Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17588/90

by F.L. and M.L.

against Austria

The European Commission of Human Rights sitting in private on

8 September 1993, 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.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 November 1990

by F.L. and M.L. against Austria and registered on 21 December 1990

under file No. 17588/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

THE FACTS

The applicants are Austrian citizens. They live in Nussbach, in

Upper Austria, where they are farmers. They are represented before the

Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.

The facts of the present case, as submitted by the parties, may

be summarised as follows:

The particular circumstances of the case

On 27 February 1987 the Steyr District Authority (Bezirkshaupt-

mannschaft) granted the applicants' request that the local hunting

association (Jagdgesellschaft) be required to fence in some 1.5

hectares of their land in order to prevent game from entering and

damaging young native trees. The applicants' request had been made

pursuant to Section 64 of the Upper Austrian Hunting Law (Jagdgesetz)

which provides that, where an agricultural unit suffers game damage to

forestry, application can be made to require the persons entitled to

hunt to take necessary preventive measures. The authorities considered

that a 1.5 metre fence was sufficient. The authority also found that

the applicants were responsible for clearing the land of weeds and for

payment of costs for re-forestation. The applicants and the hunting

association appealed.

On 28 July 1988 the Upper Austrian Government Authority (Amt der

oberösterreichischen Landesregierung) amended the decision of

27 February 1987 to provide for fencing of a smaller area with, in

part, more effective fencing.

The applicants made a constitutional complaint to the

Constitutional Court (Verfassungsgerichtshof) concerning the refusal

to require fencing of the larger area. In the complaint they alleged,

inter alia, a violation of Article 6 of the Convention. The

Constitutional Court rejected the complaint on 12 December 1988 as it

had no reasonable prospects of success and no problems of

constitutional law arose.

The Administrative Court (Verwaltungsgerichtshof) dismissed the

applicants' administrative complaint on 2 April 1990 (decision received

by the applicants' lawyer on 1 June 1990) on the ground that there was

no indication that the challenged decision was unlawful. The

Administrative Court refused the applicants' request for a hearing.

In particular, the Administrative Court noted that the type of tree

(blue spruce) which the applicants had allegedly planted merely as a

"preliminary culture" (Vorkultur) to support other, indigenous trees,

was itself included in the list of trees appropriate for the particular

type of forest. There had therefore been no need for the

administrative authorities to consider the other types of tree which

had been planted but which had allegedly been damaged by game.

Accordingly, for the area where blue spruce grew, the administrative

authorities' decision not to require fencing could not be seen to be

unlawful.

Relevant domestic law

Section 33 (1) of the Forestry Act (Forstgesetz) provides,

subject to exceptions, that anyone may enter and remain in forest land

for recreative purposes.

Section 67 of the Upper Austrian Hunting Act (Jagdgesetz)

provides as follows:

"Keeping game away; preventing damage by game.

(1) The land owner and the hunting licensee - the latter only

with the consent of the former - are entitled to keep game away

from cultures by protective measures, and in order to do so may

establish fences, lattices, walls, etc. (for an overall

protection) or may protect individual plants by adequate means.

(2) If the output of an agricultural unit is declining

constantly and considerably as a result of game damage to

cultures, the District Authority, upon a request by the person

suffering damage or by the District Agricultural Chamber

(Bezirksbauernkammer) and after consultation with the district

hunting adviser, shall order the person or association entitled

to hunt to take the necessary protective measures (Sub-section

(1)) or to reduce the game population (Section 49 (2)).

(3) Hunting and game keeping must be such as not to endanger

the preservation of the forest, which also serves as an amenity

and place of resort for the general public.

(4) A forest is endangered within the meaning of Sub-section 3,

if as a result of browsing, rubbing or peeling by game (Verbiß,

Verfegen oder Schälen)

a) there are glades (Blößen) within the stands or if a healthy

development of stands is impossible on a larger scale, or

b) afforestation or natural regeneration in areas requiring

afforestation is not guaranteed within the periods of time

laid down in the forest regulations, or

c) afforestation for the creation of new forested land within

a period of time which, having regard to the local

situation, is to be considered reasonable, is not

guaranteed, or

d) young trees will not grow in regeneration stands.

(5) If the forest is endangered within the meaning of Sub-

section (4), the District Authority, in co-operation with its

forest engineering department, shall proceed in accordance with

the provisions of Sub-section (2).

(6) The protective measures to be taken by the person or

association entitled to hunt for the purpose of keeping game

away, must not obstruct the cultivation and use of the land

protective measures against intruding game must not be such as

to endanger the life of the game in case of floods.

(7) Anyone is entitled to expel and keep away game from his

land by adequate means. He must not, however, resort to such

measures as using firearms, firing shots in the air or chasing

the game with dogs. Should game be injured or perish as a result

of lawful measures intended to keep it away, the person or

association entitled to hunt cannot claim compensation.

(8) If game penetrates from unfenced areas into areas where

fences have been established in order to keep it away, measures

shall be taken in accordance with the provisions of

Section 49 (2) unless redress can be obtained otherwise."

COMPLAINTS

The applicants complain that the scope of review of the

Administrative Court is not sufficient to compensate for the absence

of a court which is competent to decide the questions at issue before

the administrative authorities. They see this insufficiency in the

absence of an oral hearing, in the absence of competence to decide

factual issues and the lack of opportunity to call or question experts.

They allege a violation of Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 November 1990 and registered

on 21 December 1990.

On 11 May 1992 the Commission decided to communicate the

application to the respondent Government and to request them to submit

written observations on its admissibility and merits.

The Government's observations were submitted, after an extention

of the time-limit, on 2 October 1992 and the applicants' representative

submitted his observations in reply, also after an extention of the

time-limit, on 5 January 1993.

THE LAW

The applicants allege violation of Article 6 para. 1 (Art. 6-1)

of the Convention. This provision provides, so far as relevant, 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."

With regard to the applicability of Article 6 (Art. 6) to the

proceedings before the administrative authorities, the respondent

Government submit that the mere possibility of requiring the person

entitled to hunt to undertake necessary protective measures in order

to serve the public interest in preserving the forest does not amount

to a right to protection against game damage. They consider it quite

natural that a forest may be endangered by the game living there.

Accordingly, they conclude that the challenged decision does not

directly affect the applicants' property rights as forest owners, their

professional activities or any contracts which may have been concluded

under private law in connection with their forest ownership. In

addition, they refer to the case-law of the Constitutional Court to the

effect that in cases relating not to the traditional "core" of civil

law, but to matters only concerning civil rights in their effects

(namely the relationship between citizens and the general public), a

"differentiated interpretation of the requirements laid down in Article

6 para. 1 (Art. 6-1) of the Convention" must be applied. In any event,

the Government consider that the control exercised by the

Administrative Court, taken together with the control by the

Constitutional Court, complies with the requirements of Article 6 para.

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

In connection with the absence of a public hearing, the

Government refer to the Austrian reservation to Article 6 (Art. 6) of

the Convention which, they consider, is valid and applies to

administrative proceedings as well as criminal and civil proceedings.

Accordingly, they consider Article 6 (Art. 6), as applicable in the

case of Austria, did not require an oral hearing in the present case.

They accept that when the reservation was made only fundamental

provision existed for the conduct of an oral hearing before the

Administrative Court, and that exceptions (including that applied in

the present case) were added in 1982, but consider that those

extensions amount to exceptions "of the same nature" as those in force

at the date of reservation, and that they therefore comply with Article

64 (Art. 64) of the Convention.

For the applicants, the protection of property against outside

influences is one of the most classical of all rights an owner of land

possesses. They conclude that civil rights were clearly involved. As

for compliance with Article 6 (Art. 6) of the Convention, the

applicants disagree with the interpretation submitted by the respondent

Government of the Constitutional Court's case-law. They point out that

if the Constitutional Court had considered that Article 6 (Art. 6) was

complied with by the Administrative Court, there would have been no

need to create the Independent Administrative Senates (Unabhängige

Verwaltungssenate), and add that, in any event, the Administrative

Court could not possibly handle the volume of work involved in acting

as an Article 6 (Art. 6) tribunal in the many cases submitted to it.

As for the question of an oral hearing, the applicants regard

reservations as fundamentally limited in time, and see the Austrian

reservation to Article 6 (Art. 6) as in any event not complying with

Article 64 (Art. 64) of the Convention. They consider that the

reservation cannot be intended to cover administrative procedures

because, at the time it was made, hardly anybody could have envisaged

Article 6 (Art. 6) applying to such proceedings. They also refer to

the position of Article 90 of the Federal Constitutional Law (Bundes-

Verfassungsgesetz) in that Law, that is, in the section relating to the

activities of the courts, rather than the Administration. They

consider that, if it is purported that the reservation deals with

administrative cases, then it lacks the necessary precision to comply

with Article 64 (Art. 64) of the Convention.

The Commission finds that the application raises complex issues

of law under the Convention, including questions concerning the

Austrian reservation to Article 6 (Art. 6), the examination of which

must be reserved to an examination of the merits.

The application cannot, therefore, be declared manifestly ill-

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

Convention. 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.

Acting Secretary to the Commission President of the Commission

(M. de SALVIA) (C.A. NØRGAARD)

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F.L. AND M.L. v. AUSTRIA

F.L. AND M.L. v. AUSTRIA

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