CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 février 2004

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Ress , President ,   Mr   I. Cabral Barreto ,   Mr   L. Caflisch ,   Mr   P. Kūris ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mrs   H.S. Greve, judges , and Mr M. Villiger , Deputy Section Registrar , Having regard to the above application lodged on 12 October 2000, Having regard to the partial decision of 10 October 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The applicants, Maria Karolina Steck-Risch, Anton Georg Risch, Walter   Risch, Paul Arnold Risch and Mamertus Risch are Liechtenstein nationals. They are brothers and sisters who were born in 1926, 1927, 1930, 1937 and 1939 respectively. The first and second applicants live in Vaduz, the third applicant lives in Schaan and the fourth and fifth applicants live in Triesen. They were represented before the Court by Mr W. Weh, a lawyer practising in Bregenz (Austria). A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were joint owners (one-fifth each) of two adjacent plots of land in Schellenberg, registered under files nos. 55/IV and 67/IV of the Schellenberg land register, which stay inherited in 1983. On 29 September 1972, when the property at issue still belonged to the applicants’ father, the Schellenberg municipality issued a provisional area zoning plan ( Zonenplanfestsetzungsbeschluss ) designating the two parcels of land as non-building land. Before that, the property was not covered by any area zoning plan. On 14 May 1980 the Schellenberg Municipal Council ( Gemeinderat ) dismissed an appeal by the applicants’ father. On 24 November 1981 the area zoning plan ( Zonenplan ) was approved by the Liechtenstein Government. The applicants’ request for a change of the designation of their land into building land ( Bauland ), dated 24 August 1994, was to no avail. On 15 July 1997 the applicants claimed compensation of 4.9 million Swiss Francs (SFR) for damage allegedly incurred due to the designation of their land as non-building land. They claimed that that designation amounted to de facto expropriation. On 2 June 1998 the Liechtenstein Government, sitting in camera, dismissed their claim. They found that the impugned designation of the applicants’ property, not previously subject to any area zoning plan, as non-building land did not amount to a de facto expropriation conferring a right to compensation. In particular, the applicants’ land had not been opened up for building, nor had there been any plans of the municipality to prepare it for development. On 18 June 1998 the applicants filed an appeal against the above Government decision with the Liechtenstein Administrative Court ( Verwaltungsbeschwerdeinstanz) . They claimed, inter alia , that the elements on which the Government had based their decision had not been established in adversarial proceedings. In particular, the applicants alleged that they had not been given an opportunity to present their views on the question of whether or not their land had been opened up for development purposes, which, in fact, had been the case. Thus, they requested that the parties be heard on the matter and that an inspection of the property be carried out. Further, they requested that the Administrative Court obtain the minutes of the Schellenberg Municipal Council’s meeting of 5 July 1995, which showed that the municipality had considered the possibility of including their property in a building area. On 21 October 1998 the Schellenberg municipality, as respondent, filed submissions ( Gegenschrift ) requesting the Administrative Court to dismiss the appeal. They referred to the reasons underlying the designation of the applicant’s property as non-building land and claimed that the applicants’ predecessor had not appealed against the area zoning plan. Further, the municipality contested the applicants’ assertion that the said property had been opened up. Contrary to the applicants’ assertions, the adjacent parcels had also been designated as non-building land. The municipality also submitted the minutes referred to by the applicants. The municipality’s comments were not served on the applicants. On 25 June 1999 the Administrative Court, sitting in camera, dismissed the applicants’ appeal. The Court was presided over by judge G.W. In its decision, the Administrative Court described the conduct of the proceedings so far, including a detailed summary of the comments submitted by the Schellenberg municipality, noting that the conditions for compensation were not met, inter alia , because the applicants’ property had not been opened up. The neighbouring parcels were also undeveloped. When the zoning plan was issued, the applicants could not legitimately expect a designation of their property as building land. The Administrative Court furthermore recalled that there was no right to a public hearing in administrative proceedings. The principle that parties be heard in proceedings did not necessarily mean that a hearing was required for the administrative authorities to decide whether or not a case was ready for decision on the basis of the case-file. Pointing out that the applicants had filed very detailed written submissions, the Administrative Court found that they had been given sufficient opportunity to submit their arguments and evidence. On 7 July 1999 the applicants filed a complaint with the Constitutional Court ( Staatsgerichtshof ) under Section 23 of the Constitutional Court Act ( Staatsgerichtshofsgesetz ), claiming that the principle of equality of arms had been infringed in that the Administrative Court had based its decision on new submissions made by the Schellenberg municipality (concerning the issue whether the applicants’ predecessors had appealed against the zoning plan and concerning the question whether the applicants’ property had been opened up), to which they had had no opportunity to reply. They also complained about procedural defects, in particular the fact that the Administrative Court had not taken evidence from them and had not carried out an inspection of the property at issue. In sum, they asserted that the Administrative Court’s decision violated their right to property. On 10 February 2000 the Constitutional Court informed the applicants of the composition of the panel of five judges that would examine their case in private on 29 February 2000. Subsequently, on 21 February 2000, the applicants filed a challenge for bias against H.H., one of the panel judges, claiming that he was to be disqualified on account of his partnership in a law firm ( Kanzleigemeinschaft ) with G.W., i.e. with the presiding judge of the proceedings before the Administrative Court. On 29 February 2000 the Constitutional Court, sitting in camera, dismissed the applicants’ complaint, confirming that the designation of their property as non-building land did not amount to a de facto expropriation requiring compensation. Bearing in mind that the principle of equality of arms was a basic element of the fairness of proceedings, it agreed in principle with the applicants’ argument that they should have been afforded an opportunity to be informed of and to comment upon the Schellenberg municipality’s observations in reply to their appeal. In that regard, the Court observed that the submissions in issue had contained new information, in particular, the alleged fact that the applicants’ predecessor had never filed an objection against the area zoning plan. If established, that fact would have had a negative effect on the applicants’ legal position. However, the Constitutional Court noted that this submission had not played any role in the Administrative Court’s decision. Thus, no prejudice had resulted from this procedural deficiency. Considering these special circumstances as well as the fact that the proceedings as a whole had been adversarial, the Constitutional Court concluded that the applicants’ procedural rights had not been impaired. Further, the Constitutional Court reiterated that, as a general principle, it was for the administrative authority to establish the relevant facts and to decide on the admissibility of evidence. It followed from the Administrative Court’s detailed legal reasoning that the facts which the applicants wanted to prove were not relevant. In particular, there was nothing to indicate that the administrative authority had arbitrarily refused to inspect the property in question, as such an inspection could not prove whether the conditions for a de facto expropriation obtained in 1972 and 1981 respectively, when the provisional area zoning plan and later the final area zoning plan were issued. Finally, as far as the applicants’ allegations of bias were concerned, the Constitutional Court, referring to an academic commentary on Liechtenstein administrative law, recalled that a country of the size of Liechtenstein had limited human resources in the public sector. It stressed that, in such circumstances, questions of replacement should be dealt with cautiously if one did not wish to jeopardise the proper functioning of the Liechtenstein authorities. The Court reiterated that, by virtue of section 6 of the Constitutional Court Act, a judge of the Constitutional Court, being at the same time a judge at another Liechtenstein court had to be disqualified from proceedings where a complaint concerned a decision issued by that court. However, the Constitutional Court found that the same did not apply in cases where a judge was merely acquainted with a judge who had taken part in the impugned decision. Moreover, it noted that, in a State based on the rule of law, the quashing of a decision by the Constitutional Court was nothing unusual and did not cast doubt on the professional skills of the judges involved in that decision. In those circumstances, the Court found that the applicants’ fears of bias could not be considered to be objectively justified. The Constitutional Court’s decision was served on the applicants on 14 April 2000. B.     Relevant domestic law 1. Applications to and hearings before the Administrative Court According to Article 97 of the Constitution, all decisions or orders by the government are subject to appeal before the Administrative Court. Section 100 of the National Administrative Justice Act ( Landesverwaltungspflegegesetz of 21 April 1922 LGBl. (Official Gazette) 1922, no.   24), insofar as material, provides as follows: “(2) The Administrative Court shall have the powers and obligations of a Court of full jurisdiction (unlimited review) with regard to any matter brought to it by way of a complaint... (3) Accordingly, the Administrative Court may of its own motion order a hearing involving the appearance of the parties to present oral argument, take evidence, and in general conduct the whole proceedings from their inception. (4) However, the Administrative Court may also, if it considers a hearing of the parties to be unnecessary, or if the parties have not expressly requested such a hearing, review the contested decision on the basis of the records...” According to court practice, hearings before the Administrative Court are not open to the public. 2. Applications to and hearings before the Constitutional Court According to Article 104 of the Constitution, the Constitutional Court is, inter alia , competent to protect rights conferred by the Constitution. Section 23 of the Constitutional Court Act ( Staatsgerichtshofgesetz of 5 November 1925 LGBl. 1925 no. 8), provides that decisions of a court or of an administrative authority may be challenged before the Constitutional Court by means of an allegation that there has been an infringement of constitutional rights or of rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Section 37 of the Constitutional Court Act provides as follows: “(1) Proceedings in the Constitutional Court and its decisions shall be subject mutatis mutandis , to the provisions on final proceedings in standard administrative proceedings as described in the National Administrative Justice Act, unless provided otherwise in individual laws or if the Constitutional Court considers a hearing to be unnecessary. (2) If a hearing takes place, the parties and participants shall be summoned to attend.” 3. Rules on challenging judges for bias Section 7 of the National Administrative Justice Act provides that officials, including the members of the Administrative Court, may be challenged, inter alia , in the following cases: “(b) if the official in question ... can expect a substantial advantage or disadvantage depending on the outcome of the administrative matter; ... (d) if there is any other sufficient reason to doubt the impartiality of the official in question, in particular if the official in question is too close a friend or foe of one of the parties to a legal or administrative dispute.” By virtue of section 6 (3) of the Constitutional Court Act, these rules also apply to the judges of the Constitutional Court. COMPLAINTS The applicants’ remaining complaints under Article 6 § 1 of the Convention were as follows: 1. The applicants complained that H.H., one of the judges of the Constitutional Court deciding on their complaint against the Administrative Court’s decision, lacked impartiality as he and G.W., who had presided over the proceedings before the Administrative Court, were partners in a law-firm. 2. Further, they submitted that the principle of equality of arms had been infringed in that the Schellenberg municipality’s comments on their appeal were not communicated to them. 3. The applicants submitted that the proceedings at issue were in breach of Article 6 on account of the lack of both a hearing and a public hearing before the Administrative Court and the Constitutional Court as well as on account of the absence of any public pronouncement of their decisions. They asserted that their requests for the taking of evidence implied a request to hold a hearing. 4. The applicants further asserted that the proceedings before the Administrative Court were also unfair in that the latter had disregarded their requests for the taking of evidence. THE LAW The applicants raised a number of complaints under Article 6 § 1 of the Convention which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” 1. The applicants complained that one of the Constitutional Court judges, H.H., was not impartial. The Government contended that there was nothing to indicate that judge H.H. lacked the necessary impartiality. They argued, in particular, that under section 7 of the National Administrative Justice Act a judge may be challenged if he is “too close a friend of one of the parties to the dispute”, while the fact the he is a friend or an acquaintance of another judge who has decided on the dispute is not considered a ground for bias. The additional argument that judge H.H. was a partner in the same law firm as judge G.W., who had presided over the proceedings before the Administrative Court, did not affect that position. In a State governed by the rule of law it was a normal feature of the judicial system that the Constitutional Court could set aside the judgment of a lower court. Such a decision would not have had any negative repercussions on the law firm in which H.H. and G.W. were partners. The applicants maintained that judges H.H. and G.W. were running a law firm together and thus had, apart from living on common earnings, a long-established close personal relationship which justified the applicants’ fears of bias. Moreover, had the Constitutional Court set aside the Administrative Court’s decision, this could have had negative effects for the law-firm. The possible scarcity of qualified human resources in a small State could not justify the fact that a judge who was not impartial decided on their case. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.   2. The applicants submitted that the principle of equality of arms had been infringed in that the Schellenberg municipality’s comments on their appeal had not been communicated to them. The Government asserted that the present case had to be distinguished from Ziegler v. Switzerland (no. 33499/96, 21 February 2002), since it followed from the Constitutional Court’s findings that the Administrative Court had not relied on the submissions of the Schellenberg municipality. Thus, this procedural irregularity did not entail any prejudice for the applicants. The applicants contested the Government’s assertion. The Administrative Court’s decision not only gave a detailed summary of the comments of the Schellenberg municipality but also relied on them in its establishment of the facts, in particular regarding the question of whether the property at issue was opened up for construction. In any case, the Schellenberg municipality was the respondent in the proceedings before the Administrative Court and its comments were of vital interest to the applicants. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes, therefore, that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 3. The applicants complained about the lack of both a hearing and a public hearing before the Administrative Court and the Constitutional Court and about the lack of any public pronouncement of their decisions. The reservation made by Liechtenstein in respect of Article 6 § 1 reads as follows: “In accordance with Article 64 of the Convention [Article 57 since the entry into force of the Protocol No 11], the Principality of Liechtenstein makes the reservation that the principle that hearings must be held and judgments pronounced in public, as laid down in Article   6, paragraph 1, of the Convention, shall apply only within the limits deriving from the principles at present embodied in the following Liechtenstein laws: ... - Act of 21 April 1922 on National Administrative Justice, LGBl. 1922 No. 24 - Act of 5 November 1925 on the Supreme Court (“Haute Cour”), LGBl. 1925 No. 8 [The present decision uses the same terms as Wille v. Liechtenstein [GC] (no. 28396/95, §   27, ECHR 1999-VII); thus this act is called “the Constitutional Court Act of 5 November 1925”] ...” Article 57 of the Convention reads as follows: “1.     Any State may, when signing [the] 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.” The Government argued that Liechtenstein’s reservation in respect of Article 6 § 1 prevented the Court from examining the complaint about the lack of a hearing and of any public pronouncement of the decisions. The reservation referred to a concrete provision of the Convention and to laws in force in Liechtenstein at the time of ratification, i.e. on 8 September 1982. Furthermore, the reservation contained a brief statement of the law concerned as required by Article 57 § 2 of the Convention. Both the proceedings before the Administrative Court and before the Constitutional Court were regulated by laws covered by the reservation. In the alternative, they argued that the applicants had failed to exhaust domestic remedies. The Government asserted that the applicants were entitled to request a hearing both before the Administrative Court and before the Constitutional Court. Such hearings were, as a general rule, not public. However, the Government referred to a 1996 decision in which the Constitutional Court had found that, despite Liechtenstein’s reservation to Article 6 § 1 of the Convention, it was important that “proceedings important for the public are also conducted publicly, and that the media are given the opportunity to report on the course of the proceedings”. It followed from this case-law that public hearings could be held where appropriate. The applicants, for their part, asserted that the reservation only concerned public hearings and could, thus, not prevent the Court from examining whether the applicants’ right to a hearing had been violated. In any event, the applicants, referring to the Court’s judgments in Gradinger v. Austria (judgment of 23 October 1995, Series A no. 328-C) and Eisenstecken v. Austria (no. 29477/95, ECHR 2000-X) argued that the reservation at issue did not comply with the requirements of Article 57 of the Convention. In their submission the reservation was formulated in vague terms, thus being of a “general character” within the meaning of the second sentence of Article 57 § 1. Moreover, it did not contain a “brief statement of the law” as required by the second paragraph of that Article. The applicants contested the Government’s argument that they had failed to exhaust domestic remedies. They asserted that a request for a public hearing would not have had any prospects of success. Moreover, they maintained that their requests for the taking of evidence implied a request for a hearing. The Court notes that the applicants’ complaint encompasses two aspects, namely whether they should have had a hearing of their case and, if so, whether that hearing should have been public. a. The Court will first turn to the applicant’s complaint that neither the Administrative Court not the Constitutional Court held a hearing in their case. Pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter after domestic remedies have been exhausted. In the present case, the applicants failed to make an explicit request for a hearing before the Administrative Court, although they were entitled to do so under section 100 (4) of the National Administrative Justice Act. The Court is not convinced by the applicants’ argument that their requests for the taking of evidence, which included a request to hear the parties, implied a request for a hearing. It notes, in particular, the Administrative Court’s finding that the principle that the parties be heard did not necessarily require a hearing under Liechtenstein law, but could also be complied with by giving them an opportunity to file written submissions. Furthermore, the applicants did not complain about the lack of a hearing in their complaint to the Constitutional Court. In this connection, the Court observes that the Constitutional Court has the power to quash any decision of a court or an administrative authority that has been challenged before it if it concludes that there has been a breach of constitutional rights or of rights guaranteed by the Convention. Thus, a complaint to the Constitutional Court has to be regarded as an effective remedy. Finally, the applicants did not request a hearing before the Constitutional Court either. The applicants have, thus, failed to make use of the remedies available under Liechtenstein law. It follows that this complaint must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. b. Nevertheless, this conclusion is not necessarily decisive regarding the applicants’ complaint about the lack of a public hearing (see mutatis mutandis , Eisenstecken , cited above, § 33). Even if the applicants had requested a hearing before the Administrative Court or the Constitutional Court, such a hearing would, as a rule, not have been public. This follows from the relevant provisions of Liechtenstein law (see above, relevant domestic law and practice, section 100 of the National Administrative Justice Act and section 37 of the Constitutional Court Act) and was not contested by the Government. In so far as the latter referred to a judgment of the Constitutional Court, according to which proceedings could be held in public where appropriate, it is open to doubt whether the present case would have qualified, for it does not appear to be one of general importance to the public and the media. However, the Court is not called upon to examine whether the applicants in the present case had an effective remedy regarding the lack of a public hearing and of any public pronouncement of the decisions before it has examined the validity of the reservation made by Liechtenstein in respect of Article 6. The Court notes that the proceedings complained of were governed by the laws listed in the reservation, namely the National Administrative Justice Act and the Constitutional Court Act. It has not been contested that the provisions concerning the non-public nature of hearings were already in force when the reservation was made. As regards the applicants’ assertion that the reservation was one of a “general character”, the Court reiterates that Article 57 § 1 (former Article 64 § 1) of the Convention requires precision and clarity. The term “reservation of a general character” denotes in particular a reservation which does not refer to a specific provision of the Convention or is couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope (see Belilos v. Switzerland , judgment of 29 April 1988, Series A no. 132, p. 26, § 55; Chorherr v. Austria , judgment of 25   August 1993, Series A no. 266-B, p. 34, § 18; and, as a recent authority, Kozlova and Smirnova v. Latvia (dec.), no. 57381/00, 23 October 2001). The Court notes that the reservation at issue here refers to a specific provision of the Convention, namely Article 6 § 1, and to one specific requirement contained therein, namely that hearings must be held and judgments be pronounced in public. Although the wording may be criticised for being somewhat complicated, the text makes it sufficiently clear that publicity will be restricted as provided for in the laws mentioned in the reservation. In conclusion the Court finds that the wording of the reservation does not attain the degree of generality prohibited by the second sentence of Article   57 § 1. Turning to the applicants’ assertion that the reservation lacked a “brief statement of the law concerned”, the Court reiterates that this requirement both constitutes an evidential factor and contributes to legal certainty.   The purpose of Article 57 § 2 is to provide a guarantee - in particular for the other Contracting Parties and the Convention institutions - that a reservation does not go beyond the provisions expressly excluded by the State concerned.   This is not a purely formal requirement, but a condition of substance (see Belilos , cited above, p. 27, § 59). The Court reiterates its finding in the Chorherr judgment, (cited above, p, 34, §   20) that the requirement at issue does not mean that it is necessary to provide a description, even a concise one, of the substance of the texts in question. It held that a reference to the Federal Official Gazette - preceded moreover by an indication of the subject-matter of the relevant provisions   -was in compliance with the requirement of Article 57 § 2. On the other hand, it found that the mere reference to a permissive, non-exhaustive provision of the Constitution, which did not in turn mention the specific provisions excluding public hearings, did not satisfy the requirements of Article 57 § 2 (see Eisenstecken , cited above, § 29; similarly, Gradinger , cited above, p. 65, § 51). Applying these principles to the present case, the Court finds that the reservation excludes from the scope of Article 6 - as far as public hearings and the public pronouncement of the decisions are concerned - proceedings which are covered by the laws enumerated. The title of each law gives an indication of its subject-matter and is followed by a reference to the Official Gazette. It is, therefore, possible for everyone to identify precisely which laws are concerned and to obtain information about them. In sum, the reservation provides a safeguard against any interpretation which would unduly extend the field of its application. Accordingly, the reservation complies with Article 57 § 2. In sum, the reservation made by Liechtenstein in respect of Article 6 § 1 dispenses the Court from examining the applicants’ complaint about the lack of a public hearing and of any public pronouncement of the decisions. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4.   4. The applicants complained about the Administrative Court’s refusal of their requests for the taking of evidence. The Court recalls that Article 6 of the Convention does not lay down any rules on the admissibility of evidence or on the way it should be assessed, which are therefore primarily matters for regulation by national law and for examination by the national courts (see García Ruiz v. Spain [GC], no.   30544/96, § 28, ECHR 1999 ‑ I). In the present case, the courts gave sufficient reasons for their finding that the evidence proposed by the applicants was irrelevant to the solution of the case. The Constitutional Court found in particular that an inspection of the property could not prove whether the conditions for a de facto expropriation obtained some twenty years before, when the final area zoning plan was issued. Finally, as to the applicants’ request that the parties be heard, there is nothing to show that the subject-matter of the dispute required the courts to obtain a personal impression of the parties. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicants’ complaint that one judge of the Constitutional Court was not impartial and their complaint that the Administrative Court failed to give them an opportunity to reply to the Schellenberg municipality’s comments on their appeal; Declares the remainder of the application inadmissible.   Mark V illiger   Georg Ress Deputy Registrar   President