CEDH · CASELAW;REPORTS;ENG — 26 novembre 1996

.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 }                     EUROPEAN COMMISSION OF HUMAN RIGHTS                       Application No. 16970/90                            Allan Jacobsson                                against                                Sweden                       REPORT OF THE COMMISSION                     (adopted on 26 November 1996)                           TABLE OF CONTENTS                                                                Page   I.    INTRODUCTION      (paras. 1-17). . . . . . . . . . . . . . . . . . . . . . . 1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1        B.    The proceedings           (paras. 5-12) . . . . . . . . . . . . . . . . . . . . 1        C.    The present Report           (paras. 13-17). . . . . . . . . . . . . . . . . . . . 2   II.   ESTABLISHMENT OF THE FACTS      (paras. 18-40) . . . . . . . . . . . . . . . . . . . . . . 4        A.    The particular circumstances of the case           (paras. 18-33). . . . . . . . . . . . . . . . . . . . 4        B.    Relevant domestic law           (paras. 34-40). . . . . . . . . . . . . . . . . . . . 8   III. OPINION OF THE COMMISSION      (paras. 41-49) . . . . . . . . . . . . . . . . . . . . . .10        A.    Complaint declared admissible           (para. 41). . . . . . . . . . . . . . . . . . . . . .10        B.    Point at issue           (para. 42). . . . . . . . . . . . . . . . . . . . . .10        C.    As to the alleged violation of Article 6 para. 1           of the Convention           (paras. 43-49). . . . . . . . . . . . . . . . . . . .10             CONCLUSION           (para. 49). . . . . . . . . . . . . . . . . . . . . .11   DISSENTING OPINION OF Mrs J. LIDDY, MM. E. BUSUTTIL, F. MARTINEZ, M.A. NOWICKI, N. BRATZA, J. MUCHA and G. RESS. . .12   APPENDIX: 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 applicant is a Swedish citizen, born in 1927. He resides in Tullinge, Sweden.   3.    The application is directed against Sweden. The respondent Government were represented by their Agent, Mr. Carl Henrik Ehrenkrona of the Ministry for Foreign Affairs.   4.    The case concerns the proceedings in the Supreme Administrative Court (Regeringsrätten) in which the applicant challenged the administrative decision to revoke a detailed development plan for an area in which he owns certain property. The applicant complains that he did not get a "public hearing". He invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 21 July 1990 and registered on 2 August 1990.   6.    On 29 March 1993 the Commission decided 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 30 August 1993. The applicant's observations in reply were submitted on 15 November 1993.   8.    On 28 November 1994 the Commission decided to obtain from the parties further observations on the admissibility and merits of the application.   9.    The Government's further observations were submitted on 3 January 1995 and the applicant's further observations in reply were submitted on 14 February 1995.   10.   On 16 October 1995 the Commission declared the application partly admissible and partly inadmissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 27 October 1995 and they were invited to submit further observations on the merits as they wished. The applicant and the Government submitted observations on the merits on 6 and 13 December 1995 respectively.   12.   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   13.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                J.-C. GEUS                M.P. PELLONPÄÄ                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ   14.   The text of this Report was adopted on 26 November 1996 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.   15.   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.   16.   The Commission's decision on the admissibility of the application is annexed hereto.   17.   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   18.   In 1974 the applicant bought a property of 2,644 m2, Salem 23:1, in the centre of Rönninge in the municipality of Salem, a suburb about 20 kilometres south-west of Stockholm. On the property there is a one-family house.   19.   When the applicant bought the property it was covered by a so-called subdivision plan (avstyckningsplan), adopted in 1938. According to this plan no building could be constructed on a plot of less than 1,500 m2 until sufficient water and sewage facilities had been provided for. Such facilities appear to have been built at the end of the 1960's. The property was also covered by an area plan (områdesplan), adopted in 1972, which described the property mainly as a public area containing open spaces, streets and car parking, and by a building prohibition pursuant to section 35 of the previous Building Act (byggnadslagen) of 1947, issued on 26 August 1974.   20.   The first building prohibition under the Building Act of 1947 was issued by the County Administrative Board (länsstyrelsen, hereinafter "the Board") of the Stockholm County already in September 1965 and was valid for one year. This prohibition was subsequently prolonged by the Board for one or two years each time. The last decision was taken on 11 July 1985 and was valid until 11 July 1987. On 1 July 1987, with the entry into force of the Planning and Building Act of 1987 (Plan- och bygglagen, hereinafter "the 1987 Act"), the existing system for prohibition on construction was abolished and replaced by a possibility for the Building Committee (byggnadsnämnden) to defer its decision on an application for a building permit, or a preliminary opinion on that issue, for a maximum period of two years.   21.   Ever since he bought the property in question the applicant has tried, in vain, to obtain from the competent authorities a permit to divide his plot and/or to build, in addition to the existing house, more houses on it. On 28 July 1975 the Building Committee of Botkyrka stated in a preliminary opinion, requested by the applicant, that it was not prepared to permit the division of his property into smaller plots, referring inter alia to the area plan adopted in 1972.   22.   On 28 June 1979 the Municipal Assembly (kommunfullmäktige) adopted a master plan (generalplan) relating to part of the municipality of Botkyrka, according to which the applicant's property was supposed to be used for building blocks of flats of more than two storeys. On 15 January 1980 the Building Committee stated, in reply to a request from the applicant, that accordingly it was not prepared to grant him an exemption from the building prohibition or a permit to build a one-family house and a garage on the property. The applicant appealed to the Board claiming that the building prohibition was not valid. The Board rejected the appeal on 25 April 1980, stating inter   alia that in its opinion the proposed buildings could be contrary to the aim of the prevailing prohibition and hinder future town planning as indicated in the master plan of 1979.   23.   On 13 February 1984 the Municipal Council (kommunstyrelsen) adopted an area programme according to which the area in which the applicant's property is situated should be used for the construction of multi-family houses in 1988. It also stated that the planning procedure should be given priority. On 23 February 1984 the Municipal Assembly adopted a building programme to the same effect.   24.   On 12 June 1984 the Building Committee stated in a new preliminary opinion requested by the applicant that it would not be prepared to grant any building permit in view of the existing building prohibition. The applicant's appeals against this were, as before, unsuccessful.   25.   On 20 March 1986 the Municipal Assembly adopted a new area plan covering inter alia the applicant's property. This plan mentioned the possibility of using the area for single or multi-family house development.   26.   On the basis of these facts the applicant lodged an application with the Commission (No. 10842/84) alleging violations of inter alia Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. In its Report of 8 October 1987 the Commission expressed the opinion that there had been a violation of Article 6 para. 1 of the Convention as a result of the lack of any court remedy to challenge the lawfulness and the compatibility with the Convention of the building prohibitions imposed on his property. It also reached the conclusion that there had been no violation of Article 1 of Protocol No. 1 to the Convention. The Commission's view was subsequently upheld by the European Court of Human Rights (Eur. Court H.R., Allan Jacobsson judgment of 25 October 1989, Series A no. 163).   27.   While his case was pending before the Commission and the Court, and following the entry into force of the 1987 Act, the applicant filed a request with the Building Committee on 9 July 1987 for a preliminary opinion regarding a building permit for his property in order to build a house thereon. On 13 October 1987 the Building Committee decided, however, pursuant to the rules laid down in the 1987 Act, to defer its decision on the request for a period of two years. It nevertheless informed the applicant that a building permit could not be expected for the time being. Before the end of the above two year period the Municipal Assembly of the Municipality of Salem decided, on 21 June 1989, to revoke the detailed development plan (previously called a subdivision plan) which had been in force since 1938. Following this the Building Committee decided, on 11 September 1990, to confirm its preliminary opinion of 13 October 1987 rejecting the applicant's request for a building permit. In its reasons the Committee referred to the need for a new detailed development plan and the Municipality's intention to plan the land for single or multi-family house development in accordance with the area plan adopted in 1986. The applicant did not appeal against this decision.   28.   In the meantime, however, the applicant had lodged an appeal with the Administrative Court of Appeal (kammarrätten) against the decision of the Municipal Assembly of 21 June 1989 to revoke the detailed development plan of 1938. On 6 July 1989 the Court decided not to entertain the appeal as it had no competence to do so since such an appeal, in accordance with the 1987 Act, was to be examined by the County Administrative Board. Leave to appeal against this decision was refused by the Supreme Administrative Court (Regeringsrätten) on 20 September 1989.   29.   Following the above decision of the Administrative Court of Appeal the applicant lodged his appeal with the Board. He maintained in particular that the authorities were under an obligation, pursuant to Chapter 1, section 5, of the 1987 Act, to take into consideration both private and public interests and thus weigh the loss of the rights created by the old detailed development plan against the public interest in adopting a new detailed development plan.   30.   On 7 September 1989 the Board rejected the appeal and upheld the decision of the Municipal Assembly to revoke the detailed development plan of 1938. In its decision the Board stated:   (Translation)        "The area is covered by a detailed development plan, approved      by the County Administrative Board on 16 September 1938.      Pursuant to Chapter 17, section 4, of the 1987 Act the      implementation period for the plan is to be considered as      having elapsed.        In such circumstances the municipality has a strong position      in respect of the right to revoke a detailed development plan,      something which has been exemplified by the fact that the      revocation may be decided without the rights which derived      from the plan being taken into consideration (chapter 5,      section 11, subsection 2, of the 1987 Act). This presupposes      that the general interest speaks in favour of a revocation.      Such a general interest has been expressed by the issuing of      an area plan for Östra Rönninge.        When examining questions under the 1987 Act both public and      individual interests must be taken into consideration unless      otherwise provided. The above provision is an example thereof.      The meaning of this provision is that the person who has      obtained a right according to the plan cannot rely thereon      during the examination of the question whether the plan should      be repealed. However, when it comes to examining the contents      of a new plan the main rule in Chapter 1, section 5,      concerning the individual's interests must obviously be      considered, but even in these circumstances it is not required      that the rights under the old plan must be respected. When it      comes to adopting a new plan it would not be contrary to the      1987 Act to let the adoption thereof be preceded by the      revocation of a detailed development plan. The possible result      of an examination of a request for a building permit in      respect of a new construction on Salem 2[3]:1 following the      revocation of the detailed development plan cannot be examined      in this case. The applicant's submissions in support of his      appeal do not provide a reason for refusing the implementation      of the decision appealed against."   31.   The applicant appealed against this decision to the Government. On 14 June 1990 the Government rejected the appeal stating that they shared the assessment made by the County Administrative Board.   32.   In accordance with the provisions of the 1988 Act on Judicial Review of Certain Administrative Decisions (Lag 1988:205 om rättsprövning av vissa förvaltningsbeslut, hereinafter "the 1988 Act") the applicant challenged the Government's decision in the Supreme Administrative Court. He also requested the Court to examine a request for a building permit and to hold an oral hearing.   33.   On 11 November 1990 the Supreme Administrative Court, without holding an oral hearing, rejected the applicant's complaints against the Government's decision. In its decision the Court stated:   (Translation)        "According to section 1 of the 1988 Act the Supreme      Administrative Court shall, at the request of a private party      in certain administrative matters dealt with by the Government      or an administrative authority, examine whether the decision      is contrary to any legal provision.        In the present case the examination concerns the Government's      decision of 14 June 1990. In this decision the Government      rejected an appeal lodged by (the applicant) against a      decision of the County Administrative Board of Stockholm to      uphold a decision to revoke (the 1938 detailed development      plan) concerning a land area within the Municipality of Salem.      This means that the Supreme Administrative Court cannot in the      present proceedings examine (the applicant's) request to be      granted a building permit. The Supreme Administrative Court      dismisses this request and rejects the request for a public      oral hearing.        As regards the question whether the revocation of (the old      1938 plan) is contrary to any legal provision, it can be      established that the plan, according to Chapter 17, section 4,      of the 1987 Act, was to be regarded as a detailed development      plan with regard to which the implementation period had      elapsed. According to Chapter 5, section 11, of the 1987 Act      such a plan may be amended or annulled without regard to the      rights which may have accrued during the plan's existence. The      latter provision constitutes an exception to the principal      rule in Chapter 1, section 5, of the 1987 Act that      consideration shall be given to both public and private      interests when examining issues under the 1987 Act (cf.      Government Bill 1985/86:1 pp. 175 and 464). The facts of the      case do not indicate that the revocation of the plan is      contrary to Chapter 5, section 11, or Chapter 1, section 5, of      the 1987 Act or to any other provision in the law. The      decision is upheld."   B.    Relevant domestic law   34.   The Planning and Building Act which entered into force on 1 July 1987 contains regulations about the planning of land and water areas as well as building. According to Chapter 1, section 1, "... the purpose of these regulations is, with due regard to the freedom of the individual, to promote a development of the society characterised by equal and good living conditions for people today and for future generations ...".   35.   The provisions of the 1987 Act which have been invoked in the present case read as follows:   (Translation)        Chapter 1 - Introductory regulations        Section 5. When issues are examined in accordance with this      Act, consideration shall be given to both public and private      interests unless otherwise prescribed.        Chapter 5 - Detailed development plans and area regulations        Section 5. The detailed development plan shall contain a time-      limit for development. This time-limit shall be fixed in such      a way that there is a reasonable chance of the plan's      implementation taking place within at least five and at most      fifteen years. ... When the time-limit expires, the plan will      continue to be valid until it is amended or annulled.        Section 11. Before the expiry of the implementation period a      detailed development plan may only be amended or annulled      contrary to the wishes of the property owners concerned when      this is required as a result of new conditions of great public      importance and which could not be foreseen when the plan was      drawn up.        When the implementation period has elapsed, the plan may be      amended or annulled without regard to the rights which may      have accrued during the plan's existence ...        Chapter 17 - Provisional regulations        Section 4. Town development plans and rural development plans      adopted under the Building Act (1947:385) or the Town Planning      Act (1931:142), older types of plans and regulations referred      to in sections 79 and 83 of the latter act as well as      subdivision plans, which are not covered by a directive issued      in accordance with section 168 of the Building Act, shall be      regarded as a detailed development plan in accordance with      this Act. Subdivision plans, to the extent they are covered by      the above-mentioned directives, will cease to be valid with      the coming into force of this Act.        With regard to town development plans and rural development      plans which have been adopted before the end of 1978, the      implementation period will be considered, in accordance with      section 5, subsection 5, to be five years from the date of      their gaining legal force. For other plans and regulations,      referred to in the first subsection, the implementation period      will be regarded as having elapsed.        Unless otherwise prescribed in a plan or regulation, which      according to the first subsection is to be regarded as a      detailed development plan in accordance with this Act,      section 39 in the Building Ordinance (1959:612) shall apply as      a regulation in the plan."   36.   The 1988 Act on Judicial Review of Certain Administrative Decisions was introduced as a result of the European Court of Human Rights' findings in several cases, notably against Sweden, that lack of judicial review of certain administrative decisions infringed Article 6 para. 1 of the Convention. It was enacted as a temporary law to remain in force until 1991; its validity has subsequently been extended, as from 1 July 1996 without any limitation in time.   37.   Pursuant to section 1 of this Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only court, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kinds of administrative decisions covered by the Act are further defined in Chapter 8, sections 2 and 3 of the Instrument of Government (Regeringsformen), to which section 1 of the 1988 Act refers. Section 2 of the Act specifies several types of decisions which fall outside its scope, none of which is relevant in the instant case.   38.   In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision "conflicts with any legal rule" (section 1 of the 1988 Act). According to the preparatory work to the Act, as reproduced in Government Bill 1987/88:69 (pp. 23-24), its review of the merits of cases concerns essentially questions of law but may, in so far as relevant for the application of the law, extend also to factual issues; it must also consider whether there are any procedural errors which may have affected the outcome of the case.   39.   If the Supreme Administrative Court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority.   40.   The procedure before the Supreme Administrative Court is governed by the Administrative Procedure Act of 1971 (förvaltningsprocesslagen). It is in principle a written procedure, but the Supreme Administrative Court may decide to hold an oral hearing on specific matters if this is likely to assist it in its examination of the case or to expedite the proceedings (section 9). As from 1 July 1996, section 3a of the 1988 Act provides that in matters of judicial review the Supreme Administrative court shall hold an oral hearing if this is requested by the person seeking judicial review and it is not manifestly unnecessary.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   41.   The Commission had declared admissible the applicant's complaint that he was refused an oral hearing in the proceedings before the Supreme Administrative Court.   B.    Point at issue   42.   Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention due to the lack of an oral hearing in the court proceedings concerned.   C.    As to the alleged violation of Article 6 para. 1 (Art. 6-1) of the      Convention   43.   The applicant complains that he was refused an oral hearing in the Supreme Administrative Court and alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair and public hearing ... by (a)      ... tribunal."   44.   Whereas the applicant considers that he was entitled to an oral hearing in the proceedings before the Supreme Administrative Court in the circumstances of the present case, the Government maintain that Article 6 (Art. 6) does not apply to these proceedings. In the alternative the Government maintain that there were reasons to justify the Supreme Administrative Court's decision to determine the case without holding an oral hearing. They contend that the case-law of the Convention organs cannot be interpreted as giving a party to the proceedings an unconditional right to an oral hearing. Furthermore, in the present case the decision to annul the detailed development plan hardly had any effect on the applicant's rights, nor did the Supreme Administrative Court express any opinion which involved a determination of the facts.   45.   As regards the applicability of Article 6 (Art. 6-1) to the proceedings in question the Commission refers to its decision as to the admissibility of the present application. Accordingly, what remains to determine is whether Article 6 (Art. 6) was complied with.   1.    As regards the general scope of the right to an oral hearing in Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds it established under its own case-law, and that of the European Court of Human Rights, that in proceedings before a court of first, and only, instance the right to a "public hearing" in the sense of Article 6 (Art. 6) may entail an entitlement to an "oral hearing" (cf. for example Eur. Court. HR, Fredin (No. 2) v. Sweden judgment of 23 February 1994, Series A no. 283-A, p. 10, para. 21). However, in exceptional circumstances it might be justified to dispense with a hearing, in particular when the review de facto addressed only issues of law and where the outcome of the proceedings would be of little or no importance to the applicant's right involved (cf. Eur. Court HR, Fischer v. Austria judgment of 26 April 1995, Series A no. 312, p. 20, para. 44 and Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 20, para. 58).   2.    In the present case it is undisputed that the Supreme Administrative Court was the first and only court in the contested proceedings. It is likewise undisputed that its jurisdiction was not as such limited to matters of law but, if appropriate, also extended to factual issues. However, the Commission considers that no factual issues were considered which would have called for an oral hearing. At the heart of the matter was the applicant's wish to build one more house on his piece of land but, as appears from the decision of the Supreme Administrative Court, this was not a matter the proceedings chosen by the applicant could determine. The issue before the Supreme Administrative Court was merely whether the Government were entitled to revoke a detailed development plan, the implementation period of which had already elapsed. The Court found that the authorities were, under Swedish law, entitled to do this without regard to the rights which might have accrued during the plan's existence. The particular facts pertaining to the applicant's situation were, therefore, of no importance.   3.    Thus, having regard to these features the Commission finds that the applicant's appeal in respect of the revocation of the detailed development plan did not raise any question of fact or law which could not be adequately resolved on the basis of the case-file and the parties' written observations. Accordingly, the refusal by the Supreme Administrative Court to hold an oral hearing did not violate the applicant's right to a "public hearing" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        CONCLUSION   4.    The Commission concludes, by nineteen votes to seven, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.           H.C. KRÜGER                          S. TRECHSEL            Secretary                         President      to the Commission                    of the Commission                                                       (Or. English)         DISSENTING OPINION OF Mrs J. LIDDY, MM. E. BUSUTTIL,    F. MARTINEZ, M.A. NOWICKI, N. BRATZA, J. MUCHA and G. RESS        Article 6 para. 1 provides for the right to a "public hearing" by a tribunal.        The applicant had a conditional right under the 1938 detailed development plan to build on his property. His position was therefore comparable to that of the applicant in Pine Valley v. Ireland (judgment of 29 November 1991, Series A no. 222). The detailed development plan was revoked in 1989. The applicant challenged that revocation, arguing that the authorities were under an obligation to take into consideration the loss of rights created by the old detailed development plan when considering the public interest in adopting a new plan. In its decision on admissibility the Commission rejected the applicant's complaint under Article 1 of Protocol No. 1. It considered, however, that Article 6 was applicable to the dispute because the repercussions on the applicant's conditional right to build meant that the determination of a civil right was involved. It declared admissible the applicant's complaint that he had no oral hearing before a court.        It is undisputed that the Supreme Administrative Court was the first and only judicial instance in the contested proceedings. Its jurisdiction extended to factual issues as well as matters of law. There is no question of the applicant having waived his right to an oral hearing: his request for one was rejected.        The situation is therefore directly analogous to that in the Fischer case (judgment of 26 April 1995 Series A no. 312). There the Court said:        "[T]here do not appear to have been any exceptional      circumstances that might have justified dispensing with a      hearing. The Administrative Court was the first and only      judicial body before which Mr Fischer's case was brought; it      was able to examine the merits of his complaints; the review      addressed not only issues of law but also important factual      questions. This being so, and having due regard to the      importance of the proceedings in question for the very      existence of Mr Fischer's tipping business, the Court      considers that his right to a 'public hearing' included an      entitlement to an 'oral hearing' ... The refusal by the      Administrative Court to hold such a hearing amounted therefore      to a violation of Article 6 § 1 of the Convention" (pp. 20-21,      para. 44).        We consider that the majority's reformulation (at para. 46 of the Report) of the Court's reasoning as laying down an exception to the principle of an oral hearing when "in particular" (a) the review seen post facto addressed only issues of law and (b) the outcome of the proceedings would be of little or no importance to the right involved goes further than the above quoted passage warrants, having regard to the importance of publicity of court proceedings in a democratic society.        As to (a) we consider that post facto evaluation of the domestic court's reasoning is an inadequate legal mechanism for determining whether a prior "right" has been violated or not. As to (b) we see no evidence that the outcome of the proceedings was of little or no importance to the applicant. As to both (a) and (b), we note that it is often the case that the correct interpretation of a disputed legal provision is understood and expressed within the context of concrete factual circumstances.        In particular, we do not share the majority's assumption that no factual issues called for an oral hearing. Against the background of the Court's judgment of 29 October 1989 (Series A No. 163) concerning the impossibility for the applicant to challenge before a court the lawfulness and compatibility with the Convention of the building prohibitions imposed on his property, one could not ex ante say that the factual and legal issues were of little or no importance to the applicant's rights. Likewise, while the Supreme Administrative Court eventually held that there was no obligation to take into account private interests, it was not precluded from taking into account the applicant's particular factual situation when formulating its findings as to the relationship between Sections 5 and 11 of Chapter 1 of the 1987 Act. It cannot be excluded that an oral hearing would have led to a weighing of different interests and clarification of the applicant's own legal situation. It may seem post facto that the outcome would have made no difference to the applicant's rights but the question has to be answered on the basis of the different factual and legal circumstances which were before the Supreme Administrative Court ex ante.        Finally, we consider that if there are exceptions other than those set out in the text of Article 6 para. 1 to the principle that where only one court can be seized of civil proceedings, its hearing must, in the absence of a waiver, be in public, the relevant exceptional circumstances should be clearly delineated rather than indicatively indicated by an "in particular" formulation.