Lexploria

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application No. 16922/90

by Josef FISCHER

against Austria

The European Commission of Human Rights sitting in private on

8 September 1992, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. 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 11 May 1990

by Josef FISCHER against Austria and registered on 24 July 1990

under file No. 16922/90;

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

of Procedure of the Commission;

Having regard to the Commission's Partial Decision of

7 January 1991;

Having regard to the observations submitted by the respondent

Government on 15 April and 4 September 1991 and the observations in

reply submitted by the applicant on 13 June, 21 August and 10 October

1991;

Having regard to the hearing held on 9 September 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1932. He lives in

Vienna and is represented before the Commission by Mr. M. Gnesda, a

lawyer practising in Vienna.

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

summarised as follows.

The applicant holds both the western and eastern part of a tip

at Theresienfeld in Lower Austria. He owns the western part outright,

having bought it in 1977. He holds the eastern part on a 25 year,

assignable tipping lease dated 13 October 1975.

The application concerns the revocation of a licence to tip, as

required under the Water Rights Act 1959 (Wasserrechtsgesetz).

The licence was originally granted to a company, Waxina, on 21

September 1972, and related to the tipping of distillation residue on

the site. The parties disagree as to whether the licence relates to

the whole of the site or only to the eastern part. On 30 July 1973 the

licence was extended to cover domestic, commercial and industrial

waste. Further conditions were added; the licence was expressed to be

revocable pursuant to Section 21 of the 1959 Act. The new licence was

granted both to Waxina and the then owners of the site.

On 13 October 1975 the applicant took a 25 year tipping lease

from the owners of the site.

In 1977 the applicant purchased from the owners the western part

of the site. Title was registered on 10 January 1979 and the relevant

authorities were informed of the change of ownership, the rights under

the licence of 30 July 1973 thereby passing to the applicant by

operation of law.

The licence of 30 July 1973 was revoked on 5 December 1986 by the

Provincial Governor (Landeshauptmann) of Lower Austria. The Government

submit that the revocation affected only the eastern part of the site,

pointing out that separate proceedings were subsequently instituted

relating to the western part. Further, the Government point out that

the Administrative Court (Verwaltungsgerichtshof) and the Vienna

Regional Court (Landesgericht), in subsequent proceedings, agreed that

the licence related to the eastern part of the site only. The

applicant underlines that until 1980, the administrative authorities

themselves accepted that the licence covered the whole of the tip, and

adds that in criminal proceedings the courts accepted that the licence

related to the entire site.

The reasons given for the revocation included that dangerously

high levels of toxic substances had been found in the groundwater at

the site (which forms part of an area constituting the groundwater

reservoir for drinking water for over half a million people); barrels

had been found both in the western and eastern (practically full) part

of the site; certain of the barrels found contained non-authorised

substances which could escape and mix with other substances; and the

site was in any event unsuitable for tipping - even ordinary domestic

waste should not be dumped.

The applicant's appeal to the Federal Minister of Agriculture and

Forestry (Bundesminister für Land- und Forstwirtschaft) was rejected

on 20 July 1987. The facts were accepted as established by the

Provincial Governor. The Minister found, after a further expert's

report, that it was absolutely necessary to close the tip to safeguard

water supplies and the site could not technically be rendered safe.

On 6 August 1987 the applicant made a complaint to the

Administrative Court in which he alleged that the decision of 20 July

1987 was unlawful. He requested that the decision be quashed, that the

proceedings should have suspensive effect, and that the Administrative

Court should hold an oral hearing. On 2 September 1987 the applicant

made a constitutional complaint to the Constitutional Court

(Verfassungsgerichtshof), alleging violation of, inter alia, Article

1 of Protocol No. 1 to the Convention and Article 6 para. 1 of the

Convention. He complained that the administrative authorities did not

grant his request for a hearing before them, and requested a hearing

before the Constitutional Court.

The Constitutional Court refused the applicant's complaint on 14

March 1989 as it had no reasonable prospects of success and as no

problems of constitutional law arose. No hearing was held.

The Administrative Court rejected the applicant's complaint on

21 September 1989 on the ground that it was ill-founded. The Court

found that, regardless of the scope of the original licence, the

revocation related to the whole of the original licence. It further

found that there had been no procedural errors, that the revocation had

taken place after due consideration of relevant factors and was in

accordance with the law. The Court found that an oral hearing had not

been necessary.

COMPLAINTS

The applicant complains that he was not able to have a hearing

of the issue of revocation of his tipping licence before a court which

complied with Article 6 para. 1 of the Convention. He states that the

Provincial Governor and the Minister of Agriculture "have nothing in

common with the independent and impartial court as stipulated in

Article 6 para. 1 of the Convention". He considers that these bodies

decide on the basis of political considerations.

As to the Administrative Court and Constitutional Court, the

applicant states that both "only affirm or vacate the decisions

appealed against"; the Administrative Court is in principle bound by

the facts established by the administrative authorities. Neither court

can review existing findings of fact at all. The applicant alleges a

violation of Article 6 para. 1 of the Convention.

He initially also alleged a violation of Article 1 of Protocol

No. 1 to the Convention in that the licence should only have been

revoked for the eastern part of the tip in line with "the principle of

minimum interference". He stated that he had spent a large amount of

money in preparing the western part of the tip and that there were now

no toxic substances there. He also saw a violation of Article 1 of

Protocol No. 1 in that he could no longer perform the contracts he

entered into with local authorities for the tipping of domestic waste,

and in that he could not use the land as he wished. He had a certified

opinion which put his loss at AS 18,000,000.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 May 1990 and registered on

24 July 1990.

On 7 January 1991 the Commission declared inadmissible the

applicant's complaint under Article 1 of Protocol No. 1 to the

Convention, and decided to request the parties to submit written

observations on the admissibility and merits of the complaint under

Article 6 para. 1 of the Convention.

The respondent Government submitted their observations on 15

April 1991 and the applicant submitted his on 13 June 1991 and 21

August 1991. On 4 September 1991 the Government submitted further

observations, to which the applicant replied on 10 October 1991.

On 15 May 1992 the Commission decided to invite the parties to

a hearing on the admissibility and the merits of certain aspects of the

case. At the hearing, which was held on 8 September 1992, the parties

were represented as follows:

For the Government:

Mr. Wolf OKRESEK, Federal Chancellery, Agent

Mr. Franz OBERLEITNER, Federal Ministry for Agriculture and Forestry,

Adviser

Ms. Susanne BOIGNER, Federal Ministry for Foreign Affairs, Adviser

For the applicant:

Mr. Michael GNESDA, Lawyer.

THE LAW

The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that he was not able to have a hearing

of the issue of the revocation of his tipping licence before a court

which complied with Article 6 para. 1 (Art. 6-1) of the Convention.

In connection with the question of a public, oral hearing before

the Administrative Court and/or Constitutional Court, the Government

consider that the applicant failed to raise this issue in his original

application to the Commission and that he has therefore failed to

comply with the six months rule set out in Article 26 (Art. 26) of the

Convention.

The Commission notes in this respect that the applicant, at page

12 of his original application, referred to his "right to be heard",

and again, at pages 28 and 29 of the application, considered that the

Constitutional Court cannot be considered as a tribunal within the

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

"makes use of its power to reject a hearing on the merits of a

petition". Even assuming that this did not amount to "properly"

raising the question of an oral hearing in the initial submissions to

it, the Commission recalls that the Convention organs are in any event

free to attribute to the facts of a case a qualification in law

different from that given by an applicant, or, if need be, may view the

facts in a different manner (cf. Eur. Court H.R., Foti and Others

judgment of 10 December 1982, Series A no. 56, p. 15 et seq., para.

44). The original complaint to the Commission set out the facts of the

case, that is, the proceedings before the domestic authorities,

including the absence of a hearing. It is clear from the applicant's

replies to the Commission's questions that he thereby manifested his

agreement with the approach of the Commission. It follows that this

part of the application cannot be declared inadmissible for failure to

comply with the six months rule.

The Government further consider that the applicant may not claim

to be a victim of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention because the eastern part of the land, to which the tipping

licence at issue related, had already been completely filled, with the

result that the licence no longer had any effect, and that the

revocation only related to the eastern part. The applicant contests

this, submitting that until 1980 the Austrian administrative

authorities accepted that the licence related to the whole of the site,

and further submitting that in parallel criminal proceedings the courts

assumed that the licence related to the whole of the site.

The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention applies when there is a genuine and serious dispute

concerning a "right" which can be said, at least on arguable grounds,

to be recognised under domestic law. The dispute may relate not only

to the actual existence of a right, but also to its scope and the

manner of its exercise (cf. Eur. Court H.R., Skärby judgment of 28 June

1990, Series A no. 180-B, p. 36, para. 27). The Commission further

recalls that the question whether the licence at issue in the present

case extends to the whole of the site, or merely to the eastern part,

was one of the questions before the Administrative Court. The

Commission is not required to decide whether the licence attached to

the whole or only part of the site: it is sufficient for the purposes

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

formed part of the factual elements of the case.

Further in connection with the applicability of Article 6 para.

1 (Art. 6-1) of the Convention in the present case, the Government

submit that the revocation the applicant's licence under the Water

Rights Act 1959 was a dispute relating only to the effects of civil

rights and obligations, such that "the requirements resulting from the

fact that a decision has to be taken by an impartial tribunal must be

less severe in the non-traditional field of civil rights, including the

present case". In any event, the Government consider that the control

exercised by the Administrative Court in conjunction with that

exercised by the Constitutional Court meets 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 provides as follows:

"The provisions of Article 6 (Art. 6) of the Convention

shall be so applied that there shall be no prejudice to the

principles governing public court hearings laid down in

Article 90 of the 1929 version of the Federal

Constitutional Law."

The Government submit that this reservation is valid and applies

in such a way as to prevent the Commission from considering this

question.

The applicant, referring to the case-law of the Convention

organs, contends that the decision in the present case had a decisive

influence on his public law tipping licence which, in turn, was a pre-

condition for his business activities. He considers that the

Constitutional and Administrative Courts do not, even taken together,

fulfil the requirements of Article 6 (Art. 6), and submits that the

failure to hold a public hearing is not covered by Austria's

reservation to Article 6 (Art. 6) 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) of the Convention, the

examination of which must be reserved to an examination of the merits.

The application cannot, therefore, be declared manifestly ill-

founded within 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 ADMISSIBLE the remainder of the application

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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FISCHER v. AUSTRIA

FISCHER v. AUSTRIA

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