CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 février 1997

.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. 26509/95                       by Benno OBERDANNER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 27 February 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 26 January 1995 by Benno OBERDANNER against Austria and registered on 14 February 1995 under file No. 26509/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      11 June 1996 and the observations in reply submitted by the      applicant on 5 August 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1920, and living in Seekirchen (Salzburg).   He is represented by Mr. R. Oberdanner, a lawyer practising in Salzburg.        The facts of the case, as they have been submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        On 18 February 1993 the applicant raised objections (Einspruch) with the Salzburg and Upper Austria Post and Telephone Authority (Post- und Telegraphendirektion) against a telephone bill for February 1993.        On 29 March 1993 the Post and Telephone Authority dismissed the objections.        On 7 April 1993 the applicant filed a request for re-calculation of his telephone bill (Antrag auf Neuberechnung der Gesprächsgebühren) with the Post and Telephone Authority.        On 25 August 1993, after having obtained a report by an official technical expert and having offered the applicant the opportunity to comment thereon, the Post and Telephone Authority dismissed the applicant's request.   It found that according to the expert's report the applicant's telephone installation did not have any defects which could have influenced the calculation of the telephone fees. Furthermore, his telephone installation did not show any traces of manipulation by third persons.   In such circumstances it was not necessary to hear the witnesses requested by the applicant because in view of the technical examination the facts were sufficiently clear.        On 9 September 1993 the applicant appealed to the Federal Ministry for Public Economy and Traffic (Bundesminister für öffentliche Wirtschaft und Verkehr).        On 29 November 1993 the Principal Post and Telephone Authority (Generaldirektion für die Post- und Telegraphenverwaltung) at the Federal Ministry dismissed the applicant's appeal.   It found that under the relevant provisions of the Telephone Fee Regulations (Fernmeldegebührenordnung) a re-calculation of a telephone bill had only to be carried out if a technical defect which could have influenced the calculation of the telephone bill had been detected. However, such a defect had not been detected in the applicant's case.        On 18 January 1994 the applicant introduced a complaint with the Administrative Court (Verwaltungsgerichtshof) and also requested the Administrative Court to hold a public hearing.        On 29 June 1994 the Administrative Court dismissed the complaint rejecting at the same time, in accordance with Section 39 para. 2 (6) of the Administrative Court Act, the applicant's request for an oral hearing.   The Court found that in view of the detailed report by the technical expert it had no doubts as to the assessment of evidence by the authority.   The hearing of the witnesses requested by the applicant had not been necessary because, even assuming that the witnesses made the statements expected, such statements could not exclude the conclusions drawn by the expert.   B.    Relevant domestic law        Section 39   para. 1 of the Administrative Court Act (Verwaltungs- gerichtshofgesetz) provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit.   Section 39 para. 2 (6), which was added to the Act in 1982, provides however:   [Translation]        "Notwithstanding a party's application, the Administrative Court      may decide not to hold a hearing when        ...        6.     It is apparent to the Court from the written pleadings of      the parties to the proceedings before the Administrative Court      and from the files relating to the prior proceedings that an oral      hearing is not likely to contribute to clarifying the case."   [German]        "Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages      nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn        ...        6.     die Schriftsätze der Parteien des verwaltungsgerichtlichen      Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten      des Verwaltungsverfahrens erkennen lassen, daß die mündliche      Erörterung eine weitere Klärung der Rechtssache nicht erwarten      läßt."   COMPLAINTS        The applicant complains that in the above proceedings he did not have the benefit of a public hearing before a tribunal within the meaning of Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 26 January 1995 and registered on 14 February 1995.        On 28 February 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 11 June 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 5 August 1996.   THE LAW        The applicant complains that in the proceedings on the re- calculation of his telephone bill he did not have the benefit of a public hearing before a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads 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.   ..."        The Government submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to the proceedings at issue since under domestic law telecommunication charges fall within the sphere of public law and are not levied on the basis of private law contracts.   Also the Constitutional Court in its case-law had found that for this reason Article 6 para. 1 (Art. 6-1) was not applicable to disputes concerning telecommunication charges.   Only since the enactment of a new Telecommunication Act in 1993 has the relationship between the telecommunication operator and the subscribers been governed by private law.   As regards the lack of an oral and public hearing before the Administrative Court the Government do not consider it necessary to make observations in view of European Court of Human Rights' judgment in the Fischer case (Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312).        The applicant submits that Article 6 para. 1 (Art. 6-1) of the Convention applies to disputes concerning telecommunication charges. Also the Administrative Court in its case-law had found that telecommunication charges were not taxes within the meaning of fiscal law but fees for services rendered.   Article 6 para. 1 (Art. 6-1) being applicable to the proceedings at issue, the lack of an oral and public hearing before the Administrative Court violated his rights under this provision of the Convention.        The Commission finds that the applicant's complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits.   The application cannot, therefore, be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and 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.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber