THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42032/98 by Johann WIDMANN against Austria

The European Court of Human Rights (Third Section) , sitting on 20 March 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 March 1998 and registered on 3 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national living in Mittersill . He is represented before the Court by Mr E. Proksch , a lawyer practising in Vienna.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant is a farmer and owner of the Roßweg alp in Mittersill . According to a legal instrument of 1868 the owner of this alp is entitled to obtain timber from the Austrian Federal Forestry Administration to the extent necessary for the maintenance of the alp’s cabins.

On 30 October 1987 the applicant requested the Office of the Salzburg Regional Government as the agricultural authority of first instance (“the Agricultural Authority”) to grant him the necessary quantity of timber for the maintenance of three cabins.

On 14 July 1988 the Agricultural Authority held a hearing and on 20 June 1989 a forestry expert delivered his opinion. On 4 September 1989 the Agricultural Authority gave its decision, ordering the Federal Forestry Administration to provide the applicant with a certain quantity of timber  within four weeks.

On 25 September 1989 the applicant appealed against this decision.

On 2 February 1990 the Salzburg Regional Land Reform Board ( “the Regional Board” ) dismissed the appeal and ordered the Federal Forestry Administration to provide the applicant with a smaller quantity of timber within four weeks. It found that timber was not due for cabins that had tumbled down because of the applicants’ failure to maintain them properly.

On 27 June 1990 the applicant filed a complaint against this decision with the Administrative Court.

On 12 October 1993 the Administrative Court quashed the Regional Board’s decision. It considered, inter alia , that the notion of “maintenance” also comprised the restoration of a derelict cabin.

On 28 January 1994 the Regional Board granted the applicant’s appeal of 25 September 1989 and referred the case back to the Agricultural Authority.

By decision of 6 June 1994 the Agricultural Authority opened supplementary proceedings with a view to amending the legal instrument of 1868. On 25 August 1994 and 25 January 1995 hearings were held. On 12 December 1994 an agricultural expert delivered his opinion as to the average annual timber supply necessary for the maintenance of the cabins.

On 6 February 1995 the Agricultural Authority issued a decision amending the legal instrument of 1868 establishing the maximum quantity of timber annually due to the owner of the Rossweg alp for the necessary maintenance of cabins and fixing an account period of ten years, within which it was possible to obtain anticipatory and subsequent supplies. The applicant appealed against this decision, claiming that a fixed annual supply of timber should be granted irrespective of the need to maintain the cabins.

On 23 June 1995 the Regional Board partly granted the appeal and amended the Agricultural Authority’s decision.

On 6 March 1996 the Supreme Land Reform Board (“the Supreme Board”), after having held a hearing with the applicant’s counsel and a representative of the Federal Forestry Administration, dismissed the applicant’s further appeal. It found that the legal instrument of 1868 only conferred a right to obtain timber for the maintenance of cabins, not a right to a fixed annual quantity of timber.

On 30 May 1996 the applicant lodged a complaint against the Supreme Board’s decision with the Constitutional Court. He complained, inter alia , about the length of the proceedings and an alleged violation of his right to property.

On 24 September 1996 the Constitutional Court refused to deal with the complaint for lack of sufficient prospects of success. It referred the case to the Administrative Court.

On 11 December 1997 the Administrative Court dismissed the applicant’s complaint, refusing at the same time his request for a hearing on the ground that the case only raised questions of law. It confirmed that the applicant was entitled to obtain a variable quantity of timber dependent on the need to maintain his alp’s cabins, but not to obtain a fixed annual quantity. The decision was served on 28 January 1998.

B. Relevant domestic law and practice

According to section 9 § 1 of the Federal Agricultural Proceedings Act, land reform boards take their decisions after an oral hearing in the presence of the parties. It was the constant practice of the agricultural authorities to hold hearings in camera.

By virtue of legislation enacted in December 1993 ( Bundesgesetzblatt 901/1993), hearings before land reform boards are now public .

COMPLAINTS

The applicant complains under Article 6 § 1 about the length of the proceedings and about the lack of a public oral hearing before the Administrative Court.

Further, the applicant complains under Article 1 of Protocol No. 1 that the decisions at issue violate his right to property, in that they fail to fix the quantity of timber due.

THE LAW

1. The applicant raises complaints under Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... public hearing within a reasonable time by [a] ... tribunal...”

a. As to the applicant’s complaint about the length of the proceedings, the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore, necessary in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

b. As to the complaint about the lack of a public oral hearing before the Administrative Court, the Court recalls that, provided that a public hearing has been held at first instance, the absence of such a hearing before the second or third instance may be justified by the special features of the proceedings at issue. Thus, the absence of a hearing in “leave to appeal” proceedings or in appeal proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 of the Convention (see the Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 358, § 41).

In the present case, the Supreme Board held a hearing with both parties on 6 March 1996. This hearing was public according to the legislation in force since 1993, and the applicant has not alleged that this requirement was not complied with. Nor has he challenged the Supreme Board’s qualification as a tribunal (see the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, pp. 17-19, §§ 36-41 and, as a recent authority, the Stallinger and Kuso v. Austria judgment of 23 April 1997, Reports 1997-II, p. 677, § 37). The Administrative Court refused to hold a further hearing on the ground that the case only raised questions of law. In these circumstances, the Court cannot find that the lack of a hearing before the Administrative Court discloses any appearance of a violation of Article 6 § 1 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains under Article 1 of Protocol No. 1, which guarantees the right to the peaceful enjoyment of possessions. However, having considered the facts of the present case as submitted by the applicant, the Court does not find that they disclose any appearance of a violation of that right.

It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint about the length of the proceedings;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President