CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 septembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 17588/90                       by F.L. and M.L.                       against Austria         The European Commission of Human Rights sitting in private on 8 September 1993, 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.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA              Mr.    M. de SALVIA, Deputy Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 23 November 1990 by F.L. and M.L. against Austria and registered on 21 December 1990 under file No. 17588/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;     THE FACTS           The applicants are Austrian citizens.   They live in Nussbach, in Upper Austria, where they are farmers.   They are represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.         The facts of the present case, as submitted by the parties, may be summarised as follows:   The particular circumstances of the case         On 27 February 1987 the Steyr District Authority (Bezirkshaupt- mannschaft) granted the applicants' request that the local hunting association (Jagdgesellschaft) be required to fence in some 1.5 hectares of their land in order to prevent game from entering and damaging young native trees.   The applicants' request had been made pursuant to Section 64 of the Upper Austrian Hunting Law (Jagdgesetz) which provides that, where an agricultural unit suffers game damage to forestry, application can be made to require the persons entitled to hunt to take necessary preventive measures.   The authorities considered that a 1.5 metre fence was sufficient.   The authority also found that the applicants were responsible for clearing the land of weeds and for payment of costs for re-forestation.   The applicants and the hunting association appealed.         On 28 July 1988 the Upper Austrian Government Authority (Amt der oberösterreichischen Landesregierung) amended the decision of 27 February 1987 to provide for fencing of a smaller area with, in part, more effective fencing.         The applicants made a constitutional complaint to the Constitutional Court (Verfassungsgerichtshof) concerning the refusal to require fencing of the larger area.   In the complaint they alleged, inter alia, a violation of Article 6 of the Convention.   The Constitutional Court rejected the complaint on 12 December 1988 as it had no reasonable prospects of success and no problems of constitutional law arose.         The Administrative Court (Verwaltungsgerichtshof) dismissed the applicants' administrative complaint on 2 April 1990 (decision received by the applicants' lawyer on 1 June 1990) on the ground that there was no indication that the challenged decision was unlawful.   The Administrative Court refused the applicants' request for a hearing. In particular, the Administrative Court noted that the type of tree (blue spruce) which the applicants had allegedly planted merely as a "preliminary culture" (Vorkultur) to support other, indigenous trees, was itself included in the list of trees appropriate for the particular type of forest.   There had therefore been no need for the administrative authorities to consider the other types of tree which had been planted but which had allegedly been damaged by game. Accordingly, for the area where blue spruce grew, the administrative authorities' decision not to require fencing could not be seen to be unlawful.       Relevant domestic law         Section 33 (1) of the Forestry Act (Forstgesetz) provides, subject to exceptions, that anyone may enter and remain in forest land for recreative purposes.         Section 67 of the Upper Austrian Hunting Act (Jagdgesetz) provides as follows:         "Keeping game away; preventing damage by game.         (1)   The land owner and the hunting licensee - the latter only       with the consent of the former - are entitled to keep game away       from cultures by protective measures, and in order to do so may       establish fences, lattices, walls, etc. (for an overall       protection) or may protect individual plants by adequate means.         (2)   If the output of an agricultural unit is declining       constantly and considerably as a result of game damage to       cultures, the District Authority, upon a request by the person       suffering damage or by the District Agricultural Chamber       (Bezirksbauernkammer) and after consultation with the district       hunting adviser, shall order the person or association entitled       to hunt to take the necessary protective measures (Sub-section       (1)) or to reduce the game population (Section 49 (2)).         (3)   Hunting and game keeping must be such as not to endanger       the preservation of the forest, which also serves as an amenity       and place of resort for the general public.         (4)   A forest is endangered within the meaning of Sub-section 3,       if as a result of browsing, rubbing or peeling by game (Verbiß,       Verfegen oder Schälen)         a)    there are glades (Blößen) within the stands or if a healthy            development of stands is impossible on a larger scale, or         b)    afforestation or natural regeneration in areas requiring            afforestation is not guaranteed within the periods of time            laid down in the forest regulations, or         c)    afforestation for the creation of new forested land within            a period of time which, having regard to the local            situation, is to be considered reasonable, is not            guaranteed, or         d)    young trees will not grow in regeneration stands.         (5)   If the forest is endangered within the meaning of Sub-       section (4), the District Authority, in co-operation with its       forest engineering department, shall proceed in accordance with       the provisions of Sub-section (2).         (6)   The protective measures to be taken by the person or       association entitled to hunt for the purpose of keeping game       away, must not obstruct the cultivation and use of the land       protective measures against intruding game must not be such as       to endanger the life of the game in case of floods.         (7)   Anyone is entitled to expel and keep away game from his       land by adequate means.   He must not, however, resort to such       measures as using firearms, firing shots in the air or chasing       the game with dogs.   Should game be injured or perish as a result       of lawful measures intended to keep it away, the person or       association entitled to hunt cannot claim compensation.         (8)   If game penetrates from unfenced areas into areas where       fences have been established in order to keep it away, measures       shall be taken in accordance with the provisions of       Section 49 (2) unless redress can be obtained otherwise."   COMPLAINTS         The applicants complain that the scope of review of the Administrative Court is not sufficient to compensate for the absence of a court which is competent to decide the questions at issue before the administrative authorities.   They see this insufficiency in the absence of an oral hearing, in the absence of competence to decide factual issues and the lack of opportunity to call or question experts. They allege a violation of Article 6 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 November 1990 and registered on 21 December 1990.         On 11 May 1992 the Commission decided to communicate the application to the respondent Government and to request them to submit written observations on its admissibility and merits.         The Government's observations were submitted, after an extention of the time-limit, on 2 October 1992 and the applicants' representative submitted his observations in reply, also after an extention of the time-limit, on 5 January 1993.     THE LAW         The applicants allege violation of Article 6 para. 1 (Art. 6-1) of the Convention.   This provision provides, so far as relevant, as follows:         "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."         With regard to the applicability of Article 6 (Art. 6) to the proceedings before the administrative authorities, the respondent Government submit that the mere possibility of requiring the person entitled to hunt to undertake necessary protective measures in order to serve the public interest in preserving the forest does not amount to a right to protection against game damage.   They consider it quite natural that a forest may be endangered by the game living there. Accordingly, they conclude that the challenged decision does not directly affect the applicants' property rights as forest owners, their professional activities or any contracts which may have been concluded under private law in connection with their forest ownership.   In addition, they refer to the case-law of the Constitutional Court to the effect that in cases relating not to the traditional "core" of civil law, but to matters only concerning civil rights in their effects (namely the relationship between citizens and the general public), a "differentiated interpretation of the requirements laid down in Article 6 para. 1 (Art. 6-1) of the Convention" must be applied.   In any event, the Government consider that the control exercised by the Administrative Court, taken together with the control by the Constitutional Court, complies with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.         In connection with the absence of a public hearing, the Government refer to the Austrian reservation to Article 6 (Art. 6) of the Convention which, they consider, is valid and applies to administrative proceedings as well as criminal and civil proceedings. Accordingly, they consider Article 6 (Art. 6), as applicable in the case of Austria, did not require an oral hearing in the present case. They accept that when the reservation was made only fundamental provision existed for the conduct of an oral hearing before the Administrative Court, and that exceptions (including that applied in the present case) were added in 1982, but consider that those extensions amount to exceptions "of the same nature" as those in force at the date of reservation, and that they therefore comply with Article 64 (Art. 64) of the Convention.         For the applicants, the protection of property against outside influences is one of the most classical of all rights an owner of land possesses.   They conclude that civil rights were clearly involved.   As for compliance with Article 6 (Art. 6) of the Convention, the applicants disagree with the interpretation submitted by the respondent Government of the Constitutional Court's case-law.   They point out that if the Constitutional Court had considered that Article 6 (Art. 6) was complied with by the Administrative Court, there would have been no need to create the Independent Administrative Senates (Unabhängige Verwaltungssenate), and add that, in any event, the Administrative Court could not possibly handle the volume of work involved in acting as an Article 6 (Art. 6) tribunal in the many cases submitted to it. As for the question of an oral hearing, the applicants regard reservations as fundamentally limited in time, and see the Austrian reservation to Article 6 (Art. 6) as in any event not complying with Article 64 (Art. 64) of the Convention.   They consider that the reservation cannot be intended to cover administrative procedures because, at the time it was made, hardly anybody could have envisaged Article 6 (Art. 6) applying to such proceedings.   They also refer to the position of Article 90 of the Federal Constitutional Law (Bundes- Verfassungsgesetz) in that Law, that is, in the section relating to the activities of the courts, rather than the Administration.   They consider that, if it is purported that the reservation deals with administrative cases, then it lacks the necessary precision to comply with Article 64 (Art. 64) of the Convention.         The Commission finds that the application raises complex issues of law under the Convention, including questions concerning the Austrian reservation to Article 6 (Art. 6), the examination of which must be reserved to an examination of the merits.         The application cannot, therefore, be declared manifestly ill- founded with the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.           For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits       of the case.   Acting Secretary to the Commission      President of the Commission           (M. de SALVIA)                          (C.A. NØRGAARD)