AS TO THE ADMISSIBILITY OF
Application No. 26509/95
by Benno OBERDANNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 26 January 1995
by Benno OBERDANNER against Austria and registered on 14 February 1995
under file No. 26509/95;
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
11 June 1996 and the observations in reply submitted by the
applicant on 5 August 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1920, and living
in Seekirchen (Salzburg). He is represented by Mr. R. Oberdanner, a
lawyer practising in Salzburg.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
A. Particular circumstances of the case
On 18 February 1993 the applicant raised objections (Einspruch)
with the Salzburg and Upper Austria Post and Telephone Authority (Post-
und Telegraphendirektion) against a telephone bill for February 1993.
On 29 March 1993 the Post and Telephone Authority dismissed the
objections.
On 7 April 1993 the applicant filed a request for re-calculation
of his telephone bill (Antrag auf Neuberechnung der Gesprächsgebühren)
with the Post and Telephone Authority.
On 25 August 1993, after having obtained a report by an official
technical expert and having offered the applicant the opportunity to
comment thereon, the Post and Telephone Authority dismissed the
applicant's request. It found that according to the expert's report
the applicant's telephone installation did not have any defects which
could have influenced the calculation of the telephone fees.
Furthermore, his telephone installation did not show any traces of
manipulation by third persons. In such circumstances it was not
necessary to hear the witnesses requested by the applicant because in
view of the technical examination the facts were sufficiently clear.
On 9 September 1993 the applicant appealed to the Federal
Ministry for Public Economy and Traffic (Bundesminister für öffentliche
Wirtschaft und Verkehr).
On 29 November 1993 the Principal Post and Telephone Authority
(Generaldirektion für die Post- und Telegraphenverwaltung) at the
Federal Ministry dismissed the applicant's appeal. It found that under
the relevant provisions of the Telephone Fee Regulations
(Fernmeldegebührenordnung) a re-calculation of a telephone bill had
only to be carried out if a technical defect which could have
influenced the calculation of the telephone bill had been detected.
However, such a defect had not been detected in the applicant's case.
On 18 January 1994 the applicant introduced a complaint with the
Administrative Court (Verwaltungsgerichtshof) and also requested the
Administrative Court to hold a public hearing.
On 29 June 1994 the Administrative Court dismissed the complaint
rejecting at the same time, in accordance with Section 39 para. 2 (6)
of the Administrative Court Act, the applicant's request for an oral
hearing. The Court found that in view of the detailed report by the
technical expert it had no doubts as to the assessment of evidence by
the authority. The hearing of the witnesses requested by the applicant
had not been necessary because, even assuming that the witnesses made
the statements expected, such statements could not exclude the
conclusions drawn by the expert.
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:
[Translation]
"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."
[German]
"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages
nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn
...
6. die Schriftsätze der Parteien des verwaltungsgerichtlichen
Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten
des Verwaltungsverfahrens erkennen lassen, daß die mündliche
Erörterung eine weitere Klärung der Rechtssache nicht erwarten
läßt."
COMPLAINTS
The applicant complains that in the above proceedings he did not
have the benefit of a public hearing before a tribunal within the
meaning of Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 January 1995 and registered
on 14 February 1995.
On 28 February 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
11 June 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 5 August 1996.
THE LAW
The applicant complains that in the proceedings on the re-
calculation of his telephone bill he did not have the benefit of a
public hearing before a tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads 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. ..."
The Government submit that Article 6 para. 1 (Art. 6-1) of the
Convention is not applicable to the proceedings at issue since under
domestic law telecommunication charges fall within the sphere of public
law and are not levied on the basis of private law contracts. Also the
Constitutional Court in its case-law had found that for this reason
Article 6 para. 1 (Art. 6-1) was not applicable to disputes concerning
telecommunication charges. Only since the enactment of a new
Telecommunication Act in 1993 has the relationship between the
telecommunication operator and the subscribers been governed by private
law. As regards the lack of an oral and public hearing before the
Administrative Court the Government do not consider it necessary to
make observations in view of European Court of Human Rights' judgment
in the Fischer case (Eur. Court HR, Fischer v. Austria judgment of
26 April 1995, Series A no. 312).
The applicant submits that Article 6 para. 1 (Art. 6-1) of the
Convention applies to disputes concerning telecommunication charges.
Also the Administrative Court in its case-law had found that
telecommunication charges were not taxes within the meaning of fiscal
law but fees for services rendered. Article 6 para. 1 (Art. 6-1) being
applicable to the proceedings at issue, the lack of an oral and public
hearing before the Administrative Court violated his rights under this
provision of the Convention.
The Commission finds that the applicant's complaint raises
serious questions of fact and law which are of such complexity that
their determination should depend on an examination of the merits. The
application cannot, therefore, be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and 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.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy