EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16568/90
Elfriede and Sigismund Fuhrmann
against
Austria
REPORT OF THE COMMISSION
(adopted on 31 August 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 14) . . . . . . . . . . . . . . . . . . . . . 1 - 2
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5 - 9) . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 10 - 14) . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15 - 27). . . . . . . . . . . . . . . . . . . . . 3 - 6
A. The particular circumstances of the case
(paras. 15 - 22) . . . . . . . . . . . . . . . . . . 3 - 4
B. Relevant domestic law and practice
(paras. 23 - 27) . . . . . . . . . . . . . . . . . . 5 - 6
III. OPINION OF THE COMMISSION
(paras. 28 - 54). . . . . . . . . . . . . . . . . . . . .7 - 12
A. Complaints declared admissible
(para. 28) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Points at issue
(para. 29) . . . . . . . . . . . . . . . . . . . . . . . 7
C. As to the applicability of Article 6 para. 1
of the Convention (paras. 30 - 37) . . . . . . . . . 7 - 8
D. As to compliance with Article 6 para. 1
of the Convention (paras. 38 - 52) . . . . . . . . .8 - 11
a. The scope of review by the Administrative Court
(paras. 38 - 46) . . . . . . . . . . . . . . .8 - 11
Conclusion (para. 46). . . . . . . . . . . . . . .11
b. As to the fairness of the proceedings
(paras. 47 - 52) . . . . . . . . . . . . . . . . .11
Conclusion (para. 52). . . . . . . . . . . . . . .11
E. Recapitulation
(paras. 53 - 54) . . . . . . . . . . . . . . . . . 11 - 12
DISSENTING OPINION OF Mrs. LIDDY. . . . . . . . . . . . . . . . . .13
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .14
APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . 15 - 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 applicants are Austrian citizens born in 1941 and 1937
respectively. They are represented before the Commission by
Mr. H. Vana, a lawyer practising in Vienna.
3. The application is directed against the Republic of Austria whose
Government were represented initially by their agent, Ambassador
H. Tuerk, head of the International Law Department of the Federal
Ministry for Foreign Affairs, and latterly by his successor, Ambassador
F. Cede.
4. The application concerns court proceedings in which the
applicants attempted to challenge the lawfulness of a permit to build
and, provisionally, to operate a power line over land which the
applicants farm. The applicants allege that they had no access to a
court with full jurisdiction on questions of law and fact, and complain
of unfairness of the proceedings. They invoke Article 6 para. 1 of the
Convention.
B. The proceedings
5. The application was introduced on 9 April 1990 and registered on
8 May 1990.
6. On 15 October 1991 the Commission decided to bring the
application to the notice of the respondent Government and to request
the parties' observations on its admissibility and merits.
7. The respondent Government submitted their observations on
7 February 1992 and the applicants submitted observations in reply on
4 June 1992.
8. On 1 December 1992 the Commission declared the application
admissible.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (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
10. 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. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
11. The text of this Report was adopted on 31 August 1993 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. 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.
13. 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.
14. 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
15. On 28 April 1988 the Minister for Economic Affairs
(Bundesminister für wirtschaftliche Angelegenheiten) granted permission
to an electricity supply company (Österreichische
Elektrizitätswirtschafts-Aktiengesellschaft) for the construction and
provisional operation of a 380 KV power line between Vienna and the
Austrian-Hungarian border leading through land belonging to the
applicants' son. The applicants farm the land, which they hold in
usufruct. The decision was not served on the applicants or on their
son. When the applicants' lawyer coincidentally came to know of the
decision, the applicants lodged a complaint with the Constitutional
Court (Verfassungsgerichtshof), alleging a violation of Article 6 of
the Convention in that they had not had a fair hearing before an
independent and impartial tribunal.
16. On 26 September 1989 the Constitutional Court, referring to its
established case-law concerning Article 6 of the Convention, refused
to deal with the case finding that it lacked prospects of success
before that Court.
17. On 30 October 1989 the Constitutional Court referred the
complaint to the Administrative Court (Verwaltungsgerichtshof). On
26 June 1990 the Administrative Court quashed the contested decision
to the extent that permission had been granted with respect to land
belonging to the applicants' son. The Administrative Court considered
that the applicants should have been treated as parties in the prior
proceedings.
18. On 4 September 1990 the Ministry for Economic Affairs held an
oral hearing with the applicants. At the hearing various experts were
heard. An agricultural expert, who was not an employee of the Ministry
nor a court accredited expert (gerichtlich beeideter Sachverständiger),
gave evidence, as did an electro-technical expert who was employed by
the Ministry. A medical expert, also not an employee of the Ministry,
gave further evidence at the hearing. On 1 October 1990 the Minister
for a second time granted to the electricity supply company permission
for the construction and provisional operation of the power line over
the land farmed by the applicants.
19. The applicants lodged a complaint with the Administrative Court.
They submitted that the decision was unlawful for breaches of
procedural rules as it conflicted with Sections 6 and 7 of the Power
Lines Act (Starkstromwegegesetz). In particular, the applicants
contended that the authority had refused to hear an expert proposed by
them. They also alleged a violation of Article 6 of the Convention in
that they had not had a fair hearing before a tribunal and claimed that
certain provisions of the Power Lines Act were unconstitutional.
20. On 23 April 1991 the Administrative Court dismissed the
applicants' complaint on the grounds that they did not have a right to
have a particular expert nominated as "official" expert. On the other
hand, they could have submitted an expert opinion from any expert they
had wished in support of their contentions, but had failed to do so.
The Court found that it could not be said that there were errors in the
assessment of the evidence by the challenged authority. With regard
to the allegations concerning Article 6 of the Convention, the
Administrative Court found as follows:
[Translation]
"Finally, the applicants allege that certain provisions of the
Power Lines Act are unconstitutional. Their reasoning is that,
in the light of Article 6 of the Convention, no interference may
take place with their property rights without court proceedings.
The respondent authority rightly points out in its counter-
pleadings that according to the recent case-law of the
Constitutional Court (cf. Constitutional Cases No. 11760), it is
permissible for administrative authorities to expropriate, and
for compensation claims to be determined initially by
administrative authorities, as here, where the administrative
proceedings are followed by proceedings before a court. Indeed,
the Constitutional Court, in its decision of 30 October 1989
(..), which preceded the Administrative Court's decision of
26 June 1990, expressed no disquiet as to this legal position.
The Administrative Court shares the legal opinion of the
Constitutional Court as thus expressed."
[German]
"Abschließend behaupten die Beschwerdeführer eine Verfassungs-
widrigkeit von Bestimmungen des Starkstromwegegesetzes mit der
Begründung, daß im Hinblick auf Art. 6 MRK ohne gerichtliches
Verfahren nicht in ihre dinglichen Rechte eingegriffen werden
dürfte. Diesem Vorbringen hält die belangte Behörde in ihrer
Gegenschrift zutreffend entgegen, daß auch nach der neueren
Rechtsprechung des Verfassungsgerichtshofes (vgl. VfSlg. 11760)
eine Enteignung durch Verwaltungsbehörden zulässig ist und über
Entschädigungsansprüche zunächst Verwaltungsbehörden entscheiden
dürfen, wenn, wie dies auch hier der Fall ist, eine sukzessive
Gerichtszuständigkeit vorgesehen ist. Tatsächlich hat ja auch
der Verfassungsgerichtshof in dem dem Erkenntnis des Verwaltungs-
gerichtshofes vom 26. Juni 1990 vorausgehenden Beschluß vom
30. Oktober 1989 ... keine Bedenken gegen die hier gegebene
Rechtslage geäußert. Der Verwaltungsgerichtshof teilt die damit
zum Ausdruck kommende Rechtsanschauung des
Verfassungsgerichtshofes."
The decision of the Administrative Court was served on the applicants'
representative on 31 May 1991.
21. On 3 March 1990 the Minister for Economic Affairs ruled that the
construction and the operation of the power line in question were in
the public interest and necessary. In expropriation proceedings he
authorised the construction of the power line over the land of the
applicants' son and ordered payment of AS 10,139.64 to the applicants'
son.
22. The applicants applied for a judicial decision to the Neusiedl
District Court (Bezirksgericht). This application had the effect that
the Minister's decision was quashed automatically. Proceedings before
the Neusiedl District Court are still pending.
B. Relevant domestic law and practice
23. Section 6 (1) of the Power Lines Act 1968 (Starkstromwegegesetz
1968) provides that anyone intending to build and run an electric power
line must apply for permission.
24. Section 7 of the Power Lines Act provides for the conditions for
the grant of such permission. Section 7 (1), so far as relevant, reads
as follows:
[Translation]
"The authority is required to grant permission for the
construction and operation if the electric power line does not
contravene the public interest in supplying the population or
sections of it with electric energy. In granting permission the
authority shall ensure, by imposition of conditions, that the
electric power lines are in accordance with these requirements
..."
[German]
"Die Behörde hat die Bau- und Betriebsbewilligung zu erteilen,
wenn die elektrische Leitungsanlage dem öffentlichen Interesse
an der Versorgung der Bevölkerung oder eines Teiles derselben mit
elektrischer Energie nicht widerspricht. In dieser Bewilligung
hat die Behörde durch Auflagen zu bewirken, daß die elektrischen
Leitungsanlagen diesen Voraussetzungen entsprechen..."
25. Section 41 of the Administrative Court Act 1985
(Verwaltungsgerichtshofgesetz) provides, so far as relevant, as
follows:
[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 (2) 2 and
(2) 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."
26. As regards the decisions of the Administrative Court,
Section 42 (2) of the Administrative Court Act 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."
27. With regard to the position of experts in expropriation
proceedings, Section 52 (1) of the Code of 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
28. The Commission has declared admissible the applicants' complaints
that they did not have a fair hearing before a tribunal in the
proceedings under the Power Lines Act.
B. Points at issue
29. 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 there has been a violation of the applicants' right to a
fair trial within the meaning of 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
30. 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."
31. In the above court proceedings the applicants attempted to
prevent the grant of permission for the construction and operation of
a power line over land which they hold in usufruct.
32. The applicants submit that Article 6 para. 1 (Art. 6-1) of the
Convention applies.
33. The Government submit that Article 6 para. 1 (Art. 6-1) of the
Convention is not applicable to these proceedings. They consider that
decisions permitting construction and operation of power lines under
Section 7 of the Power Lines Act do not directly affect the private
rights of landowners or usufructuaries within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. They contend that separate
proceedings existed which required the grant of servitudes to the
electricity supply company, and that these were proceedings to which
Article 6 (Art. 6) applied. The present proceedings, however, related
to separate issues and fall outside the scope of Article 6 para. 1
(Art. 6-1). The Government also submit that the applicants, as
usufructuaries of the land for agricultural purposes are in any event
not affected by the fixing of overhead wires at 12.5 and 20 metres
above the land.
34. The Commission considers that the proceedings before the
Administrative Court in which the applicants were involved concerned
a genuine and serious dispute (contestation) over a decision to grant
permission to construct and operate a power line over land in which the
applicants have a usufruct right. The mere fact that other proceedings
were necessary before the power line could actually be constructed and
used does not affect this position (c.f. X. v. France, judgment of
31 March 1992, Eur. Court H.R., Series A no. 234, p. 90, paras. 29-30).
35. The "civil" character of the rights 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).
36. The Commission notes that the proceedings at issue related to the
lawfulness of the permission granted to the extent that it concerned
the land in which the applicant have rights. Had the proceedings been
successful, the construction and operation of the power line would have
been prevented. Accordingly, the outcome of the proceedings actually
chosen by the applicants had, or could have had, a bearing on the civil
right which formed the subject matter of the dispute.
37. The Commission therefore finds that Article 6 para. 1
(Art. 6-1) of the Convention was applicable to the proceedings before
the Administrative Court.
D. As to compliance with Article 6 para. 1 (Art. 6-1)
of the Convention
a. The scope of review by the Administrative Court
38. The Commission must next examine the scope of the review offered
by the Austrian judicial authorities in this determination of civil
rights in order to establish whether the applicant had access to a
"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
39. The applicants, by reference to the Zumtobel case (No. 12235/86,
Dec. 15.10.91, Comm. Rep. 30.6.92) refer to the limited scope of review
by judges in cases granting permission. They also point out that the
Austrian public law courts cannot take decisions on the merits, and
consider that this leads to a distortion of the principle of equality
in court proceedings.
40. The Government refer to the case-law of the Constitutional Court
to indicate that cases relating to the "core area" of civil law require
a different interpretation of Article 6 (Art. 6) from decisions on
disputes that only relate to the effect of civil rights (i.e. that
relate to the relationship between citizens and the general public).
They point to Section 42 (2) 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. Finally, if the Court quashes a
decision, the administrative authority is bound by the Court's legal
views.
41. The Commission has had occasion recently to consider questions
concerning the scope of review by the Administrative Court in the case
of Zumtobel v. Austria (referred to above and now pending before the
Court of Human Rights). In that case, the Commission found as follows:
"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 ...
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 (2) 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 ...
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) 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. Section 41 provides that the Court is bound by the
facts as accepted by the authority; however, this provision
expressly reserves Section 42 (2) 3 of the Administrative Court
Act ... 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 ...'
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 ... 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 of 10 February 1983, Series A
no. 58, p. 16 para. 29). 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."
42. Applying those findings to the facts of the present case, the
Commission notes that the Administrative Court dealt in its decision
with the points raised by the applicants in their complaint. It
expressly found no error in the assessment of the evidence by the
authority below. There is no indication in the decision that the
Administrative Court regarded itself as being restricted in its review
of the facts.
43. The Commission furthermore observes that the Administrative Court
could have quashed the decision of the Minister as being unlawful as,
indeed, it had already done on a previous occasion in this case. The
Minister would then have been bound by the Administrative Court's
decision. The Administrative Court could thus have imposed its own
views as to the assessment of the facts on the administrative authority
concerned.
44. 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 Minister for
Economic Affairs was subject to such control by the Administrative
Court which had the jurisdiction required by Article 6 para. 1
(Art. 6-1) of the Convention.
45. The applicants' case was therefore heard by a tribunal within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Conclusion
46. The Commission concludes, by 19 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. As to the fairness of the proceedings
47. The applicants complain that no persons other than civil servants
were called to give expert evidence before the administrative
authorities. They state that their requests for independent experts
to be called to assess any possible dangers to health were not granted.
48. The Government point out that at the hearing before the Ministry
of Economic Affairs, although the electro-technical expert was indeed
an official expert, both the agricultural and the medical experts were
not.
49. In the Commission's opinion, the mere fact that experts may have
been employed by the administrative authority which also decided on the
grant of permission to the electricity supply company does not in
itself justify fears that experts were unable to act with proper
neutrality in a way which could have an effect on the fairness of the
proceedings before the Administrative Court. To hold otherwise would
often place unacceptable limits on the possibility to obtain expert
advice (cf. Eur. Court H.R., Brandstetter judgment of 28 August 1991,
Series A no. 211, p. 21 para. 44).
50. Moreover, as the Administrative Court found, the applicants in
the present case were free to submit their own private expert opinions
in the proceedings before the Minister. If the private expert opinions
had been disregarded, the applicants could have complained thereof in
the proceedings before the Administrative Court which would then have
been free to review the conflicting views expressed in the various
experts' opinions.
51. Accordingly, the position of the experts did not affect the
applicants' right to a fair trial within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
Conclusion
52. The Commission concludes unanimously that there has been no
violation of the applicants' right to a fair trial within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
E. Recapitulation
53. The Commission concludes by 19 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. 46).
54. The Commission concludes unanimously that there has been no
violation of the applicants' right to a fair trial within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention (para. 52).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
DISSENTING OPINION of Mrs. J. Liddy
The majority opinion in this case is based upon the case of
Zumtobel v. Austria (Comm. Report 30.6.90) in which the Commission came
to the conclusion that the Administrative Court had full jurisdiction,
as required by Article 6 para. 1 of the Convention.
I did not participate in that case myself, but have had the
benefit of reading the dissenting opinion annexed to the Report of
30 June 1992. I agree with it and consider that the effect of
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, is ameliorated but not nullified by Section 42 of that Act,
which enables the Administrative Court to quash the contested decision
as being unlawful due to procedural defects. The Administrative Court
does not have the full jurisdiction required by Article 6 para. 1.
To find otherwise, notwithstanding the limitation in Section 41,
might have the effect in practice of limiting an individual's right to
a judicial assessment of the facts of a case not only in civil
proceedings, but also in the administrative criminal proceedings known
to Austrian law which can carry deprivation of liberty as a sanction
(cf. the Commission's decisions on admissibility dated 10 May 1993 in
Applications Nos. 15523/89, 15527/89, 15963/90, 16713/90, 16718/90 and
16841/90). This in turn would serve as an illustration of Judge
Matscher's concern, expressed in his separate opinion in the case of
Ruiz Mateos v. Spain (Judgment of 23 June 1993), that the extension of
the applicability of Article 6 results in the limitation of the
substance of the procedural guarantees contained therein in a way which
is scarcely compatible with the aim of the provision.
Having accepted, as I do the applicability of Article 6 in this
case, I am compelled to the conclusion that Section 41 deprives the
Administrative Court of full jurisdiction to establish the relevant
facts and that there has, accordingly, been a violation of the
applicants' right to have their case determined by a tribunal within
the meaning of Article 6 para. 1.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
8 April 1990 Introduction of the application
8 May 1990 Registration of the application
Examination of Admissibility
15 October 1991 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
7 February 1992 Government's observations
4 June 1992 Applicant's observations in reply
1 December 1992 Decision to declare the application
admissible
Examination of the merits
18 December 1992 Decision on admissibility
communicated to the parties
3 April 1993 Commission's consideration of the
state of proceedings
31 August 1993 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy