Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 12235/86

Firma F.M. ZUMTOBEL and Martin ZUMTOBEL

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 30 June 1992)

TABLE OF CONTENTS

PAGE

I. INTRODUCTION

(paras. 1 - 18) ........................................ 1

A. The application

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

B. The proceedings.

(paras. 5 - 13) ................................. 1

C. The present Report

(paras. 14 - 18) ................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19 - 50) ..................................... 3

A. The particular circumstances of the case

(paras. 19 - 38) ................................ 3

a. Proceedings before the Provincial Government

(paras. 19 - 24) .......................... 3

b. Proceedings before the Constitutional Court

(paras. 25 - 28) .......................... 4

c. Proceedings before the Administrative Court

(paras. 29 - 36) .......................... 4

d. Compensation proceedings

(paras. 37 - 38) .......................... 6

B. Relevant domestic law and practice

(paras. 39 - 50) ................................ 7

a. As to the expropriation

(paras. 39 - 41) .......................... 7

b. Interpretation by the Austrian Constitutional

Court of the scope of Article 6 para. 1 of the

Convention

(paras. 42 - 43) .......................... 7

c. Jurisdiction of the Austrian Constitutional

and Administrative Courts

(paras. 44 - 49) .......................... 8

d. Position of experts

(para. 50) ................................ 10

III. OPINION OF THE COMMISSION

(paras. 51 - 98) .................................... 11

A. Complaints declared admissible

(para. 51) ..................................... 11

B. Points at issue

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

C. Applicability of Article 6 para. 1 of the

Convention

(paras. 53 - 59) ................................ 11

D. Compliance with Article 6 para. 1 of the

Convention

(paras. 60 - 94) ................................ 12

a. Access to court

(paras. 61 - 77) .......................... 12

Conclusion

(para. 77) ...................................... 14

b. Lack of an oral hearing

(paras. 78 - 83) .......................... 14

Conclusion

(para. 83) ...................................... 15

c. Position of experts

(paras. 84 - 89) .......................... 15

Conclusion

(para. 89) ................................ 16

d. Consultation of documents

(paras. 90 - 94) .......................... 16

Conclusion

(para. 94) ................................ 16

E. Recapitulation

(paras. 95 - 98)................................. 16

DISSENTING OPINION OF MM. S. TRECHSEL, J.-C. SOYER,

C.L. ROZAKIS and L. LOUCAIDES .............................. 17

CONCURRING OPINION OF Sir Basil HALL ....................... 18

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

APPENDIX II: DECISION ON THE ADMISSIBILITY ............. 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 first applicant was, when filing the application, a

commercial firm at Dornbirn in Austria, established as a limited

partnership (Kommanditgesellschaft) under Austrian law. The second

applicant, an Austrian citizen, resides at Dornbirn. When filing the

application, he was the general partner (Mehrheitsgesellschaft) of the

first applicant and its manager (Geschäftsführer). Meanwhile, the

first applicant is completely owned by the second applicant. Before

the Commission the applicants are represented by Mr. W.L. Weh, a lawyer

practising in Bregenz.

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

Government are represented by their Agent, Ambassador Helmut Türk, Head

of the International Law Department at the Federal Ministry of Foreign

Affairs.

4. The applicants complain under Article 6 para. 1 of the Convention

that in the expropriation proceedings in which they were involved they

had no access to a court with full jurisdiction on questions of law and

fact. The applicants also complain under this provision of unfairness

of the proceedings.

B. The proceedings

5. The application was introduced on 10 June 1986 and registered on

13 June 1986.

6. At that time proceedings before the Austrian Administrative Court

were pending. On 6 March 1989 the Commission decided to adjourn

further examination of the admissibility of the application until the

Administrative Court had given its decision.

7. The Administrative Court gave its decision on 22 September 1989.

The applicants filed comments thereupon on 4 December 1989.

8. On 2 April 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

limited to the issues under Article 6 para. 1 of the Convention and

Article 1 of Protocol No. 1.

9. The Government's observations were received by letter dated

23 July 1990 and the applicants' observations by letter dated

11 October 1990.

10. On 29 May 1991 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the applicants' complaints

under Article 6 para. 1 of the Convention.

11. The hearing took place on 15 October 1991. The Government were

represented by Mr. W. Okresek, Head of Department at the Federal

Chancellery in Vienna, and by Mr. F. Haug of the International Law

Department in the Federal Ministry for Foreign Affairs in Vienna. The

applicants were represented by their lawyer, Mr. W.L. Weh. The second

applicant and Mr. E. Girardi, signing clerk (Prokurist) for the first

applicant, were also present.

12. On 15 October 1991 the Commission declared the application

admissible in so far as it related to the complaint mentioned in

para. 4 above and inadmissible as to the remaining complaints.

13. 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 of the case. 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

14. 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, Acting President

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

15. The text of this Report was adopted on 30 June 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

16. 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.

17. 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.

18. 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

a. Proceedings before the Provincial Government

19. The facts of the case concern the construction in Vorarlberg of

the L 52, a new Provincial Road (Landesstrasse) as a bypass (Umfahrung)

in the area of the Rankweil municipality.

20. In the course of the planning procedure the construction was

discussed inter alia in separate landscape proceedings concerning the

compatibility of the proposed stretch of road with environmental

requirements. The project was open for consultation, and possible

objection, by the public in the Rankweil municipal office from

1 October to 1 November 1984. The project also concerned the

applicants' property though they filed no objection thereto.

21. On 28 February 1985 the Provincial Road Administration

(Landesstrassenverwaltung) of the Vorarlberg Provincial Government

(Landesregierung) instituted expropriation proceedings in relation to

2,140 m² real property of the first applicant. The expropriation was

based on the Vorarlberg Provincial Road Act (Landesstrassengesetz) and

was to enable construction of the L 52. As a result, the first

applicant's property, formerly a continuous area of some 55,000 m², was

to be divided into two smaller areas of approximately 20,000 m² and

30,000 m² respectively. The property of other owners was only to be

marginally affected.

22. Expropriation proceedings were then conducted before the

administrative authorities of the Provincial Government. The

authorities consulted several experts. During these proceedings the

first applicant filed several requests for the taking of evidence,

concerning inter alia a report of the Court of Audit (Rechnungshofsbe-

richt); the views of an expert opinion on the protection of the

environment; the decision of the Feldkirch, Meiningen and Rankweil

municipalities on the stretch of road to be built; and an opinion by

the environmental department of the Provincial Government.

23. On 25 June 1985 a hearing was held at which the first applicant's

representative was present as well as the chairman and three experts,

i.e. for road construction, landscape protection and road traffic "of

the Office of the Provincial Government" ("vom Amt der Landesregie-

rung"). At the hearing, the experts submitted their opinions and made

further submissions thereupon. The experts for road construction and

for road traffic submitted in particular that the proposed stretch of

road was important for the traffic between Rankweil and Feldkirch, as

the existing connection between the two communities led through densely

built areas.

24. On 13 February 1986 the Office (Amt) of the Vorarlberg Provincial

Government ordered the expropriation. The first applicant was granted

compensation amounting to 620 AS per m². In its decision the Office

rejected a request of the first applicant to be fully informed of the

planning procedure as being irrelevant. The request to consult a

neutral road traffic expert on the necessity of the road was dismissed

on the ground that the particular official expert was not biased in

favour of the Provincial Road Administration and had delivered a

convincing report.

b. Proceedings before the Constitutional Court

25. Against this decision the first applicant lodged a complaint

(Beschwerde) with the Constitutional Court (Verfassungsgerichtshof).

26. With reference inter alia to Article 6 para. 1 of the Convention,

the first applicant submitted inter alia that an administrative

expropriation procedure subject to the ultimate control of the

Administrative and the Constitutional Courts was not in conformity with

this provision and violated its right of access to a court with full

jurisdiction on both questions of fact and law. The first applicant

further alleged a violation of the principle of equality of arms due

to the fact that the authority only heard the official experts attached

to it and refused to hear any independent experts.

27. On 27 November 1987 the Constitutional Court, in non-public

proceedings under Article 144 para. 2 of the Federal Constitution

(Bundes-Verfassungsgesetz), decided not to deal with the complaint as

it lacked prospects of success.

28. In its decision the Constitutional Court referred to its previous

case-law concerning the authorities' discretion when fixing the outline

of a road and concerning Article 6 of the Convention. The Court found

no indication of unconstitutionality of applicable legal rules. The

case did not appear to raise specific constitutional issues, but only

questions of lawfulness to be decided by the Administrative Court.

c. Proceedings before the Administrative Court

29. Against the decision of the Provincial Government of

13 February 1986 the first applicant also filed a complaint with the

Administrative Court (Verwaltungsgerichtshof). Therein it invoked in

essence the same arguments as before the Constitutional Court, this

time alleging violations of procedural and substantive law. The first

applicant maintained that its private interest in using the property

outweighed the public interest inasmuch as only little traffic was to

be expected on the new road. The first applicant also requested the

appointment of an expert.

30. By decision of 22 September 1989 the Administrative Court

dismissed the first applicant's complaint.

31. In its decision the Administrative Court stated that it had no

doubts concerning the organisation of the authorities competent to

decide on expropriations for road construction purposes. It refused

to refer this matter to the Constitutional Court, as raising an issue

under Article 6 of the Convention. The Administrative Court accepted

that a party to expropriation proceedings for road construction

purposes could contest the appropriateness of the project. It

considered that Section 44 para. 1 of the Vorarlberg Provincial Road

Act required the balancing of contradicting interests, namely traffic,

and landscape protection, while also taking into account the economic

suitability of the planned road.

32. The Court found that the first applicant had failed to

demonstrate that the contested decision was unlawful. The decision

states:

[Translation]

"Against the background of the object of examination falling to

the Administrative Court according to Section 41 of the

Administrative Court Act it cannot be regarded as unlawful that

the respondent authority - having regard to the interests of

traffic - based its decision on the relevant facts in particular

that no other, more expedient solution - than the one proposed

for the new construction of the L 52 in the proposed road

construction project - was possible. As can be seen from the

facts established in the contested decision, the respondent

authority took the view that it was in the interests of traffic

to remove through-traffic from the Rankweil-Brederis built-up

area, while at the same time this would create a useful

contribution to the existing road network in the Feldkirch-

Rankweil area."

[German]

"Vor dem Hintergrund der dem Verwaltungsgerichtshof nach Abs. 41

VwGG gestellten Prüfungsaufgabe kann es nicht als rechtswidrig

erkannt werden, wenn die belangte Behörde - unter dem

Gesichtspunkt der Interessen des Verkehrs - ihrem Abspruch als

maßgebenden Sachverhalt zugrunde legte, daß eine andere,

zweckmäßigere Lösung - als der vorgesehene Neubau der L 52 im

gegenständlichen Baulos - nicht möglich sei. Wie sich aus den

Feststellungen im angefochtenen Bescheid ergibt, ist die belangte

Behörde bei ihrem Abspruch davon ausgegangen, daß es im Interesse

des Verkehrs gelegen sei, den Durchzugsverkehr aus dem

besiedelten Gebiet von Rankweil - Brederis herauszuführen, wobei

auch eine sinnvolle Ergänzung des bestehenden Straßennetzes im

Raum Feldkirch - Rankweil geschaffen werde."

33. The Administrative Court further explained why, in its view, no

doubts arose in respect of the evidence provided by the official

experts. The Court also noted that the contested decision took account

of environmental protection when assessing the interests at stake. It

had been lawful to limit the proceedings to the part of the road which

affected the first applicant's property and to conduct the

expropriation proceedings before the adoption of the ordinance about

the provincial road.

34. With regard to the first applicant's complaint about the lack of

independence of the experts in the expropriation proceedings the Court

noted that the expropriating authority was in principle required to

consult its own official experts. The merely general reference to the

problem of dependency did not suffice to prove partiality, which had

to be examined in each individual case.

35. In respect of the first applicant's complaint that it could not

consult all the documents the Court noted that the first applicant had

not been a party to the landscape proceedings for which reason it was

not permitted to consult the respective case-file. With regard to a

report of the Court of Audit and other documents the Court found

nothing therein which was relevant to the first applicant's case. The

Court also noted that the expert opinion of the independent traffic

expert Be. had actually been included in the expropriation file, though

the first applicant could not claim a right to receive photocopies

therefrom.

36. The Court then addressed the first applicant's request for the

preparation of a new expert opinion by a neutral traffic expert by

referring to a ruling of the enlarged Panel of the Administrative Court

as follows:

[Translation]

"Accordingly, the Administrative Court is barred from taking

evidence which the administrative authority may have failed to

take, and from taking evidence itself in order to supplement the

facts that have been ascertained during investigations. However,

the Administrative Court may take evidence to determine whether

there has been an essential procedural defect and is therefore

authorised to 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. With regard to the above explanations concerning

the weighing up of interests by the respondent authority and the

factual basis by which they are carried, the Administrative Court

sees no reason to accede to the request to take evidence."

[German]

"Danach ist es dem Verwaltungsgerichtshof verwehrt, in der von

der Verwaltungsbehörde behandelten Sache anstelle der belangten

Behörde eine von dieser allenfalls versäumten Beweisaufnahme

nachzuholen und in Ergänzung des Ermittlungsverfahrens zur

Feststellung des Sachverhaltes selbst Beweise aufzunehmen. Der

Verwaltungsgerichtshof kann aber Beweise aufnehmen, um zu prüfen,

ob ein wesentlicher Verfahrensmangel vorliegt, und er ist demnach

berechtigt, zur Prüfung der Frage, ob ein Verfahrensmangel

wesentlich ist oder ob die belangte Behörde unter Vermeidung des

gegebenen Verfahrensmangels zu einem anderen Bescheid hätte

kommen können, eine Beweisaufnahme durchzuführen; dies auch zum

Zwecke der Kontrolle der Beweiswürdigung. Im Hinblick auf die

obigen Darlegungen zur Interessensabwägung der belangten Behörde

und der diese tragenden Sachverhaltsgrundlagen sieht sich der

Verwaltungsgerichtshof jedoch nicht zur beantragten

Beweisaufnahme veranlaßt."

d. Compensation proceedings

37. Meanwhile, the first applicant requested the Feldkirch District

Court (Bezirksgericht) to determine the compensation for the

expropriated land. On 17 December 1987 the latter ordered the

Provincial Government to pay to the first applicant the total sum of

9,963,032.50 AS within 14 days.

38. Upon appeal (Rekurs), the Feldkirch Regional Court

(Landesgericht) reduced in its decision of 24 March 1988 the total sum

to 4,560,000 AS. The first applicant's further appeal (Revisionrekurs)

was dismissed by the Supreme Court (Oberster Gerichtshof) on

6 October 1988.

B. Relevant domestic law and practice

a. As to the expropriation

39. According to Section 5 of the Vorarlberg Provincial Road Act the

Provincial Government may declare by Ordinance (Verordnung) that roads

or parts thereof become Provincial Roads (Landesstrassen), even if they

have not yet been built. According to para. 2 of Section 5, the

Provincial Government must classify all roads as Provincial Roads which

are necessary for the traffic between communities; those roads shall

be considered necessary which are the only immediate road connection

from one community to the next and which can also be used by lorries.

40. In practice, Section 5 implies that if real property is

expropriated for the construction of a Provincial Road, the Provincial

Government must enact an Ordinance containing a short description of

the road and its approximate length. Thus, the Provincial Government

express their intention to construct the road. The Ordinance does not

describe in detail the stretch to be constructed, and the persons whose

property shall be expropriated have the right in the expropriation

proceedings to call in question the adequateness of the proposed

stretch.

41. According to Section 44 para. 1 of the Provincial Road Act an

expropriation in order to construct a Provincial Road is only

admissible if another stretch of road, or its maintenance, is not

possible which is more adequate from the point of view of traffic,

economy and protection of the environment.

b. Interpretation by the Austrian Constitutional Court of the scope

of Article 6 para. 1 of the Convention

42. The Austrian Constitutional Court pronounced itself on the

applicability and scope of Article 6 para. 1 of the Convention to

proceedings originating before Austrian administrative authorities in

its decision of 14 October 1987 (B 267/86, VfSLG 11500/1987). The

Court distinguished between decisions concerning the core of civil law

(i.e. disputes among private persons) and decisions on disputes which

only concern civil rights in their effects (namely the relationship

between the private person and the public). In order to avoid a

complete change of the Austrian state structure, the Court considered

that the requirements of a tribunal within the meaning of

Article 6 para. 1 of the Convention should depend on whether the

dispute concerned the one or the other category. With regard to

decisions concerning civil rights only in their effects the Court found

that it sufficed under Article 6 para. 1 if a tribunal undertook a mere

subsequent control of the decision.

43. The decision of the Constitutional Court continues:

[Translation]

"Such a subsequent control would in any event have to suffice if,

regardless of its nature as a merely subsequent control which did

not provide for renewed proceedings, the court effectively (and

not merely theoretically and in the abstract) has the possibility

to convince itself of the correctness of the solution as well as

of the facts and the law applied and can also execute its

judgment on the matter. Such a control falls to the Austrian

Administrative Court in the light of an understanding of the

Administrative Court Act which is oriented towards the

Constitution."

[German]

"Eine solche nachprüfende Kontrolle müsste jedenfalls dann

genügen, wenn sie ungeachtet ihres bloss nachprüfenden, nicht auf

einer Neudurchführung des Verfahrens beruhenden Charakters dem

Gericht - nicht bloss theoretisch und abstrakt, sondern im

Ergebnis auch wirksam - Gelegenheit gibt, sich von der

Richtigkeit der Lösung sowohl der Tat- wie der Rechtsfrage zu

überzeugen und sein Urteil über die Sache auch durchzusetzen, wie

dies bei einem an der Verfassung orientierten Verständnis des

Verwaltungsgerichtshofgesetzes dem österreichischen VwGH

aufgetragen ist."

c. Jurisdiction of the Austrian Constitutional and Administrative

Courts

44. According to Article 144 of the Austrian Federal Constitution

(Bundes-Verfassungsgesetz) an appeal can be filed with the

Constitutional Court in which the applicant can allege a violation of

his constitutional rights. He can also complain that his rights have

been violated on account of an unlawful ordinance, an unconstitutional

Act, or an unlawful international treaty.

45. According to Article 130 para. 1 of the Federal Constitution the

Administrative Court will review allegations of unlawfulness of an

administrative decision. According to Section 130 para. 2, "no

unlawfulness exists where legislation refrains from the establishment

of a binding rule on an administrative authority's conduct, leaving the

determination of such conduct to the authority itself, and the

authority has made use of this discretion in the spirit of the law"

("Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von einer

bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und

die Bestimmung dieses Verhaltens der Behörde selbst überläßt, die

Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch

gemacht hat"). The Administrative Court is also competent to deal with

complaints that the administrative authority has violated its duty to

take a decision (Article 132).

46. Section 41 of the Administrative Court Act provides, in so far

as relevant:

[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 para. 2 [2] and

[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."

47. As regards the decisions of the Administrative Court,

Section 42 para. 2 of the Administrative Court 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."

48. The proceedings before the Administrative Court consist of an

exchange of written observations between the parties (Section 36) and

an oral hearing of their legal arguments (Sections 39 and 40). The

parties have a right to request a hearing (Section 39, para. 1 [1]).

49. Where the Administrative Court has granted an appeal and has

quashed the decision of the administrative authority,

Section 63 para. 1 of the Administrative Court Act provides that the

"administrative authorities are obliged in the case concerned with the

legal means at their disposal promptly to restore the legal situation

corresponding to the legal opinion expressed by the Administrative

Court" ("sind die Verwaltungsbehörden verpflichtet, in dem betreffenden

Fall mit den ihnen zu Gebote stehenden rechtlichen Mitteln unverzüglich

den der Rechtsanschauung des Verwaltungsgerichtshofes entsprechenden

Rechtszustand herzustellen").

d. Position of experts

50. With regard to the position of experts in expropriation

proceedings, Section 52 para. 1 of the Act on 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

51. The Commission has declared admissible the applicants' complaints

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

access to, and the fairness of the proceedings before, the

Administrative Court.

B. Points at issue

52. Accordingly, the issues to be decided are:

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

to the proceedings at issue; and if so,

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

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

53. The Commission must first examine whether Article 6 para. 1

(Art. 6-1) of the Convention applied to the proceedings at issue.

54. Article 6 para. 1 (Art. 6-1) of the Convention provides, in so

far as relevant:

"In the determination of his civil rights and obligations

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

reasonable time by an independent and impartial tribunal

established by law ..."

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

Convention is not applicable to expropriation proceedings which do not

relate to civil rights. Article 6 para. 1 (Art. 6-1) is directed at

the traditional core areas of private law, and it cannot be said that

the practice of the Convention States has changed this scope.

Article 6 para. 1 (Art. 6-1) does not include relations between the

individual and the general public as only the effects of these

relations concern civil rights.

56. The Commission considers that the proceedings before the

Administrative Court in which the applicants were involved concerned

a genuine and serious dispute ("contestation") over the expropriation

of real property. Moreover, the applicants were the owners of the real

property; hence, the dispute related to the actual existence of a

"right" (see Eur. Court H.R., Bodén judgment of 27 October 1987,

Series A no. 125-B, p. 39 et seq., paras. 28 et seq.)

57. The "civil" character of the right 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).

58. In the present case, the outcome of the Administrative Court

proceedings in which the applicants were involved was decisive for the

very substance of the applicants' private rights and obligations in

that these proceedings determined whether or not they remained owners

of the real property concerned. The applicants' right was therefore

of a "civil nature" for the purposes of Article 6 para. 1 (Art. 6-1)

of the Convention.

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

applicable to the proceedings at issue.

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

60. The Commission must consequently examine the applicants'

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

concerning the access to, and the proceedings before, the

Administrative Court.

a. Access to court

61. The Commission has first addressed the question whether the

applicants had access to a tribunal within the meaning of Article 6

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

62. The applicants submit that they had no access to a court with

full jurisdiction on questions of law and fact, as required by

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

particular that the Administrative Court cannot independently assess

the facts or the merits of a case; that there is no oral hearing in

these proceedings; and that this court can only quash the contested

decision. The applicants recall the indeterminate concepts stated in

Section 44 of the Provincial Road Act with which the Administrative

Court was confronted and which, in fact, were determined by official

experts.

63. The Government contend that the applicants had access to two

courts, namely the Constitutional Court and the Administrative Court.

With regard to the scope of the Administrative Court's review reference

is made to Section 42 para. 2 subpara. 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. In the present case the Court

did so within the criteria established by Section 44 of the Provincial

Road Act. Finally, if the Court quashes a decision the respondent

authority is bound by its legal views.

64. The Commission recalls the Convention organs' case-law according

to which Article 6 para. 1 (Art. 6-1) of the Convention does not

require that the procedure which determines civil rights and

obligations is conducted at each of its stages before tribunals meeting

the requirements of this provision. An administrative procedure may

thus precede the determination of civil rights by the tribunal

envisaged in Article 6 para. 1 (Art. 6-1) of the Convention (see Ettl

and Others v. Austria, Comm. Report, 3.7.85, Eur. Court H.R., Series A

no. 117, p. 23, paras. 77 et seq.). As regards the determination by

this tribunal the Court has found:

"Article 6 para. 1 (Art. 6-1) draws no distinction between

questions of fact and questions of law. Both categories of

question are equally crucial for the outcome of proceedings

relating to 'civil rights and obligations'. Hence, the 'right

to a court' ... and the right to a judicial determination of the

dispute ... cover questions of fact just as much as questions of

law" (Eur. Court H.R. Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, p. 23, para. 51,

sub-paragraph ).

65. The requirement of full jurisdiction was also underlined in the

Albert and Le Compte judgment where the Court stated:

"the Convention calls at least for one of the following systems:

either the jurisdictional organs themselves comply with the

requirements of Article 6 para. 1 (Art. 6-1), or they do not so

comply, but are subject to subsequent control by a judicial body

that has full jurisdiction and does provide the guarantees of

Article 6 para. 1 (Art. 6-1)" (see Eur. Court H.R., judgment of

10 February 1983, Series A no. 58, p.16, para. 29).

66. In the present case, the Provincial Government first conducting

the expropriation proceedings did not constitute a tribunal within the

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

67. The Constitutional Court next dealing with the applicants'

complaints was exclusively called upon to review the constitutionality

of the contested expropriation and could not therefore fully review the

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

(see also Ettl and Others v. Austria, Comm. Report, loc. cit., p. 24,

para. 80).

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, loc. cit., 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 para. 2 subpara. 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 (cf. para. 47

above).

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

subpara. 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 (see above, para. 32). Section 41 provides that the Court is bound

by the facts as accepted by the authority; however, this provision

expressly reserves Section 42 para. 2 subpara. 3 of the Administrative

Court Act (see above, para. 46). 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" (see above, para. 36). 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 (see

above, para. 49). 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,

loc. cit.). 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.

Conclusion

77. The Commission concludes, by 11 votes to 4, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention on

account of the alleged lack of access to a tribunal within the meaning

of this provision.

b. Lack of an oral hearing

78. The Commission must consequently examine the applicants' further

complaints about the proceedings before the Administrative Court.

79. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that no oral hearing was held before the Administrative

Court. The Commission notes that this was the only tribunal to deal

with all aspects of the applicants' complaints about the expropriation

at issue.

80. According to the Convention organs' case-law, in such a situation

the applicants could have been expected to ask for a hearing if they

had found it important that one be held (see Eur. Court H.R., HÃ¥kansson

and Sturesson judgment of 21 February 1990, Series A Nr. 171-A, p. 20

et seq., para. 67). However, they did not do so.

81. The applicants must therefore be considered as having waived

their right to a public hearing before the Administrative Court.

Furthermore, it does not appear that the litigation involved any

questions of public interest warranting a public hearing.

82. In view of this conclusion the Commission finds it unnecessary

further to consider the reservation of Austria according to which "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" (see also Eur. Court H.R., Ettl and others

judgment of 23 April 1987, Series A no. 117, p. 19, paras. 42 et seq.).

Conclusion

83. The Commission concludes, by 11 votes to 4, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that

no oral hearing was held before the Administrative Court.

c. Position of experts

84. The applicants also complain under Article 6 para. 1 (Art. 6-1)

of the Convention of unfairness of the proceedings. Thus, they contend

that the experts in the expropriation proceedings before the Provincial

Government were not independent on account of their position in the

Provincial Road Administration. They refer to Section 20 of the

Federal Constitutional Act according to which administrative organs are

subordinate to their superiors.

85. The Government submit that official experts are not subject to

instructions when preparing their opinions. In the present case the

opinions were reviewed by the Administrative Court as to their

conclusiveness. The applicants could also have submitted their own

private expert opinions in the expropriation proceedings and the

authorities would have been obliged to comment thereupon.

86. In the Commission's opinion, the mere fact that experts were

employed by the administrative authority which also decided on the

expropriation does not in itself justify fears that the experts were

unable to act with proper neutrality. To hold otherwise would often

place unacceptable limits on the possibility to obtain expert advice

(see Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A

no. 211, para. 44).

87. Moreover, in the present case the applicants were free to submit

their own private expert opinions in the proceedings before the

Provincial Government. If the latter had disregarded them in its

decision, the applicants could have complained thereof in proceedings

before the Administrative Court which would then have been free to

review the conflicting views expressed in the expert opinions.

88. Accordingly, the position of the experts did not impair the

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

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

Conclusion

89. The Commission concludes, by 10 votes to 5, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention on

account of the position of the experts.

d. Consultation of documents

90. The applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention that they were not allowed to consult

various documents, in particular concerning the landscape proceedings,

a report of the Court of Audit, and the expert opinion of an

independent traffic expert.

91. The Government submit that the documents complained of were

irrelevant to the case.

92. The Commission notes, on the one hand, the Administrative Court's

decision of 22 September 1989 according to which the applicants were

refused consultation of the documents at issue either as they had not

been a party to the proceedings concerned; or as the documents were

irrelevant to their case (see above, para. 35). On the other hand, the

applicants have not claimed that the Administrative Court itself

nevertheless relied on these documents in its decision.

93. Accordingly, the refusal to permit the applicants to consult

certain documents did not impair their right to a fair hearing within

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

Conclusion

94. The Commission concludes, by 12 votes to 3, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that

the applicants were not allowed to consult certain documents.

E. Recapitulation

95. The Commission concludes, by 11 votes to 4, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention on

account of the alleged lack of access to a tribunal within the meaning

of this provision (para. 77).

96. The Commission concludes, by 11 votes to 4, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that

no oral hearing was held before the Administrative Court (para. 83).

97. The Commission concludes, by 10 votes to 5, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention on

account of the position of the experts (para. 89).

98. The Commission concludes, by 12 votes to 3, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention in that

the applicants were not allowed to consult certain documents (para.

94).

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

DISSENTING OPINION OF MM. S. TRECHSEL, J.-C. SOYER,

C.L. ROZAKIS and L. LOUCAIDES

In the present case, we disagree with the conclusion of the

majority of the Commission that the applicants had access to a court

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

It has been stated that 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 (see para. 71 of the Report).

However, we note that the purpose of this review was to determine

any procedural defects leading to the unlawfulness of the Provincial

Government's decision. It does not transpire from a literal reading

of Section 42 para. 2 subpara. 3 that the Court was competent fully to

assess the facts of the case, and that it could do so for the purpose

of deciding on the expropriation.

We have therefore turned to the decision of the Administrative

Court of 22 September 1989. Therein the Court stated 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" (see para. 36 of the Report).

In the same decision the Administrative Court also relied on

Section 41 of the Administrative Court Act (see para. 32 of the

Report). Section 41 provides that, if no procedural defects are found

according to Section 42 para. 2 subpara. 3, the Court is bound by the

facts as accepted by the authority (see para. 46 of the Report). By

emphasising Section 41 the Administrative Court could be seen as

stating that it was indeed limited in its power to review the facts.

We have further considered the above provisions and statements

in the light of the Commission's previous case-law on the powers of

review of the Administrative Court (see para. 69 of the Report). In

our opinion, it has not been established in the present case that the

Administrative Court was competent fully to review all the facts.

At this point it must be recalled that the provisions guaranteed

by the Convention are intended to be practical and effective (see Eur.

Court H.R., Artico judgment of 13 May 1980, Series A no. 37, p. 16,

para. 33). In the light of the above, we cannot find that in the

present case the applicants practically and effectively enjoyed a right

of access to a court which "determined" their "civil rights".

The applicants' case was not therefore "heard" by a tribunal as

required by Article 6 para. 1 of the Convention, and we thus conclude

that there has been a violation of Article 6 para. 1 of the Convention.

Finally, having just found that the applicants' case was not

heard by a tribunal within the meaning of Article 6 para. 1 of the

Convention, we would have considered it unnecessary to examine their

further complaints under the same provision about the proceedings

before the Administrative Court. However, Rule 18 para. 3 of the

Commission's Rules of Procedure prohibits abstention in votes

concerning the opinion as to whether the Convention has been violated.

Thus, we have voted for violation on the conclusions in paras. 83, 89

and 94. This vote is to be understood as a consequence of our vote on

the question of access to court rather than the expression of our

opinion based on the hypothetical assumption that access was given.

CONCURRING OPINION OF Sir BASIL HALL

I agree with the conclusion of the majority of the Commission

that there has been no violation of Article 6 para. 1 of the Convention

on account of the alleged lack of access to a tribunal within the

meaning of this provision. I have, however, an additional reason for

coming to this conclusion. I do not think that Article 6 para. 1

requires that a court shall be able to substitute its judgment for that

of the administrative authorities when these authorities have made a

policy decision of a general kind, even if that decision might when

excecuted have an effect on individual property rights. If that were

so, each person through whose land a projected new road - even a

motorway - was to pass would be able to apply to a court on the basis

that the policy decision to construct the road was wrong, and the court

should examine whether there was a need for the road.

In this case in his application to the Administrative Court,

while purporting to rest his case on procedural error, the applicant

is in reality challenging the basic policy decision to construct a

road. That to my mind falls outside the ambit of Article 6 para. 1.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

10 June 1986 Introduction of the application

13 June 1986 Registration of the application

Examination of admissibility

6 March 1989 Commission's decision to adjourn

further examination of the

admissibility of the application until

the Administrative Court had given its

decision

2 April 1990 Commission's decision to invite the

Government to submit observations on

the admissibility and merits of the

application

23 July 1990 Government's observations

11 October 1990 Applicant's observations in reply

29 May 1991 Commission's decision to hold an oral

hearing

15 October 1991 Oral hearing on admissibility and

merits, Commission's decision to declare

the application in part admissible and

in part inadmissible

Examination of the merits

15 February 1992 Commission's consideration of the

state of proceedings

30 June 1992 Commission's deliberations on the

merits, final vote and adoption of

the Report

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FIRMA F.M. ZUMTOBEL AND MARTIN ZUMTOBEL v. AUSTRIA

FIRMA F.M. ZUMTOBEL AND MARTIN ZUMTOBEL v. AUSTRIA

LEXI