Lexploria

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., HÃ¥kansson 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

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STALLINGER and KUSO v. AUSTRIA

STALLINGER and KUSO v. AUSTRIA

LEXI