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You are here: BAILII >> Databases >> European Court of Human Rights >> ZUMTOBEL v. AUSTRIA - 12235/86 [1993] ECHR 41 (21 September 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/41.html
Cite as: [1993] ECHR 41, (1994) 17 EHRR 116, 17 EHRR 116
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In the case of Zumtobel v. Austria*,
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 R. Bernhardt,
Mr F. Matscher,
Mr A. Spielmann,
Mr N. Valticos,
Mr R. Pekkanen,
Mr F. Bigi,
Mr M.A. Lopes Rocha,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 March and 24 August 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 28/1992/373/447. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 1 September 1992, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12235/86) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by the firm of F.M. Zumtobel,
a commercial partnership under Austrian law, and its manager,
Mr Martin Zumtobel, an Austrian national, on 10 June 1986.
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
object 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 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that
they wished to take part in the proceedings and designated the lawyer
who would represent them (Rule 30) and who was given leave by the
President to use the German language (Rule 27 para. 3).
3. The Chamber 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 para. 3 (b)). On 26 September 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr A. Spielmann, Mr N. Valticos,
Mr R. Pekkanen, Mr F. Bigi, Mr M.A. Lopes Rocha and Mr J. Makarczyk
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Deputy Registrar, consulted the Agent of the
Austrian Government ("the Government"), the applicants' lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 18 January 1993 and
the applicants' memorial on 22 January. On 9 March the Commission
produced various documents, as requested by the Registrar on the
President's instructions. On 21 April, 7 May and 23 June the Registrar
received other documents from the applicants and the Government; the
Court agreed to their inclusion in the file (Rule 37 para. 1, second
sub-paragraph).
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 March 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Federal Chancellery, Agent,
Mr F. Haug, Federal Ministry for Foreign Affairs, Adviser;
(b) for the Commission
Mr Gaukur Jörundsson, Delegate;
(c) for the applicants
Mr W.L. Weh, Rechtsanwalt, Counsel.
The Court heard addresses by them and also their replies to
its questions.
AS TO THE FACTS
I. The particular circumstances of the case
6. The firm of F.M. Zumtobel, which at the material time was a
limited partnership (Kommanditgesellschaft) and was subsequently
converted into a limited company (Gesellschaft mit beschränkter
Haftung), is based in Dornbirn, Austria. Mr Zumtobel was its manager
and sole shareholder.
7. The case concerns expropriation proceedings instituted with
a view to the construction in the province of Vorarlberg of a
provincial highway, the L 52, intended as a bypass for part of the
municipality of Rankweil. It appears that the scheme in question dated
back to 1960, but that opposition from local landowners had prevented
its realisation.
The authorities conducted an investigation into inter alia
whether the projected road was compatible with the requirements of
environmental protection (Landschaftsschutz). The proposed route was
published (zur öffentlichen Einsichtnahme aufgelegt) and the file made
available for consultation at the Rankweil council offices from 1 to
31 October 1984.
8. Pursuant to the Provincial Highways Law (Landesstraßengesetz),
on the initiative of the Highways Authority of the Provincial
Government (Landesstraßenverwaltung), expropriation proceedings
relating to a parcel of land of 2,140m2 belonging to the Zumtobel
partnership were opened on 28 February 1985. The expropriation would
have had the effect of dividing the first applicant's property, which
covered an area of some 55,000m2, into two parcels of approximately
20,000m2 and 30,000m2.
The authorities consulted several experts. The first
applicant repeatedly but unsuccessfully requested to be allowed to
study various documents in the file, namely a report of the Court of
Audit (Rechnungshof), an expert report on the environmental
implications, the decision taken by the local authorities of Feldkirch,
Meiningen and Rankweil on the proposed section of the road, and an
opinion of the environmental department of the Provincial Government.
9. On 25 June 1985 a hearing took place before the Office of the
Provincial Government (Amt der Landesregierung), attended by its
chairman, the first applicant's lawyer, and three of its official
experts (Amtssachverständige), specialising in environmental
protection, highways and road traffic respectively. They submitted
their reports and made additional observations. According to the
highways expert and the road traffic expert, the proposed section of
highway was important because it would improve traffic links between
Rankweil and Feldkirch, which went through densely populated built-up
areas.
10. On 13 February 1986 the Office made an order for expropriation
and fixed compensation at 620 schillings per square metre. At the same
time it dismissed two requests by the first applicant, one for full
details of the planning procedure for the L 52, and the other for the
appointment of an independent road traffic expert to assess whether the
planned road was necessary. The Office considered the first request
to be irrelevant to the case; as to the second, it stated that the
official expert had not shown any bias in favour of the authorities and
had submitted a convincing report.
11. The Zumtobel partnership thereupon applied to the
Constitutional Court (Verfassungsgerichtshof). It claimed that the
expropriation proceedings, which were subject to final review by the
Administrative Court (Verwaltungsgerichtshof) and the Constitutional
Court, had violated its right of access to a court with full
jurisdiction, guaranteed inter alia by Article 6 para. 1 (art. 6-1) of
the Convention. It also alleged that there had been a breach of the
principle of equality of arms, as the Office had heard its own experts
but refused to consult independent ones.
12. On 27 November 1987, at the conclusion of a hearing held in
private (Article 144 para. 2 of the Federal Constitution, Bundes-
Verfassungsgesetz), the Constitutional Court decided not to entertain
the application since, in view of its case-law on Article 6 (art. 6)
of the Convention and the authorities' discretion in determining the
routes of highways, the application did not have sufficient prospects
of success. Moreover, the alleged violations resulted at the most from
the erroneous application of an ordinary law (einfaches Gesetz) and
their examination did not involve any constitutional considerations.
Finally, the case did not fall outside the Administrative Court's
jurisdiction.
13. The first applicant also challenged the decision of
13 February 1986 (see paragraph 10 above) in the Administrative Court.
Relying on substantially the same arguments as in the Constitutional
Court, it now complained of breaches of procedural and substantive law;
it also asked for an expert to be appointed.
14. The Administrative Court dismissed the appeal on
22 September 1989, after a purely written procedure; the applicants had
not asked it to hold a hearing (see paragraph 20 below).
In the court's opinion, the complaint that the scheme objected
to was not based on any reasonable overall plan was not enough to
establish that the contested decision had been unlawful. The court
added as follows:
"In the context of the power of review conferred on it by
Article 41 of the Administrative Court Law
(Verwaltungsgerichtshofgesetz), the Administrative Court
cannot hold to be unlawful the fact that the respondent
authority had regard to road traffic requirements and based
its decision principally on the consideration that no other
more appropriate solution - than the construction of the
proposed section of the L 52 over the land in issue - was
possible. As can be seen from the findings of fact in the
contested decision, the respondent authority took the view
that it was in the interests of road users to divert through-
traffic from the Rankweil-Brederis built-up area, which at
the same time would create a useful addition to the existing
road network in the Feldkirch-Rankweil area."
The court held that the applicant partnership had also failed
to cast doubt on the official experts' reports such as could disclose
a procedural irregularity capable of affecting the decision. The fact
that the Government Office had not made the commencement of
construction work for the L 52 subject to a final decision on the
length of the route was not incompatible with the Provincial Highways
Law. Contrary to the applicant partnership's arguments, the Office had
indeed taken environmental protection into account when assessing the
various relevant interests. The commencement of expropriation
proceedings before the adoption of a decree (Einreihungsverordnung)
defining inter alia the route and length of the highway and the failure
to consult the association of local authorities (Gemeindeverband) of
Vorarlberg did not vitiate the impugned decision either. As for
compensation in kind (Naturalersatz) or an exchange of land
(Tauschanbot), the documents in the case showed that these had not been
available as alternative solutions. Finally, the fact that notice of
the hearing of 25 June 1985 (see paragraph 9 above) had not been given
in the Official Gazette (Amtsblatt) could not have infringed the
applicant partnership's rights, as it had been directly notified of the
hearing.
The court also rejected the complaints relating to the hearing
of the official experts. It noted to begin with that the Office was
obliged to consult them, under the General Administrative Procedure Law
of 1950 (Allgemeines Verwaltungsverfahrensgesetz, "the 1950 Law"). The
court considered that mere general remarks on the independence of
official experts were not enough to prove a specific legitimate doubt
for the purposes of Article 7 (1), sub-paragraph 4, of the 1950 Law.
The fact that such an expert took part in proceedings to which the
Province was a party did not, unless there were special circumstances,
constitute a serious reason within the meaning of the 1950 Law to doubt
his complete impartiality. In the absence of any formal requirement,
there was nothing to prevent a written record being made of an orally
delivered expert report, without the expert having to supplement it in
writing. Nor had the authorities been obliged to summon the parties
to attend the inquiry (Beweisverfahren).
With reference to the complaints of lack of access to the case
file, the court stated that it could not find that the Office had
disregarded procedural rules, compliance with which could have led to
a different decision. As the applicant partnership had not been a
party to the environmental protection proceedings
(Landschaftsschutzverfahren), it could not claim a right of access to
that file. As to the Court of Audit's report, the observations of the
department for planning and the environment (Raumplanungs- bzw.
Umweltabteilung) and those of the relevant local authorities, there was
nothing to show that these documents could have been material to the
applicant partnership's case or that the Office had based its decision
on them. The report of expert B. had been included in the
expropriation proceedings file but, contrary to the applicant
partnership's arguments, the authorities were not obliged by law to
supply photocopies of the entire case file or of certain documents in
it.
The Administrative Court also found that there had been no
breach of Article 6 (art. 6) of the Convention and declined to refer
the matter to the Constitutional Court.
With regard to the request for an independent expert to be
appointed to report inter alia on "the economic viability, the
reasonableness and hence the lawfulness" of the proposed route of the
L 52, the court cited a judgment given by an enlarged chamber in 1978
and stated:
"[That judgment shows that] the Administrative Court is not
allowed, in a case which has been before the respondent
administrative authority, to put itself in the place of that
authority and take evidence, which the latter may have
omitted to take, or to supplement the investigation by itself
taking investigative measures to establish the facts. The
Administrative Court can, however, take evidence in order to
determine whether an essential procedural requirement has
been breached, and it is therefore entitled to take
investigative measures in order to establish whether a
procedural defect is essential or whether the respondent
authority could have reached a different decision if that
procedural defect had been avoided; it can also do so for the
purpose of reviewing the assessment of the evidence. In view
of the above findings with reference to the weighing up by
the respondent authority of the interests at stake and the
facts on which its decision was based, however, the
Administrative Court sees no reason to order the
investigative measure sought."
15. The first applicant had meanwhile applied to the Feldkirch
District Court (Bezirksgericht) to determine the amount of
compensation. On 17 December 1987 this was set at 9,963,032.50
Austrian schillings (ATS).
On 28 May 1988, on appeal (Rekurs) to the Feldkirch Regional
Court (Landesgericht), the amount was reduced to ATS 4,560,000. On
6 October 1988 the first applicant's appeal on points of law
(Revisionsrekurs) against this decision was dismissed by the Supreme
Court (Oberster Gerichtshof).
II. Relevant domestic law
A. Expropriation for highway construction
16. In Vorarlberg expropriation for the purpose of construction
of a provincial highway can take place only after the Provincial
Government has issued a decree giving a brief description of the route
of the highway and stating its approximate length (Article 5 of the
Provincial Highways Law). Landowners who are affected by the measure
can, once the plan has been made public, contest its appropriateness
before the administrative authorities, and then challenge the decree
in the Constitutional Court.
Such an expropriation is permissible only if it is not
possible to construct or retain a section of highway which is more
suitable from the point of view of traffic requirements, environmental
protection and the financial implications (Article 44 (1)).
B. Appeals to the Constitutional Court
17. On an application (Beschwerde) the Constitutional Court will
determine whether an administrative decision (Bescheid) has infringed
a right guaranteed to the applicant under the Constitution or whether
the decision applied a decree (Verordnung) contrary to the law, a law
contrary to the Constitution or an international treaty incompatible
with Austrian law (Article 144 para. 1 of the Federal Constitution).
C. Applications to the Administrative Court
18. Under Article 130 of the Federal Constitution, the
Administrative Court has jurisdiction to hear inter alia applications
alleging that an administrative decision is unlawful.
19. Article 41 (1) of the Administrative Court Law
(Verwaltungsgerichtshofgesetz) reads as follows:
"In so far as the Administrative Court does not find any
unlawfulness deriving from the respondent authority's lack of
jurisdiction or from breaches of procedural rules
(Article 42 (2), sub-paragraphs 2 and 3) ..., it must examine
the contested decision on the basis of the facts found by the
respondent authority and with reference to the complaints put
forward ... If it considers that reasons which have not yet
been notified to one of the parties might be decisive for
ruling on [one of these complaints] ..., it must hear the
parties on this point and adjourn the proceedings if
necessary."
Under Article 42 (2) of the Law,
"The Administrative Court shall quash the impugned
decision:
1. if it is unlawful by reason of its content,
2. [or] because the respondent authority lacked jurisdiction,
3. [or] on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of
fact which are, in an important respect, contradicted by the
case file, or
(b) the facts require further investigation on an
important point, or
(c) procedural rules have been disregarded,
compliance with which could have led to a different decision
by the respondent authority."
20. Proceedings in the Administrative Court consist essentially
of an exchange of written pleadings (Article 36). If one of the
parties so requests the Administrative Court may hold an adversarial
hearing which in principle is held in public (Articles 39 and 40).
21. If the court quashes the challenged decision, "the
administrative authorities are under a duty ... to take immediate
steps, using the legal means available to them, to bring about in the
specific case the legal situation which corresponds to the
Administrative Court's view of the law (Rechtsansicht)"
(Article 63 (1)).
D. Experts
22. If an expert opinion proves necessary in expropriation
proceedings, the authority consults, in accordance with Article 52 (1)
of the General Administrative Procedure Law (see paragraph 14 above),
"the official experts attached to the authority or placed at its
disposal". Under Article 53 in conjunction with Article 7 of that law,
such experts must stand down "if there are ... serious reasons liable
to give rise to doubts as to their complete impartiality".
PROCEEDINGS BEFORE THE COMMISSION
23. The applicants applied to the Commission on 10 June 1986.
They alleged that in the expropriation proceedings they had not had
access to a court with full jurisdiction, as required by
Article 6 para. 1 (art. 6-1) of the Convention. They also complained
of an infringement of their property rights, the refusal of the
Administrative and Constitutional Courts to accord suspensive effect
to the applications brought before them and the impossibility of
bringing an administrative appeal against the expropriation decision;
they relied on Articles 6 para. 1, 13 and 14 (art. 6-1, art. 13,
art. 14) of the Convention and Article 1 of Protocol No. 1 (P1-1).
24. On 15 October 1991 the Commission declared the application
(no. 12235/86) admissible with respect to the complaint under
Article 6 para. 1 (art. 6-1) and inadmissible for the remainder. In
its report of 30 June 1992 (made under Article 31) (art. 31) it
expressed the opinion, by different majorities on the various points
in issue, that there had not been a violation of Article 6 para. 1
(art. 6-1). The full text of the Commission's opinion and of the two
separate opinions contained in the report is reproduced as an annex to
this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 268-A of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
25. The Government asked the Court "to hold that there had not
been a breach of Article 6 (art. 6) of the Convention in the
expropriation proceedings in issue".
AS TO THE LAW
26. The applicants complained of a breach of Article 6 para. 1
(art. 6-1), which is worded as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ... by
[a] ... tribunal ..."
Their complaints concerned their right of access to a court
with full jurisdiction, the lack of a hearing in the Administrative
Court, the position of the experts consulted by the Office of the
Provincial Government and the refusal of that Office to communicate
various documents to them.
I. The right of access to a court
27. According to the applicants, none of the authorities before
which their case came in the contested proceedings could be regarded
as a "tribunal" within the meaning of Article 6 para. 1 (art. 6-1).
This was so, in the first place, with regard to the Office, an organ
of the Provincial Government. It was also true of the Constitutional
Court, as it was prohibited by law from reconsidering all the facts of
a case. The Administrative Court was bound by the findings of the
authorities, except in borderline cases - not the position here - in
which such findings were material to determining the effect of an
alleged procedural defect; even in those cases, the Administrative
Court could not correct or supplement the facts, or rule in the
relevant authority's stead, but had always to remit the file to the
latter. In short, its review only concerned the question of lawfulness
and could not be considered equivalent to a full review.
28. In the Government's contention, the powers of the
Administrative Court are as wide as those required by Article 6 para. 1
(art. 6-1) in disputes which, as in this case, are between an
individual and the public authorities. They enabled the court to
enquire into almost all the shortcomings in the way in which the facts
were presented. Admittedly it fell to the relevant authority to make
good those shortcomings, but under Article 63 (1) of the Administrative
Court Law (see paragraph 21 above) it was required to conform
immediately to the opinion expressed by that court. The fact that in
the Zumtobel case the Administrative Court had decided not to pursue
this course of action did not prove that it had been bound by the
findings of the regional officials, but that those findings had not
needed correction by it.
The Commission essentially agreed with this view.
29. The Court notes in the first place that none of the
participants in the proceedings argued that the Office of the
Government constituted a tribunal for the purposes of Article 6
para. 1 (art. 6-1). Its decisions may give rise to appeals to the
Constitutional Court and the Administrative Court, but the proceedings
for the consideration of such appeals will be consistent with Article
6 para. 1 (art. 6-1) only if conducted before "judicial bodies that
have full jurisdiction" (see the Albert and Le Compte v. Belgium
judgment of 10 February 1983, Series A no. 58, p. 16, para. 29).
30. The Constitutional Court does not satisfy that requirement.
In this instance it could inquire into the contested proceedings only
from the point of view of their conformity with the Constitution,
which, on the Government's own admission, did not make it possible for
it to examine all the relevant facts. The Constitutional Court did not
therefore have the power required under Article 6 para. 1 (art. 6-1).
31. As regards the review effected by the Administrative Court,
its scope must be assessed in the light of the fact that expropriation
- the participants in the proceedings all recognise this - is not a
matter exclusively within the discretion of the administrative
authorities, because Article 44 para. 1 of the Provincial Highways Law
makes the lawfulness of such a measure subject to a condition: the
impossibility "of constructing or retaining a section of highway which
is more suitable from the point of view of traffic requirements,
environmental protection and the financial implications" (see
paragraph 16 above). It was for the Administrative Court to satisfy
itself that this provision had been complied with. In this respect the
present dispute may be distinguished from the Obermeier v. Austria case
(judgment of 28 June 1990, Series A no. 179, p. 23, para. 70).
32. In addition, it should be stressed that the submissions relied
upon before the Administrative Court concerned solely the proceedings
before the Government Office. The Administrative Court in fact
considered these submissions on their merits, point by point, without
ever having to decline jurisdiction in replying to them or in
ascertaining various facts. The European Court should confine itself
as far as possible to examining the question raised by the case before
it. Accordingly, it should only decide whether, in the circumstances
of the case, the scope of the competence of the Administrative Court
satisfied the requirements of Article 6 para. 1 (art. 6-1).
Regard being had to the respect which must be accorded to
decisions taken by the administrative authorities on grounds of
expediency and to the nature of the complaints made by the Zumtobel
partnership, the review by the Administrative Court accordingly, in
this instance, fulfilled the requirements of Article 6 para. 1
(art. 6-1).
II. The lack of a hearing in the Administrative Court
33. The applicants further complained that the Administrative
Court, the sole judicial body to rule in this case, had not held a
hearing.
34. The practice of the Austrian Administrative Court is not to
hear the parties unless one of them expressly requests it to do so (see
paragraph 20 above). As in this case no such request was made by the
lawyer of the Zumtobel partnership, it must be deemed to have waived
unequivocally its right to a hearing; moreover, their dispute did not
give rise to questions of public interest making such a hearing
necessary (see, as the most recent authority, the Schuler-Zgraggen v.
Switzerland judgment of 24 June 1993, Series A no. 263, pp. 19-20,
para. 58).
Accordingly, there has been no breach of the requirements of
Article 6 para. 1 (art. 6-1) concerning the public character of court
hearings.
III. Other complaints
35. The applicants criticised in addition the lack of independence
of the experts consulted by the regional authorities and the failure
to communicate several documents from the file (see paragraphs 8-9
above).
The Court observes that these complaints, which relate to the
proceedings before the Government Office, were examined and rejected
by the Administrative Court under a procedure which in this instance
was in conformity with Article 6 para. 1 (art. 6-1) (see paragraphs 14
and 32 above; see, mutatis mutandis, the Le Compte, Van Leuven and De
Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 24-26,
paras. 54-60; the Albert and Le Compte v. Belgium judgment, cited
above, Series A no. 58, p. 19, para. 36; and the Belilos v. Switzerland
judgment of 29 April 1988, Series A no. 132, pp. 31-32, para. 72).
IV. Conclusion
36. No violation of Article 6 para. 1 (art. 6-1) has been
established.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 para. 1
(art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 September 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar