THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29544/95

by Helmut ENTLEITNER

against Austria

The European Court of Human Rights ( Third Section ) sitting on 12 October 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann , Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 September 1995 by Helmut Entleitner against Austria and registered on 14 December 1995 under file no. 29544/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the European Commission of Human Rights’ partial decision of 2 July 1997;

Having regard to the observations submitted by the respondent Government on 29 October 1997 and the observations in reply submitted by the applicant on 17 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

T he applicant is an Austrian citizen, born in 1943. He lives in Piesendorf , and is represented before the Court by Mr. E. Proksch , a lawyer practising in Vienna .

A. Particular circumstances of the case

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

On 12 June 1991, the applicant applied to the Salzburg District Agricultural Authority ( Agrarbezirksbehörde , the "District Authority") for declarations (1) that the share in an agricultural association ( Agrargemeinschaft ) represented by a certain parcel of land ("the share") belonged to him, and (2) that grazing rights in that parcel ("the grazing rights") also belonged to him. On 24 June 1991, the District Authority found that the applicant had not made out his claims, and it declared that the share and the grazing rights belonged to a third person. The applicant appealed to the Regional Agricultural Authority ( Agrarlandesbehörde , the "Regional Authority").

The Regional Authority dismissed the applicant’s appeal on 8 May 1992. After an oral hearing, it found, so far as relevant, that the share had passed with a transfer of the land to a third party in 1949 (as rectified in 1952). The question of the grazing rights had to be determined by reference to the ownership of the land on 29 April 1868, as that was the last time they were mentioned. In the absence of any express alienation of the grazing rights since then, the grazing rights passed with the land - that is, the applicant did not own them.

The Constitutional Court ( Verfassungsgerichtshof ) declined to deal with the applicant’s constitutional complaint on 14 October 1992. It remitted the case to the Administrative Court ( Verwaltungsgerichtshof ).

The Administrative Court dismissed the applicant’s administrative complaint on 14 March 1995 (judgment received by the applicant’s representative on 31 March 1995). In its 29 page judgment, the Administrative Court confirmed the relevant parts of the Regional Authority’s decision. It declined to hold the hearing the applicant had requested.

B. Relevant domestic law

A summary of the rules concerning the composition of and procedure before Regional Agricultural Authorities, and hearings before the Administrative Court may be found in the judgment in the case of Stallinger and Kuso (judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 674-675, §§ 23-27). In that case, Regional Agricultural Authorities were referred to as the Regional Land Reform Boards.

COMPLAINTS

The applicant alleges a violation of Article 6 § 1 of the Convention. In particular, he claims that the civil servants who participated in the Regional Agricultural Authority also act as experts, and that the Authority cannot therefore be an independent tribunal within the meaning of Article 6. He also claims that the subsequent review by the Constitutional and Administrative Courts cannot remedy these flaws, as these courts merely have power to quash decisions, and cannot take decisions on the merits on their own.

He further claims that the absence of a public hearing before any of the bodies which considered the case violated Article 6.

PROCEDURE

The application was introduced on 27 September 1995 and registered on 14 December 1995.

On 2 July 1997 the European Commission of Human Rights decided to communicate the applicant’s complaints concerning the absence of a public hearing to the respondent Government and to declare the complaints under Article 1 of Protocol No. 1 inadmissible.

The Government’s written observations were submitted on 29 October 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 17 February 1998, after expiry of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant alleges violation of Article 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 and public hearing within a reasonable time by an independent and impartial tribunal established by law. ..."

The Government do not contest the admissibility of the complaint regarding the right to a “public hearing”. They consider that the Regional Agricultural Authority constituted the “independent and impartial tribunal” to which the applicant was entitled under Article 6 § 1 of the Convention.

The applicant maintains his complaints, in particular that the Regional Agricultural Authority was not an independent and impartial tribunal. He underlines that the members of the Authority are civil servants, and that they decide on objections made to the opinions they have issued. He also claims that the proceedings were not adversarial ( kontradiktorisch ), as required by the Convention.

The Court considers, in the light of the parties’ submissions, that the remaining application raises complex issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 of the Convention. No other grounds for declaring the application inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé N. Bratza Registrar President