Lughofer v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 22811/93

by Ernst and Anna LUGHOFER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 April 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 September 1993

by Ernst and Anna LUGHOFER against Austria and registered on

25 October 1993 under file No. 22811/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 July 1997 and the observations in reply submitted by the

applicant on 5 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant couple, both of Austrian nationality, are farmers

in Unterpilsbach (Upper Austria). Before the Commission they are

represented by Mr. E. Proksch, a lawyer practising in Vienna.

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

summarised as follows.

A. Particular circumstances of the case

The applicants' farm was the object of land consolidation

proceedings (Zusammenlegungsverfahren) instituted by the Gmunden

District Agricultural Authority (Agrarbezirksbehörde) on

22 February 1973.

On 21 August 1984 the District Authority held a hearing at which

the farmers concerned could express their wishes (Wunschverhandlung)

and on 22 August 1985 the District Authority ordered the provisional

transfer of the properties concerned, inter alia, land owned by the

applicants. In July 1989 the District Authority issued a consolidation

plan (Zusammenlegungsplan). The applicants appealed claiming that they

had not received adequate land in exchange for their parcels AK 2 and

AK 8. On 5 July 1990 the Upper Austria Regional Land Reform Board

(Landesagrarsenat) dismissed the applicants' appeal after an oral

hearing held in private, but in presence of the parties and their

lawyer.

On 25 September 1990 the applicants filed a complaint with the

Administrative Court (Verwaltungsgerichtshof) against the above

decision. They also asked the Court to hold an oral hearing.

On 15 December 1992 the Administrative Court dismissed the

complaint rejecting at the same time, in accordance with Section 39

para. 2 (6) of the Administrative Court Act 28 the applicants' request

for an oral hearing.

B. Relevant domestic law and practice

a. Hearings before Land Reform Boards

Section 9(1) of the Federal Agricultural Proceedings Act

(Agrarverfahrensgesetz) provided as follows:

"Land Reform Boards take their decisions after an oral hearing

in the presence of the parties."

It is the constant practice of administrative authorities to hold

oral hearings in camera unless the law provides otherwise.

By virtue of legislation enacted in December 1993

(Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform

Boards are now public.

b. Hearings before the Administrative Court

Pursuant to Section 36 of the Administrative Court Act

(Verwaltungsgerichtshofgesetz), proceedings consist essentially in an

exchange of written pleadings. If one of the parties so requests the

Administrative Court may hold a hearing which is in principle held in

public (Sections 39 para. 1 (1) and 40 para. 4).

Section 39 para. 1 of the Administrative Court Act provides that

the Administrative Court is to hold a hearing after its preliminary

investigation of the case where a complainant has requested a hearing

within the time-limit. Section 39 para. 2 (6), which was added to the

Act in 1982, provides however:

"Notwithstanding a party's application ..., the Administrative

Court may decide not to hold a hearing where

...

6 it is apparent to the Court from the pleadings of the parties

to the proceedings before it and from the files relating to the

earlier administrative proceedings that an oral hearing is not

likely to clarify the case further."

COMPLAINT

The applicants remaining complaint concerns the lack of a public

hearing as required by Article 6 para. 1 of the Convention in the land

consolidation proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 September 1993 and

registered on 25 October 1993.

On 15 May 1996 the Commission decided to communicate the

applicants' complaint concerning the lack of a public hearing in the

land consolidation proceedings to the respondent Government and to

declare the remainder of the application inadmissible.

On 28 May 1997 the Commission decided to ask the respondent

Government for written observations on the admissibility and the merits

of the remaining complaint.

The Government's written observations were submitted on

8 July 1997, after an extension of the time-limit fixed for that

purpose. The applicants replied on 5 February 1998, after the time-

limit for submitting their reply had expired.

THE LAW

The applicants remaining complaint concerns the lack of a public

hearing in the land consolidation proceedings. They rely on Article 6

para. 1 (Art. 6-1) of the Convention, which, insofar as relevant, reads

as follows:

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

everyone is entitled to a ... public hearing ... by an

independent and impartial tribunal established by law."

The Government, referring to the judgment of the European Court

of Human Rights in the case of Stallinger and Kuso v. Austria (judgment

of 23 April 1997, Reports 1997-II, p. 666) acknowledges that the

applicants' complaint is admissible and refrain from any further

submissions at this stage.

The Commission considers, in the light of the parties'

submissions, that the remaining complaint raises issues of law and of

fact under the Convention, the determination of which should depend on

an examination of the merits. The Commission concludes, therefore,

that this part of the applications is not manifestly ill-founded,

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

No other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the remainder

of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber