Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26509/95

by Benno OBERDANNER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 26 January 1995

by Benno OBERDANNER against Austria and registered on 14 February 1995

under file No. 26509/95;

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

11 June 1996 and the observations in reply submitted by the

applicant on 5 August 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1920, and living

in Seekirchen (Salzburg). He is represented by Mr. R. Oberdanner, a

lawyer practising in Salzburg.

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

parties, may be summarised as follows.

A. Particular circumstances of the case

On 18 February 1993 the applicant raised objections (Einspruch)

with the Salzburg and Upper Austria Post and Telephone Authority (Post-

und Telegraphendirektion) against a telephone bill for February 1993.

On 29 March 1993 the Post and Telephone Authority dismissed the

objections.

On 7 April 1993 the applicant filed a request for re-calculation

of his telephone bill (Antrag auf Neuberechnung der Gesprächsgebühren)

with the Post and Telephone Authority.

On 25 August 1993, after having obtained a report by an official

technical expert and having offered the applicant the opportunity to

comment thereon, the Post and Telephone Authority dismissed the

applicant's request. It found that according to the expert's report

the applicant's telephone installation did not have any defects which

could have influenced the calculation of the telephone fees.

Furthermore, his telephone installation did not show any traces of

manipulation by third persons. In such circumstances it was not

necessary to hear the witnesses requested by the applicant because in

view of the technical examination the facts were sufficiently clear.

On 9 September 1993 the applicant appealed to the Federal

Ministry for Public Economy and Traffic (Bundesminister für öffentliche

Wirtschaft und Verkehr).

On 29 November 1993 the Principal Post and Telephone Authority

(Generaldirektion für die Post- und Telegraphenverwaltung) at the

Federal Ministry dismissed the applicant's appeal. It found that under

the relevant provisions of the Telephone Fee Regulations

(Fernmeldegebührenordnung) a re-calculation of a telephone bill had

only to be carried out if a technical defect which could have

influenced the calculation of the telephone bill had been detected.

However, such a defect had not been detected in the applicant's case.

On 18 January 1994 the applicant introduced a complaint with the

Administrative Court (Verwaltungsgerichtshof) and also requested the

Administrative Court to hold a public hearing.

On 29 June 1994 the Administrative Court dismissed the complaint

rejecting at the same time, in accordance with Section 39 para. 2 (6)

of the Administrative Court Act, the applicant's request for an oral

hearing. The Court found that in view of the detailed report by the

technical expert it had no doubts as to the assessment of evidence by

the authority. The hearing of the witnesses requested by the applicant

had not been necessary because, even assuming that the witnesses made

the statements expected, such statements could not exclude the

conclusions drawn by the expert.

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:

[Translation]

"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."

[German]

"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages

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

...

6. die Schriftsätze der Parteien des verwaltungsgerichtlichen

Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten

des Verwaltungsverfahrens erkennen lassen, daß die mündliche

Erörterung eine weitere Klärung der Rechtssache nicht erwarten

läßt."

COMPLAINTS

The applicant complains that in the above proceedings he did not

have the benefit of a public hearing before a tribunal within the

meaning of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 January 1995 and registered

on 14 February 1995.

On 28 February 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

11 June 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 5 August 1996.

THE LAW

The applicant complains that in the proceedings on the re-

calculation of his telephone bill he did not have the benefit of a

public hearing before a tribunal within the meaning of Article 6

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

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

relevant, reads as follows:

"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. ..."

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

Convention is not applicable to the proceedings at issue since under

domestic law telecommunication charges fall within the sphere of public

law and are not levied on the basis of private law contracts. Also the

Constitutional Court in its case-law had found that for this reason

Article 6 para. 1 (Art. 6-1) was not applicable to disputes concerning

telecommunication charges. Only since the enactment of a new

Telecommunication Act in 1993 has the relationship between the

telecommunication operator and the subscribers been governed by private

law. As regards the lack of an oral and public hearing before the

Administrative Court the Government do not consider it necessary to

make observations in view of European Court of Human Rights' judgment

in the Fischer case (Eur. Court HR, Fischer v. Austria judgment of

26 April 1995, Series A no. 312).

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

Convention applies to disputes concerning telecommunication charges.

Also the Administrative Court in its case-law had found that

telecommunication charges were not taxes within the meaning of fiscal

law but fees for services rendered. Article 6 para. 1 (Art. 6-1) being

applicable to the proceedings at issue, the lack of an oral and public

hearing before the Administrative Court violated his rights under this

provision of the Convention.

The Commission finds that the applicant's complaint raises

serious questions of fact and law which are of such complexity that

their determination should depend on an examination of the merits. The

application cannot, therefore, be regarded as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other ground for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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OBERDANNER v. AUSTRIA

OBERDANNER v. AUSTRIA

LEXI