CEDH · CASELAW;REPORTS;ENG — 31 août 1993

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16568/90                       Elfriede and Sigismund Fuhrmann                                   against                                   Austria                           REPORT OF THE COMMISSION                         (adopted on 31 August 1993)   TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 14) . . . . . . . . . . . . . . . . . . . . . 1 - 2         A.    The application            (paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5 - 9) . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 10 - 14) . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 15 - 27). . . . . . . . . . . . . . . . . . . . . 3 - 6         A.    The particular circumstances of the case            (paras. 15 - 22) . . . . . . . . . . . . . . . . . . 3 - 4         B.    Relevant domestic law and practice            (paras. 23 - 27) . . . . . . . . . . . . . . . . . . 5 - 6   III.   OPINION OF THE COMMISSION       (paras. 28 - 54). . . . . . . . . . . . . . . . . . . . .7 - 12         A.    Complaints declared admissible            (para. 28) . . . . . . . . . . . . . . . . . . . . . . . 7         B.     Points at issue            (para. 29) . . . . . . . . . . . . . . . . . . . . . . . 7         C.    As to the applicability of Article 6 para. 1            of the Convention (paras. 30 - 37) . . . . . . . . . 7 - 8         D.    As to compliance with Article 6 para. 1            of the Convention (paras. 38 - 52) . . . . . . . . .8 - 11              a.     The scope of review by the Administrative Court                  (paras. 38 - 46) . . . . . . . . . . . . . . .8 - 11                    Conclusion (para. 46). . . . . . . . . . . . . . .11              b.     As to the fairness of the proceedings                  (paras. 47 - 52) . . . . . . . . . . . . . . . . .11                    Conclusion (para. 52). . . . . . . . . . . . . . .11         E.    Recapitulation            (paras. 53 - 54) . . . . . . . . . . . . . . . . . 11 - 12   DISSENTING OPINION OF Mrs. LIDDY. . . . . . . . . . . . . . . . . .13   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .14   APPENDIX II       : DECISION ON THE ADMISSIBILITY. . . . . . . 15 - 20   I.    INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicants are Austrian citizens born in 1941 and 1937 respectively.   They are represented before the Commission by Mr. H. Vana, a lawyer practising in Vienna.   3.     The application is directed against the Republic of Austria whose Government were represented initially by their agent, Ambassador H. Tuerk, head of the International Law Department of the Federal Ministry for Foreign Affairs, and latterly by his successor, Ambassador F. Cede.   4.     The application concerns court proceedings in which the applicants attempted to challenge the lawfulness of a permit to build and, provisionally, to operate a power line over land which the applicants farm.   The applicants allege that they had no access to a court with full jurisdiction on questions of law and fact, and complain of unfairness of the proceedings.   They invoke Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 9 April 1990 and registered on 8 May 1990.   6.     On 15 October 1991 the Commission decided to bring the application to the notice of the respondent Government and to request the parties' observations on its admissibility and merits.   7.     The respondent Government submitted their observations on 7 February 1992 and the applicants submitted observations in reply on 4 June 1992.   8.     On 1 December 1992 the Commission declared the application admissible.   9.     After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present report   10.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA   11.    The text of this Report was adopted on 31 August 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   12.    The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a       breach by the State concerned of its obligations under the       Convention.   13.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   14.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   15.    On 28 April 1988 the Minister for Economic Affairs (Bundesminister für wirtschaftliche Angelegenheiten) granted permission to an electricity supply company (Österreichische Elektrizitätswirtschafts-Aktiengesellschaft)   for the construction and provisional operation of a 380 KV power line between Vienna and the Austrian-Hungarian border leading through land belonging to the applicants' son.   The applicants farm the land, which they hold in usufruct.   The decision was not served on the applicants or on their son.   When the applicants' lawyer coincidentally came to know of the decision, the applicants lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), alleging a violation of Article 6 of the Convention in that they had not had a fair hearing before an independent and impartial tribunal.   16.    On 26 September 1989 the Constitutional Court, referring to its established case-law concerning Article 6 of the Convention, refused to deal with the case finding that it lacked prospects of success before that Court.   17.    On 30 October 1989 the Constitutional Court referred the complaint to the Administrative Court (Verwaltungsgerichtshof).   On 26 June 1990 the Administrative Court quashed the contested decision to the extent that permission had been granted with respect to land belonging to the applicants' son.   The Administrative Court considered that the applicants should have been treated as parties in the prior proceedings.   18.    On 4 September 1990 the Ministry for Economic Affairs held an oral hearing with the applicants.   At the hearing various experts were heard.   An agricultural expert, who was not an employee of the Ministry nor a court accredited expert (gerichtlich beeideter Sachverständiger), gave evidence, as did an electro-technical expert who was employed by the Ministry.   A medical expert, also not an employee of the Ministry, gave further evidence at the hearing.   On 1 October 1990 the Minister for a second time granted to the electricity supply company permission for the construction and provisional operation of the power line over the land farmed by the applicants.   19.    The applicants lodged a complaint with the Administrative Court. They submitted that the decision was unlawful for breaches of procedural rules as it conflicted with Sections 6 and 7 of the Power Lines Act (Starkstromwegegesetz).   In particular, the applicants contended that the authority had refused to hear an expert proposed by them.   They also alleged a violation of Article 6 of the Convention in that they had not had a fair hearing before a tribunal and claimed that certain provisions of the Power Lines Act were unconstitutional.   20.    On 23 April 1991 the Administrative Court dismissed the applicants' complaint on the grounds that they did not have a right to have a particular expert nominated as "official" expert.   On the other hand, they could have submitted an expert opinion from any expert they had wished in support of their contentions, but had failed to do so. The Court found that it could not be said that there were errors in the assessment of the evidence by the challenged authority.   With regard to the allegations concerning Article 6 of the Convention, the Administrative Court found as follows:         [Translation]         "Finally, the applicants allege that certain provisions of the       Power Lines Act are unconstitutional.   Their reasoning is that,       in the light of Article 6 of the Convention, no interference may       take place with their property rights without court proceedings.       The respondent authority rightly points out in its counter-       pleadings that according to the recent case-law of the       Constitutional Court (cf. Constitutional Cases No. 11760), it is       permissible for administrative authorities to expropriate, and       for compensation claims to be determined initially by       administrative authorities, as here, where the administrative       proceedings are followed by proceedings before a court.   Indeed,       the Constitutional Court, in its decision of 30 October 1989       (..), which preceded the Administrative Court's decision of       26 June 1990, expressed no disquiet as to this legal position.       The Administrative Court shares the legal opinion of the       Constitutional Court as thus expressed."         [German]         "Abschließend behaupten die Beschwerdeführer eine Verfassungs-       widrigkeit von Bestimmungen des Starkstromwegegesetzes mit der       Begründung, daß im Hinblick auf Art. 6 MRK ohne gerichtliches       Verfahren nicht in ihre dinglichen Rechte eingegriffen werden       dürfte.   Diesem Vorbringen hält die belangte Behörde in ihrer       Gegenschrift zutreffend entgegen, daß auch nach der neueren       Rechtsprechung des Verfassungsgerichtshofes (vgl. VfSlg. 11760)       eine Enteignung durch Verwaltungsbehörden zulässig ist und über       Entschädigungsansprüche zunächst Verwaltungsbehörden entscheiden       dürfen, wenn, wie dies auch hier der Fall ist, eine sukzessive       Gerichtszuständigkeit vorgesehen ist.   Tatsächlich hat ja auch       der Verfassungsgerichtshof in dem dem Erkenntnis des Verwaltungs-       gerichtshofes vom 26. Juni 1990 vorausgehenden Beschluß vom       30. Oktober 1989 ... keine Bedenken gegen die hier gegebene       Rechtslage geäußert.   Der Verwaltungsgerichtshof teilt die damit       zum Ausdruck kommende Rechtsanschauung des       Verfassungsgerichtshofes."   The decision of the Administrative Court was served on the applicants' representative on 31 May 1991.   21.    On 3 March 1990 the Minister for Economic Affairs ruled that the construction and the operation of the power line in question were in the public interest and necessary.   In expropriation proceedings he authorised the construction of the power line over the land of the applicants' son and ordered payment of AS 10,139.64 to the applicants' son.   22.    The applicants applied for a judicial decision to the Neusiedl District Court (Bezirksgericht).   This application had the effect that the Minister's decision was quashed automatically.   Proceedings before the Neusiedl District Court are still pending.   B.     Relevant domestic law and practice   23.    Section 6 (1) of the Power Lines Act 1968 (Starkstromwegegesetz 1968) provides that anyone intending to build and run an electric power line must apply for permission.   24.    Section 7 of the Power Lines Act provides for the conditions for the grant of such permission.   Section 7 (1), so far as relevant, reads as follows:         [Translation]         "The authority is required to grant permission for the       construction and operation if the electric power line does not       contravene the public interest in supplying the population or       sections of it with electric energy.   In granting permission the       authority shall ensure, by imposition of conditions, that the       electric power lines are in accordance with these requirements       ..."         [German]         "Die Behörde hat die Bau- und Betriebsbewilligung zu erteilen,       wenn die elektrische Leitungsanlage dem öffentlichen Interesse       an der Versorgung der Bevölkerung oder eines Teiles derselben mit       elektrischer Energie nicht widerspricht.   In dieser Bewilligung       hat die Behörde durch Auflagen zu bewirken, daß die elektrischen       Leitungsanlagen diesen Voraussetzungen entsprechen..."   25.    Section 41 of the Administrative Court Act 1985 (Verwaltungsgerichtshofgesetz) provides, so far as relevant, as follows:         [Translation]         "(1)   In so far as the Administrative Court does not find       unlawfulness on account of a lack of jurisdiction of the       authority against which the appeal is directed or on account of       a violation of procedural provisions (Section 42 (2) 2 and       (2) 3), the Court must examine the contested decision on the       basis of the facts as accepted by the authority against which the       appeal is directed within the framework of the alleged complaint       ...   If it is of the opinion that reasons would be relevant for       the decision on the unlawfulness of the contested decision ...       which were so far not known to a party, it must hear the parties       thereupon and, if necessary, adjourn the proceedings."         [German]         "(1)   Der Verwaltungsgerichtshof hat, soweit er nicht       Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder       wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42       Abs. 2 Z. 2 und 3) ..., den angefochtenen Bescheid auf Grund des       von der belangten Behörde angenommenen Sachverhaltes im Rahmen       der geltend gemachten Beschwerdepunkte ... zu überprüfen.   Ist       er der Ansicht, dass für die Entscheidung über die       Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte       ... Gründe massgebend sein könnten, die einer Partei bisher nicht       bekanntgegeben wurden, so hat er die Parteien darüber zu hören       und wenn nötig, eine Vertagung zu verfügen."   26.    As regards the decisions of the Administrative Court, Section 42 (2) of the Administrative Court Act provides, in so far as relevant:         [Translation]         "(2) The contested decision must be quashed       1.    on account of the unlawfulness of its content,       2.    on account of unlawfulness due to the lack of            jurisdiction of the authority against which the            appeal is directed,       3.    on account of unlawfulness due to a violation of            procedural provisions in particular because            a)     the authority against which the appeal is                  directed has determined the facts on an                  important point contrary to the case-file, or            b)     the facts require to be supplemented on an important                  point, or            c)     procedural provisions have been disregarded                  which, if taken into consideration by the authority                  against which the appeal is directed, could have led                  to a different decision of the authority."         [German]         "(2) Der angefochtene Bescheid ist aufzuheben       1.    wegen Rechtswidrigkeit seines Inhaltes,       2.    wegen Rechtswidrigkeit infolge Unzuständigkeit            der belangten Behörde,       3.    wegen Rechtswidrigkeit infolge Verletzung von            Verfahrensvorschriften, und zwar weil            a)     der Sachverhalt von der belangten Behörde                  in einem wesentlichen Punkt aktenwidrig                  angenommen wurde oder            b)     der Sachverhalt in einem wesentlichen                  Punkt einer Ergänzung bedarf oder            c)     Verfahrensvorschriften ausser acht gelassen                  wurden, bei deren Einhaltung die belangte                  Behörde zu einem anderen Bescheid hätte                  kommen können."   27.    With regard to the position of experts in expropriation proceedings, Section 52 (1) of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz) provides that if in such cases evidence by experts is necessary, "official experts must be employed who are attributed to the authority or are at their disposal" ("so sind die der Behörde beigegebenen oder zur Verfügung stehenden amtlichen Sachverständigen [Amtssachverständige] beizuziehen").   Section 53 refers to Section 7 according to which administrative organs must renounce office in matters concerning inter alia their family members or "if there are other important reasons which may raise doubts as to their full impartiality" ("wenn sonstige wichtige Gründe vorliegen, die geeignet sind, ihre volle Unbefangenheit in Zweifel zu ziehen").   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   28.    The Commission has declared admissible the applicants' complaints that they did not have a fair hearing before a tribunal in the proceedings under the Power Lines Act.   B.     Points at issue   29.    The issues to be determined are   -   whether there has been a violation of the applicants' right to have their case determined by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and   -   whether there has been a violation of the applicants' right to a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As to the applicability of Article 6 para. 1       (Art. 6-1) of the Convention   30.    Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by an independent and impartial tribunal established by       law."   31.    In the above court proceedings the applicants attempted to prevent the grant of permission for the construction and operation of a power line over land which they hold in usufruct.   32.    The applicants submit that Article 6 para. 1 (Art. 6-1) of the Convention applies.   33.    The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to these proceedings.   They consider that decisions permitting construction and operation of power lines under Section 7 of the Power Lines Act do not directly affect the private rights of landowners or usufructuaries within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   They contend that separate proceedings existed which required the grant of servitudes to the electricity supply company, and that these were proceedings to which Article 6 (Art. 6) applied.   The present proceedings, however, related to separate issues and fall outside the scope of Article 6 para. 1 (Art. 6-1).   The Government also submit that the applicants, as usufructuaries of the land for agricultural purposes are in any event not affected by the fixing of overhead wires at 12.5 and 20 metres above the land.   34.    The Commission considers that the proceedings before the Administrative Court in which the applicants were involved concerned a genuine and serious dispute (contestation) over a decision to grant permission to construct and operate a power line over land in which the applicants have a usufruct right.   The mere fact that other proceedings were necessary before the power line could actually be constructed and used does not affect this position (c.f. X. v. France, judgment of 31 March 1992, Eur. Court H.R., Series A no. 234, p. 90, paras. 29-30).   35.    The "civil" character of the rights at issue is not to be interpreted solely by reference to the respondent state's domestic law. It is enough that the outcome of the proceedings should be decisive for private rights and obligations (see Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163, p. 20, para. 72).   36.    The Commission notes that the proceedings at issue related to the lawfulness of the permission granted to the extent that it concerned the land in which the applicant have rights.   Had the proceedings been successful, the construction and operation of the power line would have been prevented.   Accordingly, the outcome of the proceedings actually chosen by the applicants had, or could have had, a bearing on the civil right which formed the subject matter of the dispute.   37.    The Commission therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention was applicable to the proceedings before the Administrative Court.   D.     As to compliance with Article 6 para. 1 (Art. 6-1)       of the Convention         a.    The scope of review by the Administrative Court   38.    The Commission must next examine the scope of the review offered by the Austrian judicial authorities in this determination of civil rights in order to establish whether the applicant had access to a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   39.    The applicants, by reference to the Zumtobel case (No. 12235/86, Dec. 15.10.91, Comm. Rep. 30.6.92) refer to the limited scope of review by judges in cases granting permission.   They also point out that the Austrian public law courts cannot take decisions on the merits, and consider that this leads to a distortion of the principle of equality in court proceedings.   40.    The Government refer to the case-law of the Constitutional Court to indicate that cases relating to the "core area" of civil law require a different interpretation of Article 6 (Art. 6) from decisions on disputes that only relate to the effect of civil rights (i.e. that relate to the relationship between citizens and the general public). They point to Section 42 (2) 3 (a) - (c) of the Administrative Court Act, according to which the Court can undertake a far-reaching review of the facts in a concrete case.   Finally, if the Court quashes a decision, the administrative authority is bound by the Court's legal views.   41.    The Commission has had occasion recently to consider questions concerning the scope of review by the Administrative Court in the case of Zumtobel v. Austria (referred to above and now pending before the Court of Human Rights).   In that case, the Commission found as follows:         "68.   There remains the Administrative Court which decided on       the applicants' complaints about the expropriation.   These       complaints related inter alia to the adequacy of the envisaged       stretch of road within the meaning of Section 44 of the       Provincial Road Act and thus raised issues of both facts and law.         69.   The Commission recalls that in the case of Ettl and Others       it found, having regard in particular to Section 41 of the       Administrative Court Act, that the abstract possibility of a       limited review of the facts which the Administrative Court       enjoyed was not sufficient to establish its full jurisdiction       concerning the determination of the civil rights at issue ...       In the Obermeier case the Court found that, if the relevant       legislation contained no precise provisions for the decision to       be taken by the administrative authorities, and the       Administrative Court could only examine whether the authorities       had used their discretion in a manner compatible with the law,       such a limited review was not an effective judicial review under       Article 6 para. 1 (Art. 6-1) of the Convention (see Eur. Court       H.R., judgment of 28 June 1990, Series A no. 179, p. 23       para. 70).         70.   The Commission recalls that Section 42 (2) 3 of the       Administrative Court Act, relied on by the Government in the       present case, played no part in the case of Ettl and Others       v. Austria. In the present case this provision enabled the       Administrative Court to quash the contested decision as being       unlawful due to procedural defects, if the Court found that the       administrative authority had determined the facts on an important       point contrary to the case-file; or that the facts required to       be supplemented on an important point; or that procedural       provisions had been disregarded which, if taken into       consideration, would have led to a different decision ...         71.   Thus, the Administrative Court was able to review the facts       of the case in that it could examine inter alia whether they had       been incorrectly or incompletely established by the Provincial       Government.   While the purpose of this review was to determine       any procedural defects leading to the unlawfulness of the       decision, Section 42 para. (2) 3 of the Administrative Court Act       did not restrict the Administrative Court in its power to review       the facts.   In particular, this provision sets no limits in       respect of the assessment and supplementation of the facts.         72.   It is true that the Administrative Court in its decision of       22 September 1989 referred to Section 41 of the Administrative       Court Act.   Section 41 provides that the Court is bound by the       facts as accepted by the authority; however, this provision       expressly reserves Section 42 (2) 3 of the Administrative Court       Act ...   It follows that Section 41 does not restrict the       Administrative Court's powers under Section 42.         73.   Moreover, in its decision the Administrative Court       explained its powers of review, in particular that it could 'take       evidence for examining the question whether a procedural defect       is essential or whether the incriminated authority might have       arrived at a different decision by avoiding the alleged       procedural defect; the Administrative Court may resort to these       measures also in order to control the assessment of evidence ...'       The Commission sees no indication here that the Administrative       Court regarded itself as being restricted in its review of the       facts.         74.   The Commission furthermore observes that the Administrative       Court could have quashed the contested decision of the Provincial       Government as being unlawful, if after its examination of the       facts it had found that they were incorrect or incomplete.   The       Provincial Government would have been bound by the Administrative       Court's decision ...   Thus, the Administrative Court could have       imposed its own views as to the assessment of the facts on the       administrative authority concerned.         75.   The Commission recalls that it suffices under Article 6       para. 1 (Art. 6-1) of the Convention if the decision of an       administrative authority, which itself does not comply with the       requirements of this provision, is subject to subsequent control       by a judicial body that has full jurisdiction (see Eur. Court       H.R., Albert and Le Compte judgment of 10 February 1983, Series A       no. 58, p. 16 para. 29).   In the present case, the decision of       the Provincial Government concerning the expropriation of the       applicants' real property was subject to such control by the       Administrative Court which had full jurisdiction, as required by       Article 6 para. 1 (Art. 6-1) of the Convention.         76.   The applicants' case was therefore heard by a tribunal       within the meaning of Article 6 para. 1 (Art. 6-1) of the       Convention."   42.    Applying those findings to the facts of the present case, the Commission notes that the Administrative Court dealt in its decision with the points raised by the applicants in their complaint.   It expressly found no error in the assessment of the evidence by the authority below.   There is no indication in the decision that the Administrative Court regarded itself as being restricted in its review of the facts.   43.    The Commission furthermore observes that the Administrative Court could have quashed the decision of the Minister as being unlawful as, indeed, it had already done on a previous occasion in this case.   The Minister would then have been bound by the Administrative Court's decision.   The Administrative Court could thus have imposed its own views as to the assessment of the facts on the administrative authority concerned.   44.    The Commission recalls that it suffices under Article 6 para. 1 (Art. 6-1) of the Convention if the decision of an administrative authority, which itself does not comply with the requirements of this provision, is subject to subsequent control by a judicial body that has full jurisdiction (see Eur. Court H.R., Albert and Le Compte judgment, loc. cit.).   In the present case, the decision of the Minister for Economic Affairs was subject to such control by the Administrative Court which had the jurisdiction required by Article 6 para. 1 (Art. 6-1) of the Convention.   45.    The applicants' case was therefore heard by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Conclusion   46.    The Commission concludes, by 19 votes to 1, that there has been no violation of the applicants' right to have their case determined by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         b.    As to the fairness of the proceedings   47.    The applicants complain that no persons other than civil servants were called to give expert evidence before the administrative authorities.   They state that their requests for independent experts to be called to assess any possible dangers to health were not granted.   48.    The Government point out that at the hearing before the Ministry of Economic Affairs, although the electro-technical expert was indeed an official expert, both the agricultural and the medical experts were not.   49.    In the Commission's opinion, the mere fact that experts may have been employed by the administrative authority which also decided on the grant of permission to the electricity supply company does not in itself justify fears that experts were unable to act with proper neutrality in a way which could have an effect on the fairness of the proceedings before the Administrative Court.   To hold otherwise would often place unacceptable limits on the possibility to obtain expert advice (cf. Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, p. 21 para. 44).   50.    Moreover, as the Administrative Court found, the applicants in the present case were free to submit their own private expert opinions in the proceedings before the Minister.   If the private expert opinions had been disregarded, the applicants could have complained thereof in the proceedings before the Administrative Court which would then have been free to review the conflicting views expressed in the various experts' opinions.   51.    Accordingly, the position of the experts did not affect the applicants' right to a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Conclusion   52.    The Commission concludes unanimously that there has been no violation of the applicants' right to a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   E.     Recapitulation   53.    The Commission concludes by 19 votes to 1, that there has been no violation of the applicants' right to have their case determined by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 46).   54.    The Commission concludes unanimously that there has been no violation of the applicants' right to a fair trial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 52).   Secretary to the Commission              President of the Commission          (H.C. KRÜGER)                            (C.A. NØRGAARD)                                                           (Or. English)                    DISSENTING OPINION   of Mrs. J. Liddy         The majority opinion in this case is based upon the case of Zumtobel v. Austria (Comm. Report 30.6.90) in which the Commission came to the conclusion that the Administrative Court had full jurisdiction, as required by Article 6 para. 1 of the Convention.         I did not participate in that case myself, but have had the benefit of reading the dissenting opinion annexed to the Report of 30 June 1992.   I agree with it and consider that the effect of Section 41 of the Administrative Court Act, providing that the Administrative Court must examine the contested decision on the basis of the facts as accepted by the authority against which the appeal is directed, is ameliorated but not nullified by Section 42 of that Act, which enables the Administrative Court to quash the contested decision as being unlawful due to procedural defects.   The Administrative Court does not have the full jurisdiction required by Article 6 para. 1.         To find otherwise, notwithstanding the limitation in Section 41, might have the effect in practice of limiting an individual's right to a judicial assessment of the facts of a case not only in civil proceedings, but also in the administrative criminal proceedings known to Austrian law which can carry deprivation of liberty as a sanction (cf. the Commission's decisions on admissibility dated 10 May 1993 in Applications Nos. 15523/89, 15527/89, 15963/90, 16713/90, 16718/90 and 16841/90).   This in turn would serve as an illustration of Judge Matscher's concern, expressed in his separate opinion in the case of Ruiz Mateos v. Spain (Judgment of 23 June 1993), that the extension of the applicability of Article 6 results in the limitation of the substance of the procedural guarantees contained therein in a way which is scarcely compatible with the aim of the provision.         Having accepted, as I do the applicability of Article 6 in this case, I am compelled to the conclusion that Section 41 deprives the Administrative Court of full jurisdiction to establish the relevant facts and that there has, accordingly, been a violation of the applicants' right to have their case determined by a tribunal within the meaning of Article 6 para. 1.                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                              Item _________________________________________________________________   8 April 1990                      Introduction of the application   8 May 1990                        Registration of the application   Examination of Admissibility   15 October 1991                   Commission's deliberations and                                  decision to invite the Government to                                  submit observations on the                         &