itself does not comply with the requirements of this
provision, is subject to subsequent control by a judicial body that has
full jurisdiction (see Eur. Court H.R., Albert and Le Compte judgment,
loc. cit.). In the present case, the decision of the Provincial
Government concerning the expropriation of the applicants' real
property was subject to such control by the Administrative Court which
had full jurisdiction, as required by Article 6 para. 1 (Art. 6-1) of
the Convention.
76. The applicants' case was therefore heard by a tribunal within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
77. The Commission concludes, by 11 votes to 4, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
account of the alleged lack of access to a tribunal within the meaning
of this provision.
b. Lack of an oral hearing
78. The Commission must consequently examine the applicants' further
complaints about the proceedings before the Administrative Court.
79. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention that no oral hearing was held before the Administrative
Court. The Commission notes that this was the only tribunal to deal
with all aspects of the applicants' complaints about the expropriation
at issue.
80. According to the Convention organs' case-law, in such a situation
the applicants could have been expected to ask for a hearing if they
had found it important that one be held (see Eur. Court H.R., Håkansson
and Sturesson judgment of 21 February 1990, Series A Nr. 171-A, p. 20
et seq., para. 67). However, they did not do so.
81. The applicants must therefore be considered as having waived
their right to a public hearing before the Administrative Court.
Furthermore, it does not appear that the litigation involved any
questions of public interest warranting a public hearing.
82. In view of this conclusion the Commission finds it unnecessary
further to consider the reservation of Austria according to which "the
provisions of Article 6 (Art. 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" (see also Eur. Court H.R., Ettl and others
judgment of 23 April 1987, Series A no. 117, p. 19, paras. 42 et seq.).
Conclusion
83. The Commission concludes, by 11 votes to 4, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that
no oral hearing was held before the Administrative Court.
c. Position of experts
84. The applicants also complain under Article 6 para. 1 (Art. 6-1)
of the Convention of unfairness of the proceedings. Thus, they contend
that the experts in the expropriation proceedings before the Provincial
Government were not independent on account of their position in the
Provincial Road Administration. They refer to Section 20 of the
Federal Constitutional Act according to which administrative organs are
subordinate to their superiors.
85. The Government submit that official experts are not subject to
instructions when preparing their opinions. In the present case the
opinions were reviewed by the Administrative Court as to their
conclusiveness. The applicants could also have submitted their own
private expert opinions in the expropriation proceedings and the
authorities would have been obliged to comment thereupon.
86. In the Commission's opinion, the mere fact that experts were
employed by the administrative authority which also decided on the
expropriation does not in itself justify fears that the experts were
unable to act with proper neutrality. To hold otherwise would often
place unacceptable limits on the possibility to obtain expert advice
(see Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A
no. 211, para. 44).
87. Moreover, in the present case the applicants were free to submit
their own private expert opinions in the proceedings before the
Provincial Government. If the latter had disregarded them in its
decision, the applicants could have complained thereof in proceedings
before the Administrative Court which would then have been free to
review the conflicting views expressed in the expert opinions.
88. Accordingly, the position of the experts did not impair the
applicants' right to a fair hearing within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
Conclusion
89. The Commission concludes, by 10 votes to 5, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
account of the position of the experts.
d. Consultation of documents
90. The applicants further complain under Article 6 para. 1
(Art. 6-1) of the Convention that they were not allowed to consult
various documents, in particular concerning the landscape proceedings,
a report of the Court of Audit, and the expert opinion of an
independent traffic expert.
91. The Government submit that the documents complained of were
irrelevant to the case.
92. The Commission notes, on the one hand, the Administrative Court's
decision of 22 September 1989 according to which the applicants were
refused consultation of the documents at issue either as they had not
been a party to the proceedings concerned; or as the documents were
irrelevant to their case (see above, para. 35). On the other hand, the
applicants have not claimed that the Administrative Court itself
nevertheless relied on these documents in its decision.
93. Accordingly, the refusal to permit the applicants to consult
certain documents did not impair their right to a fair hearing within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
94. The Commission concludes, by 12 votes to 3, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that
the applicants were not allowed to consult certain documents.
E. Recapitulation
95. The Commission concludes, by 11 votes to 4, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
account of the alleged lack of access to a tribunal within the meaning
of this provision (para. 77).
96. The Commission concludes, by 11 votes to 4, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that
no oral hearing was held before the Administrative Court (para. 83).
97. The Commission concludes, by 10 votes to 5, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention on
account of the position of the experts (para. 89).
98. The Commission concludes, by 12 votes to 3, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that
the applicants were not allowed to consult certain documents (para.
94).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
DISSENTING OPINION OF MM. S. TRECHSEL, J.-C. SOYER,
C.L. ROZAKIS and L. LOUCAIDES
In the present case, we disagree with the conclusion of the
majority of the Commission that the applicants had access to a court
as required by Article 6 para. 1 of the Convention.
It has been stated that the Administrative Court was able to
review the facts of the case in that it could examine inter alia
whether they had been incorrectly or incompletely established by the
Provincial Government (see para. 71 of the Report).
However, we note that the purpose of this review was to determine
any procedural defects leading to the unlawfulness of the Provincial
Government's decision. It does not transpire from a literal reading
of Section 42 para. 2 subpara. 3 that the Court was competent fully to
assess the facts of the case, and that it could do so for the purpose
of deciding on the expropriation.
We have therefore turned to the decision of the Administrative
Court of 22 September 1989. Therein the Court stated that it could
"take evidence for examining the question whether a procedural defect
is essential or whether the incriminated authority might have arrived
at a different decision by avoiding the alleged procedural defect; the
Administrative Court may resort to these measures also in order to
control the assessment of evidence" (see para. 36 of the Report).
In the same decision the Administrative Court also relied on
Section 41 of the Administrative Court Act (see para. 32 of the
Report). Section 41 provides that, if no procedural defects are found
according to Section 42 para. 2 subpara. 3, the Court is bound by the
facts as accepted by the authority (see para. 46 of the Report). By
emphasising Section 41 the Administrative Court could be seen as
stating that it was indeed limited in its power to review the facts.
We have further considered the above provisions and statements
in the light of the Commission's previous case-law on the powers of
review of the Administrative Court (see para. 69 of the Report). In
our opinion, it has not been established in the present case that the
Administrative Court was competent fully to review all the facts.
At this point it must be recalled that the provisions guaranteed
by the Convention are intended to be practical and effective (see Eur.
Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p. 16,
para. 33). In the light of the above, we cannot find that in the
present case the applicants practically and effectively enjoyed a right
of access to a court which "determined" their "civil rights".
The applicants' case was not therefore "heard" by a tribunal as
required by Article 6 para. 1 of the Convention, and we thus conclude
that there has been a violation of Article 6 para. 1 of the Convention.
Finally, having just found that the applicants' case was not
heard by a tribunal within the meaning of Article 6 para. 1 of the
Convention, we would have considered it unnecessary to examine their
further complaints under the same provision about the proceedings
before the Administrative Court. However, Rule 18 para. 3 of the
Commission's Rules of Procedure prohibits abstention in votes
concerning the opinion as to whether the Convention has been violated.
Thus, we have voted for violation on the conclusions in paras. 83, 89
and 94. This vote is to be understood as a consequence of our vote on
the question of access to court rather than the expression of our
opinion based on the hypothetical assumption that access was given.
CONCURRING OPINION OF Sir BASIL HALL
I agree with the conclusion of the majority of the Commission
that there has been no violation of Article 6 para. 1 of the Convention
on account of the alleged lack of access to a tribunal within the
meaning of this provision. I have, however, an additional reason for
coming to this conclusion. I do not think that Article 6 para. 1
requires that a court shall be able to substitute its judgment for that
of the administrative authorities when these authorities have made a
policy decision of a general kind, even if that decision might when
excecuted have an effect on individual property rights. If that were
so, each person through whose land a projected new road - even a
motorway - was to pass would be able to apply to a court on the basis
that the policy decision to construct the road was wrong, and the court
should examine whether there was a need for the road.
In this case in his application to the Administrative Court,
while purporting to rest his case on procedural error, the applicant
is in reality challenging the basic policy decision to construct a
road. That to my mind falls outside the ambit of Article 6 para. 1.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
10 June 1986 Introduction of the application
13 June 1986 Registration of the application
Examination of admissibility
6 March 1989 Commission's decision to adjourn
further examination of the
admissibility of the application until
the Administrative Court had given its
decision
2 April 1990 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
23 July 1990 Government's observations
11 October 1990 Applicant's observations in reply
29 May 1991 Commission's decision to hold an oral
hearing
15 October 1991 Oral hearing on admissibility and
merits, Commission's decision to declare
the application in part admissible and
in part inadmissible
Examination of the merits
15 February 1992 Commission's consideration of the
state of proceedings
30 June 1992 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy