CEDH · CASELAW;REPORTS;ENG — 6 septembre 1994

.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 } .s23A41E03 { width:36pt; display:inline-block } .s8828C2CA { width:31.28pt; display:inline-block } .s41A29154 { width:6.84pt; display:inline-block } .s9A9585A5 { width:23.34pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s3BF17DD1 { width:28.07pt; display:inline-block } .s932E7F2A { width:27.5pt; display:inline-block } .s9B2C2C0D { width:18.61pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s7742A756 { width:35.15pt; display:inline-block } .s490C142E { width:28.91pt; display:inline-block } .s34C802BD { width:12.11pt; display:inline-block } .sF7FB5A4C { width:14.09pt; display:inline-block } .s39DDB07B { width:6.93pt; display:inline-block } .s71794E85 { width:20pt; display:inline-block } .s9288C869 { width:26.97pt; display:inline-block } .sECC8F45 { width:24.18pt; display:inline-block } .sCE3FCB55 { width:17.12pt; display:inline-block } .sDE8AF491 { width:12.97pt; display:inline-block } .sE3652CE7 { width:20.52pt; display:inline-block } .s5C07D977 { width:35.74pt; display:inline-block } .s44B3A84A { width:19.48pt; display:inline-block } .s1FA416BE { width:1.99pt; display:inline-block } .s624A4372 { width:1.61pt; display:inline-block } .s2F6D0583 { width:25.24pt; display:inline-block } .sA2DF1945 { width:17.22pt; display:inline-block } .sC54A673A { width:28.45pt; display:inline-block } .s50014358 { width:26.56pt; display:inline-block } .s3A84A612 { width:25.61pt; display:inline-block } .s6F71A326 { width:28.44pt; display:inline-block } .sBF553161 { width:34.19pt; display:inline-block } .s5A1F2B6 { width:10.46pt; display:inline-block } .s2A0A21C { width:2.43pt; display:inline-block } .s585DA861 { width:4.79pt; display:inline-block } .sBAD0D18F { width:1.87pt; display:inline-block } .s8832C25E { width:30.59pt; display:inline-block } .s6CFF9571 { width:25.89pt; display:inline-block } .s8F99BB21 { width:10.47pt; display:inline-block } .s88A9BCC3 { width:1.42pt; display:inline-block } .sC4D84E99 { width:15pt; display:inline-block } .s826B4C95 { width:9.18pt; display:inline-block } .s89C5505 { width:5.28pt; display:inline-block } .s153235F { width:8.59pt; display:inline-block } .s71FF00A3 { width:18.05pt; display:inline-block } .sF6CF009B { width:35.7pt; display:inline-block } .s75ACB9D6 { width:22.86pt; display:inline-block } .s8D2EAE11 { width:14.92pt; display:inline-block } .sDFF2C5DA { width:9.8pt; display:inline-block } .s7B26EAC5 { width:11.04pt; display:inline-block } .sBF6B28B9 { width:33.33pt; display:inline-block } .s403582AA { width:8.67pt; display:inline-block } .sF7195C3B { width:12.45pt; display:inline-block } .s89C758F9 { width:2.06pt; display:inline-block }        EUROPEAN COMMISSION OF HUMAN RIGHTS     FIRST CHAMBER     Application No. 17588/90     F. and M. L.     against     Austria     REPORT OF THE COMMISSION     (adopted on 6 September 1994)     TABLE OF CONTENTS     Page   I.   INTRODUCTION     (paras. 1-15)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-10)   1     C.   The present Report     (paras. 11-15)   2   II.   ESTABLISHMENT OF THE FACTS   (paras. 16-21)   3     A.   The particular circumstances of the case     (paras. 16-19)   3     B.   Relevant domestic law     (paras. 20-21)   3   III.   OPINION OF THE COMMISSION   (paras. 22-61)   5     A.   Complaints declared admissible     (para. 22)   5     B.   Points at issue     (para. 23)   5     C.   As to the applicability of Article 6 para. 1     of the Convention     (paras. 24-35)   5     D.   As to compliance with Article 6 para. 1     of the Convention     (paras. 36-59)   7       a.   The scope of review by the administrative Court       (paras. 36-42)   .7       CONCLUSION (para. 43)   7       b.   The absence of a hearing before the       Administrative Court(paras. 44-58)   8       CONCLUSION (para. 59)   10     E.   Recapitulation     (paras. 60-61)   10     TABLE OF CONTENTS     Page   PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF MRS. LIDDY   11   APPENDIX I    : HISTORY OF THE PROCEEDINGS   13   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                                   ADMISSIBILITY OF THE APPLICATION   14     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, resident in Nussbach, in Upper Austria.   They are represented before the Commission by Mr. W.L. Weh, a lawyer practising in Bregenz.   3.   The application is directed against the Republic of Austria whose Government were represented by their Agent, Ambassador F. Cede, head of the International Law Department of the Federal Ministry for Foreign Affairs.   4.   The case concerns court proceedings by which the applicants challenged a partial refusal of a request to have fencing erected around their land to protect it from damage by game.   The applicants invoke Article 6 para. 1 of the Convention.   B.   The proceedings   5.   The application was introduced on 23 November 1990 and registered on 21 December 1990.   6.   On 11 May 1992 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.   The Government's observations were submitted on 2 October 1992.   The applicants replied on 5 January 1993.   8.   On 8 September 1993 the Commission declared the application admissible and transferred it to the First Chamber for further consideration.   9.   The text of the Commission's decision on admissibility was sent to the parties on 15 September 1993 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (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   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present :       MM.   A. WEITZEL, President       C.L. ROZAKIS       F. ERMACORA             E. BUSUTTIL             A.S. GÖZÜBÜYÜK           Mrs.   J. LIDDY           MM.   M.P. PELLONPÄÄ             B. MARXER                     B. CONFORTI               N. BRATZA       I. BÉKÉS       E. KONSTANTINOV         12.   The text of this Report was adopted on 6 September 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   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.   14.   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.   15.   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   16.   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 Act (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.   17.   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.   18.   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 a violation of their right to a decision from an independent and impartial court.   They also complained of the application of ordinary law which was in 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.   It remitted the case to the Administrative Court (Verwaltungsgerichtshof).   19.   The Administrative Court dismissed the applicants' administrative complaint on 2 April 1990 (the decision was 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 by reference to Section 39(2) 6 of the Administrative Court Act (Verwaltungsgerichtshofgesetz).   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.   B.   Relevant domestic law     20.   Section 33 (1) of the Forestry Act (Forstgesetz) provides, subject to exceptions, that anyone may enter and remain in forest land for recreative purposes.   21.   Section 64 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.   The 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."     III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   22.   The Commission has declared admissible the applicants' complaints that they were not able to have a hearing on the issue of the refusal to erect fencing which they wanted before a court which complied with Article 6 para. 1 (Art. 6-1) of the Convention.   B.   Points at issue   23.   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 the absence of an oral hearing before the Administrative Court violated 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   24.   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."   25.   In the above court proceedings the applicants attempted to challenge the decision of the Upper Austrian Government Authority of 28 July 1988 in which the Authority provided for the fencing of a smaller area than the applicants wanted.   26.   The applicants submit that Article 6 para. 1 (Art. 6-1) of the Convention applies to these proceedings.   For them, the protection of property against outside influences is one of the most classical of all rights an owner of land possesses.   They consider that an application for "necessary preventive measures" affects their property as much as an action for damage caused by game in that it enables them to deal with their land as they wish.   In particular, they are attempting to re-establish an environmentally desirable mix of trees, which involves local types and a mix of deciduous and coniferous trees.   Without the appropriate fencing to protect those trees, the young trees are promptly severely damaged by game.   The applicants conclude that civil rights were clearly involved.      27.   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, the Government 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.     28.   The Commission must first determine whether the case involves a dispute over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law (see, for example, Eur Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).   29.   Section 64 (2) of the Upper Austrian Hunting Act provides a mechanism whereby aggrieved farmers can request the District Authority to order the person or association entitled to hunt to take protective measures if an agricultural unit's output is in decline.   Such measures are created as part of the general regulation of woodland and game management: a landowner's right to exclude game (by erecting fences himself) is limited because of the need for game to be able to circulate, but the landowner can request the "necessary protective measures" to the taken.     30.   The Commission notes that the applicants, as owners of land subject to game damage, had standing under Austrian law to ask the District Authority to require the person entitled to hunt to take necessary protective measures.   In addition, both they and the hunt association could (and did) appeal to the Regional Government against the District Authority's decision in this respect.   The applicants further put the matter before the Constitutional and Administrative Courts.   The District Authority indeed acceded to the applicants' request in part.   31.   Having regard to the foregoing, the Commission is satisfied that the applicants could arguably maintain that they were entitled under Austrian law to protection against their trees being damaged by game.   32.   The outcome of the proceedings was thus directly decisive for the applicants' entitlement to have fencing erected by the persons entitled to hunt.   The proceedings therefore involved a "determination" of one of the applicants' "rights" for the purposes of Article 6 para. 1 (Art. 6-1) (see the above- mentioned Zander judgment, pp. 39, 40, paras. 24, 25).   33.   The Commission must next determine whether the applicants' right was a "civil right".     34.   The Commission notes that the applicants' claim was directly concerned with their ability to plant on their land the type of trees they wished.   This ability was one facet of their right as owners of the land.   The right of property is clearly a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) (see the above-mentioned Zander judgment, p. 40, para. 27).   Consequently, notwithstanding the public-law aspects of the case, as adumbrated, for example, in the Constitutional Court's case-law referred to by the Government, the Commission considers that the entitlement in issue was a "civil right".   35.   The Commission therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention was applicable to the proceedings by which the applicants challenged the decision of the Upper Austrian Government not to require all the fencing the applicants had requested.   D.   As to compliance with Article 6 para. 1 (Art. 6-1) of the Convention     a.   The scope of review by the Administrative Court   36.   The applicants consider that the administrative authorities themselves are not independent tribunals within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   They further consider that the scope of review of the Constitutional Court and Administrative Court is inadequate to comply with the provision.   They point out that if the Constitutional Court, in its case-law, had considered that Article 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 tribunal in the many cases submitted to it.   37.   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.   38.   The European Court of Human Rights has considered the scope of review of administrative decisions by the Administrative Court, most recently in the case of Zumtobel (Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A).   It considered that in that case, regard being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the applicants in the case, the review afforded by the Administrative Court fulfilled the requirements of Article 6 of the Convention.   39.   In the present case, too, the Administrative Court was dealing with an administrative power which was circumscribed, as are all administrative powers, by the legislation creating it.   To the extent that those powers were exceeded or wrongly applied, or applied in contravention of constitutional rights (including the Convention), the applicant could make administrative and constitutional complaints.   40.   There remained a discretion in the hands of the authorities.   In particular, the question of what protective measures were "necessary" was a matter which called for the exercise of a discretion.   41.   In the event, the Administrative Court answered all the applicants' complaints directly, by pointing out, for example, that where blue spruce grew, there was no need for the administrative authorities to consider whether fencing was "necessary" because blue spruce was a type of tree that did not require fencing.   The Administrative Court did not decline jurisdiction at any point of the judgment.   42.   The applicants' case was therefore heard by a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.     CONCLUSION   43.   The Commission concludes, by 11 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.   The absence of a hearing before the Administrative Court   44.   The applicants see the Austrian reservation to Article 6 as not complying with Article 64 of the Convention.   In any event, they consider that reservations are intended to be limited in time.   They further 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 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 that dealing with 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 of the Convention.   45.   On the assumption that the reservation to Article 6 of the Convention is invalid or inapplicable, the applicants see the absence of an oral hearing before the Administrative Court as an example of how that Court's review is ineffective and in violation of human rights.   46.   The Government refer to the Austrian reservation to Article 6 of the Convention which, they consider, is valid and applies to administrative proceedings as well as criminal and civil proceedings.   Accordingly, they consider that Article 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 of the Convention.     aa. The Austrian reservation   47.   The Austrian reservation to Article 6 of the Convention provides as follows:     "The provisions of Article 6 of the Convention shall be so applied that there shall be no prejudice to the principles governing public court hearings laid down in Article 90 of the 1929 version of the Federal Constitutional Law."   48.   Article 64 of the Convention provides as follows:     "1.   Any State may, when signing this Convention or when   depositing its instrument of ratification, make a reservation in   respect of any particular provision of the Convention to the   extent that any law then in force in its territory is not in   conformity with the provision.   Reservations of a general   character shall not be permitted under this Article.     2.   Any reservation made under this Article shall contain a   brief statement of the law concerned."   49.   The Commission recalls that the European Court of Human Rights has considered the question of the compatibility of declarations and reservations with Article 64 of the Convention on several occasions (see, for example, Eur. Court H.R., Belilos judgment of 29 April 1988, Series A no. 132; Eur. Court H.R., Weber judgment of 22 May 1990, Series A no. 177; Eur. Court H.R., Chorherr judgment of 25 August 1993, Series A no. 266-B).   The Court found that Article 64 para. 1 of the Convention requires "precision and clarity", and that Article 64 para. 2 is not a "purely formal requirement but a condition of substance" which "constitutes an evidential factor and contributes to legal certainty" (aforementioned Belilos judgment, pp. 26-28, paras. 55 and 59).   The Commission has itself applied these principles to a refusal by the Administrative Court to hold a hearing, and found that the Austrian reservation to Article 6 of the Convention did not prevent the Commission from examining the applicant's complaint in that case that the refusal to hold a hearing before the Administrative Court violated Article 6 of the Convention, because the provision by which the refusal was made was not "in force" at the time the reservation was made (Fischer v. Austria, No. 16922/90, Comm. Rep. 9.9.93, pending before the European Court of Human Rights).   50.   In the present case, too, the Commission finds that Section 39 (2) 6 of the Administrative Court Act, which entered into force only in 1982, was not "in force", either formally or in substance, at the time the reservation was entered in 1958.   Accordingly, the reservation cannot prevent the Commission from examining the complaint concerning a refusal to hold a hearing.     bb.   Application of Article 6 para. 1 (Art. 6-1)   51.   The Commission must next consider whether the absence of a hearing before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the Convention.   52.   For the purposes of Article 6 of the Convention, the Administrative Court was the only tribunal which dealt with the merits of the applicants' complaint.   The applicants were accordingly entitled to a public hearing before that court, as none of the exceptions laid down in the second sentence of Article 6 para. 1 (Art. 6-1) applied (cf. Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 20 para. 64).   The principle has also been expressed as "in proceedings before a court of first and only instance the right to a 'public hearing' may entail an entitlement to an oral hearing" (Eur. Court H.R., Fredin No. 2 judgment of 23 February 1994, Series A no. 280-A, para. 21).   53.   In the present case, there is no question of a waiver by the applicants of their right to an oral hearing: they requested and were refused a hearing by the Administrative Court.   54.   The Commission recalls the European Court of Human Rights has found that a complete absence of an oral hearing may, in certain circumstances, not be in violation of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, pp. 19,20, paras. 56-58).   55.   The present case must be distinguished from the Schuler-Zgraggen case.   First, although the dispute at issue related to the revocation of a "public law" licence, the private-law considerations of a financial nature at the heart of the matter make it quite different from the social security questions dealt with in that case.   Secondly, the issue of waiver does not arise in the present case.   Whilst the Commission does not underestimate the necessity for procedures which run efficiently, it remains for the respondent State to comply with its obligations under the Convention by organising its legal system so as to ensure compliance with Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Guincho judgment of 10 July 1984, Series A no. 81, p. 16 para. 38).   56.   In the above-mentioned case of Fredin No. 2, although the Court accepted that an oral hearing may not always be required by Article 6 para. 1 (Art. 6-1) of the Convention, it nevertheless found a violation of the provision in connection with the absence of an oral hearing.   The Court referred inter alia to the fact that the Supreme Administrative Court's jurisdiction was not limited to matters of law (paras. 21, 22).     57.   In the present case, too, the applicants requested and were refused a hearing before the only court which considered the case, and that court had the "full jurisdiction" required of a tribunal which has to comply with Article 6 of the Convention (see the above-mentioned Zumtobel judgment, p. 13, para. 29 with further references).   In these circumstances, the Commission finds that the absence of an oral hearing was incompatible with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.     58.   In these circumstances the Commission is not required to consider other objections to the reservation, for example that it is of a "general character", or that it only applies to civil and criminal cases and not administrative cases, or that it does not provide the "brief statement of the law concerned" called for by Article 64 para. 2 of the Convention.     CONCLUSION   59.   The Commission concludes, unanimously, that the absence of an oral hearing before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the Convention.   E.   Recapitulation   60.   The Commission concludes, by 11 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. 43).   61.   The Commission concludes, unanimously, that the absence of an oral hearing before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the Convention (para. 59).   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                           (A. WEITZEL)     (Or. English)     PARTLY CONCURRING and PARTLY DISSENTING OPINION OF Mrs. J. LIDDY     The majority of the Commission consider that the scope of review by the Administrative Court in this case was adequate to comply with the requirements of Article 6.   They rely on the Zumtobel judgment of 21 September 1993 where, on very different facts, the Court found no violation.     The Zumtobel case concerned expropriation proceedings which were permissible only if it was not possible to construct or retain a section of the highway "more suitable" from the point of view of traffic requirements, environmental protection and financial implications.   The judgment recites 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, and Section 42, which enables the Administrative Court to quash the contested decision as being unlawful due to procedural defects, including where the findings of fact are contradicted by the case-file.   The Court concluded that "Regard   being had to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaints made by the Zumtobel partnership, the review by the Administrative Court accordingly, in this instance, fulfilled the requirements of Article 6 para. 1".     I do not think that the present case concerned an administrative decision taken on grounds of expediency.   It concerned Section 64 (2) of the Upper Austrian Hunting Act whereby a landowner was entitled to a decision from an administrative authority directing a hunting licensee to undertake protective measures in certain circumstances.   The dispute concerned what were the measures "necessary" to protect the landowners' trees.   As noted by the majority at para. 34 of the Report, the applicants' claim was directly concerned with their ability to plant on their land the type of trees they wished.   The costs of the protective measures would be borne in principle by another private party gaining a benefit from other parts of the land.   I consider that the nature of the dispute was close to a private-law dispute of a traditional kind, that it did not involve questions of administrative expediency and is clearly distinguishable from that at issue in the Zumtobel case.   In the present case, the applicants were entitled to a decision by a tribunal with power to make findings of fact for itself and to decide, on the basis of those facts, on the necessity or otherwise of protectionary measures.     Section 41 of the Administrative Court Act is ameliorated but not nullified by Section 42, and the effect was that the Administrative Court did not, in this case, have the full jurisdiction required by Article 6 para. 1.   There has accordingly been a violation of that provision.     Even assuming that the applicant's case was determined by a tribunal, the absence of an oral hearing before the Administrative Court violated Article 6 para. 1, and in this respect I am in agreement with the conclusion at para. 59 of the Report.   However, I do not follow the particular reasoning given at para. 50 for not having regard to the Austrian reservation to Article 6 para. 1.   My own view is that the reservation is invalid because it does not satisfy the requirements of Article 64 of the Convention.   My reasons for reaching this conclusion were given in my separate opinion in the Fischer case (Comm. Report 9.9.93).     APPENDIX I     HISTORY OF THE PROCEEDINGS   Date           Item _________________________________________________________________   23 November 1990     Introduction of application   21 December 1990     Registration of application   Examination of admissibility   11 May 1992         Commission's decision to communicate the   case to the respondent Government and to   invite the parties to submit observations   on admissibility and merits     2 October 1992       Government's observations     5 January 1993       Applicant's observations in reply     8 September 1993     Commission's decision to declare application admissible and transfer             to First Chamber for further consideration Examination of the merits   15 September 1993     Decision on admissibility transmitted to parties. Invitation to parties to submit further observations on the merits   18 January 1994       Commission's consideration of state of proceedings   17 May 1994         Commission's consideration of state of proceedings   31 August 1994       Commission's deliberations on the merits, final vote and consideration of text of the Report   6 September 1994     Adoption of Report