Application No. 31698/96
by J. F.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 8 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 April 1996 by
J. F. against Austria and registered on 3 June 1996 under file
No. 31698/96;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
20 March 1998 and the observations in reply submitted by the
applicant on 25 May 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1940 and residing
in Grünau (Upper Austria). Before the Commission he is represented by
Mr. K. Meingast, a lawyer practising in Gmunden (Upper Austria).
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
In February 1989 the applicant bought two parcels of land
situated in Scharnstein (Upper Austria) which are forest. Subsequently
he replaced an old forest hut on his land by a new one. The new hut
was erected at a distance of 20 metres from the place where the old one
stood.
On 5 October 1992 the Gmunden District Administrative Authority
(Bezirkshauptmannschaft) ordered the applicant to remove the forest hut
and to re-plant trees on the place where it is situated. The Authority
found that the applicant had erected the forest hut without any
permission and that an expert for forestry had found that a hut was not
necessary for the cultivation of his forest. The applicant therefore
used forest soil for other purposes than forestry, which was prohibited
by Section 17 para. 1 of the Forest Act (Forstgesetz).
On 13 September 1993 the Upper Austria Regional Governor
(Landeshauptmann) dismissed the applicant's appeal.
On 28 November 1994 the Constitutional Court declined to deal
with the applicant's complaint against the Regional Governor's decision
for lack of prospect of success. It referred the case to the
Administrative Court (Verwaltungsgerichtshof).
On 24 March 1995 the applicant supplemented his complaint to the
Administrative Court and also requested that an oral hearing be held.
On 25 September 1995 the Administrative Court decided on the
applicant's complaint. Insofar the order concerned the removal of the
forest hut the Administrative Court dismissed the complaint. Insofar
the order concerned the re-cultivation of the soil on which the hut is
erected the Administrative Court quashed the order. The Administrative
Court also rejected, in accordance with Section 39 para. 2 (6) of the
Administrative Court Act (Verwaltungsgerichtshofgesetz), the
applicant's request for an oral hearing. Referring to the European
Court of Human Rights judgment in the Fischer case (Fischer v. Austria
judgment of 26 April 1995, Series A no. 312), the Administrative Court
found that also Article 6 of the Convention did not require the holding
of a hearing in the present case because the essential facts had not
been in dispute and the legal questions to be decided had already been
resolved in the Administrative Court's previous case-law.
On 2 April 1996 the Regional Governor decided again on the
applicant's appeal against the District Administrative Authority's
order of 5 October 1992, insofar it concerned the order to re-plant
trees and quashed this part of the order.
B. Relevant domestic law
Section 39 para. 1 of the Administrative Court Act (Verwaltungs-
gerichtshofgesetz) provides that the Administrative Court is to hold
a hearing after its preliminary investigation of the case where a
complainant has requested a hearing within the time-limit. Section 39
para. 2 (6), which was added to the Act in 1982, provides however:
"Notwithstanding a party's application, the Administrative Court
may decide not to hold a hearing when
...
6. It is apparent to the Court from the written pleadings of
the parties to the proceedings before the Administrative Court
and from the files relating to the prior proceedings that an oral
hearing is not likely to contribute to clarifying the case."
COMPLAINTS
The applicant's remaining complaint concerns the lack of a public
hearing in the proceedings under the Forest Act before the
Administrative Court. He relies on Article 6 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 April 1996 and registered on
3 June 1996.
On 14 January 1998 the Commission decided to communicate the
applicant's complaint concerning the lack of a public hearing in the
proceedings under the Forest Act to the respondent Government and to
declare inadmissible the remainder of the application.
The Government's written observations were submitted on
20 March 1998. The applicant replied on 25 May 1998.
REASONS FOR THE DECISION
The Commission notes that the applicant in his observations of
25 May 1998 informed the Commission that he did not intend to pursue
his application and referred to Article 30 para. 1 (a) of the
Convention.
As regards the issues raised in the present case, the Commission
finds no reasons of a general character affecting the respect for Human
Rights, as defined in the Convention, which require the further
examination of the application by virtue of Article 30 para. 1 in fine
of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy