EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 26252/95

Josef Fischer

against

Austria

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(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. 16-23)              3

A. The particular circumstances of the case

(paras. 16-22)              3

B. Relevant domestic law

(para. 23) 4

III. OPINION OF THE COMMISSION

(paras. 24-34)              5

A. Complaint declared admissible

(para. 24) 5

B. Point at issue

(para. 25) 5

C. As regards Article 6 of the Convention

(paras. 26-33)              5

CONCLUSION

(para. 34) 6

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION              7

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 is an Austrian citizen, born in 1932.  He lives in Vienna and was represented before the Commission by Mr A. Draskovits , a lawyer practising in Vienna.

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

4. The case concerns the absence of an oral hearing before the Administrative Court.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 9 December 1994 and registered on 19 January 1995.

6. On 28 February 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints as to the absence of an oral hearing, under Article 6 para. 1 of the Convention.

7. The Government's observations were submitted on 16 July 1996.  The applicant replied on 22 November 1996.

8. On 2 July 1997 the Commission declared admissible the applicant's complaint concerning the absence of an oral hearing, under Article 6 para. 1 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 18 July 1997 and they were invited to submit such further information or observations on the merits as they wished.  No such observations were submitted.

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.  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

11. 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

12. The text of this Report was adopted on 14 January 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.

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. The Commission's decision on the admissibility of the application is annexed hereto.

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. On 9 December 1985 the applicant submitted proposals for the cleaning up of a refuse tip owned by the applicant at Theresienfeld , in Lower Austria. The proposals were made with a view to a new licence being granted in place of a licence which had been withdrawn and in respect of which proceedings were pending (see Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312, "Fischer judgment"). Oral hearings took place on 7 July and 18 November 1986 before the lower administrative authority. On 6 February 1987 the applicant requested the case to be transferred to the Federal Ministry of Agriculture and Forestry ( Bundesministerium für Land und Forstwirtschaft ), as the lower authority had not decided within the fixed time-limit.

17. On 25 April 1988 the applicant's registration in the trade register under the style " Dkfm Josef Fischer KG" was cancelled. The Ministry was of the view that there was no longer an applicant, and stayed the proceedings. The applicant was informed on 15 April 1990. On 15 March 1991 the applicant advised the Ministry that he had in fact been operating the refuse tip in his own name, so that he was entitled to continue the proceedings. The Ministry rejected the application on 29 April 1991 on the ground that the applicant did not have the necessary status to pursue the claim. That rejection was quashed by the Administrative Court ( Verwaltungsgerichtshof ) on 31 March 1992, and the case was returned to the Ministry.

18. On 15 January 1993 the Ministry dismissed the applicant's application of 9 December 1985 under the Water Rights Act 1975. The applicant made an administrative complaint to the Administrative Court.

19. The Administrative Court dismissed the administrative complaint on 21 June 1994. It recited the above background and noted that the official expert had considered the applicant's proposals unsatisfactory in 1986, before the matter was remitted to the competence of the Ministry. The Ministry had based its decision of 15 January 1993 largely on the consideration that waste technology had developed considerably since 1986, and that that alone would prevent approval being given to the applicant's proposals. Moreover, the tip was not in an appropriate site, as had been established in the proceedings concerning the withdrawal of the applicant's 1973 licence , and in the judgment in a criminal case of 18 March 1991.  The Court noted that the Ministry had considered that the inadequacy of the site of the applicant's tip was generally known.

20. The Administrative Court recalled that polluting waste may only be stored where a licence has been obtained from the appropriate authority, and that such a licence may only be granted when water protection measures - including groundwater protection measures - comply with the current state of technology. Further, there must be no inadmissible effect on public interests or third party rights, and appropriate supervision measures must be made. The Administrative Court agreed with the applicant that the Ministry had not given any details of how waste technology had developed since 1986, but noted that the Ministry had also based its decision on the inappropriateness of the applicant's site. The Administrative Court here referred to its judgment of 21 September 1989 in the case concerning withdrawal of the applicant's licence (see Fischer judgment, pp. 8-11, paras. 12 and 13). The Administrative Court referred to a summary of an expert's report in that case. It accepted that those proceedings had been concerned with the withdrawal of a licence , rather than the present measures and request for a licence , but found that the report had dealt with the same tip and contained clear and reasoned statements which were relevant to the present case. The statements were admissible before the administrative authorities.

21. The Administrative Court found that, as a licence could only be granted where there was no danger of water pollution, and as such danger was present, the applicant's project could not be permitted. The complaint was dismissed pursuant to Section 42 (1) of the Administrative Court Act ( Verwaltungsgerichtshofgesetz ).

22. The applicant's request for an oral hearing was refused by reference to Section 39 (2) (6) of the Administrative Court Act.

B. Relevant domestic law

23. A summary of the relevant domestic law is to be found in the Fischer judgment.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

24. The Commission has declared admissible the applicant's complaint that he was denied an oral hearing before the Administrative Court.

B. Point at issue

25. The only point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

26. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... public hearing ...".

27. The applicant submits that the requirement to hold a public hearing in Article 6 para. 1 (Art. 6-1) of the Convention was violated in the present case because the Administrative Court - even though its jurisdiction was limited - was the only court which addressed the issues in the case, and it declined to hold the hearing he had requested.  He underlines that it did in the event address factual matters, such as the question of the suitability of the location for carrying out the project to clear up the tip.

28. The Government contend that the proceedings before the Administrative Court raised no issues of fact which could have been clarified, such that the absence of an oral hearing was compatible with Article 6 para. 1 (Art. 6-1).

29. The Commission recalls that in the applicant's first case before the Convention organs, the European Court of Human Rights found that the Austrian reservation to Article 6 (Art. 6) of the Convention did not apply to refusals by the Administrative Court to hold oral hearings where the refusal was based on Section 39 (2) (6) of the Administrative Court Act (Fischer judgment, p. 20, para. 41).  The same applies in the present case.

30. As to the question whether Article 6 para. 1 (Art. 6-1) of the Convention required the holding of an oral hearing in the applicant's earlier case, the European Court of Human Rights noted that there did not appear to have been any exceptional circumstances which might have justified dispensing with a hearing.  It added that the Administrative Court was the first and only judicial body before which the applicant's case was brought; it was able to examine the merits of the complaints, and the review addressed not only issues of law but also important factual questions.  The Court also referred to the importance of the proceedings for the very existence of the applicant's tipping business (Fischer judgment, p. 20, para. 44).  In the more recent case of Stallinger and Kuso , the Court referred only to the absence of "exceptional circumstances that might have justified dispensing with a hearing" in finding that the absence of a hearing amounted to a violation of the right to a "public hearing" (Eur. Court HR, Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports-1997, para. 51).

31. The Government, in effect, argue that there were exceptional circumstances in the present case which might have justified dispensing with a hearing.  They point, in particular, to the limited nature of the proceedings before the Administrative Court: there were, they claim, no questions of fact which fell to be decided, and the proceedings did not deal with the revocation of a licence , but the prohibition of an illegal activity.

32. The Commission does not accept that any of the Government's arguments discloses "exceptional circumstances" within the meaning of the case-law of the European Court of Human Rights.  In particular, it cannot be said that the proceedings before the Administrative Court had no factual aspects:  the Administrative Court concluded that the permit requested by the applicant had to be refused because the site was inappropriate.  Such a conclusion, even if it is taken as being a reference back to the factual findings of the administrative authorities below, was the exercise by the Administrative Court of its "full jurisdiction" within the meaning of the case-law of the Convention organs (see, for example, Fischer judgment, p. 17, para. 28 with further references, and p. 18, para. 34).  It went to the core of the dispute in the case, which was whether the site was suitable for the tipping permit which had been requested.

33. It follows that the absence of an oral hearing before the Administrative Court, requested by the applicant and refused by reference to Section 39 (2) (6) of the Administrative Court Act, was incompatible with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

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

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

        to the First Chamber of the First Chamber