Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16568/90

by E.F. and S.F.

against Austria

The European Commission of Human Rights sitting in private on

1 December 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 9 April 1990 by

E.F. and S.F. against Austria and registered on 8 May 1992 under file

No. 16568/90;

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

of Procedure of the Commission;

Having regard to:

- the Government's observations dated 7 February 1992;

- the applicant's observations in reply dated 4 June 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Austrian citizens born in 1941 and 1937

respectively. They are husband and wife and together they farm land

belonging to their son. The applicants hold the land in usufruct

(Fruchtgenussrecht). The applicants are represented before the

Commission by Mr. H. Vana, a lawyer practising in Vienna.

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

summarised as follows.

Particular circumstances of the case

I.

On 28 April 1988 the Minister for Economic Affairs

(Bundesminister für wirtschaftliche Angelegenheiten) granted to an

electricity supply company a permit to build and to operate

provisionally a 380 KV power line between Vienna and the

Austrian-Hungarian border leading through the land of the applicants'

son. This decision was served neither on the applicants nor on their

son, who were also not called to participate in the proceedings.

The applicants lodged a complaint against this decision with the

Constitutional Court (Verfassungsgerichtshof) after their lawyer

coincidentally came to know the decision during the expropriation

proceedings. The applicants alleged a violation of Article 6 of the

Convention because they did not have a fair hearing before an

independent and impartial tribunal.

On 26 September 1989 the Constitutional Court, with reference to

its constant case-law concerning Article 6 of the Convention, refused

to deal with the case as it lacked prospect of success.

On 30 October 1989 the Constitutional Court referred the

complaint to the Administrative Court (Verwaltungsgerichtshof).

On 26 June 1990 the Administrative Court quashed the contested

decision insofar as a permit had been granted concerning the land of

the applicants' son, on the ground that, while the applicants were

parties in the proceedings according to the law, they had not been

informed of the proceedings.

On 1 October 1990 the Minister for Economic Affairs, after

conducting an oral hearing with the applicants, again granted a permit

to build and to operate provisionally the power line over the land of

the applicants' son.

The applicants lodged a complaint with the Administrative Court.

They submitted that the decision was unlawful for breaches of

procedural rules as it contradicted Sections 6 and 7 of the Power Lines

Act (Starkstromwegegesetz). In particular, the applicants contended

that the

authority refused to hear an expert proposed by them. Moreover, they

alleged a violation of Article 6 of the Convention in that they did not

have a fair hearing before a tribunal.

On 23 April 1991 the Administrative Court dismissed the

applicants' complaint on the grounds that they did not have a right to

a particular expert, that the other expert opinions in the proceedings

were conclusive and that the applicants themselves could have submitted

an expert opinion within a reasonable time if they had so requested.

However, they had failed to do so. With regard to the allegations

concerning Article 6 of the Convention, the Administrative Court found

as follows:

[Translation]

"Finally, the applicants allege that certain provisions of the

Power Lines Act are unconstitutional. Their reasoning is that,

in the light of Article 6 of the Convention, no interference may

take place with their property rights without court proceedings.

The respondent authority rightly points out in its counter-

pleadings that according to the recent case-law of the

Constitutional Court (cf. Constitutional Cases No. 11760), it is

permissible for administrative authorities to expropriate, and

for compensation claims to be determined initially by

administrative authorities, as here, where the administrative

proceedings are followed by proceedings before a court. Indeed,

the Constitutional Court, in its decision of 30 October 1989,

which preceded the Administrative Court's decision of 26 June

1990 (..), expressed no disquiet as to this legal position. The

Administrative Court shares the legal opinion of the

Constitutional Court as thus expressed."

[German]

"Abschließend behaupten die Beschwerdeführer eine Verfassungs-

widrigkeit von Bestimmungen des Starkstromwegegesetzes mit der

Begründung, daß im Hinblick auf Art. 6 MRK ohne gerichtliches

Verfahren nicht in ihre dinglichen Rechte eingegriffen werden

dürfte. Diesem Vorbringen hält die belangte Behörde in ihrer

Gegenschrift zutreffend entgegen, daß auch nach der neueren

Rechtsprechung des Verfassungsgerichtshofes (vgl. VfSlg. 11760)

eine Enteignung durch Verwaltungsbehörden zulässig ist und über

Entschädigungsansprüche zunächst Verwaltungsbehörden entscheiden

dürfen, wenn, wie dies auch hier der Fall ist, eine sukzessive

Gerichtszuständigkeit vorgesehen ist. Tatsächlich hat ja auch

der Verfassungsgerichtshof in dem dem Erkenntnis des Verwaltungs-

gerichtshofes vom 26. Juni 1990 vorausgehenden Beschluß vom

30. Oktober 1989, Zl. B 1066/89-5, keine Bedenken gegen die hier

gegebene Rechtslage geäußert. Der Verwaltungsgerichtshof teilt

die damit zum Ausdruck kommende Rechtsanschauung des

Verfassungsgerichtshofes."

The decision of the Administrative Court was served on the

applicants on 31 May 1991.

II.

By decision of 3 March 1990 the Minister for Economic Affairs

ruled that the construction and the operation of the power line in

question were in the public interest and necessary. In expropriation

proceedings he granted the construction of the power line over the land

of the applicants' son and ordered the payment of compensation in the

amount of AS 10,139.64 to the applicants' son.

The applicants applied for a judicial decision to the Neusiedl

District Court. This application had the effect that the Minister's

decision was quashed automatically. The expropriation proceedings are

still pending.

Relevant domestic law

According to Section 6 (1) of the 1968 Power Lines Act

(Starkstromwegegesetz 1968) anyone intending to build and run an

electric power line has to apply for a permit.

Section 7 of the Power Lines Act provides for the conditions

under which a permit is to be granted. Section 7 (1), as far as

relevant, reads as follows:

[Translation]

"The authority is required to grant the building and operation

permit if the electric power line does not contravene the public

interest in supplying the population or sections of it with

electric energy. In the permit the authority shall ensure, by

imposition of conditions, that the electric power lines are in

accordance with these requirements ..."

[German]

""Die Behörde hat die Bau- und Betriebsbewilligung zu erteilen,

wenn die elektrische Leitungsanlage dem öffentlichen Interesse

an der Versorgung der Bevölkerung oder eines Teiles derselben mit

elektrischer Energie nicht widerspricht. In dieser Bewilligung

hat die Behörde durch Auflagen zu bewirken, daß die elektrischen

Leitungsanlagen diesen Voraussetzungen entsprechen..."

COMPLAINTS

The applicants complain under Article 6 of the Convention that

in the building permit proceedings under the Power Lines Act, which

were decisive for their civil rights, they did not have a fair hearing

before a tribunal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 April 1990 and registered on

8 May 1990.

On 15 October 1991 the Commission decided to bring the

application to the notice of the respondent Government and to request

the parties' observations on its admissibility and merits.

The respondent Government submitted their observations on

7 February 1992 and the applicants' representative submitted

observations in reply on 4 June 1992.

THE LAW

The applicants allege a violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal established by law. ..."

The Government submit that a mere permit to build and to operate

a power line does not interfere directly with private rights within the

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

particular, a further right of way (under Section 11 or Section 18 of

the Power Lines Act) is necessary before the power line may be erected.

The fact that a "Section 7 permit" is necessary before a Section 11 or

a Section 18 right can be obtained is irrelevant. In the alternative,

the Government submit that, if Article 6 para. 1 (Art. 6-1) is

applicable to the proceedings in the present case, then the scope of

review by the Administrative Court, taken together with the review by

the Constitutional Court, is sufficient to satisfy the requirements of

Article 6 (Art. 6) in cases of this kind.

The applicant, referring to the Bodén judgment of the European

Court of Human Rights of 27 October 1987 (Series A no. 125-B),

considers that Article 6 para. 1 (Art. 6-1) of the Convention does

apply to the present proceedings. He also considers that the scope of

review by the Administrative and Constitutional Courts is not

sufficient to comply with Article 6 para. 1 (Art. 6-1) of the

Convention, as the Administrative Court may not take evidence itself

to supplement preliminary proceedings. It had only to check whether

there has been a sereious procedural error. Moreover, the

Constitutional and Administrative courts do not have the power to take

decisions on the merits, but may only examine the validity of the

decisions of administrative authorities.

Having regard to the submissions of the parties, and to the case-

law of the Convention organs, the Commission considers that the

application raises serious issues of fact and law, the determination

of which requires an examination of the merits.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging

the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NORGAARD)

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E.F. AND S.F. v. AUSTRIA

E.F. AND S.F. v. AUSTRIA

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