EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27014/95

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. 16-30)              3

A. The particular circumstances of the case

(paras. 16-29)              3

B. Relevant domestic law

(para. 30) 4

III. OPINION OF THE COMMISSION

(paras. 31-40)              5

A. Complaint declared admissible

(para. 31) 5

B. Point at issue

(para. 32) 5

C. As regards Article 6 of the Convention

(paras. 33-39)              5

CONCLUSION

(para. 40) 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 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 10 March 1995 and registered on 7 April 1995.

6. On 4 September 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 8 November 1996.  The applicant replied on 4 December 1996.

8. On 2 July 1997 the Commission declared admissible the applicant's  complaint concerning the absence of a public 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 further observations were received from the Government.  The applicant submitted observations on 5 September 1997.

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. The background to the present case is set out in the judgment of the European Court of Human Rights in the applicant's first case (Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312, "Fischer judgment").

17. On 25 June 1991 the applicant made an application to the Lower Austrian Regional Government ( Landesregierung , "the Land"). In it, he requested the Land to require the applicant's predecessors in title and the Austrian Federation ("the Bund ") to remove material which had been unlawfully tipped at a site in Theresienfeld .

18. The Land replied on 25 July 1991. In the first part of its letter (Part I), it dismissed the application as made. In the subsequent parts (Parts II to VI) it required the applicant to execute specified works at the site by specific dates.

19. The applicant's appeal to the Federal Ministry of Agriculture and Forestry ( Bundesministerium für Land- und Forstwirtschaft ) was rejected on 20 December 1991, although time-limits for execution of the works were amended.

20. On 24 June 1992 the Constitutional Court ( Verfassungsgerichtshof ) declined to accept the applicant's constitutional complaint, pursuant to Article 144 para. 2 of the Federal Constitution. It found that the complaints were allegations that the ordinary law had been applied incorrectly, and remitted the case to the Administrative Court ( Verwaltungsgerichtshof ).

21. The Administrative Court gave its decision on the administrative complaint on 28 July 1994 (received by the applicant's representative on 12 September 1994). It quashed three minor aspects of the decision of the Ministry (concerning questions whether tipping at one part of the site was permitted; whether sewage slurry had to be removed, and the time-limits imposed) and dismissed the remainder.

22. In connection with the applicant's original application for measures to be taken against the Bund and the applicant's predecessors in title, the Administrative Court noted that the applicant's liability to measures under the provision at issue (Article 138 of the Water Rights Act - Wasserrechtsgesetz ) was clear, and that it was not open to a person to whom such measures had been addressed to request similar measures against a third person. Moreover, it was not clear how the applicant could be a "person affected" by the acts of the third parties such as to be able to request measures.

23. In connection with the remainder of the administrative complaint, the Administrative Court continued that the question of the extent of the refuse-tipping licence granted in 1972 had been considered in its decision of 21 May 1991: as the administrative authorities had followed that decision, there was no reason to doubt the correctness of their decisions.

24. In reply to the applicant's contention that he should not be required to remove a specific type of waste, the Administrative Court noted that the original licence had prohibited the tipping of a series of types of waste. That list had been non-exhaustive, and the substance at issue was of a comparable potential danger to the ground water as the other substances on the list.

25. In reply to a complaint that the administrative authority had failed to establish who had tipped certain types of waste and when, the Administrative Court replied that the applicant was wrong in his contention that he was not responsible for part of the tip as it had been full when he took it over, because it was not in fact full at that time. Further, the Administrative Court noted that the responsibilities of the operator of a refuse tip were not limited to what was tipped, but extended to what was stored at the site. Therefore, the applicant was responsible for the contents of the tip (and could be required to remove it) even if he had not been responsible for putting it there.

26. Finally in connection with the applicant's liability for an order to execute works, the Administrative Court noted that the applicant had stored non-permitted substances at the site, and the storage of such substances is, itself, an administrative criminal offence. This gave the administrative authorities a further ground to order removal of non-permitted waste.

27. As to an allegation by the applicant that the order to remove certain types of waste was also an order to remove permitted waste, as the two could not be separated, the Administrative Court noted that the mere fact that in removing non-permitted waste the applicant would also have to remove permitted waste, was not a fact which could affect the lawfulness of the authority's decision. In addition, the fact that carrying out the measures ordered might require further consents from other authorities could not affect the lawfulness of the measures under consideration.

28. Finally, the Administrative Court dealt with a complaint that the authorities had ordered measures under Article 138 (1) a of the Water Rights Act, rather than under the less stringent Article 138 (1) b (Article 138 (1) a requires removal; Article 138 (1) b requires only "appropriate measures"). It recalled that the expert at first instance had found that it was impossible to deal with the dangerous substances on site, and that only removal would suffice.

29. The Administrative Court refused to hold the hearing requested by the applicant, by reference to Section 39 (2) (6) of the Administrative Court Act ( Verwaltungsgerichtshofgesetz ).

B. Relevant domestic law

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

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

B. Point at issue

32. 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 (Art. 6) of the Convention

33. Article 6 (Art. 6) of the Convention provides, as far as relevant, as follows:

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

34. The applicant claims that he was deprived of a public hearing before the Administrative Court.

35. The Government, in their observations on admissibility and merits of 8 November 1996, informed the Commission that they did not wish to submit further observations in the light of the judgment of the European Court of Human Rights in the Fischer case of 26 April 1995.

36. 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.

37. 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.  That approach was confirmed in the more recent case of Stallinger and Kuso (Eur. Court HR, Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports-1997, para. 51).

38. In the present case, it has not been submitted that there were exceptional circumstances which might have justified dispensing with a hearing, and the Commission finds none.

39. 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

40. 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