EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22811/93

Ernst and Anna Lughofer

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 September 1998)

TABLE OF CONTENTS

         Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-24) 3

A. The particular circumstances of the case

(paras. 17-20) 3

B. Relevant domestic law and practice

(paras. 21-24) 3

III. OPINION OF THE COMMISSION

(paras. 25-34) 5

A. Complaint declared admissible

(para. 25) 5

B. Point at issue

(para. 26) 5

C. As regards Article 6 of the Convention

(paras. 27-33) 5

CONCLUSION

(para. 34) 6

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 7

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 11

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 applicant couple, both of Austrian nationality, are farmers in Unterpilsbach (Upper Austria).  They were represented before the Commission by Mr. E. Proksch , a lawyer practising in Vienna.

3. The application is directed against Austria.  The respondent Government were represented by their Agent, Mr. F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

4. The case concerns the lack of a public hearing in land consolidation proceedings.  The applicants invoke Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 27 September 1993 and registered on 25 October 1993.

6. On 15 May 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applicant's complaint concerning the lack of a public hearing in the land consolidation proceedings to the respondent Government.  It declared the remainder of the application inadmissible.

7. On 28 May 1997 the Commission decided to ask the respondent Government for written observations on the admissibility and merits of the remaining complaint.

8. The Government's observations were submitted on 8 July 1997 after an extension of the time-limit fixed for this purpose.  The applicants replied on 5 February 1998 after an extension of the time-limit.

9. On 16 April 1998 the Commission declared the remainder of the application admissible.

10. The text of the Commission's decision on admissibility was sent to the parties on 30 April 1998 and they were invited to submit such further information or observations on the merits as they wished.  No such observations were submitted.

11. 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.  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

12. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI      

13. The text of this Report was adopted on 9 September 1998 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.

14. 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.

15. The Commission's decisions on the admissibility of the application are annexed hereto < Appendices I and II >.

16. 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

17. The applicants' farm was the object of land consolidation proceedings ( Zusammenlegungsverfahren ) instituted by the Gmunden District Agricultural Authority ( Agrarbezirksbehörde ) on 22 February 1973.

18. On 21 August 1984 the District Authority held a hearing at which the farmers concerned could express their wishes ( Wunschverhandlung ) and on 22 August 1985 the District Authority ordered the provisional transfer of the properties concerned, inter alia , land owned by the applicants.  In July 1989 the District Authority issued a consolidation plan ( Zusammenlegungsplan ).  The applicants appealed claiming that they had not received adequate land in exchange for their parcels AK 2 and AK 8.  On 5 July 1990 the Upper Austria Regional Land Reform Board ( Landesagrarsenat ) dismissed the applicants' appeal after an oral hearing held in private, but in the presence of the parties and their lawyer.

19. On 25 September 1990 the applicants filed a complaint with the Administrative Court ( Verwaltungsgerichtshof ) against the above decision.  They also asked the Court to hold an oral hearing.

20. On 15 December 1992 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 applicants' request for an oral hearing.

B. Relevant domestic law

a. Article 90 para. 1 of the Federal Constitution

21. Article 90 of the Federal Constitution provides:

"Hearings by trial courts in civil and criminal cases shall be oral and public.  Exceptions may be prescribed by law."

b. Hearings before Land Reform Boards

22. Section 9(1) of the Federal Agricultural Proceedings Act ( Agrarverfahrensgesetz ) provided as follows:

"Land Reform Boards take their decisions after an oral hearing in the presence of the parties."

It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise.

By virtue of legislation enacted in December 1993 ( Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform Boards are now public.

c. Hearings before the Administrative Court

23. Pursuant to Section 36 of the Administrative Court Act ( Verwaltungsgerichtshofgesetz ), proceedings consist essentially in an exchange of written pleadings. If one of the parties so requests the Administrative Court may hold a hearing which is in principle held in public (Sections 39 para. 1 (1) and 40 para. 4).

24. Section 39 para. 1 of the Administrative Court Act 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 where

...

6. it is apparent to the Court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

25. The Commission declared admissible the applicants' complaint that they did not have a public hearing in the land consolidation proceedings.

B. Point at issue

26. The only point at is issue is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

27. Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a ... public hearing ... by an independent and impartial tribunal established by law."

28. The applicants, referring to the judgment of the European Court of Human Rights in the case of Stallinger and Kuso v. Austria (judgment of 23 April 1997, Reports 1997-II, p. 666), submit that there can be no doubt that Article 6 para. 1 of the Convention has been violated on account of the lack of a public hearing in the land consolidation proceedings.

29. The Government, referring to the same judgment, refrained from any further submissions.

30. The Commission recalls first that in the case of Stallinger and Kuso the Court has examined whether it was prevented from examining the applicants' complaint concerning the lack of a public hearing in the land consolidation proceedings by the Austrian reservation to Article 6 of the Convention which reads as follows:

"The provision of Article 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."

31. The Court found that it was not prevented from examining this complaint by virtue of the Austrian reservation since the provision on which the refusal by the Administrative Court to hold a public hearing was based was not in force at the time the reservation was made (Eur. Court HR, Stallinger and Kuso judgment, op. cit , p. 679, para. 48).

32. In the same judgment the Court found that the applicants had been entitled to a public hearing as they had expressly asked for one before the Administrative Court, that the Administrative Court refused the hearing on the ground that it was not likely to clarify the case further and that no exceptional circumstances that might have justified dispensing with a hearing had been made out.  Thus the Administrative Court's refusal amounted to a violation of the applicant's Article 6 right to a "public hearing" (Eur. Court HR, Stallinger and Kuso judgment, op. cit , pp. 679-680, para. 51).

33. Since the factual circumstances of the present case are essentially the same as in the case of Stallinger and Kuso , the Commission sees no reasons to depart from the above quoted case law of the Court and to arrive at a different conclusion in the present case.

CONCLUSION

34. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

        to the First Chamber of the First Chamber