THE FACTS

The facts of the case as submitted by the applicant may be summarised

as follows:

The applicant is a German citizen, born in 1923 and resident in

Hamburg.

He is represented by Dr. Franz C., a lawyer practising in Hamburg and

acting under a power-of-attorney dated 1 March 1972.

The applicant complains under Article 6 of the Convention about certain

proceedings before the Hamburg Administrative Court of Appeal

(Oberverwaltungsgericht) relating to a decision by the Hamburg building

authorities to widen the street on which his property is located.

From his statements and from documents submitted in support of his

application it appears that the applicant owns a house with garden at

the A. strasse in Hamburg. The house is situated about 9 metres away

from the street. In 1962 the competent authority of the City of Hamburg

decided that the street needed widening in view of the heavy traffic

on that street. In 1964 it tried to buy from the applicant a tract of

land 4.5 metres wide but the applicant refused to sell. In April 1964

the City started to widen the street and the works were finished except

for the pavement in front of the applicant's property.

In October 1964 the competent Hamburg authority took an administrative

decision by which it fixed the plans for the widening of the street

(Planfeststellungsbeschluss). Such decision is required under the

Federal Road Act (Bundesfernstrassengesetz) and it determines the

building project as such as well as any public law relations between

the authorities and the individuals affected by the project.

The applicant challenged that decision before the administrative

authorities and finally took his case before the Administrative Court

(Verwaltungsgericht) in Hamburg which decided on .. November 1965 to

set aside the plans. The City of Hamburg appealed (Berufung) against

this decision to the Administrative Court of Appeal

(Oberverwaltungsgericht) which fixed a hearing for .. May 1968. On that

day the Court decided at the applicant's request that (1) it would

submit to the parties a proposal for a settlement of the matter, (2)

if no settlement could be achieved, a decision would be communicated

to the parties after notification by one of the parties that the

settlement negotiations had failed, and (3) during the settlement

negotiations the parties should be authorised to inspect certain files

in the State Archive and to submit their observations within two weeks'

period.

It appears, however, that on the same day the Court prepared a

hand-written draft of its judgment setting aside the Administrative

Court's decision of .. November 1965 and dismissing the applicant's

case. This judgment of the Administrative Court of Appeal dated .. May

1968, was finally sent to the applicant who received it on .. January

1969.On .. February 1969 the applicant lodged with the Federal

Administrative Court (Bundesverwaltungsgericht) a further appeal

(Revision) and on .. June 1969 he submitted the grounds of his appeal

alleging violations of procedural and of substantive law. As regards

his allegations concerning the proceedings the applicant also invoked

Article 6 (1) of the Convention claiming that, under that provision,

judgments should be pronounced publicly and might not simply be

communicated to the parties in writing. Furthermore, he complained that

the notification of the judgment had been considerably delayed, that

the judgment was taken even before the period for the submission of

further observations had expired, that the Court had recorded its

decision in an irregular manner by simply writing it on a piece of

paper thus opening the possibility of making subsequent changes, and

finally, that the Court had failed to grant a fair hearing in that it

did not investigate further certain facts which supported the

applicant's case.

The Federal Administrative Court dismissed the further appeal on ..

August 1971. As regards the allegation under Article 6 of the

Convention the Court referred to its previous jurisprudence according

to which that provision was applicable only in respect of civil rights

and criminal charges, but not in matters concerning administrative

laws. As regards the complaint that, contrary to the relevant provision

of the Code of Administrative Procedure (Verwaltungsgerichtsordnung)

the judgment of .. May 1968 was only served on .. January 1969 the

Court pointed out that the decision had been taken on the day of the

hearing but had been sent to the parties only after some time in view

of the settlement negotiations between them. Furthermore, there was no

substance in the applicant's complaint that, in view of the parties'

right to make further submissions the judgment should not have been

taken on the day of the hearing, as in fact neither side had made such

further submissions. As regards the complaint concerning the manner in

which the judgment had been recorded the Court found that this had only

been made after the period for submitting the grounds of appeal had

expired and it was therefore out of time. In any event this complaint

was ill-founded as were the other complaints concerning the Court's

failure to investigate certain further facts whose relevance the

applicant had failed to substantiate.

The Federal Administrative Court also rejected the applicant's

allegations regarding violations of substantive law. The decision was

communicated to the applicant on .. October 1971.

Complaints

The applicant now complains that contrary to Article 6 (1) of the

Convention the Hamburg Administrative Court of Appeal failed to

pronounce its judgment publicly and that a written judgment was served

on him only after a considerable period had elapsed since the decision

had been taken.

He explains that, in his opinion, the observance of this provision is

particularly important as it is necessary to avoid that a judgment will

be changed without the participation of all the judges in the case

after the deliberations. According to the applicant, this happened in

another case the facts of which he submits in support of his present

application. In the applicant's submission this possibility is

facilitated by the Administrative Court of Appeal's practice to write

its judgment on a piece of paper.

The applicant also complains that the relevant provision of the Code

of Administrative Procedure authorising communication of written

judgments instead of the public pronouncement was inconsistent with

Article 6 (2) of the Convention.

The applicant further complains under Article 6 of the Convention that

he was not granted a fair hearing in that, contrary to his request,

certain files were not taken into consideration and the Court failed

to inspect the premises in question. He states that it was not

forceable that the Court would take its decision after the hearing in

spite of the fact that the parties had been authorised to make further

submissions. Furthermore, he had made substantial submissions in his

grounds of appeal concerning the relevance and the significance of the

evidence adduced by him, but the Court had completely ignored his

arguments. He now submits to the Commission in detail the reasons why,

in his opinion, the said evidence was relevant in his case.

The applicant further submits that Article 6 of the Convention is

applicable to the proceedings in his case and that the findings of the

Federal Administrative Court to the contrary is not in line with the

interpretation to be given to the notion of "civil rights and

obligations" within the meaning of that provision.

He finally states that he has exhausted the remedies available to him

under German law, and that, in particular, it was not possible to base

a constitutional appeal on the European Court of Human Rights.

THE LAW

The applicant has complained that Article 6 (Art. 6) of the Convention

has been violated in various respects by reason of the proceedings

before the Administrative Court of Appeal in Hamburg relating to a

decision by the Hamburg building authorities to widen the street on

which his property is situated.

Article 6 (1) (Art. 6-1) of the Convention provides: "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. Judgment shall

be pronounced publicly ...". The Commission must therefore first decide

whether the court proceedings relating to the above claim by the

applicant fall within the scope of that provision to the extent that

they involve the determination of his civil rights.

In this connection the Commission recalls its established jurisprudence

namely that, for the question whether a right is of a civil nature, it

is not decisive that the right claimed by the applicant constitutes a

"civil right" in the country concerned, and indeed the term "civil

rights and obligations" cannot be construed as a mere reference to the

domestic law of the High Contracting Party concerned. Instead, the

concept relates to an autonomous notion which must be interpreted

independently having regard to the nature of the claim and to the

purpose of the complaint. Only in this connection can the general

principles of the domestic law of the High Contracting Party be taken

into consideration (see decisions on the admissibility of Applications

No 508/60, Yearbook, Vol. 5, pp. 108, 122; No 1931/63, Yearbook, Vol.

7, pp. 213, 233; and No 3959/69, Collection of Decisions, Vol. 35, pp.

109, 122).

In the present case, the applicant's claim before the Hamburg courts

concerned the decision by the planning authorities

(Planfeststelungsbeschluss) to widen the street on which his property

is situated. This decision had been taken in accordance with the

provisions of the Federal Road Act (Bundesfernstrassengesetz), in view

of the heavy traffic in that street. Such decision is required under

the above Act in order to fix the building scheme as well as to

determine the basis of the relationship in public law as between the

authorities and the individuals affected by the project.

It is true that the said decision affected the applicant's private

property in that, although it did not as such concern its

expropriation, it would serve as a basis for any subsequent

expropriation measures which the authorities might be required to take,

if no agreement could be reached with the applicant as to the sale of

his land.

However, the proceedings which the applicant had instituted before the

Administrative Courts did not concern the determination of any of his

private rights in relation to his property. The purpose of his

complaint was to obtain a judgment from the courts setting aside an

administrative act which the authorities had taken in the execution of

their aim to provide for safe roads. Accordingly, the relevant

proceedings concerned the exercise of the duties and powers of the

competent authorities in the implementation of the above aim, as well

as the rights of the individual arising out of this bilateral

relationship which clearly falls in the domain of public law.

In the Commission's opinion, the present case is to be distinguished

from the Ringeisen Case in which the European Court of Human Rights

found Article 6 (1) (Art. 6-1) of the Convention to be applicable. In

that case, the relevant proceedings concerned the approval by the

competent authorities of a purchase contract between the applicant and

the sellers of a certain real property. This legal relationship between

private persons and the State's interference therewith by refusing to

approve the contract between them was emphasised by the European Court

when it decided in the Ringeisen Case that the result of the

proceedings had been decisive for private rights and obligations within

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

Court of Human Rights, Ringeisen Case, judgment of 16 July 1971,

paragraph 94).

However, in the present case, the public authorities did not determine,

nor did they interfere, with any legal relationship existing between

the applicant and a third person but they were concerned in determining

the legal relationship between the applicant and themselves by deciding

how the applicant's property should be used in the public interest.

Consequently, the proceedings before the Hamburg Administrative Court

of Appeal, which are not the object of the applicant's present

complaint, were not concerned with the determination of his "civil

rights and obligations" and therefore fall outside the scope of Article

6 (Art. 6) of the Convention.

It follows that the Commission has no competence ratione materiae to

examine the application which must therefore be rejected as being

incompatible with the provisions of the Convention in accordance with

Article 27 (2) (Art. 27-2) thereof.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.