EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 16922/90

                             Josef Fischer

                                against

                                Austria

                       REPORT OF THE COMMISSION

                     (adopted on 9 September 1993)

TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1 - 16) . . . . . . . . . . . . . . . . . . . . . 1 - 2

      A.   The application

           (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5 - 11). . . . . . . . . . . . . . . . . . . 1 - 2

      C.   The present Report

           (paras. 12 - 16) . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 17 - 31). . . . . . . . . . . . . . . . . . . . . 3 - 6

      A.   The particular circumstances of the case

           (paras. 17 - 26) . . . . . . . . . . . . . . . . . . 3 - 4

      B.   Relevant domestic law and practice

           (paras. 27 - 31) . . . . . . . . . . . . . . . . . . 4 - 6

III.  OPINION OF THE COMMISSION

      (paras. 32 - 70). . . . . . . . . . . . . . . . . . . . .7 - 14

      A.   Complaint declared admissible

           (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 7

      B.   Points at issue

           (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 7

      C.   As to the applicability of Article 6 para. 1

           of the Convention (paras. 34 - 40) . . . . . . . . . 7 - 8

      D.   As to compliance with Article 6 para. 1

           of the Convention (paras. 41 - 67) . . . . . . . . .8 - 14

           a.    The scope of review by the

                 Administrative Court (paras. 41 - 48). . . . .8 - 10

                 Conclusion (para. 48). . . . . . . . . . . . . . .10

           b.    The absence of a hearing before the

                 Administrative Court (paras. 49 - 63). . . . 10 - 13

                 Conclusion (para. 63). . . . . . . . . . . . . . .13

           c.    The absence of a hearing before the

                 Constitutional Court (paras. 64 - 67). . . . 13 - 14

                 Conclusion (para. 67). . . . . . . . . . . . . . .14

           Recapitulation

           (paras. 68 - 70) . . . . . . . . . . . . . . . . . . . .14

CONCURRING OPINION OF Mr. F. ERMACORA. . . . . . . . . . . . . . . 15

PARTLY DISSENTING, PARTLY CONCURRING OPINION

OF Mrs. J. LIDDY  . . . . . . . . . . . . . . . . . . . . . . 16 - 18

APPENDIX I       : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .19

APPENDIX II      : PARTIAL DECISION ON THE ADMISSIBILITY. . . 20 - 24

APPENDIX III     : FINAL DECISION ON THE ADMISSIBILITY  . . . 25 - 30

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 is represented before the Commission by Mr. M. Gnesda, a

lawyer practising in Vienna.

3.    The application is directed against the Republic of Austria whose

Government were represented initially by their agent, Ambassador

H. Tuerk, head of the International Law Department of the Federal

Ministry for Foreign Affairs, and latterly by his successor,

Ambassador F. Cede.

4.    The application concerns court proceedings by which the applicant

attempted to challenge the revocation of a tipping licence under the

Water Rights Act 1959 (Wasserrechtsgesetz).  The applicant invokes

Article 6 para. 1 of the Convention.

B.    The proceedings

5.    The application was introduced on 11 May 1990 and registered on

24 July 1990.

6.    On 7 January 1991 the Commission declared inadmissible the

applicant's complaint under Article 1 of Protocol No. 1 to the

Convention, and decided to request the parties to submit written

observations on the admissibility and merits of the complaint under

Article 6 para. 1 of the Convention.

7.    The respondent Government submitted their observations on

15 April 1991 and the applicant submitted his on 13 June 1991 and

21 August 1991.  On 4 September 1991 the Government submitted further

observations, to which the applicant replied on 10 October 1991.

8.    At the hearing, which was held on 8 September 1992, the parties

were represented as follows: the Government by Mr. Wolf Okresek,

Federal Chancellery, agent, Mr. Franz Oberleitner, Federal Ministry for

Agriculture and Forestry, adviser, and Ms. Susanne Boigner, Federal

Ministry for Foreign Affairs, adviser; the applicant by

Mr. Michael Gnesda, lawyer.

9.    At the close of the hearing the Commission declared the

application admissible.

10.   On 11 January 1993 the applicant made further submissions in

writing.

11.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 (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 in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

             MM.  C. A. NØRGAARD, President

                  A. WEITZEL

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  J. C. SOYER

                  H. DANELIUS

             Sir  Basil HALL

             Mr.  F. MARTINEZ

             Mrs. J. LIDDY

             MM.  J.-C. GEUS

                  M.P. PELLONPÄÄ

13.   The text of this Report was adopted on 9 September 1993 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.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application are attached as

Appendixes II and III.

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 applicant holds both the western and eastern part of a tip

at Theresienfeld in Lower Austria.  He owns the western part outright,

having bought it in 1977.  He holds the eastern part on a 25 year,

assignable tipping lease dated 13 October 1975.

18.   On 21 September 1972 a tipping licence under the Water Rights Act

1959 (Wasserrechtsgesetz 1959) was granted to a company, Waxina, by the

Provincial Governor (Landeshauptmann) of Lower Austria.  It related to

the tipping of distillation residue on the site.  The parties disagree

as to whether the licence relates to the whole of the site or only to

the eastern part.  On 30 July 1973 the licence was extended to cover

domestic, commercial and industrial waste.  Further conditions were

added; the licence was expressed to be revocable pursuant to Section

21 of the 1959 Act.  The new licence was granted to both Waxina and the

then owners of the site.

19.   On 13 October 1975 the applicant took a 25 year tipping lease

from the owners of the site.

20.   In 1977 the applicant purchased from the owners the western part

of the site.  Title was registered on 10 January 1979 and the relevant

authorities were informed of the change of ownership, the rights under

the licence of 30 July 1973 thereby passing to the applicant by

operation of law.

21.   The licence of 30 July 1973 was revoked on 5 December 1986 by the

Provincial Governor of Lower Austria.  The Government submit that the

revocation affected only the eastern part of the site, pointing out

that separate proceedings were subsequently instituted relating to the

western part.  Further, the Government point out that the

Administrative Court (Verwaltungsgerichtshof) and the Vienna Regional

Court (Landesgericht), in subsequent proceedings, agreed that the

licence related to the eastern part of the site only.  The applicant

underlines that, until 1980, the administrative authorities themselves

accepted that the licence covered the whole of the tip, and adds that

in criminal proceedings the courts accepted that the licence related

to the entire site.

22.   The reasons given for the revocation included that dangerously

high levels of toxic substances had been found in the groundwater at

the site (which forms part of an area constituting the groundwater

reservoir for drinking water for over half a million people); barrels

had been found both in the western and eastern (practically full) part

of the site; certain of the barrels found contained non-authorised

substances which could escape and mix with other substances; and the

site was in any event unsuitable for tipping - even ordinary domestic

waste should not be dumped.

23.   The applicant's appeal to the Federal Ministry of Agriculture and

Forestry (Bundesministerium für Land- und Forstwirtschaft) was rejected

on 20 July 1987.  The facts were accepted as established by the

Provincial Governor.  The Ministry found, after a further expert's

report, that it was absolutely necessary to close the tip to safeguard

water supplies and the site could not technically be rendered safe.

In connection with the applicant's complaint of a violation of his

right to be heard (Parteiengehör) the Ministry found that the applicant

had had ample opportunity to make his views known in the proceedings

before it, and that an oral hearing was not prescribed in cases

involving revocations of licences.

24.   On 6 August 1987 the applicant made a complaint to the

Administrative Court in which he alleged that the decision of

20 July 1987 was unlawful.  He also complained that the administrative

authorities had not held a hearing.  He requested that the decision be

quashed, that the proceedings should have suspensive effect, and that

the Administrative Court should hold an oral hearing.  On

2 September 1987 the applicant made a constitutional complaint to the

Constitutional Court (Verfassungsgerichtshof), alleging violation of,

inter alia, Article 1 of Protocol No. 1 to the Convention and

Article 6 para. 1 of the Convention.  He complained that the

administrative authorities did not grant his request for a hearing

before them, and requested a hearing before the Constitutional Court.

25.   On 14 March 1989 the Constitutional Court refused to consider the

applicant's complaint pursuant to Article 144 para. 2 of the Federal

Constitutional Law (Bundesverfassungsgesetz).  The Constitutional Court

noted that the matter was not excluded from the jurisdiction of the

Administrative Court, and found that the bulk of the complaints related

to allegations of incorrect application of ordinary law.  To the extent

that the complaint did touch upon questions of constitutional law, the

complaint had no adequate prospect of success.  No hearing was held.

26.   The Administrative Court, whose decision runs to some 20 pages,

rejected the applicant's complaint on 21 September 1989 on the ground

that it was ill-founded.  The Court found that, regardless of the scope

of the original licence, the revocation related to the whole of the

original licence.  It considered that the revocation clause in the

original licence could only be invoked if there were adequate factual

grounds for a revocation, and went on to find that a number of the

applicant's allegations and complaints were directed to matters which

were not relevant to the revocation of the licence at all.  With regard

to the balance to be struck between the public interest and other

interests (such as those of the communes which could no longer use the

tip, and of the applicant, whose business was seriously affected), the

Administrative Court noted that the Ministry had found inter alia that

"the public interest in ensuring the supply of drinking water

[outweighs] the economic interests in favour of continued use of the

tip".  The Court concluded that there had been no procedural errors,

that the revocation had taken place after due consideration of relevant

factors and was in accordance with the law.  The complaint was

dismissed as ill-founded pursuant to Section 42 (1) of the

Administrative Court Act.  The Court found that an oral hearing had not

been necessary, either before the Ministry or before itself, and

rejected the applicant's request for a hearing before the

Administrative Court under Section 39 (2) 6 of the Administrative Court

Act.

B.    Relevant domestic law and practice

27.   Section 39 (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 (2) provides as follows:

      [German]

      "Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages

      nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn

      1.  das Verfahren einzustellen (§ 33) oder die Beschwerde

      zurückzuweisen ist (§ 34);

      2.  der angefochtene Bescheid wegen Rechtswidrigkeit infolge

      Unzuständigkeit der belangten Behörde aufzuheben ist

      (§ 42 Abs. 2 Z. 2);

      3.  der angefochtene Bescheid wegen Rechtswidrigkeit infolge

      Verletzung von Verfahrensvorschriften aufzuheben ist (§ 42 Abs. 2

      Z. 3);

      4.  der angefochtene Bescheid nach der ständigen Rechtsprechung

      des Verwaltungsgerichtshofes wegen Rechtswidrigkeit seines

      Inhaltes aufzuheben ist;

      5.  weder die belangte Behörde noch etwaige Mitbeteiligte eine

      Gegenschrift eingebracht haben und der angefochtene Bescheid

      aufzuheben ist;

      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."

      [Translation]

      "Notwithstanding a party's application, the Administrative Court

      may decide not to hold a hearing when

      1.  The proceedings are to be discontinued (under Section 33) or

      the complaint is to be rejected (Section 34);

      2.  The contested decision is to be quashed for unlawfulness due

      to lack of jurisdiction on the part of the authority challenged

      (Article 42 (2) 2);

      3.  The contested decision is to be quashed for failure to comply

      with procedural provisions (Section 42 (2) 3);

      4.  The contested decision is to be quashed in accordance with

      the constant case-law of the Administrative Court for

      unlawfulness as to its contents;

      5.  Neither the authority challenged nor any third party has

      submitted a reply and the contested decision is to be quashed;

      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."

28.   Section 39 (2) 1  to Section 39 (2) 3 were in force in 1958.

Section 39 (2) 4 and 5 were added in 1964 and Section 39 (2) 6 was

added in 1982.

29.   Section 42 (1) of the Administrative Court Act states that, save

as otherwise provided, decisions of the Administrative Court shall

either dismiss a complaint as ill-founded or quash the contested

decision.  Apart from amendments to that part of Section 42 (1) which

enumerates those proceedings to which it does not apply (not relevant

in the present case) Section 42 (1) has been in force since at least

1946.

30.   Article 90 para. 2 of the Federal Constitutional Law provides as

follows:

      [German]

      "Die Verhandlungen in Zivil- und Strafrechtssachen vor dem

      erkennenden Gericht sind mündlich und öffentlich.  Ausnahmen

      bestimmt das Gesetz."

      [Translation]

      "Hearings in civil and criminal cases by the trial court shall

      be oral and public.  Exceptions may be prescribed by law."

31.   Article 144 para. 2 of the Federal Constitutional Law provides

as follows:

      [German]

      "Der Verfassungsgerichtshof kann die Behandlung einer Beschwerde

      bis zur Verhandlung durch Beschluß ablehnen, wenn sie keine

      hinreichende Aussicht auf Erfolg hat oder von der Entscheidung

      die Klärung einer verfassungsrechtlichen Frage nicht zu erwarten

      ist.  Die Ablehnung der Behandlung ist unzulässig, wenn es sich

      um einen Fall handelt, der nach Art. 133 von der Zuständigkeit

      des Verwaltungsgerichtshofes ausgeschlossen ist."

      [Translation]

      "The Constitutional Court may refuse to consider a case up to a

      hearing by way of decision if it has no reasonable prospect of

      success or it cannot be expected that the decision will shed

      light on a problem of constitutional law.  A refusal to consider

      is inadmissible if it concerns a case excluded from the

      jurisdiction of the Administrative Court by Article 133."

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

32.   The Commission has declared admissible the applicant's complaint

that he was not able to have a hearing on the issue of the revocation

of his tipping licence before a court which complied with Article 6

para. 1 (Art. 6-1) of the Convention.

B.    Points at issue

33.   The issues to be determined are

-  whether there has been a violation of the applicant's right to have

his case determined by a tribunal within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention,

-  whether the absence of an oral hearing before the Administrative

Court violated Article 6 para. 1 (Art. 6-1) of the Convention, and

-  whether the absence of an oral hearing before the Constitutional

Court violated Article 6 para. 1 (Art. 6-1) of the Convention.

C.    As to the applicability of Article 6 para. 1

      (Art. 6-1) of the Convention

34.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides:

      "In the determination of his civil rights and obligations

      ..., everyone is entitled to a fair and public hearing ...

      by an independent and impartial tribunal established by

      law."

35.   In the above court proceedings the applicant attempted to

challenge the revocation of his tipping licence under the Water Rights

Act 1959.

36.   The applicant submits that Article 6 para. 1 (Art. 6-1) of the

Convention applies to these proceedings.

37.   The Government submit, first, that the land to which the tipping

licence related had already been completely filled at the date of the

revocation.  Accordingly, the revocation did not affect the applicant

with the result that the subsequent proceedings could not determine

civil rights.  The Government also submit that the revocation of the

applicant's licence was a dispute which related only to the effects of

civil rights and obligations, such that "the requirements resulting

from the fact that a decision has been taken by an impartial tribunal

must be less severe in a non-traditional field of civil rights,

including the present case."

38.   The Commission finds that the question of the extent of the

licence at issue in the present case was one of the questions before

the Constitutional and Administrative Courts.  The question of the

actual existence of a right, and also its scope and the manner of its

exercise was therefore at issue (c.f. Eur. Court H.R., Skärby judgment

of 28 June 1990, Series A no. 180-B, p. 36 para. 27).

39.   The Commission recalls that the concept of "civil rights and

obligations" cannot be interpreted solely by reference to the domestic

law of the respondent State (cf. Eur. Court H.R., König judgment of

28 June 1978, Series A no. 27, pp. 29-30 paras. 88-89).  It is

sufficient for the applicability of Article 6 para. 1 (Art. 6-1) that

the outcome is "decisive for private rights and obligations" (cf. Eur.

Court H.R., H. v. France judgment of 24 October 1989, Series A

no. 162-A, p. 20 para. 47).  In particular in the present case, the

revocation of the applicant's licence might well have had adverse

effects on the value of his business and of the good will and, indeed,

the applicant made just such allegations in his initial application to

the Commission.  This confirms the existence of direct links between

the revocation of the licence and the applicant's commercial activities

(cf. Eur. Court H.R., Benthem judgment of 23 October 1985, Series A

no. 97, p. 16 para. 36).

40.   The Commission therefore finds that Article 6 para. 1

(Art. 6-1) of the Convention was applicable to the proceedings by which

the applicant challenged the revocation of his tipping licence under

the Water Rights Act.

D.    As to compliance with Article 6 para. 1 (Art. 6-1)

      of the Convention

      a.   The scope of review by the Administrative Court

41.   The Commission must next examine the scope of the review offered

by the Austrian judicial authorities in this determination of civil

rights in order to establish whether the applicant had access to a

"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

42.   The applicant emphasises that the Administrative Court has only

a very limited possibility of reviewing facts.  The Government consider

that the control exercised by the Administrative Court in conjunction

with that exercised by the Constitutional Court meets the requirements

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

43.   The Commission has had occasion recently to consider questions

concerning the scope of review by the Administrative Court in the case

of Zumtobel v. Austria (No. 12235/86, Comm. Report 30.6.92, pending

before the Court of Human Rights).  In that case, the Commission found

as follows:

      "68.  There remains the Administrative Court which decided on

      the applicants' complaints about the expropriation.  These

      complaints related inter alia to the adequacy of the envisaged

      stretch of road within the meaning of Section 44 of the

      Provincial Road Act and thus raised issues of both facts and law.

      69.  The Commission recalls that in the case of Ettl and Others

      it found, having regard in particular to Section 41 of the

      Administrative Court Act, that the abstract possibility of a

      limited review of the facts which the Administrative Court

      enjoyed was not sufficient to establish its full jurisdiction

      concerning the determination of the civil rights at issue (see

      Comm. Report, ... p. 24, para. 85).  In the Obermeier case the

      Court found that, if the relevant legislation contained no

      precise provisions for the decision to be taken by the

      administrative authorities, and the Administrative Court could

      only examine whether the authorities had used their discretion

      in a manner compatible with the law, such a limited review was

      not an effective judicial review under Article 6 para. 1

      (Art. 6-1) of the Convention (see Eur. Court H.R., judgment of

      28 June 1990, Series A no. 179, p. 23 para. 70).

      70.  The Commission recalls that Section 42 (2) 3 of the

      Administrative Court Act, relied on by the Government in the

      present case, played no part in the case of Ettl and Others

      v. Austria. In the present case this provision enabled the

      Administrative Court to quash the contested decision as being

      unlawful due to procedural defects, if the Court found that the

      administrative authority had determined the facts on an important

      point contrary to the case-file; or that the facts required to

      be supplemented on an important point; or that procedural

      provisions had been disregarded which, if taken into

      consideration, would have led to a different decision ...

      71.  Thus, the Administrative Court was able to review the facts

      of the case in that it could examine inter alia whether they had

      been incorrectly or incompletely established by the Provincial

      Government.  While the purpose of this review was to determine

      any procedural defects leading to the unlawfulness of the

      decision, Section 42 (2) 3 of the Administrative Court Act did

      not restrict the Administrative Court in its power to review the

      facts.  In particular, this provision sets no limits in respect

      of the assessment and supplementation of the facts.

      72.  It is true that the Administrative Court in its decision of

      22 September 1989 referred to Section 41 of the Administrative

      Court Act ...  Section 41 provides that the Court is bound by the

      facts as accepted by the authority; however, this provision

      expressly reserves Section 42 (2) 3 of the Administrative Court

      Act ...  It follows that Section 41 does not restrict the

      Administrative Court's powers under Section 42.

      73.  Moreover, in its decision the Administrative Court

      explained its powers of review, in particular that it could 'take

      evidence for examining the question whether a procedural defect

      is essential or whether the incriminated authority might have

      arrived at a different decision by avoiding the alleged

      procedural defect; the Administrative Court may resort to these

      measures also in order to control the assessment of evidence...'

      The Commission sees no indication here that the Administrative

      Court regarded itself as being restricted in its review of the

      facts.

      74.  The Commission furthermore observes that the Administrative

      Court could have quashed the contested decision of the Provincial

      Government as being unlawful, if after its examination of the

      facts it had found that they were incorrect or incomplete.  The

      Provincial Government would have been bound by the Administrative

      Court's decision ...  Thus, the Administrative Court could have

      imposed its own views as to the assessment of the facts on the

      administrative authority concerned.

      75.  The Commission recalls that it suffices under Article 6

      para. 1 (Art. 6-1) of the Convention if the decision of an

      administrative authority, which itself does not comply with the

      requirements of this provision, is subject to subsequent control

      by a judicial body that has full jurisdiction (see Eur. Court

      H.R., Albert and Le Compte judgment).  In the present case, the

      decision of the Provincial Government concerning the

      expropriation of the applicants' real property was subject to

      such control by the Administrative Court which had full

      jurisdiction, as required by Article 6 para. 1 (Art. 6-1) of the

      Convention.

      76.  The applicants' case was therefore heard by a tribunal

      within the meaning of Article 6 para. 1 (Art. 6-1) of the

      Convention."

44.   Applying those findings to the facts of the present case, the

Commission notes that the Administrative Court, in its decision of

21 September 1989, dealt at some length with the complaints raised by

the applicant.  Although it is in the nature of the decisions of the

Administrative Court that they be phrased as a review of the decisions

of the administrative authorities, rather than as findings of fact on

each and every issue, there is no indication in the decision that the

Administrative Court regarded itself as being restricted in its review

of the facts.

45.   The Commission furthermore observes that the Administrative Court

could have quashed the decision of the Ministry as being unlawful.  The

Ministry would then have been bound by the Administrative Court's

decision.  The Administrative Court could thus have imposed its own

views as to the assessment of the facts on the administrative authority

concerned.

46.   The Commission recalls that it suffices under Article 6 para. 1

(Art. 6-1) of the Convention if the decision of an administrative

authority, which itself does not comply with the requirements of this

provision, is subject to subsequent control by a judicial body that has

full jurisdiction (see Eur. Court H.R., Albert and Le Compte judgment

loc. cit., p. 16 para. 29).  In the present case, the decision of the

Ministry of Agriculture and Forestry was subject to such control by the

Administrative Court which had the jurisdiction required by Article 6

para. 1 (Art. 6-1) of the Convention.

47.   The applicants' case was therefore heard by a tribunal within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Conclusion

48.   The Commission concludes, by 12 votes to 1, that there has been

no violation of the applicant's right to have his case determined by

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

      b.   The absence of a hearing before the Administrative Court

49.   The applicant alleges that the absence of a hearing before the

Administrative Court violates Article 6 para. 1 (Art. 6-1) of the

Convention.  He considers that the Austrian reservation to Article 6

(Art. 6) of the Convention does not comply with the requirements of

Article 64 (Art. 64), such that it cannot affect the requirement to

hold a hearing in cases which determine civil rights.

      aa.  The Austrian reservation

50.   The Austrian reservation to Article 6 (Art. 6) of the Convention

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."

51.   Article 64 (Art. 64) of the Convention provides 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 (Art. 64).

      2.   Any reservation made under this Article (Art. 64) shall

contain a        brief statement of the law concerned."

52.   The Government note that in the Ringeisen and Ettl cases (Eur.

Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p. 40

para. 98, Eur. Court H.R., Ettl and Others judgment of 23 April 1987,

Series A no. 117, p. 19 para. 42) the European Court of Human Rights

accepted the Austrian reservation to Article 6 (Art. 6) as applying to

administrative cases.  They contend that, even if it is assumed that

the reservation only applies to exceptions based on ordinary laws which

were in force on the date of the reservation, then the reservation

nevertheless complies with the requirements of Article 64 (Art. 64) of

the Convention because the Administrative Court Act 1952, which was in

force when the reservation was made, provided for certain grounds on

which the Administrative Court could decide not to hold a hearing.

They consider that the provision under which the applicant's request

for a hearing was refused (introduced in 1982) is substantially the

same as the provisions of Section 39 (1) 1 - 3 (gleichartig,

systemimmanent), so that its scope is no broader than the provisions

which were in force in 1958.

53.   The Commission recalls that, in three recent cases, the European

Court of Human Rights has considered the question of the compatibility

of certain declarations with Article 64 (Art. 64) of the Convention

(Eur. Court H.R., Belilos judgment of 29 April 1988, Series A no. 132;

Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177; Eur.

Court H.R., Chorherr judgment of 25 August 1993, Series A no. 266-B).

The Court found that Article 64 para. 1 (Art. 64-1) of the Convention

requires "precision and clarity", and that Article 64 para. 2

(Art. 64-2) is not a "purely formal requirement but a condition of

substance" which "constitutes an evidential factor and contributes to

legal certainty" (aforementioned Belilos judgment, pp. 26-28,

paras. 55 and 59).

54.   Applying  the principles laid down in the above case-law to the

present case, the Commission notes that the applicant was refused a

hearing before the Administrative Court on the ground that a hearing

was not likely to clarify the case any further (Section 39 (2) 6 of the

Administrative Court Act).  That provision was not in force when

Austria ratified the Convention, and the Commission finds that it goes

considerably further in limiting the right to a hearing before the

Administrative Court.  In particular, apart from cases where a

complaint to the Administrative Court was dealt with on formal grounds

(under Sections 33 or 34 of the Administrative Court Act - see

Section 39 (2) 1), all the grounds in force in 1958 concerned cases in

which the contested decision was quashed.  In such circumstances, a

complainant to the Administrative Court had generally been successful,

and so the question of a hearing became academic.  Indeed, the grounds

for refusal of a hearing which were added in 1964 (Section 39 (2) 4

and 5) also dealt with cases in which the contested decision was

quashed.  In 1958 the Administrative Court could not, in a case which

was being dismissed under Section 42 (1) of the Administrative Court

Act, have refused a hearing of the case if a complainant had applied

for one.

55.   It is true that the Commission has, in the past, held that

legislation which entered into force after a reservation is made may

nevertheless be compatible with Article 64 (Art. 64) of the Convention

if it does not have the effect of enlarging ex posteriori the subject

matter which is excluded from the Commission's jurisdiction by the

reservation (No. 2432/65 v. Austria, Dec. 7.4.67, Collection 22 p. 124

and p. 127).  That case-law has since been questioned in a case before

the Commission which was decided subsequent to the Court's judgments

in the cases of Belilos and Weber (No. 13816/88, M. v. Austria,

Dec. 16.10.91, Comm. Report 22.5.92).  Moreover, the ground for refusal

of a hearing in the present case cannot be viewed as a further

precision of the grounds in force in 1958.

56.   The Austrian reservation to Article 6 (Art. 6) of the Convention

does not therefore prevent the Commission 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 by which the refusal was made was not "in force"

at the time the reservation was made.

57.   In these circumstances the Commission is not required to consider

other objections to the reservation, for example that it is of a

"general character", or that it only applies to civil and criminal

cases and not administrative cases, or that it does not provide the

"brief statement of the law concerned" called for by Article 64 para. 2

(Art. 64-2) of the Convention.

      bb.  Application of Article 6 para. 1 (Art. 6-1)

58.    The Commission must next consider whether the absence of a

hearing before the Administrative Court violated Article 6 para. 1

(Art. 6-1) of the Convention.

59.   For the purposes of Article 6 (Art. 6) of the Convention, the

Administrative Court was the only tribunal which dealt with the merits

of the applicant's complaint.  The applicant was accordingly entitled

to a public hearing before that 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, cf. also

No. 18928/91, Fredin v. Sweden, Comm. Report 9.2.93, pending before the

European Court of Human Rights).

60.   In the present case, there is no question of a waiver by the

applicant of his right to an oral hearing: he requested a hearing

before the Ministry, complained about the refusal to the Administrative

Court, and requested a hearing before the Administrative Court.

61.   The Commission recalls that the European Court of Human Rights

has recently considered that the absence of an oral hearing in a case

dealing with social security matters did not violate Article 6

(Art. 6).  However, there was a very real issue of whether the

applicant in that case had waived her right to a hearing as she had not

expressly requested one.  The Court also referred to criteria of

"efficiency and economy" (Eur. Court H.R., Schuler-Zgraggen judgment

of 24 June 1993, Series A no. 263, paras. 56-58).

62.    The present case must be distinguished from the Schuler-Zgraggen

case.  First, although the dispute at issue related to the revocation

of a "public law" licence, the commercial considerations at the heart

of the matter make it quite different from the social security

questions dealt with in that case.  Secondly, the issue of waiver does

not arise in the present case.  Whilst the Commission does not

underestimate the necessity for procedures which run efficiently, it

remains for the respondent State to comply with its obligations under

the Convention by organising its legal system so as to ensure

compliance with Article 6 para. 1 (Art. 6-1) of the Convention (cf.

Eur. Court H.R., Guincho judgment of 10 July 1984, Series A no. 81,

p. 16, para. 38).

Conclusion

63.   The Commission concludes, unanimously, that the absence of an

oral hearing before the Administrative Court was in violation of

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

      c.   The absence of a hearing before the Constitutional Court

64.   The applicant alleges that the absence of a hearing before the

Constitutional Court violates Article 6 para. 1 (Art. 6-1) of the

Convention.

65.   The Government refer to the Austrian reservation to Article 6

(Art. 6) of the Convention, and underline that the Constitutional Court

was empowered to refuse to hold hearings in 1958, when the reservation

was made.  They accept that certain amendments to the Constitutional

Court Act which were made in 1984 provided for a general exception to

the principal of publicity for constitutional complaint proceedings,

but consider that the exception is identical to the one before, and has

the sole purpose of simplifying and expediting proceedings before the

Constitutional Court.

66.   In the circumstances of the present case, that is, where the

Administrative Court has jurisdiction to deal with the case and the

Constitutional Court declines to consider a matter pursuant to

Article 144 para. 2 of the Federal Constitutional Law, the Commission

finds that Article 6 para. 1 (Art. 6-1) of the Convention does not

require a hearing to be held before the Constitutional Court.

Conclusion

67.   The Commission concludes, by 12 votes to 1, that the absence of

an oral hearing before the Constitutional Court was not in violation

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

Recapitulation

68.   The Commission concludes, by 12 votes to 1, that there has been

no violation of the applicant's right to have his case determined by

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 48).

69.   The Commission concludes, unanimously, that the absence of an

oral hearing before the Administrative Court was in violation of

Article 6 para. 1 (Art. 6-1) of the Convention (para. 63).

70.   The Commission concludes, by 12 votes to 1, that the absence of

an oral hearing before the Constitutional Court was not in violation

of Article 6 para. 1 (Art. 6-1) of the Convention (para 67).

Secretary to the Commission              President of the Commission

       (H.C. KRÜGER)                            (C.A. NØRGAARD)

                                                        (Or. English)

                 CONCURRING OPINION OF Mr. F. ERMACORA

      I agree with the opinion that the absence of an oral hearing

before the Administrative Court was in violation of Article 6 para. 1

of the Convention.  However, I have difficulties with the reasons of

this decision.  The Report refers in its paragraph 50 to the Austrian

reservation which states, as to the application of Article 6 of the

Convention, that there shall be no prejudice to the principles

governing public court hearings laid down in Article 90 of the Federal

Constitutional Law.  However the Commission later on has not dealt with

this reservation and its impact as to the application of

Article 6 para. 1 of the Convention.  This reservation - in my opinion

- does not apply to proceedings before the Administrative and

Constitutional Court.  It applies only to proceedings in civil and

penal matters (Zivil- und Strafrechtssachen) before the ordinary courts

(there might be an exception in proceedings before the Constitutional

Court in cases of Article 137 of the Constitution, but such a problem

does not arise in the present case).  The reservation must be

interpreted in accordance with the understanding of the High

Contracting Party at the time of ratification.  In Austrian

Constitutional law the "Zivil- und Strafrechtssachen" referred to in

Article 90 of the Federal Constitutional Law relate to matters which

are solely dealt with by ordinary courts (at the time of the

ratification of the Convention Austria could not have considered the

European jurisprudence referred to in para. 52 of the Report) and not

by extraordinary courts.  This is clear from the wording of Article 90

of the Federal Constitutional Law, from the systematic position of

Article 90 within the Constitution (it figures in the section entitled

"Gerichtsbarkeit" which excludes the Constitutional Court and the

Administrative Court), and from the absence of any interpretation

supporting a contrary view at the time of the drafting of the

Constitution.  Therefore the Austrian reservation as to Article 6 of

the Convention is not applicable in the present case.  Accordingly, as

the Administrative Court refused the applicant's request for a hearing,

I consider that there was a violation of Article 6 in this respect.

                                                        (Or. English)

            PARTLY CONCURRING, PARTLY DISSENTING OPINION

                           of Mrs. J. LIDDY

As to the applicability of Article 6 para. 1 to the Convention.

1.    I agree that Article 6 para. 1 was applicable to the proceedings

before the Administrative Court, for the reasons given in the Report.

2.    I consider also that Article 6 was applicable to the proceedings

before the Constitutional Court.  My understanding is that if the

applicant had been successful in his allegations before that Court that

Article 1 of Protocol No. 1 to the Convention and Article 6 para. 1 of

the Convention had been violated, the Constitutional Court would have

had the power to quash the decision of the administrative authorities.

There was therefore a direct link between the subject-matter of the

proceedings before the Constitutional Court and the subject-matter of

the proceedings before the Administrative Court.

3.    In the case of Ruiz-Mateos v. Spain (judgment of 23 June 1993),

where there was a close link between the subject-matter of proceedings

before the Spanish Constitutional Court and the civil courts, the Court

found that Article 6 para. 1 applied to the constitutional proceedings.

Likewise, here, I consider that Article 6 para. 1 applied to the

proceedings before the Austrian Constitutional Court.

As to whether there has been a violation of the applicant's right to

have his case determined by a tribunal within the meaning of

Article 6 para. 1.

4.    The effect of Section 41 of the Administrative Court Act,

providing that the Administrative Court must examine the contested

decision on the basis of the facts as accepted by the authority against

which the appeal is directed, is ameliorated but not nullified by

Section 42 of the Act, which enables the Administrative Court to quash

the contested decision as being unlawful due to procedural defects.

The Administrative Court does not have the full jurisdiction required

by Article 6 para. 1.  To find otherwise, notwithstanding the

limitation in Section 41, might have the effect in practice of limiting

an individual's right to a judicial assessment of the facts of a case

not only in civil proceedings, but also in the administrative criminal

proceedings known to Austrian law which can carry deprivation of

liberty as a sanction (cf. the Commission's decisions on admissibility

dated 10 May 1993 in Applications Nos. 15523/89, 15527/89, 15963/90,

16713/90, 16718/90 and 16841/90).  I consider that there has been a

violation of the applicant's right to have his case determined by a

tribunal within the meaning of Article 6 para. 1.

As to whether the absence of an oral hearing before the Administrative

Court violated Article 6 para. 1.

5.    The Court has held that the public character of court hearings

constitutes a fundamental principle enshrined in Article 6 para. 1.

A person may waive the entitlement to have his case heard in public.

"However, a waiver must be made in an unequivocal manner and must not

run counter to any important public interest" (HÃ¥kansson and Sturesson

judgment of 21 February 1990, Series A no. 171, para. 66).

6.    In the present case there was no unequivocal waiver.  On the

contrary the applicant's request for a hearing was refused by the

Administrative Court.  Accordingly, unless the Austrian reservation to

Article 6 is valid and applicable, there  has been a violation of

Article 6 para. 1.

7.    The Convention does not permit reservations of a general

character (Article 64 para.1).  The Court has held that by reservation

of a general character is meant in particular "a reservation couched

in terms that are too vague or broad for it to be possible to determine

their exact meaning and scope" (Belilos Case, judgment of

29 April 1988, Series A no. 132, para. 55).

8,    To seek to understand the scope of the Austrian reservation it

is necessary to consult Article 90 of the Federal Constitutional Law,

which is referred to in the reservation.  Article 90 provides that

"Exceptions [to the principle of oral and public hearings] may be

prescribed by law".  To determine the exact scope of the reservation

other Contracting Parties and the organs of the Convention would need

the advice of a person qualified in Austrian law, who could ascertain

and advise as to all the exceptions prescribed by Austrian law at any

given time.  It is at the least highly questionable as to whether a

reservation which can only be understood after obtaining such advice

meets the requirement that it not be of a general character.

9.    What is beyond doubt, however, is that the exceptions prescribed

by Austrian law are not specified in the reservation.

Article 64 para. 2 of the Convention provides that any reservation

shall contain "a brief statement of the law concerned".  The Court has

held in the Belilos Case that this is not a purely formal requirement

but a condition of substance.  The reference to Article 90 of the

Federal Constitutional Law is insufficient because it does not enable

the other Contracting Parties and the Convention institutions to

identify "the law concerned", that is, in the instant case, the laws

which provide that in certain circumstances (at present unspecified),

hearings in civil and criminal proceedings need not be oral and in

public.  This reservation is quite different from the reservation to

Article 5 considered by the Court in the case of Chorherr (judgment of

25 August 1993).  There, the Court pointed out that a reference in that

reservation to the Federal Official Gazette made it possible for

everyone to identify the precise laws concerned and to obtain any

information about them, and provided a safeguard against any

interpretation which would unduly extend the field of application of

the reservation.

10.   I conclude that the reservation does not satisfy the requirements

of Article 64 para. 2 with the result that it is invalid.

11.   It follows that the absence of an oral hearing before the

Administrative Court violated Article 6 para. 1 of the Convention.

As to whether the absence of an oral hearing before the Constitutional

Court violated Article 6 para. 1.

12.   For the reasons given at paras. 2 and 3 I consider that Article

6 para. 1 was applicable to the proceedings before the Constitutional

Court.  Despite the applicant's request for a hearing before that

Court, no hearing was held.  There was no unequivocal waiver of the

right to a hearing.

13.   For the reasons given at paragraphs 7 to 10 above I consider that

the Austrian reservation to Article 6 is invalid and cannot therefore

be invoked in support of the contention that Austria was not bound to

observe the obligation in Article 6 para. 1 to provide a hearing.

14.   It follows that the absence of an oral hearing before the

Constitutional Court violated Article 6 para. 1 of the Convention.

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                        Item

_________________________________________________________________

11 May 1990           Introduction of the application

24 July 1990          Registration of the application

Examination of Admissibility

9 January 1991        Commission's deliberations, decision to invite

                      the Government to submit observations on the

                      admissibility and merits of the application and

                      decision to declare the application partially

                      inadmissible

15 April 1991         Government's observations

13 June 1991,         Applicant's observations in reply

21 August 1991

4 September 1991      Government's further observations

10 October 1991       Applicant's further observations in reply

15 May 1992           Commission's decision to invite the parties to

                      an oral hearing on the admissibility and merits

                      of the application

8 September 1992      Commission's hearing of the parties and decision

                      to declare the application admissible

Examination of the merits

26 October 1992       Decision on admissibility communicated to the

                      parties

9 January 1993        Commission's consideration of the state of

                      proceedings

8 May 1993            Commission's consideration of the state of the

                      proceedings

31 August 1993        Commission's deliberations on the merits and

                      final vote.

9 September 1993      Adoption of the Report