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FIRST
SECTION
CASE OF EMMER-REISSIG v. AUSTRIA
(Application
no. 11032/04)
JUDGMENT
STRASBOURG
10 May
2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Emmer-Reissig v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 5 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11032/04) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Herwig C.
Emmer-Reissig (“the applicant”), on 11 March 2004.
- The Austrian Government (“the Government”)
were represented by their Agent, Ambassador Mr F. Trauttmannsdorff,
Head of the International Law Department at the Federal Ministry for
Foreign Affairs.
- The
applicant alleged, in particular, that the Administrative Court
failed to hold an oral hearing, which was in breach of Article 6.
- On
30 November 2005 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1921 and lives in Klosterneuburg.
- He
is a lawyer practising in Klosterneuburg and the owner of a parcel of
land in the municipality of Königstetten, which is designated as
“forest” land in the zoning plan. On parts of this parcel
– approximately 1,500 square meters – he runs an
organic farm on a part-time basis, breeding sheep and goats. Besides
that, he keeps bees and grows herbs.
- On
18 August 1998 the applicant applied to the mayor of Königstetten
for a building permit for a shed, to be used as a shelter for sheep
and goats in summer and beehives in winter. It is also designed as a
refuge for farm workers. He therefore submitted construction plans
for the planned shed and a map of the land in question.
- The
mayor rejected the applicant's request on 16 February 2000. Relying
on a report by an agricultural expert at the Lower Austria Regional
Government, he stated that, in view of its shape, size and design, it
would not qualify as a farm building and that even if it was an
agricultural construction, it could not be erected on the land in
question, as the latter had been designated as forest and grassland.
- The
applicant lodged an appeal with the municipality of Königstetten
on 10 April 2000. On 3 July 2000 the municipality dismissed his
appeal on the same grounds.
- Subsequently,
on 13 September 2000, the applicant filed an objection (Vorstellung)
with the Lower Austria Regional Government and requested it to hear
representatives of the District Farmer's Association (DFA,
Bezirksbauernkammer) and the Austrian beekeeper association
(ABA, Österreichischer Imkerbund) as experts who would
prove that the building he intended to erect was necessary for the
intended agricultural enterprise.
- The
Regional Government quashed the municipality's decision on 10 January
2001 and referred the case back to the municipal council. It stated
that the municipality had failed to address all the points of appeal.
- The
applicant lodged further grounds in support of his appeal on
19 March, 4 and 24 April 2001. In addition to his comments on
the decision of 3 July 2000, he filed requests for the taking of
evidence. He also submitted a statement by the Tulln Administrative
District Authority and a document he referred to as a business plan.
- On
23 November 2001 the Königstetten Municipality requested the
applicant to comment on an expert opinion it had obtained from the
Planning Office at the Lower Austria Regional Government
(Gebiets-bauamt) on 31 October 2001. It stated that by far the
largest part of the land was covered by forest, which would impede
serious agricultural activities. With reference to the earlier
decisions, it repeated that, judging by its design and shape, the
building at issue would be untypical of an agricultural shed and that
the applicant could be assumed never to have intended to carry on
agricultural activities, but rather to use it for different purposes.
- The
applicant commented on the expert opinion on 10 December 2001.
Claiming that the authorities had incorrectly established the
relevant facts, he contended that the expert opinion was in breach of
Austrian law and European Community law. Besides that, the applicant
repeated his request to obtain opinions from the DFA, the ABA and a
certain organic farming association (Biobauernverband Ernte)
in order to prove the feasibility of the business plan and its
compliance with the relevant legal criteria. He also filed an
application for an on-site inspection of the land at issue.
- On
29 January 2002 the municipal council also rejected the applicant's
appeal. It held that the planned construction would conflict with the
zoning plan and that the building would not resemble a shed for
agricultural use.
- The
applicant filed an objection (Vorstellung) with the Lower
Austria Regional Government again on 11 February 2002, submitting
that the municipality had relied solely on an incorrect expert
opinion without carrying out investigations of its own. In addition,
he claimed that the decision was in breach of European Community law.
- Subsequently,
on 12 March 2002, the applicant lodged a complaint with the
Administrative Court and requested an oral hearing.
- On
30 July 2002, without holding an oral hearing, the Administrative
Court rejected the complaint as inadmissible for non-exhaustion of
administrative remedies, as the applicant had failed to file an
objection against the decision of 29 January 2002.
- The
applicant's objection of 12 March 2002 was dismissed by the Lower
Austria Regional Government on 22 July 2002.
- The
applicant lodged a further complaint with the Administrative Court on
22 August 2002 and repeated his request for an oral hearing.
- On 16 September 2003 the Administrative Court
dismissed the applicant's complaint and rejected his request for an
oral hearing. It found that, despite its request for a detailed
business plan, the applicant had failed to provide one. Accordingly,
the alleged need for a shed for the so-called agricultural enterprise
had not been made out.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE LACK OF AN ORAL HEARING BEFORE THE ADMINISTRATIVE
COURT
- The
applicant complained under Article 6 § 1 of the Convention about
the Administrative Court's refusal to hold an oral hearing.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
applicant submitted that the Administrative Court had unlawfully
dismissed his request to hold an oral hearing, thereby depriving him
of the opportunity to discuss the expert opinions in the context of a
public hearing. Since an oral hearing could have elucidated the facts
of the case, the Court's refusal to hold one was in breach of Article
6 of the Convention.
- The
Government, referring to the Court's case-law, argued that under
exceptional circumstances the domestic courts, for reasons of
efficiency, could refrain from holding a public and oral hearing
where only questions of law or highly-technical questions were to be
determined or where questions of fact or law raised by the applicant
did not require such a hearing. Since both the facts and the question
of law had been determined in the light of the Administrative Court's
constant case-law, it could abstain from holding a public hearing,
thus avoiding further procedural delays. Furthermore, the applicant
had failed to indicate why he considered a public hearing necessary.
- The
Court notes that the applicant's case was heard by the mayor, the
municipal council and the Regional Government, that is, purely
administrative authorities, and then by the Administrative Court,
which dismissed the applicant's complaint. Although the applicant
argued that the Administrative Court did not qualify as a tribunal,
there is no indication in the file that the Administrative Court's
scope of review was insufficient in the circumstances of the case
(see, for instance, Fischer v. Austria, judgment of 26 April
1995, Series A no. 312, pp. 17-18, §§ 30-34, with further
references). Thus, the Administrative Court was the first and only
tribunal which examined the applicant's case.
- As
the Austrian reservation in respect of Article 6 § 1 concerning
the requirement that hearings be public has been found to be invalid
(see Eisenstecken v. Austria, no. 29477/95, § 29, ECHR
2000-X), the applicant was in principle entitled to a public hearing
before the first and only tribunal examining his case, unless there
were exceptional circumstances which justified dispensing with such a
hearing (see, for instance, Stojakovic v. Austria, no.
30003/02, § 53, 9 November 2006, with further references).
- The
Court has accepted such exceptional circumstances in cases where the
proceedings concerned exclusively legal or highly technical questions
(see Schuler-Zgraggen v. Switzerland, judgment of 24 June
1993, Series A no. 263, pp. 19-20, § 58; Varela Assalino
v. Portugal (dec.), no. 64336/01, 25 April 2002;
and Speil v. Austria (dec.) no. 42057/98, 5 September
2002). In particular, the Court has had regard to the rather
technical nature of disputes over benefits under social-security
schemes and has repeatedly held that in this sphere the national
authorities, having regard to the demands of efficiency and economy,
could abstain from holding a hearing if the case could be adequately
resolved on the basis of the case file and the parties' written
observations (see, among other authorities, Döry v. Sweden,
no. 28394/95, 12 November 2002, and Pitkänen v. Sweden
(dec.), no. 52793/99,
26 August 2003).
- Turning
to the circumstances of the present case, the Court notes that the
dispute, as presented by the applicant to the Administrative Court,
concerned the issue whether the plot of land in question could be
used as an agricultural estate.
- The
Court cannot find that the subject matter of the dispute was of such
a nature – namely, highly technical or exclusively legal –
as to dispense the national authorities from their obligation to hold
a hearing.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant further complained about the authorities' refusal to hear
evidence from certain experts on agriculture and organic farming.
- The
Court notes that this complaint is closely linked to the complaint
examined above. It must therefore be declared admissible as well.
However,
in view of its findings in paragraph 31 above the Court does not find
it necessary to examine these complaints separately under Article 6
§ 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit any claim for just satisfaction.
Accordingly, the Court considers it unnecessary to award him a sum
under that head.
FOR THESE REASONS, THE COURT
- Declares unanimously the application admissible;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention as regards the lack
of an oral hearing before the Administrative Court;
- Holds by four votes against three that it is
unnecessary to examine the applicant's further complaint under
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following is annexed to this
judgment:
- dissenting
opinion of Mr Loucaides joined by Mr. Spielmann, and Mr. Malinverni.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES
SPIELMAN AND MALINVERNI
I am
unable to agree with the view of the majority according to which
having found a violation of Article 6 § 1of the Convention
because of the lack of an oral hearing before the Administrative
Court it is unnecessary to examine the applicant's further complaint
under the same Article about unfairness of the proceedings in this
case. This additional complaint, relates, in my view, to a separate
and autonomous breach which if it is established needs a different
remedy than the one relating to the oral hearing. And, conversely, if
the oral hearing breach is remedied that does not automatically give
a solution to the other complaint.The two complaints being completely
unconnected a separate examination of them was necessary.
