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J.F. v. AUSTRIA

Doc ref: 31698/96 • ECHR ID: 001-4317

Document date: July 8, 1998

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J.F. v. AUSTRIA

Doc ref: 31698/96 • ECHR ID: 001-4317

Document date: July 8, 1998

Cited paragraphs only

Application No. 31698/96

by J. F.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 8 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 April 1996 by

J. F. against Austria and registered on 3 June 1996 under file

No. 31698/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 March 1998 and the observations in reply submitted by the

applicant on 25 May 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1940 and residing

in Grünau (Upper Austria). Before the Commission he is represented by

Mr. K. Meingast, a lawyer practising in Gmunden (Upper Austria).

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

In February 1989 the applicant bought two parcels of land

situated in Scharnstein (Upper Austria) which are forest. Subsequently

he replaced an old forest hut on his land by a new one. The new hut

was erected at a distance of 20 metres from the place where the old one

stood.

On 5 October 1992 the Gmunden District Administrative Authority

(Bezirkshauptmannschaft) ordered the applicant to remove the forest hut

and to re-plant trees on the place where it is situated. The Authority

found that the applicant had erected the forest hut without any

permission and that an expert for forestry had found that a hut was not

necessary for the cultivation of his forest. The applicant therefore

used forest soil for other purposes than forestry, which was prohibited

by Section 17 para. 1 of the Forest Act (Forstgesetz).

On 13 September 1993 the Upper Austria Regional Governor

(Landeshauptmann) dismissed the applicant's appeal.

On 28 November 1994 the Constitutional Court declined to deal

with the applicant's complaint against the Regional Governor's decision

for lack of prospect of success. It referred the case to the

Administrative Court (Verwaltungsgerichtshof).

On 24 March 1995 the applicant supplemented his complaint to the

Administrative Court and also requested that an oral hearing be held.

On 25 September 1995 the Administrative Court decided on the

applicant's complaint. Insofar the order concerned the removal of the

forest hut the Administrative Court dismissed the complaint. Insofar

the order concerned the re-cultivation of the soil on which the hut is

erected the Administrative Court quashed the order. The Administrative

Court also rejected, in accordance with Section 39 para. 2 (6) of the

Administrative Court Act (Verwaltungsgerichtshofgesetz), the

applicant's request for an oral hearing. Referring to the European

Court of Human Rights judgment in the Fischer case (Fischer v. Austria

judgment of 26 April 1995, Series A no. 312), the Administrative Court

found that also Article 6 of the Convention did not require the holding

of a hearing in the present case because the essential facts had not

been in dispute and the legal questions to be decided had already been

resolved in the Administrative Court's previous case-law.

On 2 April 1996 the Regional Governor decided again on the

applicant's appeal against the District Administrative Authority's

order of 5 October 1992, insofar it concerned the order to re-plant

trees and quashed this part of the order.

B. Relevant domestic law

Section 39 para. 1 of the Administrative Court Act (Verwaltungs-

gerichtshofgesetz) provides that the Administrative Court is to hold

a hearing after its preliminary investigation of the case where a

complainant has requested a hearing within the time-limit. Section 39

para. 2 (6), which was added to the Act in 1982, provides however:

"Notwithstanding a party's application, the Administrative Court

may decide not to hold a hearing when

...

6. It is apparent to the Court from the written pleadings of

the parties to the proceedings before the Administrative Court

and from the files relating to the prior proceedings that an oral

hearing is not likely to contribute to clarifying the case."

COMPLAINTS

The applicant's remaining complaint concerns the lack of a public

hearing in the proceedings under the Forest Act before the

Administrative Court. He relies on Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 April 1996 and registered on

3 June 1996.

On 14 January 1998 the Commission decided to communicate the

applicant's complaint concerning the lack of a public hearing in the

proceedings under the Forest Act to the respondent Government and to

declare inadmissible the remainder of the application.

The Government's written observations were submitted on

20 March 1998. The applicant replied on 25 May 1998.

REASONS FOR THE DECISION

The Commission notes that the applicant in his observations of

25 May 1998 informed the Commission that he did not intend to pursue

his application and referred to Article 30 para. 1 (a) of the

Convention.

As regards the issues raised in the present case, the Commission

finds no reasons of a general character affecting the respect for Human

Rights, as defined in the Convention, which require the further

examination of the application by virtue of Article 30 para. 1 in fine

of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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