28 January 2011

FIFTH SECTION

Application no. 56422/09 by Karolina SCH Ä DLER-EBERLE against Liechtenstein lodged on 14 October 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Karolina Sch ädler-Eberle, is a Liechtenstein national who was born in 1937 and lives in Triesenberg. She is represented before the Court by Mr W. L. Weh, a lawyer practising in Bregenz , Austria .

A. The circumstances of the case

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

1. Background to the case

On 25 and 27 February 2000 a land development plan ( Zonenplan ) was adopted by referendum in the Municipality of Triesenberg . According to that plan, two plots of land owned by the applicant fell within a zone in which the construction of buildings was not authorised.

2. The municipality ’ s decision

By submissions of 28 March 2000 the applicant, who was represented by counsel throughout the proceedings, lodged an objection with the Municipality of Triesenberg . She contested the lawfulness of the land development plan, which she considered in breach of her right to equality and to protection of her property and requested that the plots of land in question be designated as building land.

On 15 November 2000 the Municipality of Triesenberg dismissed the applicant ’ s objection. It found, in particular, that the applicant ’ s plots of land were not fully developed for lack of complete water installations. Her real property had not been classified as building land in the municipality ’ s land development plan at issue, which was the first land development plan ever adopted for the area in question, for reasons of protection of the environment and of the landscape as the plots of land were situated outside the area inhabited throughout the year. It had been justified to treat the area in which the applicant ’ s plots of land were situated in a different manner than three areas which were fully developed and on large parts of which buildings had already been erected.

The decision was issued and sent to the applicant on 22 January 2001.

3. The Government ’ s decision

On 27 and 28 April 2004 the Liechtenstein Government dismissed the complaint made by the applicant on 7 February 2001 about the municipality ’ s decision. They considered the land development plan to be lawful. Endorsing the reasons given by the municipality, they argued, in particular, that even if the applicant ’ s plots of land may have been constructible under the provisional building rules of 1983, the applicant did not have a claim that her plots of land, which were not fully developed, be designated as building land in the municipality ’ s first land development plan. That plan defined the use of the real property covered by it for the first time in accordance with the law. The citizens of Triesenberg had been aware that there would be a land development plan, as prescribed by law, in the future and the authorities had not undertaken to designate the applicant ’ s plots of land as building land. The Government considered that it had not been necessary to hear the parties in person or to inspect the property in question as the relevant facts were clear from the applicant ’ s submissions and the documents relating to the land development plan.

4. The proceedings before the Administrative Court

On 14 May 2004 the applicant lodged a complaint against the Government ’ s decision with the Liechtenstein Administrative Court ( Verwaltungsgerichtshof ). She requested the Administrative Court to obtain certain documents concerning the land development plan from the municipality, to hold a public oral hearing, to designate her plots of land as building land or to grant her compensation for her factual expropriation and to declare the referendum adopting the land development plan void.

On 2 June 2004 the Municipality of Triesenberg submitted observations to which the applicant replied on 12 June 2004.

On 14 June 2004 the Municipality of Triesenberg submitted further documents and photos on the court ’ s request. The court informed the applicant thereof and further obtained the Government ’ s file and extracts from the land register on the plots of land in question.

On 30 June 2004 the Administrative Court , without having held a public oral hearing, dismissed the applicant ’ s complaint.

The Administrative Court found that there was nothing to indicate that Triesenberg ’ s land development plan as submitted to the citizens and as adopted by referendum had breached the applicant ’ s legitimate expectations that her real property be designated as building land. Even assuming that, as alleged by the applicant, prior to the referendum on the land development plan, officials of the municipality had raised hope that the applicant ’ s plots of land could be designated as building land at one point in the future, it was clear that in the land development plan to be adopted by referendum, those plots of land were not designated as building land. Therefore, it was not necessary to take the evidence offered by the applicant or to hold a public oral hearing.

Having regard to the documents submitted by the applicant, there was also no proof that the referendum of 25 and 27 February 2000 had been unlawfully manipulated.

5. The proceedings before the Liechtenstein Constitutional Court

a. The parties ’ submissions before the Constitutional Court

On 26 August 2004 the applicant lodged a constitutional complaint with the Liechtenstein Constitutional Court against the decision taken by the Administrative Court .

The applicant complained under Article 6 of the Convention that despite her express request and despite the fact that none of the authorities previously involved in the proceedings had held an oral hearing, the Administrative Court had refused to take evidence in an adversarial manner in an oral public hearing, contrary to its practice in comparable cases. Instead, that court had taken a lot of evidence and had obtained observations and replies only in a written procedure.

Referring to her complaints made before the Administrative Court , she further complained under Article 6 of the Convention about the procedure of adoption of the land development plan in Triesenberg. Relying on Article 1 of Protocol no. 1 to the Convention, she also argued that the unlawful land development plan had disproportionately interfered with her property rights.

The applicant requested the Constitutional Court to hold an oral hearing.

In its reply to the applicant ’ s observations, the Administrative Court confirmed that, contrary to previous proceedings before it in which Triesenberg ’ s land development plan had been at issue, it had indeed not held a public oral hearing in the applicant ’ s case. It argued that the situation of the plots of land concerned was commonly known and clearly shown on the photos in the file and that the applicant had been given the opportunity to comment on the few documents obtained by it in writing. Moreover, in proceedings concerning land development, it did not, as a rule, hold public oral hearings.

On 15 May 2006 the Liechtenstein Constitutional Court held a public hearing. The composition of the court subsequently changed, without a new oral hearing being held despite the applicant ’ s request.

b. The Constitutional Court ’ s judgment

On 4 November 2008 the Constitutional Court , in its deliberations in private, decided to dismiss as inadmissible the applicant ’ s request to declare void the referendum of 25 and 27 February 2000 on the land development plan in the Municipality of Triesenberg as the applicant had failed to lodge a separate complaint in respect of that referendum with the Government. It further rejected the remainder of the applicant ’ s complaints as ill-founded. It found, however, ex officio that the applicant ’ s right to a hearing within a reasonable time under the Liechtenstein Constitution and Article 6 § 1 of the Convention had been violated in the proceedings before it. It ordered that therefore, Liechtenstein was to bear the applicant ’ s costs of the proceedings, amounting to statutory lawyer ’ s fees of some 2,960 Swiss francs (CHF), and the court costs, amounting to CHF 1,700 (file no. StGH 2004/58).

The Constitutional Court reasoned its judgment, served on the applicant ’ s counsel on 14 April 2009, as follows:

(i) Lack of a public oral hearing before the Administrative Court

As regards the applicant ’ s complaint that the Administrative Court had failed to hold a public oral hearing, the Constitutional Court found that under Article 6 § 1 of the Convention, which the applicant could rely on in the proceedings before it, as a rule, an oral hearing had to be held.

However, when ratifying the Convention, Liechtenstein had made extensive reservations concerning, inter alia , the publicity of hearings as prescribed by Article 6 § 1. That reservation was to be considered as complying with Article 57 of the Convention. Even though some of the statutes to which the reservation applied were changed in the meantime, such as the Constitutional Court Act, the reservation concerning the publicity of the proceedings has not been withdrawn.

In determining whether the proceedings before the Administrative Court complied with the Constitution, the Constitutional Court found that the National Administrative Justice Act ( Gesetz über die allgemeine Landesverwaltungspflege ) of 21 April 1922 (see Relevant domestic law below) was applicable to the proceedings before the Administrative Court . It considered the reservation made by Liechtenstein in relation to Article 6 § 1 of the Convention, as far as, inter alia , that Act is concerned, to be valid. Therefore, the requirement of a public hearing, and thus the requirement of an oral hearing under Article 6 § 1 of the Convention did not apply to the proceedings before the Administrative Court .

The Constitutional Court noted that, however, under its recent case-law, the principle of a public hearing had to be considered as a vital aspect of the right to a fair trial and was thus part of the foundations of a democratic State governed by the rule of law. The applicant could be understood to have also complained about the lack of a fair trial as she had complained under Article 6 of the Convention that the Administrative Court had refused to take evidence in an adversarial manner in the course of a public oral hearing. The right to a fair trial under Article 6 § 1 was not covered by any reservation made by Liechtenstein when ratifying the Convention and was also protected by the Liechtenstein Constitution. The European Court of Human Right ’ s case-law on the scope of the right to a fair trial under Article 6 therefore had to be taken into account in the proceedings at issue.

The Constitutional Court noted that under Article 100 § 4 of the National Administrative Justice Act (see Relevant domestic law below) the Administrative Court had discretion in deciding whether or not to hold an oral hearing, but it had to exercise that discretion in accordance with fundamental procedural rights. The Administrative Court had argued that an oral hearing had not been necessary because the applicant ’ s submissions, even if correct, did not warrant the conclusion that the land development plan was unlawful. In the proceedings before the Constitutional Court , the Administrative Court had further argued that the situation of the plots of land concerned had been commonly known and clearly shown on the photos in the file.

The Constitutional Court agreed that the Administrative Court had been in a position to determine all factual and legal questions by having regard to the parties ’ written observations and the documents contained in the file. Moreover, the legal question whether in the course of the referendum on the land development plan the principles of good faith and of the protection of legal interests had been respected and whether the referendum had been manipulated had not been complex.

Therefore, having regard to the principles developed in the Strasbourg Court ’ s case-law concerning a public oral hearing (the court referred, in particular, to Schuler-Zgraggen v. Switzerland , 24 June 1993, Series A no. 263; Speil v. Austria (dec.) , no. 42057/98, 5 September 2002; and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, ECHR 2007 ‑ IV ) , the applicant ’ s right to a fair trial had not been violated by the Administrative Court ’ s refusal to hold a public oral hearing. The Administrative Court had thus exercised its discretion under Article 100 § 4 of the National Administrative Justice Act in accordance with the fundamental procedural rights.

(ii) The remainder of the applicant ’ s complaints

The Constitutional Court considered that the applicant had failed to exhaust domestic remedies in relation to her further complaints under Article 6 and Article 1 of Protocol no. 1 of the Convention because she had not submitted these complaints to the lower authorities and the Administrative Court .

The Constitutional Court further argued that, in any event, the land development plan had not breached the applicant ’ s right to property. The failure to designate the applicant ’ s plots of land as building land in the municipality ’ s first land development plan did not deprive her of a possession, but merely regulated the use of her real property. There were also no exceptional circumstances indicating that the applicant ’ s real property had to be designated as building land and she could not, therefore, claim compensation.

Moreover, the Constitutional Court found that the applicant ’ s complaint under Article 6 about the procedure of adoption of the land development plan in Triesenberg was ill-founded, in particular because the applicant had had access to the Administrative Court, an independent and impartial tribunal with full jurisdiction on both facts and law under Article 100 § 2 of the National Administrative Justice Act (see Relevant domestic law below) .

B. Rele vant domestic law and practice

Section 100 of the National Administrative Justice Act ( Landesverwaltungspflegegesetz of 21 April 1922 (LGBl. (Official Gazette) 1922, no. 24), insofar as relevant, provides as follows:

“(2) The Administrative Court shall have the powers and obligations of a court of full jurisdiction (unlimited review) with regard to any matter brought to it by way of a complaint in so far as no rights or legally recognized interests of parties in detail are at issue.

(3) Accordingly, the Administrative Court may of its own motion order a hearing involving the appearance of the parties to present oral argument, take evidence, and in general conduct the whole proceedings anew.

(4) However, the Administrative Court may also, if it considers a hearing of the parties to be unnecessary, or if the parties have not expressly requested such a hearing, review the contested decision on the basis of the files ...”

According to court practice, hearings before the Administrative Court are not open to the public.

C . Liechtenstein ’ s reservation in respect of Article 6 of the Convention

The reservation made by Liechtenstein in respect of Article 6 § 1 reads as follows:

“In accordance with Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], the Principality of Liechtenstein makes the reservation that the principle that hearings must be held and judgments pronounced in public, as laid down in Article 6, paragraph 1, of the Convention, shall apply only within the limits deriving from the principles at present embodied in the following Liechtenstein laws:

...

- Act of 21 April 1922 on national administrative justice, LGBl. 1922 No. 24

...”

COMPLAINTS

The applicant reiterates her complaint made before the Constitutional Court that the Administrative Court ’ s failure to hold a public oral hearing violated her rights guaranteed by Article 6 of the Convention.

The applicant further complains under Article 6 of the Convention about the fact that the land development plan of the Municipality of Triesenberg was adopted by a secret vote of its citizen s and that its legality and that of the procedure for its adoption was not fully examined in the proceedings before the domestic authorities and courts , but only t ested for lack of arbitrariness .

The applicant further argues that the unlawful land development plan disproportionately interfered with her right to respect for her property under Article 1 of Protocol no. 1 to the Convention as it designated her land, which was suitable for construction, as non-building land without awarding her compensation.

QUESTIONS TO THE PARTIES

1. Does the reservation made by Liechtenstein in respect of Article 6 of the Convention in relation of the publicity of hearings in proceedings governed by the National Administrative Justice Act comply with the requirements of Article 57 of the Convention? In particular, is the present state of the law still covered by this reservation?

2. Assuming that the reservation is valid, what is the scope of that reservation? In particular, is the Court dispensed from examining the applicant ’ s complaint about the lack of an oral hearing under the aspect of her right to a fair trial?

3 . Assuming that the Court has jurisdiction to examine the applicant ’ s complaint about the lack of a (public) hearing before the Administrative Court, did the Administrative Court ’ s refusal to hold a (public) hearing in the applicant ’ s case breach her rights under Article 6 § 1 of the Convention?