Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16568/90

Elfriede and Sigismund Fuhrmann

against

Austria

REPORT OF THE COMMISSION

(adopted on 31 August 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 14) . . . . . . . . . . . . . . . . . . . . . 1 - 2

A. The application

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

B. The proceedings

(paras. 5 - 9) . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 10 - 14) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 27). . . . . . . . . . . . . . . . . . . . . 3 - 6

A. The particular circumstances of the case

(paras. 15 - 22) . . . . . . . . . . . . . . . . . . 3 - 4

B. Relevant domestic law and practice

(paras. 23 - 27) . . . . . . . . . . . . . . . . . . 5 - 6

III. OPINION OF THE COMMISSION

(paras. 28 - 54). . . . . . . . . . . . . . . . . . . . .7 - 12

A. Complaints declared admissible

(para. 28) . . . . . . . . . . . . . . . . . . . . . . . 7

B. Points at issue

(para. 29) . . . . . . . . . . . . . . . . . . . . . . . 7

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

of the Convention (paras. 30 - 37) . . . . . . . . . 7 - 8

D. As to compliance with Article 6 para. 1

of the Convention (paras. 38 - 52) . . . . . . . . .8 - 11

a. The scope of review by the Administrative Court

(paras. 38 - 46) . . . . . . . . . . . . . . .8 - 11

Conclusion (para. 46). . . . . . . . . . . . . . .11

b. As to the fairness of the proceedings

(paras. 47 - 52) . . . . . . . . . . . . . . . . .11

Conclusion (para. 52). . . . . . . . . . . . . . .11

E. Recapitulation

(paras. 53 - 54) . . . . . . . . . . . . . . . . . 11 - 12

DISSENTING OPINION OF Mrs. LIDDY. . . . . . . . . . . . . . . . . .13

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .14

APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . 15 - 20

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 applicants are Austrian citizens born in 1941 and 1937

respectively. They are represented before the Commission by

Mr. H. Vana, 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 in which the

applicants attempted to challenge the lawfulness of a permit to build

and, provisionally, to operate a power line over land which the

applicants farm. The applicants allege that they had no access to a

court with full jurisdiction on questions of law and fact, and complain

of unfairness of the proceedings. They invoke Article 6 para. 1 of the

Convention.

B. The proceedings

5. The application was introduced on 9 April 1990 and registered on

8 May 1990.

6. On 15 October 1991 the Commission decided to bring the

application to the notice of the respondent Government and to request

the parties' observations on its admissibility and merits.

7. The respondent Government submitted their observations on

7 February 1992 and the applicants submitted observations in reply on

4 June 1992.

8. On 1 December 1992 the Commission declared the application

admissible.

9. 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

10. 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

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

11. The text of this Report was adopted on 31 August 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.

12. 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.

13. 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.

14. 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

15. On 28 April 1988 the Minister for Economic Affairs

(Bundesminister für wirtschaftliche Angelegenheiten) granted permission

to an electricity supply company (Österreichische

Elektrizitätswirtschafts-Aktiengesellschaft) for the construction and

provisional operation of a 380 KV power line between Vienna and the

Austrian-Hungarian border leading through land belonging to the

applicants' son. The applicants farm the land, which they hold in

usufruct. The decision was not served on the applicants or on their

son. When the applicants' lawyer coincidentally came to know of the

decision, the applicants lodged a complaint with the Constitutional

Court (Verfassungsgerichtshof), alleging a violation of Article 6 of

the Convention in that they had not had a fair hearing before an

independent and impartial tribunal.

16. On 26 September 1989 the Constitutional Court, referring to its

established case-law concerning Article 6 of the Convention, refused

to deal with the case finding that it lacked prospects of success

before that Court.

17. On 30 October 1989 the Constitutional Court referred the

complaint to the Administrative Court (Verwaltungsgerichtshof). On

26 June 1990 the Administrative Court quashed the contested decision

to the extent that permission had been granted with respect to land

belonging to the applicants' son. The Administrative Court considered

that the applicants should have been treated as parties in the prior

proceedings.

18. On 4 September 1990 the Ministry for Economic Affairs held an

oral hearing with the applicants. At the hearing various experts were

heard. An agricultural expert, who was not an employee of the Ministry

nor a court accredited expert (gerichtlich beeideter Sachverständiger),

gave evidence, as did an electro-technical expert who was employed by

the Ministry. A medical expert, also not an employee of the Ministry,

gave further evidence at the hearing. On 1 October 1990 the Minister

for a second time granted to the electricity supply company permission

for the construction and provisional operation of the power line over

the land farmed by the applicants.

19. The applicants lodged a complaint with the Administrative Court.

They submitted that the decision was unlawful for breaches of

procedural rules as it conflicted with Sections 6 and 7 of the Power

Lines Act (Starkstromwegegesetz). In particular, the applicants

contended that the authority had refused to hear an expert proposed by

them. They also alleged a violation of Article 6 of the Convention in

that they had not had a fair hearing before a tribunal and claimed that

certain provisions of the Power Lines Act were unconstitutional.

20. On 23 April 1991 the Administrative Court dismissed the

applicants' complaint on the grounds that they did not have a right to

have a particular expert nominated as "official" expert. On the other

hand, they could have submitted an expert opinion from any expert they

had wished in support of their contentions, but had failed to do so.

The Court found that it could not be said that there were errors in the

assessment of the evidence by the challenged authority. With regard

to the allegations concerning Article 6 of the Convention, the

Administrative Court found as follows:

[Translation]

"Finally, the applicants allege that certain provisions of the

Power Lines Act are unconstitutional. Their reasoning is that,

in the light of Article 6 of the Convention, no interference may

take place with their property rights without court proceedings.

The respondent authority rightly points out in its counter-

pleadings that according to the recent case-law of the

Constitutional Court (cf. Constitutional Cases No. 11760), it is

permissible for administrative authorities to expropriate, and

for compensation claims to be determined initially by

administrative authorities, as here, where the administrative

proceedings are followed by proceedings before a court. Indeed,

the Constitutional Court, in its decision of 30 October 1989

(..), which preceded the Administrative Court's decision of

26 June 1990, expressed no disquiet as to this legal position.

The Administrative Court shares the legal opinion of the

Constitutional Court as thus expressed."

[German]

"Abschließend behaupten die Beschwerdeführer eine Verfassungs-

widrigkeit von Bestimmungen des Starkstromwegegesetzes mit der

Begründung, daß im Hinblick auf Art. 6 MRK ohne gerichtliches

Verfahren nicht in ihre dinglichen Rechte eingegriffen werden

dürfte. Diesem Vorbringen hält die belangte Behörde in ihrer

Gegenschrift zutreffend entgegen, daß auch nach der neueren

Rechtsprechung des Verfassungsgerichtshofes (vgl. VfSlg. 11760)

eine Enteignung durch Verwaltungsbehörden zulässig ist und über

Entschädigungsansprüche zunächst Verwaltungsbehörden entscheiden

dürfen, wenn, wie dies auch hier der Fall ist, eine sukzessive

Gerichtszuständigkeit vorgesehen ist. Tatsächlich hat ja auch

der Verfassungsgerichtshof in dem dem Erkenntnis des Verwaltungs-

gerichtshofes vom 26. Juni 1990 vorausgehenden Beschluß vom

30. Oktober 1989 ... keine Bedenken gegen die hier gegebene

Rechtslage geäußert. Der Verwaltungsgerichtshof teilt die damit

zum Ausdruck kommende Rechtsanschauung des

Verfassungsgerichtshofes."

The decision of the Administrative Court was served on the applicants'

representative on 31 May 1991.

21. On 3 March 1990 the Minister for Economic Affairs ruled that the

construction and the operation of the power line in question were in

the public interest and necessary. In expropriation proceedings he

authorised the construction of the power line over the land of the

applicants' son and ordered payment of AS 10,139.64 to the applicants'

son.

22. The applicants applied for a judicial decision to the Neusiedl

District Court (Bezirksgericht). This application had the effect that

the Minister's decision was quashed automatically. Proceedings before

the Neusiedl District Court are still pending.

B. Relevant domestic law and practice

23. Section 6 (1) of the Power Lines Act 1968 (Starkstromwegegesetz

1968) provides that anyone intending to build and run an electric power

line must apply for permission.

24. Section 7 of the Power Lines Act provides for the conditions for

the grant of such permission. Section 7 (1), so far as relevant, reads

as follows:

[Translation]

"The authority is required to grant permission for the

construction and operation if the electric power line does not

contravene the public interest in supplying the population or

sections of it with electric energy. In granting permission the

authority shall ensure, by imposition of conditions, that the

electric power lines are in accordance with these requirements

..."

[German]

"Die Behörde hat die Bau- und Betriebsbewilligung zu erteilen,

wenn die elektrische Leitungsanlage dem öffentlichen Interesse

an der Versorgung der Bevölkerung oder eines Teiles derselben mit

elektrischer Energie nicht widerspricht. In dieser Bewilligung

hat die Behörde durch Auflagen zu bewirken, daß die elektrischen

Leitungsanlagen diesen Voraussetzungen entsprechen..."

25. Section 41 of the Administrative Court Act 1985

(Verwaltungsgerichtshofgesetz) provides, so far as relevant, as

follows:

[Translation]

"(1) In so far as the Administrative Court does not find

unlawfulness on account of a lack of jurisdiction of the

authority against which the appeal is directed or on account of

a violation of procedural provisions (Section 42 (2) 2 and

(2) 3), the Court must examine the contested decision on the

basis of the facts as accepted by the authority against which the

appeal is directed within the framework of the alleged complaint

... If it is of the opinion that reasons would be relevant for

the decision on the unlawfulness of the contested decision ...

which were so far not known to a party, it must hear the parties

thereupon and, if necessary, adjourn the proceedings."

[German]

"(1) Der Verwaltungsgerichtshof hat, soweit er nicht

Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder

wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42

Abs. 2 Z. 2 und 3) ..., den angefochtenen Bescheid auf Grund des

von der belangten Behörde angenommenen Sachverhaltes im Rahmen

der geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist

er der Ansicht, dass für die Entscheidung über die

Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte

... Gründe massgebend sein könnten, die einer Partei bisher nicht

bekanntgegeben wurden, so hat er die Parteien darüber zu hören

und wenn nötig, eine Vertagung zu verfügen."

26. As regards the decisions of the Administrative Court,

Section 42 (2) of the Administrative Court Act provides, in so far as

relevant:

[Translation]

"(2) The contested decision must be quashed

1. on account of the unlawfulness of its content,

2. on account of unlawfulness due to the lack of

jurisdiction of the authority against which the

appeal is directed,

3. on account of unlawfulness due to a violation of

procedural provisions in particular because

a) the authority against which the appeal is

directed has determined the facts on an

important point contrary to the case-file, or

b) the facts require to be supplemented on an important

point, or

c) procedural provisions have been disregarded

which, if taken into consideration by the authority

against which the appeal is directed, could have led

to a different decision of the authority."

[German]

"(2) Der angefochtene Bescheid ist aufzuheben

1. wegen Rechtswidrigkeit seines Inhaltes,

2. wegen Rechtswidrigkeit infolge Unzuständigkeit

der belangten Behörde,

3. wegen Rechtswidrigkeit infolge Verletzung von

Verfahrensvorschriften, und zwar weil

a) der Sachverhalt von der belangten Behörde

in einem wesentlichen Punkt aktenwidrig

angenommen wurde oder

b) der Sachverhalt in einem wesentlichen

Punkt einer Ergänzung bedarf oder

c) Verfahrensvorschriften ausser acht gelassen

wurden, bei deren Einhaltung die belangte

Behörde zu einem anderen Bescheid hätte

kommen können."

27. With regard to the position of experts in expropriation

proceedings, Section 52 (1) of the Code of General Administrative

Procedure (Allgemeines Verwaltungsverfahrensgesetz) provides that if

in such cases evidence by experts is necessary, "official experts must

be employed who are attributed to the authority or are at their

disposal" ("so sind die der Behörde beigegebenen oder zur Verfügung

stehenden amtlichen Sachverständigen [Amtssachverständige]

beizuziehen"). Section 53 refers to Section 7 according to which

administrative organs must renounce office in matters concerning inter

alia their family members or "if there are other important reasons

which may raise doubts as to their full impartiality" ("wenn sonstige

wichtige Gründe vorliegen, die geeignet sind, ihre volle Unbefangenheit

in Zweifel zu ziehen").

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

28. The Commission has declared admissible the applicants' complaints

that they did not have a fair hearing before a tribunal in the

proceedings under the Power Lines Act.

B. Points at issue

29. The issues to be determined are

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

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

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

- whether there has been a violation of the applicants' right to a

fair trial within the meaning of 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

30. 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."

31. In the above court proceedings the applicants attempted to

prevent the grant of permission for the construction and operation of

a power line over land which they hold in usufruct.

32. The applicants submit that Article 6 para. 1 (Art. 6-1) of the

Convention applies.

33. The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable to these proceedings. They consider that

decisions permitting construction and operation of power lines under

Section 7 of the Power Lines Act do not directly affect the private

rights of landowners or usufructuaries within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. They contend that separate

proceedings existed which required the grant of servitudes to the

electricity supply company, and that these were proceedings to which

Article 6 (Art. 6) applied. The present proceedings, however, related

to separate issues and fall outside the scope of Article 6 para. 1

(Art. 6-1). The Government also submit that the applicants, as

usufructuaries of the land for agricultural purposes are in any event

not affected by the fixing of overhead wires at 12.5 and 20 metres

above the land.

34. The Commission considers that the proceedings before the

Administrative Court in which the applicants were involved concerned

a genuine and serious dispute (contestation) over a decision to grant

permission to construct and operate a power line over land in which the

applicants have a usufruct right. The mere fact that other proceedings

were necessary before the power line could actually be constructed and

used does not affect this position (c.f. X. v. France, judgment of

31 March 1992, Eur. Court H.R., Series A no. 234, p. 90, paras. 29-30).

35. The "civil" character of the rights at issue is not to be

interpreted solely by reference to the respondent state's domestic law.

It is enough that the outcome of the proceedings should be decisive for

private rights and obligations (see Eur. Court H.R., Allan Jacobsson

judgment of 25 October 1989, Series A no. 163, p. 20, para. 72).

36. The Commission notes that the proceedings at issue related to the

lawfulness of the permission granted to the extent that it concerned

the land in which the applicant have rights. Had the proceedings been

successful, the construction and operation of the power line would have

been prevented. Accordingly, the outcome of the proceedings actually

chosen by the applicants had, or could have had, a bearing on the civil

right which formed the subject matter of the dispute.

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

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

the Administrative Court.

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

of the Convention

a. The scope of review by the Administrative Court

38. 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.

39. The applicants, by reference to the Zumtobel case (No. 12235/86,

Dec. 15.10.91, Comm. Rep. 30.6.92) refer to the limited scope of review

by judges in cases granting permission. They also point out that the

Austrian public law courts cannot take decisions on the merits, and

consider that this leads to a distortion of the principle of equality

in court proceedings.

40. The Government refer to the case-law of the Constitutional Court

to indicate that cases relating to the "core area" of civil law require

a different interpretation of Article 6 (Art. 6) from decisions on

disputes that only relate to the effect of civil rights (i.e. that

relate to the relationship between citizens and the general public).

They point to Section 42 (2) 3 (a) - (c) of the Administrative Court

Act, according to which the Court can undertake a far-reaching review

of the facts in a concrete case. Finally, if the Court quashes a

decision, the administrative authority is bound by the Court's legal

views.

41. 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 (referred to above and now 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 ...

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 para. (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 of 10 February 1983, Series A

no. 58, p. 16 para. 29). 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."

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

Commission notes that the Administrative Court dealt in its decision

with the points raised by the applicants in their complaint. It

expressly found no error in the assessment of the evidence by the

authority below. There is no indication in the decision that the

Administrative Court regarded itself as being restricted in its review

of the facts.

43. The Commission furthermore observes that the Administrative Court

could have quashed the decision of the Minister as being unlawful as,

indeed, it had already done on a previous occasion in this case. The

Minister 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.

44. 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.). In the present case, the decision of the Minister for

Economic Affairs 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.

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

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

Conclusion

46. The Commission concludes, by 19 votes to 1, that there has been

no violation of the applicants' right to have their case determined by

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

Convention.

b. As to the fairness of the proceedings

47. The applicants complain that no persons other than civil servants

were called to give expert evidence before the administrative

authorities. They state that their requests for independent experts

to be called to assess any possible dangers to health were not granted.

48. The Government point out that at the hearing before the Ministry

of Economic Affairs, although the electro-technical expert was indeed

an official expert, both the agricultural and the medical experts were

not.

49. In the Commission's opinion, the mere fact that experts may have

been employed by the administrative authority which also decided on the

grant of permission to the electricity supply company does not in

itself justify fears that experts were unable to act with proper

neutrality in a way which could have an effect on the fairness of the

proceedings before the Administrative Court. To hold otherwise would

often place unacceptable limits on the possibility to obtain expert

advice (cf. Eur. Court H.R., Brandstetter judgment of 28 August 1991,

Series A no. 211, p. 21 para. 44).

50. Moreover, as the Administrative Court found, the applicants in

the present case were free to submit their own private expert opinions

in the proceedings before the Minister. If the private expert opinions

had been disregarded, the applicants could have complained thereof in

the proceedings before the Administrative Court which would then have

been free to review the conflicting views expressed in the various

experts' opinions.

51. Accordingly, the position of the experts did not affect the

applicants' right to a fair trial within the meaning of Article 6

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

Conclusion

52. The Commission concludes unanimously that there has been no

violation of the applicants' right to a fair trial within the meaning

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

E. Recapitulation

53. The Commission concludes by 19 votes to 1, that there has been

no violation of the applicants' right to have their case determined by

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

Convention (para. 46).

54. The Commission concludes unanimously that there has been no

violation of the applicants' right to a fair trial within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention (para. 52).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

DISSENTING OPINION of Mrs. J. Liddy

The majority opinion in this case is based upon the case of

Zumtobel v. Austria (Comm. Report 30.6.90) in which the Commission came

to the conclusion that the Administrative Court had full jurisdiction,

as required by Article 6 para. 1 of the Convention.

I did not participate in that case myself, but have had the

benefit of reading the dissenting opinion annexed to the Report of

30 June 1992. I agree with it and consider that 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 that 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). This in turn would serve as an illustration of Judge

Matscher's concern, expressed in his separate opinion in the case of

Ruiz Mateos v. Spain (Judgment of 23 June 1993), that the extension of

the applicability of Article 6 results in the limitation of the

substance of the procedural guarantees contained therein in a way which

is scarcely compatible with the aim of the provision.

Having accepted, as I do the applicability of Article 6 in this

case, I am compelled to the conclusion that Section 41 deprives the

Administrative Court of full jurisdiction to establish the relevant

facts and that there has, accordingly, been a violation of the

applicants' right to have their case determined by a tribunal within

the meaning of Article 6 para. 1.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

8 April 1990 Introduction of the application

8 May 1990 Registration of the application

Examination of Admissibility

15 October 1991 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

7 February 1992 Government's observations

4 June 1992 Applicant's observations in reply

1 December 1992 Decision to declare the application

admissible

Examination of the merits

18 December 1992 Decision on admissibility

communicated to the parties

3 April 1993 Commission's consideration of the

state of proceedings

31 August 1993 Commission's deliberations on the

merits, final vote and adoption of

the Report

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FUHRMANN v. AUSTRIA

FUHRMANN v. AUSTRIA

LEXI