EUROPEAN COMMISSION OF HUMAN RIGHTS
Application Nos. 14696/89 and 14697/89
Alois and Amalia STALLINGER
Johann and Elisabeth KUSO
against
Austria
REPORT OF THE COMMISSION
(adopted on 7 December 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The applications
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-42) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-39). . . . . . . . . . . . . . . . . . .3
a. Stallinger case (Application No. 14696/89)
(paras. 17-25) . . . . . . . . . . . . . . . .3
b. Kuso case (Application No. 14697/89)
(paras. 26-39) . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 40-42). . . . . . . . . . . . . . . . . . .6
III. OPINION OF THE COMMISSION
(paras. 43-74) . . . . . . . . . . . . . . . . . . . . .8
A. Complaints declared admissible
(para. 43). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 44). . . . . . . . . . . . . . . . . . . . .8
C. Article 6 of the Convention
(paras. 45-71). . . . . . . . . . . . . . . . . . .8
a. Applicability of Article 6
(para. 45) . . . . . . . . . . . . . . . . . .8
b. Hearing before an independent and impartial
tribunal established by law
(paras. 46-51) . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 52). . . . . . . . . . . . . . . . . . . . 10
c. The absence of a public hearing before the Regional
Board and the Administrative Court
(paras. 53-67) . . . . . . . . . . . . . . . 10
TABLE OF CONTENTS
Page
aa. The Austrian reservation to Article 6
(paras. 53-62) . . . . . . . . . . . . . . . 10
bb. The absence of a public hearing
(paras. 63-67) . . . . . . . . . . . . . . . 12
CONCLUSION
(para. 68). . . . . . . . . . . . . . . . . . . . 13
d. Fair hearing before a tribunal
(paras. 69-70) . . . . . . . . . . . . . . . 13
CONCLUSION
(para. 71). . . . . . . . . . . . . . . . . . . . 13
D. Recapitulation
(paras. 72-74). . . . . . . . . . . . . . . . . . 13
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 14
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 16
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 applications
2. The four applicants are Austrian citizens and residents in
Rohrbach (Stallinger) and Au am Leithagebirge (Kuso). They were
represented before the Commission by Mr. E. Proksch, a lawyer
practising in Vienna.
3. The applications are directed against Austria. The respondent
Government were represented by Mr. F. Cede, Deputy Secretary General
and Legal Counsel of the Austrian Federal Ministry of Foreign Affairs.
4. The cases concern agricultural land consolidation proceedings.
The applicants invoke Article 6 of the Convention.
B. The proceedings
5. The applications were introduced on 16 November 1988 and
registered on 27 February 1989.
6. On 17 October 1991 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to join the applications, to
give notice to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicants' complaints under Article 6 of the Convention and Article 1
of Protocol No. 1.
7. The Government's observations were submitted on 13 March 1992.
The applicants replied on 13 May 1992.
8. On 29 March 1993 the Commission declared admissible the
applicants' complaint under Article 6 of the Convention. It declared
inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 13 April 1993 and they were invited to submit such
further information or observations on the merits as they wished. The
applicants submitted further observations on 11 May 1993 to which the
respondent Government replied on 19 July 1993.
10. 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. Substantial negotiations took place with the
parties between 29 March 1993 and 26 May 1994. The Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
11. 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, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
C.A. NØRGAARD
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
12. The text of this Report was adopted on 7 December 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. 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.
14. 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.
15. 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
16. The facts are agreed between the parties and may be summarised
as follows.
The applicants are farmers. Their land was involved in
agricultural land consolidation proceedings (Zusammenlegungsverfahren)
under the Agricultural Land Planning Acts (Flurverfassungs-
Landesgesetze) for respectively Upper and Lower Austria.
The proceedings developed as follows:
a. Stallinger case (Application No. 14696/89)
17. In December 1980 the Upper Austrian Agricultural District
Authority (Agrarbezirksbehörde - hereinafter referred to as "the
District Authority") in Linz issued a consolidation plan.
18. On 14 January 1982, on the applicants' appeal, the Regional Land
Reform Board at the Upper Austrian Regional Government's Office
(Landesagrarsenat beim Amt der Oberösterreichischen Landesregierung -
hereinafter referred to as "the Regional Board") set the consolidation
plan aside and referred the case back to the District Authority.
Certain objections raised by the applicants were, however, rejected.
19. In September 1983 the District Authority issued a new
consolidation plan after having carried out additional investigations.
20. On 25 October 1984 the Regional Board set the consolidation plan
partly aside.
21. To this extent the District Authority issued a third
consolidation plan on 28 February 1986.
22. On 16 October 1986 the Regional Board dismissed the applicants'
appeal. The decision was given after an oral hearing held in private
in which the applicants and their counsel as well as other parties and
the mayor of Rohrbach participated.
23. Having regard to an official expert opinion and a private expert
opinion submitted by the applicants as well as to further evidence
including the result of investigations carried out on the spot by the
expert members of the Regional Board (result which had been
communicated to and discussed with the parties) the Board found that
the compensation parcels allotted to the applicants constituted
adequate compensation in exchange for their former properties.
The applicants' allegation that some of their former plots had
a higher value because of future construction possibilities was
considered to be unproven in view of the fact that the land in question
was classified agricultural and was used as such. Furthermore it
followed from statements made by community officials that no change was
foreseen for the future. The fact that one K., named as a witness by
the applicants, was willing to pay an important price for the plots in
question was therefore considered to be irrelevant.
24. On 24 September 1987 the Constitutional Court (Verfassungs-
gerichtshof) refused to deal with the applicants' complaint and
referred it to the Administrative Court (Verwaltungsgerichtshof).
25. On 3 May 1988 the Administrative Court dismissed the complaint
rejecting at the same time, in accordance with Section 39 (2) No. 6 of
the Administrative Court Act, the applicants' request for an oral
hearing. The decision was served on the applicants on 1 June 1988 and
was mainly based on the following grounds:
The applicants had argued that the expert members of the Regional
Board were in fact prejudiced by their own expert opinion when, as in
the case at issue, the Regional Board set aside a consolidation plan
and subsequently dealt with a complaint against the new plan. The
Administrative Court referred to its own jurisprudence and that of the
Constitutional Court as well as that of the European Court of Human
Rights (Ettl and others judgment of 23 April 1987, Series A no. 117)
according to which the participation of expert members in the decisions
of the Regional Boards was legally unobjectionable.
Insofar as the applicants had complained that expert members of
the Regional Board had effected an investigation on the spot in the
applicants' absence, the Administrative Court stated that the procedure
followed was in line with procedural law. It also pointed out that the
result of the investigation had been communicated to the applicants for
their observations.
The Administrative Court further found that no objections could
be raised against the Regional Board's assessment as to the question
of whether or not certain of the applicant's former properties were
likely to become constructible.
b. Kuso case (Application No. 14697/89)
26. The Lower Austrian Agricultural District Authority
(Agrarbezirksbehörde) in Vienna issued a consolidation plan in
May 1974.
27. On 24 March 1975, on the applicants' appeal, the Regional Board
at the Lower Austrian Government's Office (Landesagrarsenat beim Amt
der Niederösterreichischen Landesregierung) set the consolidation plan
aside and referred the case back to the District Authority.
28. On 9 September 1975 the District Authority issued a new
consolidation plan. The applicants again appealed.
29. On 31 January 1979 the Regional Board partly granted the appeal
but dismissed the applicants' complaint that the parcels of land
allotted to them were insufficient and that they had therefore received
inadequate compensation.
30. On 5 November 1980, on the applicants' further appeal, the
Supreme Land Reform Board (Oberster Agrarsenat) quashed the decision
of the Regional Board and referred the case back to the District
Authority on the ground that some of the compensation parcels allotted
to the applicants appeared to be insufficient.
31. On 30 January 1984 the District Authority issued a new plan which
was confirmed by the Regional Board on 18 December 1984. The Board
considered that the applicants had received adequate compensation
parcels.
32. On 26 November 1985 the Administrative Court set the decision
of 18 December 1984 partly aside on account of a violation of
procedural law.
33. On 17 February 1987 the Regional Board after an oral hearing but
without having carried out supplementary investigations (ergänzende
Ermittlungen) again dismissed the applicants' appeal against the
consolidation plan of 30 January 1984.
34. On 24 September 1987 the Constitutional Court refused to deal
with the applicants' complaint and referred it to the Administrative
Court.
35. On 19 April 1988 the Administrative Court dismissed the complaint
rejecting at the same time, in accordance with Section 39 (2) No. 6 of
the Administrative Court Act, the applicants' request for an oral
hearing. The decision was served on the applicants on 18 May 1988.
36. Referring to the Ettl and others judgment of the European Court
of Human Rights (see above para. 25), the Administrative Court rejected
as unfounded the applicants' complaints that the hearing before the
Board had not been public and that the Board was not an independent
tribunal within the meaning of Article 6 of the Convention, inter alia
because it was prejudiced by its own decision in case there were two
consecutive appeals in the same matter.
37. The Administrative Court further considered that the Board had
remedied the procedural shortcomings on account of which its earlier
decision had to be set aside.
38. In fact it had now given a detailed and unobjectionable
assessment of the respective value of the applicants' former properties
as compared with the compensation parcels. The Court also considered
that further evidence offered by the applicants in this respect had
correctly been rejected by the Board as being irrelevant.
39. Insofar as the applicants had submitted that their case had not
been sufficiently discussed at the oral hearing and that substitute
members (Ersatzmitglieder) of the Board had therefore not sufficiently
been informed of all issues, the Court first pointed out that according
to the observations of the opponent party only one of the members of
the Board participating in the hearing of the applicants' appeal had
been a supplementary member and in any case all members as well as the
parties had had the opportunity to put questions in order to see to it
that the facts were exhaustively and correctly established.
B. Relevant domestic law
a. Composition of the Regional Boards
40. The Regional Board has eight members, all appointed by the
Government of the Land of the Austrian Federation in which it exercises
jurisdiction (see Section 5 (2) and (4) of the Federal Agricultural
Authorities Act (Agrarbehördengesetz) of 1950, as amended in 1974;
cf. Eur. Court H.R., Ettl and others judgment of 23 April 1987,
loc. cit.). These eight members are:
- one Land civil servant, who is legally qualified (rechtskundig),
and acts as chairman;
- three judges;
- a legally qualified Land civil servant with experience in land
reform, who acts as rapporteur;
- a senior Land civil servant (Landesbeamter des höheren Dienstes)
with experience in agronomic matters;
- a senior Land civil servant with experience in forestry matters;
and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act (Allgemeines Verwaltungs-
verfahrensgesetz).
For each of the above members a substitute member has to be
appointed (Section 5 (3) of the Federal Agricultural Authorities Act).
b. Procedure of the Regional Board
41. Section 9 (1) of the Federal Agricultural Proceedings Act
(Agrarverfahrensgesetz) provides as follows:
[Translation]
"The Regional Boards take their decisions after an oral hearing
in the presence of the parties."
[German]
"Die Agrarsenate entscheiden nach mündlicher Verhandlung unter
Zuziehung der Parteien."
It is the constant practice of administrative authorities to hold
oral hearings in camera unless the law provides otherwise.
c. Oral hearings before the Administrative Court
42. Section 39 (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 (2) No. 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."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
43. The Commission has declared admissible the applicants' complaints
that the land reform proceedings did not conform to the requirements
of Article 6 para. 1 (Art. 6-1) of the Convention.
B. Points at issue
44. The issues to be determined are:
- whether there has been a violation of the applicants' right to
the determination of their civil rights and obligations by "an
independent and impartial tribunal established by law" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention;
- whether there has been a violation of the applicant's right under
Article 6 para. 1 (Art. 6-1) of the Convention to a public hearing.
- whether there has been a violation of Mr. and Mrs. Stallingers'
right to a fair hearing by a tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention;
C. Article 6 (Art. 6) of the Convention
a. Applicability of Article 6 (Art. 6)
45. Article 6 para. 1 (Art. 6-1) of the Convention provides:
"1. In the determination of his civil rights and obligations or
any criminal charge against him, everyone is entitled to a fair
and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order
or national security in a democratic society, where the interests
of juveniles or the protection of the private life of the parties
so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
Article 6 para. 1 (Art. 6-1) is applicable to land consolidation
proceedings (Eur. Court H.R., Wiesinger judgment of 30 October 1991,
Series A No. 213) and this is undisputed between the parties.
b. Hearing before an independent and impartial tribunal established
by law
46. The applicants complain of the organisation of the agricultural
authorities which dealt with their case, claiming that it fell short
of the requirements of Article 6 (Art. 6) of the Convention. In view
of the participation of civil servants, the disproportionate influence
of the specialised civil servants who also assume the functions of
experts, and the lack of a true adversarial character of the
proceedings, the applicants consider that the competent Land Reform
Boards cannot be regarded as independent and impartial tribunals within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. They
also complain that the Land Reform Boards were not established by law
because there was no proper assignment of duties between its members,
in particular between ordinary and substitute members.
47. Referring to the Ettl and others judgment the Government consider
that the Regional Boards meet the requirements of Article 6 (Art. 6)
of the Convention.
48. The Commission recalls that in the case of Ettl and others the
Court has held that the Regional and Supreme Boards are tribunals
established by law within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention. Furthermore, the fact that a majority of the
members of the boards were civil servants was as such compatible with
Article 6 para. 1 (Art. 6-1) of the Convention. As regards civil
servants who sit on the board on account of their experience of
agronomy, forestry and agriculture, the Court found that their
membership could not give rise to doubts about the independence and
impartiality of the boards. Such experts on the boards were needed in
cases concerning land consolidation, which was an operation that raised
issues of great complexity and affected not only the owners directly
concerned but the community as a whole. The board's composition
enabled them to reach balanced decisions, having regard to the various
interests at stake (Ettl judgment of 23 April 1987, loc. cit.,
pp. 17-18, paras. 34-40).
49. The Commission notes that the applicants' allegations are
essentially the same as those submitted by the applicants in the case
of Ettl and others. The present applicants give particular weight to
the status and functions of the expert civil servant members of the
Land Reform Boards, but they have failed to indicate any important
element which could be held to justify distinguishing the present case
from the Ettl case. The present applicants complain that in their case
the Regional Board or rather its expert member strongly influenced the
preparation and issuance of the consolidation plan having set aside the
original plan in an earlier round of the proceedings. Consequently the
Regional Board was prejudiced by its own prior decision when it
examined a second appeal in the same matter. However, it is common in
the Convention countries that higher courts deal with similar or
related cases in turn (Eur. Court H.R., Gillow judgment of
24 November 1986, Series A no. 109, p. 28, para. 73) or have to decide
another appeal in the same matter after having sent it back to a lower
court for reconsideration. The Commission does not find that this
aspect of the case or any other circumstances justify diverging from
the existing case law.
50. Consequently, in view of the Court's finding in the case of
Ettl and others concerning the general organisation and procedure of
the Land Reform Boards, these boards must, also in the present case,
be considered to fulfil the requirements of independent and impartial
tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
51. As regards the applicants' complaint that the Land Reform Boards
were not established by law, the Commission observes that Section 5 (2)
and (3) of the Federal Agricultural Authorities Act sets out the
composition of the Regional Boards and the function of its members.
In such circumstances the Commission finds that these bodies must be
considered as established by law. In this respect the Commission
recalls that Article 6 para. 1 (Art. 6-1) of the Convention does not
require the legislature to regulate each and every detail in this field
by formal Act of Parliament, if the legislature establishes at least
the organisational framework for the judicial organisation (Zand
v. Austria, Comm. Report 12.10.78, para. 69, D.R. 15 p. 70).
CONCLUSION
52. The Commission concludes, unanimously, that there has been no
violation of the applicants' right under Article 6 para. 1 (Art. 6-1)
of the Convention to the determination of their civil rights and
obligations by "an independent and impartial tribunal established by
law".
c. The absence of a public hearing before the Regional Board and the
Administrative Court
aa. The Austrian reservation to Article 6 (Art. 6)
53. The applicants further complain under Article 6 para. 1
(Art. 6-1) of the Convention about the lack of a public hearing in the
land consolidation proceedings.
54. The Government refer again to the Ettl and others judgment and
the reservation made by Austria in respect of Article 6 (Art. 6) and
submit that this reservation is valid and applies so as to prevent the
Commission from considering this question.
55. The Austrian reservation to Article 6 (Art. 6) provides as
follows:
"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."
56. Article 90 of the 1929 version of the Federal Constitution reads
as follows:
"Hearings in civil and criminal cases before the trial court
shall be oral and public. Exceptions may be prescribed by law."
57. Article 64 (Art. 64) of the Convention reads as follows:
"1. Any State may, when signing this Convention or when
depositing its instrument of ratification, make a reservation in
respect of any particular provision of the Convention to the
extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general
character shall not be permitted under this Article.
2. Any reservation made under this Article shall contain a
brief statement of the law concerned."
58. The Commission recalls that the European Court of Human Rights
has considered the question of the compatibility of declarations and
reservations with Article 64 (Art. 64) of the Convention on several
occasions (see for example, Eur. Court H.R., Belilos judgment of 29
April 1988, Series A no. 132; Weber judgment of 22 May 1990, Series A
no. 177; Chorherr judgment of 25 August 1993, Series A no. 266-B;
Gradinger judgment of 23 October 1995, para. 51, to be published in
Series A no. 328-C). The Court has held that Article 64 para. 1
(Art. 64-1) of the Convention requires "precision and clarity" and that
the requirement set forth in Article 64 para. 2 (Art. 64-2) that a
reservation shall contain a brief statement of the law concerned is not
a "purely formal requirement but a condition of substance "which"
constitutes an evidential factor and contributes to legal certainty"
(Belilos judgment, paras. 55 and 59).
59. In the Fischer case the Court did not find it necessary to
examine the validity of the Austrian reservation to Article 6 (Art. 6),
but held that the reservation did not prevent it from examining the
applicant's complaint that the refusal to hold a hearing before the
Administrative Court violated Article 6 (Art. 6) of the Convention,
because the provision on which the refusal was based was not "in force"
at the time the reservation was made (Eur. Court H.R., Fischer judgment
of 26 April 1995, para. 41, to be published in Series A no. 312).
60. As regards the present case, the Commission observes that Section
9 (1) of the Federal Agricultural Proceedings Act of 1950, which
provide that hearings before land consolidation boards are held in
camera, was in force in 1958, at the time Austria ratified the
Convention and made the reservation in question. The Commission
therefore has to examine whether the Austrian reservation satisfies the
requirements of Article 64 (Art. 64) of the Convention.
61. In this respect the Commission notes that the reservation at
issue does not contain a "brief statement" of the law which is said not
to conform to Article 6 (Art. 6) of the Convention. From the wording
of the reservation it might be inferred that Austria intended to
exclude from the scope of Article 6 (Art. 6) all proceedings in civil
and criminal matters before ordinary courts insofar as particular laws
allowed for non-public hearings. However, a reservation which merely
refers to a permissive, non exhaustive, provision of the Constitution
and which does not refer to, or mention, those specific provisions of
the Austrian legal order which exclude public hearings, does not
"afford to a sufficient degree 'a guarantee ... that [it] does not go
beyond the provision expressly excluded' by Austria" (see Gradinger
judgment, para. 51, Chorherr judgment, para. 20). Accordingly, the
reservation does not satisfy the requirements of Article 64 para. 2
(Art. 64-2) of the Convention. In such circumstances the Commission
finds that there is no need also to examine whether the other
requirements of Article 64 (Art. 64) were complied with.
62. It follows that the Austrian reservation cannot prevent the
Commission from examining the complaint concerning the lack of a public
hearing.
bb. The absence of a public hearing
63. The Regional Boards held hearings in the cases of both applicant
couples. In accordance with the relevant domestic provisions of
procedural law, these hearings were in private. However, in order to
comply with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention it would be sufficient if the applicants could have had the
benefit of a public hearing before a higher body, namely the
Administrative Court, provided this body was a tribunal within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention with a
sufficiently wide scope of jurisdiction.
64. In this respect the Commission recalls that the Court has
repeatedly found that the Administrative Court, in civil cases, may
qualify as such a tribunal as, in the circumstances of the concrete
cases, it had full jurisdiction (Eur. Court H.R., Zumtobel judgment of
21 September 1993, Series A no. 268, pp. 13-14, paras. 31-32;
Fischer judgment of 26 April 1995, para. 34, to be published in
Series A no. 312). In assessing whether the Administrative Court had
in the present case a sufficiently wide scope of jurisdiction, it is
necessary to take into account matters such as the subject-matter of
the decision appealed against, the manner in which that decision was
arrived at, and the contents of the dispute, including the desired and
actual grounds of appeal (Eur. Court H.R., Bryan judgment of 22
November 1995, para. 45, to be published in Series A no. 335-A).
Having regard to the fact that the Administrative Court took its
decisions after quasi-judicial proceedings had been conducted before
the Regional Boards and that the Administrative Court examined the
lawfulness of the decision including the manner in which evidence was
gathered, the Commission is satisfied that the Administrative Court
must be considered as a tribunal for the purpose of the present
proceedings.
65. The Commission must therefore examine whether the lack of a
public hearing before the Administrative Court was compatible with
Article 6 para. 1 (Art. 6-1) of the Convention in the present case.
66. The applicants were in principle entitled to a public hearing
before the Administrative Court, as none of the exceptions laid down
in the second sentence of Article 6 para. 1 (Art. 6-1) applied (cf.
Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990,
Series A no. 171, p. 20 para. 64). The applicants requested and were
refused a hearing by the Administrative Court.
67. Furthermore, it does not appear that there were exceptional
circumstances which could otherwise justify the absence of a public
hearing. Although, unlike in the Fischer case, the Administrative
Court was not the only judicial body competent to determine the cases
of the applicants, it was the only one which could have held a public
and oral hearing in these cases (Eur. Court H.R., Fischer judgment,
loc. cit., paras. 43-44). The refusal of the Administrative Court to
hold such hearings in the applicants' cases amounted therefore to a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
68. The Commission concludes, unanimously, that there has been a
violation of the applicants' right under Article 6 para. 1 (Art. 6-1)
of the Convention to a public hearing.
d. Fair hearing before a tribunal
69. The applicants Stallinger also complain that an examination on
the spot was carried out in their absence.
70. The Commission observes in this respect that the applicants were
subsequently informed about the result and given the opportunity to
comment. They have also failed to establish that they were in any way
prevented from arguing their case effectively. It cannot, in these
circumstances, be found that the principle of a fair hearing was
violated.
CONCLUSION
71. The Commission concludes, unanimously, that there has been no
violation of Mr. and Mrs. Stallingers' right under Article 6 para. 1
(Art. 6-1) of the Convention to a fair hearing.
Recapitulation
72. The Commission concludes, unanimously, that there has been no
violation of the applicants' right under Article 6 para. 1 (Art. 6-1)
of the Convention to the determination of their civil rights and
obligations by "an independent and impartial tribunal established by
law" (cf. para. 52).
73. The Commission concludes, unanimously, that there has been a
violation of the applicants' right under Article 6 para. 1 (Art. 6-1)
of the Convention to a public hearing (cf. para. 68).
74. The Commission concludes, unanimously, that there has been no
violation of Mr. and Mrs. Stallingers' right under Article 6 para. 1
(Art. 6-1) of the Convention to a fair hearing (cf. para. 71).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
16 November 1988 Introduction of application
16 November 1988
27 February 1989 Registration of application
27 February 1989
Examination of admissibility
4 September 1991 Application transferred from Committee to
Plenary
17 October 1991 Commission's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
13 March 1992 Government's observations
13 May 1992 Applicants' observations in reply
29 March 1993 Commission's decision to declare
application in part admissible and in part
inadmissible
20 January 1994 Commission decided to convene meeting in
Vienna to discuss friendly settlement
Examination of the merits
13 April 1993 Decision on admissibility transmitted to
parties. Invitation to parties to submit
further observations on the merits
23 August 1993 Government's observations
11 May 1993 Applicants' observations
17 January 1994 Commission's consideration of state of
proceedings
29 November 1994 Commission's decision to adjourn the
examination of the case pending the
judgment of the European Court of Human
Rights in the Fischer v. Austria case
(Application No. 16922/90)
7 December 1995 Commission's deliberations on the merits,
final vote and consideration of text of
the Report
7 December 1995 Adoption of Report
Full & Egal Universal Law Academy