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You are here: BAILII >> Databases >> European Court of Human Rights >> ETTL AND OTHERS v. AUSTRIA - 9273/81 [1987] ECHR 6 (23 April 1987) URL: http://www.bailii.org/eu/cases/ECHR/1987/6.html Cite as: (1988) 10 EHRR 255, [1987] ECHR 6

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In the case of Ettl and Others*,

_______________

* Note by the Registrar: The case is numbered 12/1985/98/146. The

second figure indicates the year in which the case was referred to the

Court and the first figure its place on the list of cases referred in

that year; the last two figures indicate, respectively, the case's

order on the list of cases and of originating applications (to the

Commission) referred to the Court since its creation.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr. R. Ryssdal, President,

Mr. G. Lagergren,

Mr. F. Gölcüklü,

Mr. F. Matscher,

Mr. B. Walsh

Sir Vincent Evans,

Mr. C. Russo,

and also of Mr. M.-A. Eissen, Registrar, and H. Petzold, Deputy

Registrar,

Having deliberated in private on 23 October 1986 and 24 March 1987,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The present case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 18 October 1985,

within the three-month period laid down in Article 32 § 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated in

an application (no. 9273/81) against the Republic of Austria lodged

with the Commission under Article 25 (art. 25) by Mr. Anton Ettl,

Mrs. Leopoldine Ettl, Mr. Anton Schalhas, Mrs. Rosa Schalhas,

Mr. Franz Gunacker, Mrs. Maria Gunacker, Mr. Anton Haas and

Mrs. Maria Haas, all Austrian nationals, in 1980.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Austria recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

purpose of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 6 § 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicants - including

Mr. Josef Haftner and Mrs. Maria Haftner, beneficiaries of

Mr. Gunacker, deceased - stated that they wished to take part in the

proceedings pending before the Court and designated the lawyer who

would represent them (Rule 30).

3. The Chamber of seven judges to be constituted included ex

officio Mr. F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the

President of the Court (Rule 21 § 3 (b)). On 25 October 1985, in the

presence of the Registrar, the President drew by lot the names of the

other five members, namely Mr. D. Evrigenis, Mr. F. Gölcüklü,

Mr. B. Walsh, Sir Vincent Evans and Mr. C. Russo (Article 43 in fine

of the Convention and Rule 21 § 4) (art. 43). Subsequently,

Mr. Evrigenis died, and his place was taken by Mr. G. Lagergren,

substitute judge (Rules 22 § 1 and 24 § 1).

4. Having assumed the office of President of the Chamber

(Rule 21 § 5), Mr. Ryssdal consulted - through the Deputy Registrar -

the Agent of the Austrian Government ("the Government"), the

Commission's Delegate and the applicants' lawyer on the need for a

written procedure (Rule 37 § 1). On 10 January 1986, he directed that

the Agent should have until 28 February 1986 to file a memorial and

that the Delegate should be entitled to reply within two months of

receiving such memorial from the Registrar.

On the same day he gave the applicants' lawyer leave to use the German

language (Rule 37 § 3).

The Government's memorial reached the registry on 13 March. By letter

of 13 May the Secretary to the Commission informed the Registrar that

the Delegate would not be replying in writing.

5. Having consulted - through the Deputy Registrar - the Agent of

the Government, the Commission's Delegate and the applicants' lawyer,

the President directed on 25 September 1986 that the oral proceedings

should commence on 20 October 1986 (Rule 38).

On 6, 14 and 16 October, the Registrar received a number of documents

which the President had instructed him to obtain from the Commission

and the applicants, together with the applicants' claims for just

satisfaction.

6. The hearing was held in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

- for the Government

Mr. H. Türk, Legal Adviser, Ministry of Foreign Affairs, Agent,

Mr. D. Okresek, Federal Chancellery,

Mr. D. Hunger, Federal Ministry of Agriculture and Forestry,

Advisers;

- for the Commission

Mr. F. Ermacora, Delegate;

- for the applicants

Mr. R. Wandl, Rechtsanwalt, Counsel,

Mr. E. Pawel, engineering consultant, Adviser.

The Court heard addresses by the above, as well as their replies to

its questions. The Government produced documents at the hearing.

AS TO THE FACTS

7. The applicants are Austrian farmers resident at Obritzberg in

Lower Austria. They complain of consolidation proceedings

(Zusammenlegungs-verfahren) in respect of their land in July 1973.

I. The circumstances of the case

1. The proceedings before the land reform boards

8. On 30 July 1973, the Lower Austrian District Agricultural

Authority (Agrarbezirksbehörde - "the District Authority") published a

consolidation plan for Obritzberg which included the applicants' land.

The applicants lodged an appeal with the Provincial Land Reform Board

(Landesagrarsenat - "the Provincial Board"), claiming that they had

not received land compensation as provided for in the Lower Austrian

Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see

paragraph 15 below). The grounds of appeal differed from one

applicant to the other according to the way in which the consolidation

plan affected each individual's property.

9. The Provincial Board gave its decisions on 26 and 27 May 1975,

after hearing the parties and several other landowners affected by the

changes the applicants were seeking. It determined the appeal on the

basis of the case-file and after some of the members had inspected the

site, and it made a number of variations in the land compensation

awarded to the applicants.

In accordance with section 5(2) of the Federal Agricultural

Authorities Act (Agrarbehördengesetz 1950, as amended in 1974 - see

paragraph 15 below), the Provincial Board was composed of three judges

- all three from the Court of Appeal on 26 May 1975, two from the

Court of Appeal and one from the Regional Court on 27 May 1975 - and

five civil servants from the Office of the Lower Austrian Provincial

Government (Amt der Landesregierung). The chairman was the head of

Division VI 4 of the Office, and the rapporteur was a civil servant in

that Division; a third member of the Board belonged to Division VI 11.

The remaining two members do not appear in the Office's organisational

chart for 1975/76, which was filed by the Government, but do appear in

the one for 1976/77 (i.e. of later date than the Provincial Board's

decision in the case); at that time, together with the chairman and

the rapporteur, they were in Division VI 3, which, according to the

Government, was set up in 1976 following a reorganisation of the

Office's administrative departments. In its report (paragraph 97) the

Commission relied not on the 1975/76 chart but on the 1976/77 one; it

noted that at the time the Provincial Board took its decision, four of

its ordinary members and their substitutes came from Division VI 3 and

the chairman, the rapporteur and two other members worked in

Division VI 4.

10. The applicants then appealed to the Supreme Land Reform Board

(Oberster Agrarsenat - "the Supreme Board"). On 6 October 1976, the

Supreme Board allowed the appeals of the Ettls and the Schalhases to

the extent that they were complaining of a danger that some of the

parcels of land allotted to them in compensation for their original

land might be eroded by water, and it consequently ordered that a

number of drainage measures should be taken; for the rest, their

appeals were dismissed, as were those of the Gunackers and the Haases

in their entirety.

The Supreme Board was composed of three judges - members of the

Supreme Court (Oberster Gerichthof) - and five civil servants from the

Federal Ministry of Agriculture and Forestry (Bundesministerium für

Land- und Forstwirtschaft) (section 6(2) of the Federal Agricultural

Authorities Act - see paragraph 18 below). Two of the civil servants

- the chairman and the rapporteur - belonged to Division I 7, which

was responsible among other things for providing the Board's

secretariat; the other three belonged to Divisions II C 7, II C 8 and

V A 3 respectively.

2. The proceedings in the Constitutional Court and the Administrative

Court

11. The applicants then lodged complaints with the Constitutional

Court (Verfassungsgerichtshof). In particular they claimed that they

had been deprived of their right to a decision by the lawful judge

(gesetzlicher Richter - Article 83(2) of the Federal Constitution

(Bundes-Verfassungsgesetz)), because under the legislation on the

organisation of the agricultural authorities several experts had to

sit on the Provincial Board and the Supreme Board. The applicants

found it unreasonable that these members should have voting rights in

cases where the issue under consideration was outside their field of

expertise or where they had themselves prepared the relevant expert

opinion. In addition, they claimed that there had been an

infringement of their right of property, secured in the Constitution.

They also referred in a general way to the relevant provisions of the

Human Rights Convention.

In judgments on 1 February (in the case of Mr. and Mrs. Haas),

28 February (in the case of Mr. and Mrs. Gunacker) and 19 March 1980

(in the case of Mr. and Mrs. Ettl and Mr. and Mrs. Schalhas), the

Constitutional Court rejected the complaints as unfounded. It pointed

out inter alia that Article 12(2) of the Federal Constitution

expressly provided for the participation of experts. At the

applicant's request, the court referred the cases to the

Administrative Court (Verwaltungsgerichtshof) for the latter to

determine whether any non-constitutional rights had been infringed.

12. In the Administrative Court the applicants challenged the

lawfulness of the land compensation awarded them. They claimed that

the requirements of the Lower Austrian Agricultural Land Planning Act

had not been complied with and also that there had been an

infringement of the provisions of the General Administrative Procedure

Act (Allgemeines Verwaltungsverfahrensgesetz) concerning the

impartiality of the administrative authorities and the right to a fair

trial - the experts had voted on a matter outside their professional

competence; there had been no written expert opinion; and none of the

boards had informed the parties of the findings of the investigation

(Ermittlungsverfahren).

On 11 November (in the case of Mr. and Mrs. Ettl and Mr. and

Mrs. Gunacker) and 25 November 1980 (in the case of Mr. and

Mrs. Schalhas and Mr. and Mrs. Haas), the Administrative Court held

that there had been a breach of the applicants' procedural rights; it

dismissed the other complaints.

The judgments, which were worded in similar terms, may be summarised

as follows (paragraph 52 of the Commission's report):

- Inasmuch as the applicants were accusing the expert members of the

Supreme Board of bias, their submissions were without foundation, as

the composition of the Board had been in accordance with the law.

- In so far as they were complaining that there had been no written

expert opinion on certain points, they had not indicated what relevant

facts had not been brought to the Supreme Board's knowledge for want

of such an opinion. Accordingly, there had not been any material

procedural irregularity (wesentlicher Verfahrensmangel).

- As to the investigation, they should have been informed both of the

findings of fact (Befund) and of the expert opinion itself

(Gutachten). However, as they did not specify what additional

evidence they would have adduced had they known the outcome of the

investigation, they again did not succeed in establishing that there

had been any material procedural irregularity.

- Lastly, the complaints that the Agricultural Land Planning Act had

not been complied with were without foundation. The Supreme Board

had, however, ordered a number of measures to be taken - drainage of

the land allocated to the Ettls, the Schalhases and the Haases, and

construction of an access way in the case of the Gunackers - without

specifying all the works that were necessary, without giving

sufficient reasons for its decisions and without having established

all the material facts. In the case of the Ettls, the Board had

obtained an opinion (Stellungnahme) from its agronomist member on the

problem of the erosion of certain land but had not communicated it to

the applicants, who had accordingly not been able to comment on it.

The Administrative Court consequently quashed the impugned decisions

on these points on grounds of procedural irregularity and remitted the

cases to the Supreme Board.

13. The Supreme Board allowed the applicants' appeals on

3 March 1982. The District Authority subsequently published a new

consolidation plan, which the applicants challenged before the

Provincial Board in the autumn of 1985.

The Court has not been informed of the progress of these proceedings.

II. The relevant legislation

1. In general

14. Powers in respect of land reform in Austria are divided

between the Federation and the Länder. Legislation establishing

general principles is the responsibility of the Federation, while

implementing legislation and law enforcement is the responsibility of

the Länder (Article 12(1)(3) of the Federal Constitution). By

Article 12(2) of the Federal Constitution, decisions at final instance

and at Land level are taken by boards consisting of a "chairman,

judges, civil servants and experts"; "the board which decides at final

instance shall be set up within the appropriate Federal Ministry".

"Provision shall be made in a Federal Act for the organisation,

functions and procedure of the boards and for the principles for

organising the other authorities concerned with land reform". This

Act must provide that the executive shall not be able to set aside or

vary the boards' decisions; it cannot exclude appeals to the

provincial board against decisions by the authority of first instance.

15. Within this constitutional framework the Federal Parliament

has passed three Acts dealing with the following matters:

(i) the legal principles applicable to land reform (Federal

Agricultural Land Planning (General Principles) Act

(Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977);

(ii) the organisation of the land reform boards and the principles for

organising the authorities of first instance (Federal Agricultural

Authorities Act (Agrarbehördengesetz 1950), as amended in 1974);

(iii) proceedings before agricultural authorities (Federal

Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which

refers to the General Administrative Procedure Act).

The Länder have regulated the matters for which they are made

responsible under the Federal legislation in provincial agricultural

land planning Acts (Flurverfassungs-Landesgesetze). In Lower Austria,

consolidation is governed by the Agricultural Land Planning Act 1975.

This replaced an Act of 1934 and was itself amended in certain

respects by an Act of 23 February 1979.

2. The agricultural authorities

16. The first-instance authority in Lower Austria is the District

Agricultural Authority, which is a purely administrative body. The

higher authorities are the Provincial Board, established at the Office

of the Provincial Government, and the Supreme Board, set up within the

Federal Ministry of Agriculture and Forestry.

Decisions (Bescheide) of the District Authority can be challenged by

way of appeal (Berufung) to the Provincial Board, whose decision is

final except where it has varied the decision in question and where

the dispute concerns one of the issues listed in section 7(2) of the

Federal Agricultural Authorities Act, such as the lawfulness of the

compensation in the event of land consolidation; in such cases an

appeal lies to the Supreme Board.

In Austrian law the land reform boards are classified as boards whose

members include judges (Kollegialbehörden mit richterlichem Einschlag)

and which constitute a kind of "specialised administrative tribunal".

17. The Provincial Board has eight members, all appointed by the

Government of the Land (section 5(2) and (4) of the Federal

Agricultural Authorities Act), viz.:

- one Land civil servant, who is legally qualified (rechtskundig), and

acts as chairman;

- three judges;

- a legally qualified Land civil servant with experience in land

reform, who acts as rapporteur;

- a senior Land civil servant (Landesbeamter des höheren Dienstes)

with experience in agronomic matters;

- a senior Land civil servant with experience in forestry matters; and

- an agricultural expert within the meaning of section 52 of the

General Administrative Procedure Act.

18. The Supreme Board likewise has eight members (section 6(2) and

(4) of the Federal Agricultural Authorities Act), viz.:

- one legally qualified senior civil servant from the Federal Ministry

of Agriculture and Forestry, who acts as chairman;

- three members of the Supreme Court;

- a legally qualified senior civil servant from the Federal Ministry

of Agriculture and Forestry with experience in land reform, who acts

as rapporteur;

- a senior civil servant from the Federal Ministry of Agriculture and

Forestry with experience in agronomic matters;

- a senior civil servant from the Federal Ministry of Agriculture and

Forestry with experience in forestry matters; and

- an agricultural expert within the meaning of section 52 of the

General Administrative Procedure Act.

The judicial members are appointed by the Federal Minister of Justice,

and the others by the Federal Minister of Agriculture and Forestry.

19. Section 52 of the General Administrative Procedure Act, which

is referred to in sections 5(2) and 6(2) of the Federal Agricultural

Authorities Act, provides:

"1. If it becomes necessary to take expert evidence, the authority

shall rely on the services of the official experts

(Amtssachverständige) attached to it or put at its disposal.

2. However, by way of exception, the authority may also consult other

suitable persons sworn as experts if no official experts are available

or if it becomes necessary having regard to the particular

circumstances of the case. ..."

20. Members of land reform boards are appointed for five years and

may be re-appointed (section 9(1) of the Federal Agricultural

Authorities Act). They cease to hold office before the expiry of

their term if, inter alia, they no longer satisfy the conditions of

appointment (section 9(2)). Any member may, at his own request, be

relieved of his office on health grounds or for professional reasons

which prevent him from properly discharging his duties (section 9(3)).

If a judicial or civil-servant member is suspended from duty by

decision of a disciplinary tribunal, he shall automatically also be

suspended from duty as a member of a land reform board (section 9(4)).

21. The members of these boards discharge their duties

independently and are not subject to any instructions (section 8 of

the Federal Agricultural Authorities Act and Article 20(2) of the

Federal Constitution). The executive can neither set aside nor vary

their decisions (section 8 of the Federal Act and Article 12(2) of the

Federal Constitution - see paragraph 14 above). The decisions can be

challenged in the Administrative Court (section 8 of the Federal Act).

22. The pattern of organisation described above was the outcome of

a legislative change in 1974 following a judgment of the

Constitutional Court in the same year.

In the Constitutional Court's view, the land reform boards as

constituted under the 1950 Act could not be regarded as being

independent and impartial tribunals within the meaning of

Article 6 § 1 (art. 6-1) of the Convention - their members included at

that time a Minister from the Federal Government (in the case of the

Supreme Board) or the relevant provincial government (in the case of

the provincial boards), and the other members could be dismissed at

any time by the relevant authorities (judgment of 19 March 1974,

Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974,

vol. 39, no. 7284, pp. 148-161).

The new legislation excluded from the boards anyone who was a member

of either the Federal Government or a provincial government,

introduced provisions governing the term of office and the dismissal

of members and provided for appeal to the Administrative Court

(sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities

Act 1974).

3. Procedure before land reform boards

23. Procedure before the land reform boards is governed by the

Federal Agricultural Proceedings Act (see paragraph 15 above),

section 1 of which stipulates that the General Administrative

Procedure Act shall apply - except for one section of no relevance in

the instant case - subject to the variations and additional provisions

made in the Federal Act.

The boards are responsible for the conduct of the proceedings

(section 39 of the General Administrative Procedure Act). By

section 9(1) and (2) of the Federal Act, the boards take their

decisions after a private hearing. This is normally attended by the

parties, who may consult the file (section 17 of the General

Administrative Procedure Act). The parties may appear in person or be

represented (section 9(3) of the Federal Act). The chairman may call

witnesses and, in order to obtain information, civil servants who

contributed to the decision at first instance and to the preparation

of the decision (section 9(5)).

Hearings begin with a report by the rapporteur; the board then

clarifies the subject-matter of the dispute by hearing evidence from

the parties and the witnesses and by looking at the legal and economic

situation in detail (eingehend) (section 10(2)). It proceeds on the

basis of the facts found by the authority below, but can also order

further investigations to be made by that authority or by one or more

of its own members (section 10(1)). The parties must be able to

acquaint themselves with the findings made as a result of the taking

of evidence (Beweisaufnahme) and to submit their comments

(section 45(3) of the General Administrative Procedure Act).

The boards deliberate and vote without the parties being present.

After discussing the outcome of the hearing, the rapporteur submits

conclusions (Antrag); anyone wishing to submit different conclusions

(Gegen- und Abänderungsanträge) must give reasons for them

(section 11(1) of the Federal Act). The chairman determines the order

in which the conclusions are put to the vote (ibid). The rapporteur

votes first, followed by the judges and then the other members,

including the chairman, who votes last and has a casting vote if the

votes are divided equally (section 11(2)).

If an appeal is brought - within the prescribed two weeks

(section 7(3)) - and is held to be admissible, the appropriate board

will, if the findings of fact are so defective that a new hearing

appears to be unavoidable, quash the disputed decision and remit the

case to the authority below; otherwise it will determine the merits of

the case itself (section 66(2) and (4) of the General Administrative

Procedure Act). It may vary either the operative part of the impugned

decision or the reasons given for the decision (section 66(4)).

Boards must determine cases without undue delay (ohne unnötigen

Aufschub) and in any event not later than six months after an

application has been made to them (section 73(1)). If the board's

decision (Erkenntnis) is not notified to the parties concerned within

that time, the parties may apply to the higher authority, which will

thereupon acquire jurisdiction to determine the merits

(section 73(2)). If the latter authority fails to give a decision,

jurisdiction passes - on an application by the interested party - to

the Administrative Court (Article 132 of the Federal Constitution and

section 27 of the Administrative Court Act).

Reasons must be given for the boards' decisions, which must summarise

clearly (klar und übersichtlich) the findings of the investigation,

the assessment of the evidence, and the ruling - on the basis of that

material - on the legal issues arising in the case (sections 58(2) and

60 of the General Administrative Procedure Act). Decisions are sent to

the parties; a board may, however, choose to give its decision

forthwith (section 13 of the Federal Act).

4. Appeals to the Constitutional Court and the Administrative Court

24. The decisions of land reform boards can be challenged in the

Constitutional Court. The latter reviews whether there has been any

infringement of an applicant's rights under the Constitution and

whether any decree (Verordnung) unauthorised by statute law or any

unconstitutional statute or international treaty unlawful

(rechtswidrig) under Austrian law has been applied (Article 144 of the

Federal Constitution).

25. As an exception to the general rule laid down in

Article 133(4) of the Federal Constitution, section 8 of the Federal

Agricultural Authorities Act provides for an appeal to the

Administrative Court against the decisions of land reform boards.

Application may be made to the Administrative Court before or after an

application to the Constitutional Court, which, if it rules that there

has been no infringement of the right relied on in the application to

it, will refer the case to the Administrative Court if the applicant

so requests (Article 144(3) of the Federal Constitution).

26. Under Article 130 of the Federal Constitution, the

Administrative Court hears applications alleging the unlawfulness of

an administrative act (Bescheid) or coercion (Befehls- und

Zwangsgewalt) against an individual or the breach by a competent

authority of its duty to take a decision. It also hears appeals

against decisions by boards whose members include judges - such as the

land reform boards - where such jurisdiction is conferred on it by

statute (see paragraphs 16, 22 and 25 above).

If the Administrative Court does not dismiss the application as

unfounded, it will quash the decision appealed against; it determines

the merits itself only where the relevant authority has failed in its

duty to give a decision (section 42(1) of the Administrative Court Act

(Verwaltungsgerichtshofgesetz)).

When reviewing the lawfulness of an administrative act or of a

decision by a board whose members include judges, the Court does so on

the basis of the facts found by the authority concerned and solely in

the light of the complaints made, unless the authority has acted ultra

vires or procedural requirements have not been complied with

(section 41 of the Administrative Court Act). In this connection the

Act specifically provides that the Court shall quash the act appealed

against - on grounds of procedural irregularity - where the facts the

administrative authority held to have been established are

contradicted in a vital respect by the file, or where they are

incomplete in such a respect or where there has been a failure to

comply with rules which, if they had been correctly applied, might

have resulted in a different decision (section 42(2)(3) of the

aforementioned Act).

If, during the consideration of a case, grounds emerge which were

previously unknown to the parties, the latter must be given an

opportunity to be heard by the court, which must adjourn the

proceedings if necessary (section 41(1) of the Act).

27. Procedure consists mainly in an exchange of pleadings

(section 36), followed (except in certain cases specified in the Act)

by a hearing inter partes, which will normally be held in public

(sections 39 and 40).

PROCEEDINGS BEFORE THE COMMISSION

28. The applicants applied to the Commission on 27 October 1980

(application no. 9273/81). They claimed that they had not had a

hearing by an independent and impartial tribunal as required by

Article 6 § 1 (art. 6-1) of the Convention.

29. The Commission declared the application admissible on

9 March 1984. In its report of 3 July 1985 (made under Article 31)

(art. 31), it reached the conclusion that there had been a breach of

Article 6 § 1 (art. 6-1) (ten votes to two).

The full text of the Commission's opinion and of the separate opinions

contained in the report is annexed to this judgment.

FINAL SUBMISSIONS TO THE COURT

30. At the hearing on 20 October 1986, the Court was asked

- by the Government "to hold that in the present case the provisions

of Article 6 § 1 (art. 6-1) of the European Convention on Human Rights

have not been violated and that therefore the facts underlying the

dispute do not indicate any breach by the Republic of Austria under

the Convention";

- by the Commission's Delegate to uphold the Commission's opinion; and

- by the applicants to find in their favour.

AS TO THE LAW

31. The applicants claimed that they had not had a "public"

hearing by an "independent and impartial tribunal". In their

submission, the Provincial and Supreme Land Reform Boards were not

sufficiently independent of the executive; at least some of their

members could not be considered to be impartial; and proceedings did

not take place in public. Subsequent review by the Administrative

Court had not, they contended, provided a remedy: it was available

only after lengthy administrative proceedings and had not been

sufficiently wide in scope, since it was in principle confined to

consideration of points of law. They argued that there had

consequently been a breach of Article 6 § 1 (art. 6-1) of the

Convention, which provides:

"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 disputed these contentions; the Commission agreed with

the applicants that their right to a hearing by an "independent and

impartial tribunal" had not been respected.

1. Applicability of Article 6 § 1 (art. 6-1)

32. The Obritzberg agricultural consolidation plan concerned,

inter alia, land belonging to the Ettl, Schalhas, Gunacker and Haas

families, which was taken from them in exchange for land previously

belonging to other owners. The applicants contested - and continue to

contest - the lawfulness of the compensation obtained. Any decision

- whether favourable or unfavourable - by the authorities dealing with

the matter consequently affected, affects or will in the future affect

their property rights. The outcome of the proceedings complained of

is accordingly "decisive for private rights and obligations" (see the

Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, § 94, and

the Sramek judgment of 22 October 1984, Series A no. 84, p. 17, § 34),

so that Article 6 § 1 (art. 6-1) applies in the instant case; the

Government, moreover, conceded this.

2. Compliance with Article 6 § 1 (art. 6-1)

33. The dispute ("contestation") related to the consolidation plan

adopted and then published in July 1973 by the Lower Austrian District

Agricultural Authority. The dispute was submitted to the Provincial

Board, the Supreme Board, the Constitutional Court and the

Administrative Court in turn. It must therefore be determined whether

recourse to those authorities satisfied the requirements of

Article 6 § 1 (art. 6-1).

(a) "Independent and impartial tribunal"

34. The Provincial and Supreme Boards, the Administrative Court

and the Constitutional Court are clearly tribunals established by law

(see, mutatis mutandis, the above-mentioned Sramek judgment, p. 17,

§ 36). It is further necessary that they should have been independent

and impartial.

35. The Administrative Court and the Constitutional Court

undoubtedly satisfied that requirement, but, in the applicants'

submission, the same was not true of the Provincial and Supreme

Boards, mainly on account of their membership: the Provincial and

Supreme Boards comprised a majority of civil servants in a

hierarchical relationship with one another and three of whom sat as

experts, while the other two occupied the key positions of chairman

and rapporteur. The applicants also contended that the members' term

of office was too short. In their view, members should be appointed

for life, in order to ensure that they were not subject to any

pressure.

The Government saw these boards as "specialised administrative

tribunals" (see paragraph 16 above) such as have existed in Austria

since the last century. They maintained that the boards' members had

the necessary independence - in 1974, the legislature had adjusted the

organisation of the boards to comply with the requirements of

Article 6 (art. 6) as the Court had interpreted it in its judgment of

16 July 1971 in the Ringeisen case.

In the view of the Commission, on the other hand, the Provincial and

Supreme Boards did not have sufficient independence in the instant

case, as they contained a majority of officials some or all of whom

were from the same civil-service departments and in a position of

hierarchical subordination in respect of their other duties (see

paragraphs 97 and 98 of the Commission's report and paragraphs 9 and

10 above).

36. The Court notes that, at the time in question, the Provincial

Board included three judges; the head of Division VI 4 of the Office

of the Lower Austrian Provincial Government, who acted as chairman; a

member of the same division, as rapporteur; a member of Division VI

11; and two other civil servants from the Office of the Provincial

Government, one of them sitting as an agricultural expert (see

paragraph 9 above).

The Supreme Board consisted of three Supreme Court judges and five

civil servants from the Federal Ministry of Agriculture and Forestry

- the chairman and the rapporteur came from Division I 7, the other

three from Divisions II C 7, II C 8 and V A 3 (see paragraph 10

above).

37. The independence and impartiality of the judge members is not

in issue.

There remain the civil servants whom the Provincial Board and the

Supreme Board included as members pursuant to the Federal Agricultural

Authorities Act (see paragraphs 17 and 18 above).

38. It should be noted first of all that the fact that these civil

servants sat, and even constituted a majority, on the bodies concerned

does not in itself contravene Article 6 § 1 (art. 6-1) of the

Convention. The Federal Constitution and the Federal Agricultural

Authorities Act make provision for their independence and prohibit

public authorities from giving them any instructions concerning their

judicial duties (see paragraph 21 above; and the above-mentioned

Ringeisen judgment, Series A no. 13, pp. 39-40, §§ 95-97, and the

above-mentioned Sramek judgment, Series A no. 84, p. 19, § 41). Nor

did the applicants claim that the civil servants who heard their case

had received any such instructions as to the matters in dispute.

The boards were independent not only of the executive but also, inter

alia, of the parties to the case, namely the owners of the land

concerned (see the above-mentioned Ringeisen judgment, p. 39, § 95,

and the Campbell and Fell judgment of 28 June 1984, Series A no. 80,

p. 39, § 78). It should be emphasised that neither the Provincial

Government nor the Federal Government was a party to the case; in this

respect the present case is similar to the Ringeisen case and differs

from the Sramek case (see the above-mentioned Sramek judgment, ibid.).

39. Given the situation in law and in fact as found in the present

case, the hierarchical links which existed in other contexts between

civil servants from the same division are of no consequence from the

point of view of Article 6 (art. 6) either. It would appear,

moreover, that such links existed only between the chairman and the

rapporteur in each of the two boards.

40. As to the three civil servants who, pursuant to the Act, sat

on account of their experience of agronomy, forestry and agriculture,

their membership cannot give rise to doubts about the independence and

impartiality of the boards. They were experts in their fields; such

experts are needed in cases concerning land consolidation, which is an

operation that raises issues of great complexity and affects not only

the owners directly concerned but the community as a whole. The

boards' composition enables them to reach balanced decisions, having

regard to the various interests at stake. Besides, the domestic

legislation of the Council of Europe's member States affords many

examples of tribunals in which professional judges sit alongside

specialists in a particular sphere whose knowledge is desirable and

even essential in settling the disputes within the tribunals'

jurisdiction.

Where these civil servants prepare a written opinion on a given issue,

section 45(3) of the General Administrative Procedure Act requires

that it be communicated to the parties, who must be given an

opportunity to submit their comments (see paragraph 23 above). The

adversarial nature of the proceedings before the boards under the

Federal Agricultural Authorities Act and the General Administrative

Procedure Act (see the above-mentioned Sramek judgment, p. 18, § 38)

is accordingly quite unaffected by the participation of the

"civil-servant experts". In the case of the Ettls, the Administrative

Court in fact quashed the Supreme Board's decision, precisely on the

ground that the opinion of the member who was an agronomy expert had

not been brought to the applicants' knowledge (see paragraph 12

above).

41. As regards the length of the term of office of members of the

boards, the Federal Agricultural Authorities Act likewise satisfies

the conditions laid down in Article 6 § 1 (art. 6-1): the five-year

term, coupled with virtual irremovability during that period (see

paragraph 20 above), does not put the independence and impartiality of

these boards in doubt (see the above-mentioned Sramek judgment,

ibid.).

(b) "Public hearing"

42. In accordance with the Act, the sittings of the boards which

heard the instant case were attended by the parties but were not held

in public (see paragraph 23 above).

This lack of any public hearing, which is normally contrary to

Article 6 § 1 (art. 6-1), is covered, however, by the reservation

Austria made when ratifying the Convention. On this point, the Court

refers to its above-mentioned judgment in the Ringeisen case; it sees

no reason to depart from that judgment (pp. 40-41, § 98).

43. Accordingly, there was no breach of Article 6 § 1 (art. 6-1)

in respect of the Provincial and Supreme Boards. It is consequently

unnecessary to determine whether the Administrative Court's review

- taken by itself or in conjunction with the Constitutional Court's

review - complied, as regards its scope, with the requirements of

Article 6 § 1 (art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no breach of Article 6 § 1 (art. 6-1).

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 23 April 1987.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar