CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 22811/93                       by Ernst and Anna LUGHOFER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM    M.P. PELLONPÄÄ, President                 N. BRATZA                 A. WEITZEL                 C.L. ROZAKIS            Mrs   J. LIDDY            MM    L. LOUCAIDES                 B. MARXER                 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 27 September 1993 by Ernst and Anna LUGHOFER against Austria and registered on 25 October 1993 under file No. 22811/93;        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      8 July 1997 and the observations in reply submitted by the      applicant on 5 February 1998;        Having deliberated;        Decides as follows:   THE FACTS        The applicant couple, both of Austrian nationality, are farmers in Unterpilsbach (Upper Austria).   Before the Commission they are represented by Mr. E. Proksch, a lawyer practising in Vienna.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        The applicants' farm was the object of land consolidation proceedings (Zusammenlegungsverfahren) instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde) on 22 February 1973.        On 21 August 1984 the District Authority held a hearing at which the farmers concerned could express their wishes (Wunschverhandlung) and on 22 August 1985 the District Authority ordered the provisional transfer of the properties concerned, inter alia, land owned by the applicants.   In July 1989 the District Authority issued a consolidation plan (Zusammenlegungsplan).   The applicants appealed claiming that they had not received adequate land in exchange for their parcels AK 2 and AK 8.   On 5 July 1990 the Upper Austria Regional Land Reform Board (Landesagrarsenat) dismissed the applicants' appeal after an oral hearing held in private, but in presence of the parties and their lawyer.        On 25 September 1990 the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the above decision.   They also asked the Court to hold an oral hearing.        On 15 December 1992 the Administrative Court dismissed the complaint rejecting at the same time, in accordance with Section 39 para. 2 (6) of the Administrative Court Act 28 the applicants' request for an oral hearing.   B.    Relevant domestic law and practice   a.    Hearings before Land Reform Boards        Section 9(1) of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz) provided as follows:        "Land Reform Boards take their decisions after an oral hearing      in the presence of the parties."        It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise.        By virtue of legislation enacted in December 1993 (Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform Boards are now public.   b.    Hearings before the Administrative Court        Pursuant to Section 36 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), proceedings consist essentially in an exchange of written pleadings. If one of the parties so requests the Administrative Court may hold a hearing which is in principle held in public (Sections 39 para. 1 (1) and 40 para. 4).        Section 39 para. 1 of the Administrative Court Act 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:        "Notwithstanding a party's application ..., the Administrative      Court may decide not to hold a hearing where        ...        6. it is apparent to the Court from the pleadings of the parties      to the proceedings before it and from the files relating to the      earlier administrative proceedings that an oral hearing is not      likely to clarify the case further."     COMPLAINT        The applicants remaining complaint concerns the lack of a public hearing as required by Article 6 para. 1 of the Convention in the land consolidation proceedings.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 September 1993 and registered on 25 October 1993.        On 15 May 1996 the Commission decided to communicate the applicants' complaint concerning the lack of a public hearing in the land consolidation proceedings to the respondent Government and to declare the remainder of the application inadmissible.        On 28 May 1997 the Commission decided to ask the respondent Government for written observations on the admissibility and the merits of the remaining complaint.        The Government's written observations were submitted on 8 July 1997, after an extension of the time-limit fixed for that purpose.   The applicants replied on 5 February 1998, after the time- limit for submitting their reply had expired.     THE LAW        The applicants remaining complaint concerns the lack of a public hearing in the land consolidation proceedings. They rely on Article 6 para. 1 (Art. 6-1) of the Convention, which, insofar as relevant, reads as follows:        "In the determination of his civil rights and obligations ...      everyone is entitled to a ... public hearing ... by an      independent and impartial tribunal established by law."      The Government, referring to the judgment of the European Court of Human Rights in the case of Stallinger and Kuso v. Austria (judgment of 23 April 1997, Reports 1997-II, p. 666) acknowledges that the applicants' complaint is admissible and refrain from any further submissions at this stage.        The Commission considers, in the light of the parties' submissions, that the remaining complaint raises issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits.   The Commission concludes, therefore, that this part of the applications is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the remainder      of the application.     M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                    President to the First Chamber                         of the First Chamber