CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 février 1973

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   The facts of the case as submitted by the applicant may be summarised as follows:   The applicant is a German citizen, born in 1923 and resident in Hamburg. He is represented by Dr. Franz C., a lawyer practising in Hamburg and acting under a power-of-attorney dated 1 March 1972.   The applicant complains under Article 6 of the Convention about certain proceedings before the Hamburg Administrative Court of Appeal (Oberverwaltungsgericht) relating to a decision by the Hamburg building authorities to widen the street on which his property is located.   From his statements and from documents submitted in support of his application it appears that the applicant owns a house with garden at the A. strasse in Hamburg. The house is situated about 9 metres away from the street. In 1962 the competent authority of the City of Hamburg decided that the street needed widening in view of the heavy traffic on that street. In 1964 it tried to buy from the applicant a tract of land 4.5 metres wide but the applicant refused to sell. In April 1964 the City started to widen the street and the works were finished except for the pavement in front of the applicant's property.   In October 1964 the competent Hamburg authority took an administrative decision by which it fixed the plans for the widening of the street (Planfeststellungsbeschluss). Such decision is required under the Federal Road Act (Bundesfernstrassengesetz) and it determines the building project as such as well as any public law relations between the authorities and the individuals affected by the project.   The applicant challenged that decision before the administrative authorities and finally took his case before the Administrative Court (Verwaltungsgericht) in Hamburg which decided on .. November 1965 to set aside the plans. The City of Hamburg appealed (Berufung) against this decision to the Administrative Court of Appeal (Oberverwaltungsgericht) which fixed a hearing for .. May 1968. On that day the Court decided at the applicant's request that (1) it would submit to the parties a proposal for a settlement of the matter, (2) if no settlement could be achieved, a decision would be communicated to the parties after notification by one of the parties that the settlement negotiations had failed, and (3) during the settlement negotiations the parties should be authorised to inspect certain files in the State Archive and to submit their observations within two weeks' period.   It appears, however, that on the same day the Court prepared a hand-written draft of its judgment setting aside the Administrative Court's decision of .. November 1965 and dismissing the applicant's case. This judgment of the Administrative Court of Appeal dated .. May 1968, was finally sent to the applicant who received it on .. January 1969.   On .. February 1969 the applicant lodged with the Federal Administrative Court (Bundesverwaltungsgericht) a further appeal (Revision) and on .. June 1969 he submitted the grounds of his appeal alleging violations of procedural and of substantive law. As regards his allegations concerning the proceedings the applicant also invoked Article 6 (1) of the Convention claiming that, under that provision, judgments should be pronounced publicly and might not simply be communicated to the parties in writing. Furthermore, he complained that the notification of the judgment had been considerably delayed, that the judgment was taken even before the period for the submission of further observations had expired, that the Court had recorded its decision in an irregular manner by simply writing it on a piece of paper thus opening the possibility of making subsequent changes, and finally, that the Court had failed to grant a fair hearing in that it did not investigate further certain facts which supported the applicant's case.   The Federal Administrative Court dismissed the further appeal on .. August 1971. As regards the allegation under Article 6 of the Convention the Court referred to its previous jurisprudence according to which that provision was applicable only in respect of civil rights and criminal charges, but not in matters concerning administrative laws. As regards the complaint that, contrary to the relevant provision of the Code of Administrative Procedure (Verwaltungsgerichtsordnung) the judgment of .. May 1968 was only served on .. January 1969 the Court pointed out that the decision had been taken on the day of the hearing but had been sent to the parties only after some time in view of the settlement negotiations between them. Furthermore, there was no substance in the applicant's complaint that, in view of the parties' right to make further submissions the judgment should not have been taken on the day of the hearing, as in fact neither side had made such further submissions. As regards the complaint concerning the manner in which the judgment had been recorded the Court found that this had only been made after the period for submitting the grounds of appeal had expired and it was therefore out of time. In any event this complaint was ill-founded as were the other complaints concerning the Court's failure to investigate certain further facts whose relevance the applicant had failed to substantiate.   The Federal Administrative Court also rejected the applicant's allegations regarding violations of substantive law. The decision was communicated to the applicant on .. October 1971.   Complaints   The applicant now complains that contrary to Article 6 (1) of the Convention the Hamburg Administrative Court of Appeal failed to pronounce its judgment publicly and that a written judgment was served on him only after a considerable period had elapsed since the decision had been taken.   He explains that, in his opinion, the observance of this provision is particularly important as it is necessary to avoid that a judgment will be changed without the participation of all the judges in the case after the deliberations. According to the applicant, this happened in another case the facts of which he submits in support of his present application. In the applicant's submission this possibility is facilitated by the Administrative Court of Appeal's practice to write its judgment on a piece of paper.   The applicant also complains that the relevant provision of the Code of Administrative Procedure authorising communication of written judgments instead of the public pronouncement was inconsistent with Article 6 (2) of the Convention.   The applicant further complains under Article 6 of the Convention that he was not granted a fair hearing in that, contrary to his request, certain files were not taken into consideration and the Court failed to inspect the premises in question. He states that it was not forceable that the Court would take its decision after the hearing in spite of the fact that the parties had been authorised to make further submissions. Furthermore, he had made substantial submissions in his grounds of appeal concerning the relevance and the significance of the evidence adduced by him, but the Court had completely ignored his arguments. He now submits to the Commission in detail the reasons why, in his opinion, the said evidence was relevant in his case.   The applicant further submits that Article 6 of the Convention is applicable to the proceedings in his case and that the findings of the Federal Administrative Court to the contrary is not in line with the interpretation to be given to the notion of "civil rights and obligations" within the meaning of that provision.   He finally states that he has exhausted the remedies available to him under German law, and that, in particular, it was not possible to base a constitutional appeal on the European Court of Human Rights.   THE LAW   The applicant has complained that Article 6 (Art. 6) of the Convention has been violated in various respects by reason of the proceedings before the Administrative Court of Appeal in Hamburg relating to a decision by the Hamburg building authorities to widen the street on which his property is situated.   Article 6 (1) (Art. 6-1) of the Convention provides: "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. Judgment shall be pronounced publicly ...". The Commission must therefore first decide whether the court proceedings relating to the above claim by the applicant fall within the scope of that provision to the extent that they involve the determination of his civil rights.   In this connection the Commission recalls its established jurisprudence namely that, for the question whether a right is of a civil nature, it is not decisive that the right claimed by the applicant constitutes a "civil right" in the country concerned, and indeed the term "civil rights and obligations" cannot be construed as a mere reference to the domestic law of the High Contracting Party concerned. Instead, the concept relates to an autonomous notion which must be interpreted independently having regard to the nature of the claim and to the purpose of the complaint. Only in this connection can the general principles of the domestic law of the High Contracting Party be taken into consideration (see decisions on the admissibility of Applications No 508/60, Yearbook, Vol. 5, pp. 108, 122; No 1931/63, Yearbook, Vol. 7, pp. 213, 233; and No 3959/69, Collection of Decisions, Vol. 35, pp. 109, 122).   In the present case, the applicant's claim before the Hamburg courts concerned the decision by the planning authorities (Planfeststelungsbeschluss) to widen the street on which his property is situated. This decision had been taken in accordance with the provisions of the Federal Road Act (Bundesfernstrassengesetz), in view of the heavy traffic in that street. Such decision is required under the above Act in order to fix the building scheme as well as to determine the basis of the relationship in public law as between the authorities and the individuals affected by the project.   It is true that the said decision affected the applicant's private property in that, although it did not as such concern its expropriation, it would serve as a basis for any subsequent expropriation measures which the authorities might be required to take, if no agreement could be reached with the applicant as to the sale of his land.   However, the proceedings which the applicant had instituted before the Administrative Courts did not concern the determination of any of his private rights in relation to his property. The purpose of his complaint was to obtain a judgment from the courts setting aside an administrative act which the authorities had taken in the execution of their aim to provide for safe roads. Accordingly, the relevant proceedings concerned the exercise of the duties and powers of the competent authorities in the implementation of the above aim, as well as the rights of the individual arising out of this bilateral relationship which clearly falls in the domain of public law.   In the Commission's opinion, the present case is to be distinguished from the Ringeisen Case in which the European Court of Human Rights found Article 6 (1) (Art. 6-1) of the Convention to be applicable. In that case, the relevant proceedings concerned the approval by the competent authorities of a purchase contract between the applicant and the sellers of a certain real property. This legal relationship between private persons and the State's interference therewith by refusing to approve the contract between them was emphasised by the European Court when it decided in the Ringeisen Case that the result of the proceedings had been decisive for private rights and obligations within the meaning of Article 6 (1) (Art. 6-1) of the Convention (see European Court of Human Rights, Ringeisen Case, judgment of 16 July 1971, paragraph 94).   However, in the present case, the public authorities did not determine, nor did they interfere, with any legal relationship existing between the applicant and a third person but they were concerned in determining the legal relationship between the applicant and themselves by deciding how the applicant's property should be used in the public interest.   Consequently, the proceedings before the Hamburg Administrative Court of Appeal, which are not the object of the applicant's present complaint, were not concerned with the determination of his "civil rights and obligations" and therefore fall outside the scope of Article 6 (Art. 6) of the Convention.   It follows that the Commission has no competence ratione materiae to examine the application which must therefore be rejected as being incompatible with the provisions of the Convention in accordance with Article 27 (2) (Art. 27-2) thereof.   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE.