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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> FISCHER v. AUSTRIA - 16922/90 [1995] ECHR 11 (26 April 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/11.html
Cite as: 20 EHRR 349, [1995] ECHR 11, (1995) 20 EHRR 349
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In the case of Fischer v. Austria (1),
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 Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Matscher,
Mr C. Russo,
Mr S.K. Martens,
Mr A.N. Loizou,
Sir John Freeland,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 22 September 1994 and
24 March 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 52/1993/447/526. 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.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court on 10 December 1993 by the
European Commission of Human Rights ("the Commission"), within the
three-month period laid down by Article 32 para. 1 (art. 32-1) and
Article 47 (art. 47) of the Convention. It originated in an
application (no. 16922/90) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) on 11 May 1990 by an Austrian
citizen, Mr Josef Fischer.
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) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30). The President gave the lawyer in question
leave to use the German language.
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 28 January 1994, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr C. Russo, Mr S.K. Martens,
Mr A.N. Loizou, Sir John Freeland, Mr D. Gotchev and Mr P. Jambrek
(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 Registrar, consulted the Agent of the Austrian Government
("the Government"), the applicant's 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 21 June 1994 and the applicant's memorial
on 24 June 1994. The Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 September 1994. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr W. Okresek, Head of the International
Affairs Division, Constitutional Service,
Federal Chancellery, Agent,
Ms E. Bertagnoli, Human Rights Division,
International Law Department, Federal Ministry
of Foreign Affairs,
Mr F. Oberleitner, Federal Ministry of
Agriculture and Forestry, Advisers;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicant
Mr M. Gnesda, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Pellonpää, Mr Gnesda and
Mr Okresek.
6. On 3 October 1994 the Government filed a written statement in
reply to the applicant's claim for just satisfaction under Article 50
(art. 50) of the Convention.
AS TO THE FACTS
I. Circumstances of the case
7. Mr Josef Fischer was born in 1932 and lives in Vienna.
8. Since 1975 the applicant has owned a refuse tip at Theresienfeld
in the Land of Lower Austria. He used to operate it under a revocable
refuse-tipping licence granted to his predecessor in title on
30 July 1973 under the Water Rights Act 1959 (Wasserrechtsgesetz).
9. On 5 December 1986 the tipping licence was revoked by the
Governor (Landeshauptmann) of the Land of Lower Austria on the grounds,
inter alia, that dangerously high levels of toxic substances had been
found in the groundwater (which forms part of a groundwater reservoir
for drinking-water for over half a million people); several barrels
found at the site contained unauthorised substances; and the site was
in any event unsuitable for tipping - even ordinary domestic waste
should not be dumped there.
10. Mr Fischer appealed to the Federal Ministry of Agriculture and
Forestry (Bundesministerium für Land- und Forstwirtschaft), complaining
also that he should have had the right to be heard. On 20 July 1987
the appeal was dismissed on the ground that it was absolutely essential
to close the tip in order to safeguard water supplies, since it was not
technically possible to render the site safe. As to the applicant's
right to be heard, he had had ample opportunity to make his views known
and an oral hearing was not required in proceedings involving
revocation of licences.
11. On 2 September 1987 Mr Fischer filed a complaint with the
Constitutional Court (Verfassungsgerichtshof) alleging a violation of,
inter alia, Article 6 para. 1 (art. 6-1) of the Convention, in that the
administrative authorities had not granted his request for an oral
hearing. He requested that a hearing be held before the Constitutional
Court. On 14 March 1988, pursuant to Article 144 para. 2 of the
Federal Constitution (see paragraph 22 below) the Constitutional Court
declined to accept the applicant's complaint. It found that the bulk
of the complaint related to allegations that the ordinary law had been
applied incorrectly. To the extent that the complaint did touch upon
questions of constitutional law, it did not have sufficient prospects
of success. No hearing was held.
12. On 6 August 1987, before his constitutional complaint, the
applicant had lodged an appeal with the Administrative Court
(Verwaltungsgerichtshof) in which he alleged that the decision of
20 July 1987 was unlawful and that the administrative authorities
should have held a hearing. He requested that the decision be quashed
and that a hearing be held before the Administrative Court.
On 21 September 1989 the Administrative Court dismissed the
applicant's complaint as ill-founded pursuant to section 42 (1) of the
Administrative Court Act (see paragraph 18 below). The court found
that an oral hearing before the Ministry had not been necessary and
rejected the applicant's request for such a hearing before the court
itself under section 39 (2) (6) of the Administrative Court Act (see
paragraph 21 below).
13. The following reasons were given in the judgment:
"The appellant submitted in the first place that in the reasons
given for the decision at first instance the scope of the 1973
licence was wrongly restricted in terms of area; the revocation
of the licence, which was upheld on appeal, without this question
- raised in the appeal - having been dealt with, therefore
remained contradictory. The Court can discern no such
contradiction. The revocation by the water-rights authority of
first instance, which was upheld by the respondent authority,
related - according to the terms of the formal order - to the
1973 licence without any restriction. Similarly, where in the
reasons given for the Land Governor's decision of 5 December 1986
the words 'where the gravel pit has already been closed' are used
when parcel 514-1 KG Theresienfeld is being particularised, they
are merely taken from the decision of 30 July 1973 whereby the
licence was granted. Moreover, the use of the expression 'part
of the area' (Teilfläche) merely clarifies - in the context of
setting out the earlier history - the meaning which the same
authority attributed to the outline description in the decision
whereby the revoked licence had been granted. This is not a
legally binding determination, nor does it in any way restrict
the revocation itself, which at all events applied to the 1973
licence in its entirety, regardless of how the indication 'where
the gravel pit has already been closed' - which is not more
closely defined - is to be understood. It is accordingly clear,
without it being necessary to go into the appeal submissions in
detail, that neither the aforementioned comment in the decision
at first instance nor the absence of any reference to these
issues in the impugned decision amounted to an interference with
the rights of the appellant.
It is irrelevant whether the reservation of the right to revoke
the licence under section 21 (1) of the Water Rights Act 1959 was
properly included in the 1973 decision, as that decision became
final and the aforesaid incidental provision became legally
effective likewise. The Court agrees with the respondent
authority and, on this point, the appellant that even where, as
in the present case, a reservation of the right to revoke is not
spelt out in more detail, revocation is justifiable only where
there are sufficient objective reasons for it; these, however
(and to this extent the Court's view does not coincide with the
one reflected in the decision appealed against), could only
derive from considerations of public interest, since the right
to revoke was not reserved in the interests of third parties.
Ultimately, the revocation of a decision under the Water Rights
Act can only be regarded as objectively justified if it can be
considered necessary within the meaning of the Act; and that
applies only where it does not serve interests that can be
asserted under provisions of the Water Rights Act without any
specific need for a revocation.
The appellant criticises the respondent authority for having
confirmed the revocation of the water-rights licence for no valid
reason.
The appellant complains that in the decision at first instance
and in the impugned decision it is stated, among other things,
that waste tipping in accordance with the terms of the licence
could contribute to an increased potential hazard. In the
decision at first instance the remark relating to an increased
risk of this kind plainly goes back to a finding - also cited in
the reasons - by the officially appointed medical expert that,
in view of its position in the central area of the Mitterndorf
basin, the site of the refuse tip was to be rejected on health
grounds and represented a potential hazard to the groundwater.
The same expert referred to a comment by the officially appointed
technical expert, who had stated that by present-day criteria a
renewal of the licence for a refuse tip on this site was to be
ruled out. In the decision appealed against, the site of the tip
as such was likewise described as problematical on the basis of
the experts' reports - in the expert opinion that is reproduced
in the impugned decision it is stated that it was out of the
question that areas where there were sources of groundwater
suitable in quantity and quality for use as a water supply should
be used for refuse tips - and the tipping of waste that
endangered the groundwater was attributed to among other things
the 'imprecise wording of the licence' of 1973. This last
observation concerns the past, and the appellant cannot rely on
the distinction between licensed and unlicensed tipping as set
out in this Court's decision of 19 May 1987, no. 86/07/0147, to
rebut it. This distinction was indeed recognised partly in
contradiction of the view that had been advanced by the
appellant's predecessor in title. It accordingly cannot be ruled
out that, prior to publication of the court decision just
mentioned, the operator of the tip disregarded the differences
that are pointed out in it and which are of importance as regards
authorised tipping of waste. As to the technical comments on the
choice of site, however, these appear to the Court sufficient to
justify the view that even authorised tipping was at least
'problematical' on the particular site.
The appellant further submitted that dumping in accordance with
the licence had not so far been proved to have had any effects
in the area around the tip; he referred to the report of
29 April 1986 by an officially appointed technical expert, in
which, however, the possibility of groundwater contamination by
domestic waste is also described in detail. In the expert report
reproduced in the decision appealed against, reference was also
made to the fact that a considerable length of time passed
between the moment of pollution and the first observable signs
of harmful substances in the subsoil or in the groundwater, a
fact that had previously been regarded as pointing to the
subsoil's (only) seemingly unlimited cleansing and storing
capacity and in many cases had led to an approach to the siting
and licensing of refuse tips that would nowadays be regarded as
untenable. The fear of adverse effects on the groundwater is
thus not shown to be baseless - as the appellant's objection
amounts to saying - by even a single finding.
The appellant further submitted that in the impugned decision an
additional argument in favour of revocation was wrongly put
forward to the effect that waste which was dumped contrary to the
terms of the licence was so mixed up with that which was tipped
in accordance with it that it was in practice impossible to
separate the two kinds. The appellant contended that this
argument overlooked the fact that, according to the officially
appointed technical expert's opinion of 21 October 1986 on the
issue of a general clearing up of the site, it was assumed that
hazardous waste discovered on the site was separable from the
other waste; in the decision at first instance, moreover, such
a mixing up was a mere supposition. Apart from the fact that in
describing the two types of waste as being 'in practice'
inseparable (as was assumed), account was clearly taken of the
practical difficulties which were mentioned in the same expert
opinion, with express reference to the need to establish 'a
highly qualified water-supervision unit that must have
appropriate facilities available to it for carrying out analyses
and for the safe disposal of any hazardous waste', this
observation concerning the past is in any case of no vital
importance for the revocation, which has its effects in the
future, preventing future dumping.
The appellant pointed out that a mass of findings confirmed that
there was no danger in the western part of the site, contrary to
what was stated in the impugned decision; it followed that the
cleaned-up western part of the site was ready for use for dumping
in accordance with the terms of the licence. The passages from
the administrative file which the appellant cites in evidence in
this connection do not, however, support that assertion. In the
opinion submitted on 23 April 1985 the domestic refuse deposited
on the site is described by the expert as posing a threat to the
groundwater, independently of the barrels to be disposed of. In
a letter of 28 May 1985 from the district authority
(Bezirkshauptmannschaft), which is also referred to by the
appellant, it was admittedly announced that the cleaning-up
operation had been completed, but at the same time the issue of
what was to be done with the domestic waste whose existence had
originally not been known about was also addressed. In an expert
opinion of 15 May 1985, likewise cited by the appellant, it was
confirmed that digging works were being carried out in the
western part of the pit, but it was also noted that domestic
waste had been found there and that it could not be ruled out
that chemicals had been buried with it; furthermore, the
possibility of sealing the site without removing the waste was
rejected on technical grounds and because of the danger that
barrels had been buried with it. In the district authority's
letter of 18 June 1986 it was stated that the domestic waste
still remaining in the cleaned-up western area would be removed
once the decision had been taken on cleaning up the entire site.
Thus, it has not been made out that the western part of the site
is free of any dangerous waste nor has the argument been refuted
that further tipping of permissible waste, on top of the waste
already on the site, must be stopped precisely for the purpose
of removing that existing waste.
For these reasons and because, as set out in greater detail
above, no further dumping of waste on the aforesaid site should
be allowed - because there should be no refuse tip there at all
and clearing-up work is still pending - it was not necessary for
a 'final cleaning-up programme' to be in existence, as the
appellant maintained, before further tipping under the licence
could be stopped (by revocation of the licence). Nor is a
cleaning-up programme thereby pre-empted; such a programme may
very well make special licences necessary; and even a partial
continuation of the current tipping operations until a
cleaning-up project is embarked on could not on that account be
regarded as justifiable.
The appellant also considered the weighing of interests to have
been inadequate and to have produced the wrong result; this
applied, on the one hand, to those municipalities which would in
future be deprived of their facilities for dumping refuse, and,
on the other, to the appellant, who would be financially ruined.
As regards the aforementioned municipalities, the appellant
cannot legally represent their interests inasmuch as they are the
interests of third parties, and it is moreover clear that the
danger posed by the dumped waste affects a much larger number of
people, as is apparent from the fact that it is widely known
that, owing to its size, the Mitterndorf basin serves as a
reservoir for drinking-water. The same considerations of public
interest are valid with regard to the economic interests of an
individual; the respondent authority did not, as the appellant
maintained, disregard the relevant considerations, since in the
decision appealed against it said, among other things, that in
the case in issue 'the public interest in ensuring the supply of
drinking-water outweighs the economic interest in continuing the
operation of the tip'. It is equally untrue that the question
of blame for the dumping of prohibited waste had a bearing on the
revocation, as the revocation concerned the licence and thus the
operation of the tip as permitted by that licence up to then.
The appellant also complains that he was not told the name of the
hydraulic engineer who was officially appointed as an expert when
his opinion was made known in the respondent authority's
communication (Vorhalt) of 18 March 1987. The appellant,
however, did not contradict the comment in the decision appealed
against that his lawyer had been informed of the expert's name
during an inspection of the entire file on 22 April 1987. As the
appellant was familiar with the 'original' of the opinion
concerned (it is referred to in the appeal), he must also have
been aware of the exact date of the opinion, which was not given
in the respondent authority's communication. The appellant
further criticised the same expert on the ground that his opinion
contained no 'findings of fact', a matter to which reference had
already been made in the reply to the authority's communication.
The way in which this point was dealt with in the impugned
decision has been set out in the recital of facts. The technical
opinion submitted in the appeal proceedings was an expert
assessment of the same facts as those on which the first-instance
authority had based its decision; the technical assessment in the
appeal proceedings was intended - in view of the appellant's
appeal - precisely to throw light on whether the factual
situation (which was essentially identical both at first instance
and on appeal) should lead to the legal characterisation given
it by the Governor; it was not a question of assessing changed
or substantially supplemented facts. For this reason it was
unnecessary for the expert appointed by the respondent authority
himself to set out afresh the facts to be taken as a basis. In
a case such as the present one there can be no question of the
facts on which the expert opinion was based not being known or
of a further special reference being necessary to how they came
about. By 'third-party documents' (Fremdakten) - a term used
several times in the expert report - is usually understood, as
can easily be inferred from the context, documents that have not
been drawn up by the authority (in this instance the respondent
authority) itself; since the questions being dealt with always
related to the refuse tip concerned, it is clear that what was
meant were the water-rights documents of other authorities than
the respondent authority which related to the tipping site. As
to the appellant's specific criticism to the effect that the
expert did not make clear what he meant by 'the abuses found',
it should be noted that immediately after that passage there
follows a more detailed explanation, in particular through the
reference to failures to comply with the decision of
21 September 1972 and condition 9 of the decision of
30 July 1973, by which is meant the occurrences which led to the
revocation by the Governor on 16 May 1983 of the licence to dump
distillation residues. The entire comment relating to this has
little bearing on the revocation, however, because it was made
by the expert only in connection with his general remarks on the
need for precise definition of waste if there was to be any
effective control of what was dumped. A separate reply to the
question - posed in its observations in reply to the respondent
authority's communication and repeated in the present appeal -
whether account had been taken of the fact that in the eastern
part of the tip there was a compressed mass of domestic refuse
about 18 metres thick on the floor of the site does not seem to
the Court to be of decisive importance with regard to the
revocation stopping future tipping in view of the fact that - as
set out in greater detail in the present appeal - it can 'now
indisputably' be assumed that 'under a 15 to 18-metre-thick layer
of highly compressed domestic refuse thousands of barrels of, in
all probability, unauthorised dangerous solvents have been dumped
there' and that the area must be cleaned up - which precludes all
further tipping.
The appellant complained that further details about the
significance of the Mitterndorf basin for the water supply were
lacking in the expert report and considered the reference it
contained to the 'expert opinions in the third-party documents'
and the 'specialist literature' to be insufficient. Attention
need only be drawn in the first place to the regulations issued
by the respondent authority as early as 1969 (Federal Gazette -
Bundesgesetzblatt - no. 126), which define the groundwater
conservation area on whose periphery the refuse tip is situated.
Furthermore - in response to the appellant's criticism -
reference is rightly made in the impugned decision to the fact
that the importance of the area was well known. The Environment
Protection Agency's (Umweltschutzanstalt) survey report of
17 February 1987, according to which a groundwater sample taken
on 22 October 1986 had shown, among other things, that the
chlorinated hydrocarbon content had further fallen, had no
influence on the expert opinion in this context - this is
confirmed in a note by the expert. In this connection, it must
be borne in mind that the measurement was based on only a single
sample and was merely 'better' than one from an earlier sample.
Even the appellant does not infer from it that the dangerous
eastern part of the site is thereby shown to be free of danger;
if the licence continued in force, further tipping could not, in
the expert's view, be regarded as conducive to further
improvement in the quality of the groundwater. The appellant's
objection that there was no water seepage through an open
'compressed, 18-metre-thick' layer of domestic refuse is
impossible to understand. Since this waste was alleged to exist
in the eastern part of the tip, it was on that account alone not
unreasonable to prevent further tipping in accordance with the
licence by revoking that licence, given the need - mentioned even
by the appellant - for a cleaning up of the site. It may
therefore be concluded that in this respect the alleged material
defects in the expert opinion are non-existent.
The appellant is also wrong to maintain that the licence should
only have been revoked after special appeal proceedings in which
the appeal authority would have had to make its own investigation
of the facts. The facts which the Governor took as a basis were
set out in detail in the decision at first instance. The alleged
defects were gone into in the appeal proceedings or have now been
asserted in the present appeal. In both instances, however, the
appellant partly relied on facts that were irrelevant to the
issue of the revocation.
Nor does the Court agree with the appellant's submission that the
technical expert's opinion in the initial appeal proceedings was
defective because it contained legal arguments. In the section
'Definition of waste, control of tipping' there is firstly merely
a discussion of stipulations in the revoked decision [to grant
a licence] and then a mention of the applicability of the Poisons
Act in connection with technical observations concerning water
contaminants, with a reservation ('... would have to be checked
by the water-rights authority ...'); the question whether
revocation was absolutely essential or whether defects under
section 33 (2) of the Water Rights Act 1959 could be remedied is
dealt with from an exclusively technical point of view; the
closing remark on the subject is at all events inaccurately
reproduced in the appeal inasmuch as the expert endorsed the
revocation in the light not of legal but of economic
requirements. Contrary to what the appellant maintained, there
was no pre-emption of the legal assessment to be made by the
respondent authority.
The appellant further complained that the respondent authority
did not, as requested, seek further expert opinions. Reference
is made in the appeal to possible alternatives to revocation and
to an opinion of 29 April 1986 by the hydraulic engineer
officially appointed as an expert by the Governor. The appellant
inferred from this expert opinion that approval of measures he
had planned would have meant that the revocation could have been
avoided; in that opinion, however, it was suggested - on the
assumption of 'dangers which, if the principle that prevention
is better than cure is applied', ruled out 'further tipping' (and
it was stated that even tipping of domestic refuse 'undoubtedly'
increased the danger 'significantly in quantitative terms') and
on the basis of the facts - that 'the question of revoking the
licence granted by decision of the Governor, ON 14' (i.e. the
decision of 1973), should be looked into, 'as important
assumptions, on which the issuing of the licence [had] been
based' had proved to be false. The expert opinion cited, which
points in exactly the direction that was subsequently - in the
last instance by the respondent authority - taken, was therefore
an unsuitable basis for obtaining, as requested, further expert
reports. Even if in the same context reference is made in the
appeal to the expert report submitted in the water-rights
proceedings of 18 November 1986 in support of the view that the
're-storage variant' (final disposal of the 'eastern refuse' in
the western part of the tip), which the appellant had suggested
as an alternative to revoking the licence, was 'technically
feasible', little is gained - particularly in view of the many
discussions that, according to the administrative documents, had
already taken place - in the way of showing that the additional
investigations that were held to be unnecessary in the impugned
decision are in fact needed.
Lastly, the Court cannot accept the appellant's submission that
an oral hearing should have been held for the specific purpose
of considering the question of a revocation; on the one hand, no
provision is made for a hearing for this purpose in the law, as
the appellant himself concedes, and, on the other, issues
relating to a cleaning up of the tip were discussed from a large
variety of angles, most recently in the proceedings of
18 November 1986 which preceded the revocation by the
first-instance authority, and for this reason it has not been
shown that 'the facts before the appellant authority [were] so
inadequate that the holding or reholding of an oral hearing'
should have been regarded as 'unavoidable' (section 66 (2) and
(3) of the General Administrative Procedure Act 1950).
The appellant has consequently not succeeded in showing that the
licence was revoked on grounds that were not objective and thus
unlawfully.
As the appeal is consequently unfounded, it must be dismissed
pursuant to section 42 (1) of the Administrative Court Act.
The requested hearing was dispensed with under section 39 (2) (6)
of the Administrative Court Act.
..."
II. Relevant domestic law
A. Article 90 para. 1 of the Federal Constitution
14. Article 90 para. 1 of the Federal Constitution provides:
"Hearings in civil and criminal cases by the trial court shall
be oral and public. Exceptions may be prescribed by law."
B. Applications to the Administrative Court
15. By virtue of Article 130 of the Federal Constitution, the
Administrative Court has jurisdiction to hear, inter alia, applications
alleging that an administrative decision is unlawful.
16. Pursuant to section 36 of the Administrative Court Act,
proceedings consist essentially in an exchange of written pleadings.
If one of the parties so requests the Administrative Court may hold a
hearing which is in principle held in public (sections 39 (1) (1) and
40 (4)).
17. Section 41 (1) of the same Act 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 (section 42
(2), 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."
18. Section 42 (1) states that, save as otherwise provided, decisions
of the Administrative Court shall either dismiss a complaint as
ill-founded or quash the contested decision.
19. By virtue of section 42 (2),
"The Administrative Court shall quash the impugned decision if
it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. 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. Under section 63 (1) of the Administrative Court Act, 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 (Rechtsanschauung)".
C. Hearings before the Administrative Court
21. Section 39 (2) of the Administrative Court Act provides:
"Notwithstanding a party's application ..., the Administrative
Court may decide not to hold a hearing where
...
6. it is apparent to the Court from the pleadings of the parties
to the proceedings before it and from the files relating to the
earlier administrative proceedings that an oral hearing is not
likely to clarify the case further."
D. Hearings before the Constitutional Court
22. Under Article 144 para. 2 of the Federal Constitution:
"The Constitutional Court may ... decline to accept a case for
adjudication if it does not have sufficient prospects of success
or if it cannot be expected that the judgment will clarify an
issue of constitutional law. The Court may not decline to accept
for adjudication a case excluded from the jurisdiction of the
Administrative Court by Article 133."
PROCEEDINGS BEFORE THE COMMISSION
23. Mr Fischer applied to the Commission on 11 May 1990. He relied
on Article 6 para. 1 (art. 6-1) of the Convention in so far as he was
not able to bring his case before a "tribunal" which complied with this
provision or to have a public hearing on the issue of the revocation
of his tipping licence.
24. The Commission declared the application (no. 16922/90) admissible
on 8 September 1992. In its report of 9 September 1993 (Article 31)
(art. 31), the Commission expressed the opinion that
(a) there had been no violation of the applicant's right to have
his case determined by a tribunal within the meaning of Article 6
para. 1 (art. 6-1) (twelve votes to one);
(b) the lack of an oral hearing in the Administrative Court had
violated Article 6 para. 1 (art. 6-1) (unanimously); and
(c) the lack of an oral hearing in the Constitutional Court had
not violated Article 6 para. 1 (art. 6-1) (twelve votes to one).
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 (1).
_______________
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 312 of Series A
of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
25. The Government asked the Court to "hold that Article 6 (art. 6)
of the Convention has not been violated in the case at issue".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
26. The applicant alleged a breach of Article 6 para. 1 (art. 6-1)
of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by [a] ...
tribunal ..."
His complaints concerned his right of access to a court invested
with full jurisdiction as well as the complete lack, throughout the
proceedings, of any oral hearing.
A. Right of access to a court
27. Mr Fischer claimed that none of the bodies before which his case
came in the impugned proceedings could be regarded as a "tribunal"
within the meaning of Article 6 para. 1 (art. 6-1). This applied not
only to the Constitutional Court, whose review was limited to aspects
of constitutional law, but, most importantly, to the Administrative
Court.
28. The Court reiterates that under Article 6 para. 1 (art. 6-1) of
the Convention it is necessary that, in the determination of "civil
rights and obligations", decisions taken by administrative authorities
which do not themselves satisfy the requirements of that Article
(art. 6-1) be subject to subsequent control by a "judicial body that
has full jurisdiction" (see the Albert and Le Compte v. Belgium
judgment of 10 February 1983, Series A no. 58, p. 16, para. 29, and,
as the most recent authority, the Ortenberg v. Austria judgment of
25 November 1994, Series A no. 295-B, pp. 49-50, para. 31).
29. The Court agrees with the applicant and the Commission that the
Austrian Constitutional Court does not have the requisite jurisdiction
(see the Zumtobel v. Austria judgment of 21 September 1993, Series A
no. 268-A, p. 13, para. 30, and the Ortenberg judgment previously
cited, p. 50, para. 32). Its review is confined to ascertaining
whether the administrative decision is in conformity with the
Constitution. It may even refuse to consider the merits of a complaint
where "it cannot be expected that the judgment will clarify an issue
of constitutional law" (see paragraph 22 above).
30. As for the scope of the Administrative Court's review, the
applicant submitted that such a review was insufficient for the
purposes of Article 6 para. 1 (art. 6-1) since only legal issues could
be examined, not factual ones. The Administrative Court was a kind of
Court of Cassation, having no jurisdiction in matters of fact. Only
in very limited cases was it allowed to supplement the facts
established by the administrative authority, even where those
authorities had failed to take important evidence.
31. In the Commission's view, although the decisions of the
Administrative Court were generally expressed as embodying a review of
the administrative decision rather than a finding of fact on each and
every issue, this did not mean that in the instant case it regarded
itself as being restricted in its review of the facts.
Furthermore, the Administrative Court could have quashed the
administrative authority's decision as being unlawful and imposed on
the authority its own view as to the assessment of the facts (see
paragraph 20 above). In the case under consideration, therefore, the
Ministry of Agriculture and Forestry's decision of 20 July 1987, which
confirmed the revocation of 5 December 1986, was subject to control by
a court which had the jurisdiction required by Article 6 para. 1
(art. 6-1).
32. The Government endorsed the Commission's opinion and added that
there was no indication in the case that any discretion had been
exercised by the administrative authorities. Moreover, the
Administrative Court had dealt in detail with all the complaints raised
by the applicant. That being so and as the case bore greater
similarity to the Zumtobel case (previously cited) than to the
Obermeier v. Austria case (judgment of 28 June 1990, Series A no. 179),
the requirements of Article 6 para. 1 (art. 6-1) had been complied
with.
33. 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).
34. The Court notes at the outset that, as was pointed out by the
Government and not contested by the applicant, the decision to revoke
the tipping licence which gave rise to the present case was, as in the
Zumtobel case (previously cited, p. 13, para. 31), not one which lay
"exclusively within the discretion of the administrative authorities".
It is not the task of the Court to assess the quality of the experts'
reports on which the revocation was based. The Court is satisfied that
the impugned administrative decision was based on objective criteria
that left relatively little room for discretion. In this respect the
instant case is distinguishable from the Obermeier case (previously
cited, p. 23, para. 70).
As to the applicant's arguments concerning the Administrative
Court's limited powers to examine questions of fact and to take new
evidence, there is nothing before the Court to suggest that any such
limitations were in issue in his case. As is evident from the
extensive reasoning in its judgment (see paragraph 13 above), the
Administrative Court considered all the applicant's submissions on
their merits, point by point, without ever having to decline
jurisdiction in replying to them or in ascertaining facts.
Regard being had to the nature of Mr Fischer's concrete
complaints as well as to the scope of review necessitated by such
complaints, the Administrative Court's review of the decision being
challenged fulfilled the requirements of Article 6 para. 1 (art. 6-1).
B. Lack of a hearing
35. The applicant further complained that the Administrative Court
and the Constitutional Court had refused to hold an oral hearing. In
his submission, Austria's reservation in respect of Article 6 (art. 6)
of the Convention did not apply to the case or, if it did, was invalid
for failure to comply with the requirements of Article 64 (art. 64) of
the Convention.
1. Austria's reservation
36. Austria's reservation in respect of Article 6 (art. 6) of the
Convention reads as follows:
"The provisions of Article 6 (art. 6) of the Convention shall be
so applied that there shall be no prejudice to the principles
governing public court hearings laid down in Article 90 of the
1929 version of the Federal Constitutional Law." (see
paragraph 14 above)
37. Article 64 (art. 64) of the Convention provides:
"1. Any State may, when signing [the] Convention or when
depositing its instrument of ratification, make a reservation in
respect of any particular provision of the Convention to the
extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general
character shall not be permitted under this Article (art. 64).
2. Any reservation made under this Article (art. 64) shall
contain a brief statement of the law concerned."
38. In the applicant's submission, the reservation did not apply to
hearings in the Administrative Court and the Constitutional Court.
Both were special courts, which concentrated on issues of legality or
constitutionality and did not conduct a full review of the cases before
them. Such courts did not come within the concept of the traditional
criminal and civil courts contemplated in the reservation. If they
did, it would mean that the reservation was open to different
interpretations and was not drafted with the "precision and clarity"
required by Article 64 para. 1 (art. 64-1). This conclusion was, in
the applicant's view, consistent with the ruling given by the European
Court in the case of Belilos v. Switzerland (judgment of 29 April 1988,
Series A no. 132, p. 26, para. 55).
In any event the reservation was invalid under Article 64
para. 2 (art. 64-2), since it did not contain any statement whatsoever
of the content of the law concerned.
39. The Government drew a parallel between the instant case and the
cases of Ringeisen v. Austria (judgment of 16 July 1971, Series A
no. 13) and Ettl and Others v. Austria (judgment of 23 April 1987,
Series A no. 117), in which the Court had held that the reservation
applied in proceedings before a court dealing with questions of
administrative law. In their view, even if Article 90 of the Federal
Constitution referred only to "civil and criminal cases", the
reservation was also applicable to cases before administrative courts
when those courts determined questions of "civil rights", within the
meaning of Convention case-law. The same conclusion could be reached
by looking at the intention of the Federal Government at the time of
making the reservation.
The Government further argued that even though section 39 (2) (6)
of the Administrative Court Act was added in 1982, its scope was no
broader - from a teleological point of view - than that of the
corresponding provisions in force in 1958. In all cases, albeit for
different reasons, the Administrative Court could refuse to hold a
hearing which, in the particular circumstances of a given case, would
be of purely "academic" interest.
40. It thus has to be determined whether the Austrian reservation
covers the power of the Administrative Court under section 39 (2) (6)
of the Administrative Court Act to refuse a hearing, having regard to
the terms of the reservation and to the conditions laid down in
Article 64 (art. 64) of the Convention.
41. The Court would note firstly that that section came into force
in 1982, whereas Austria ratified the Convention and made the
reservation in question in 1958. Under Article 64 para. 1 (art. 64-1)
only laws "then in force" in the State's territory can be the subject
of a reservation.
The Court cannot discern how section 39 (2) (6) and the
provisions in force when the reservation was made can be seen, as the
Government submitted, as essentially identical provisions. As the
Commission rightly pointed out, the introduction of subsection (2) (6)
in effect considerably extended the Administrative Court's power to
refuse to hold a public hearing. The grounds for such a refusal that
were in force in 1958 related to cases in which formal or procedural
matters were in issue as well as those where a ruling favourable to the
appellant to quash an administrative decision was to be made. The
ground added in 1982 made it possible for the first time for the
Administrative Court, after considering the written pleadings and other
documents in the file, to refuse an oral hearing on grounds pertaining
to the merits of the case, in instances where the appeal fell to be
dismissed.
The Court therefore concludes that the applicant's complaint that
the Administrative Court had not held a hearing is not excluded from
review by the above reservation, since the provision on which the
refusal to hold such a hearing was based was not in force at the time
the reservation was made.
42. In view of this conclusion, the Court does not consider it
necessary to examine the validity of the reservation in the light of
the other conditions laid down in paragraphs 1 and 2 of Article 64
(art. 64-1, art. 64-2) of the Convention, or to determine whether the
reservation could be read as encompassing administrative-court
proceedings such as those at issue in the present case.
2. Compliance with Article 6 para. 1 (art. 6-1) of the
Convention
43. It remains to be examined whether in the present case Article 6
para. 1 (art. 6-1) conferred on the applicant the right to an oral
hearing. As stated earlier (see paragraph 29 above), only the
proceedings before the Administrative Court are in issue; the other
authorities which dealt with the applicant's complaint, notably the
Austrian Constitutional Court, cannot be considered tribunals invested
with full jurisdiction for the purposes of Article 6 (art. 6).
44. The practice of the Austrian Administrative Court is not to hear
the parties unless one of them asks it to do so (see paragraph 16
above). Contrary to what happened in the Zumtobel case, Mr Fischer
expressly requested an oral hearing in the Administrative Court. This
was refused on the ground that it was not likely to contribute to
clarifying the case (see paragraph 21 above). There is accordingly no
question of the applicant's having waived that right.
Furthermore, there 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" (see
the Fredin v. Sweden (no. 2) judgment of 23 February 1994, Series A
no. 283-A, p. 10, para. 21).
The refusal by the Administrative Court to hold such a hearing
amounted therefore to a violation of Article 6 para. 1 (art. 6-1) of
the Convention.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
45. Article 50 (art. 50) of the Convention reads:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
A. Pecuniary damage
46. According to the applicant, the pecuniary loss resulting from the
unlawful revocation of his tipping licence amounted to a total of
7,737,000 French francs. He referred to the supporting evidence
produced before the Commission.
In the Government's submission, compensation could not be awarded
on the basis of speculating as to what the outcome of the proceedings
would have been had an oral hearing taken place.
At the hearing, the Delegate of the Commission questioned whether
there was a sufficient causal link between the alleged violation and
the resulting loss.
47. The Court agrees; it cannot speculate as to the outcome of the
proceedings had an oral hearing taken place before the Administrative
Court. The claim must therefore be rejected.
B. Costs and expenses
48. Mr Fischer further claimed 874,272.37 Austrian schillings (ATS)
in respect of costs and expenses incurred in the domestic proceedings
and in those before the Strasbourg institutions.
The Government argued that only the proceedings in the
Administrative Court - where the violation was said to have been
committed - and before the Convention institutions could be taken into
consideration. They further contested the basis on which legal fees
had been calculated. In their contention, a global sum of ATS 140,000
would represent a reasonable compensation for all relevant costs and
expenses.
The Delegate of the Commission submitted that if the Court, like
the Commission, were to uphold only one of the two complaints before
it, the amount of the reimbursement granted should reflect this
finding.
49. The Court notes that, as to the costs incurred in the domestic
proceedings, only those related to the request for an oral hearing come
into consideration.
Having regard to the fact that only one of the two complaints
declared admissible by the Commission has led to the finding of a
violation and to the criteria laid down in its case-law, the Court,
making an assessment on an equitable basis, as required by Article 50
(art. 50) of the Convention, awards the applicant ATS 200,000 in
respect of costs and expenses.
FOR THESE REASONS, THE COURT
1. Holds, by eight votes to one, that there has been no violation
of Article 6 para. 1 (art. 6-1) of the Convention as regards the
applicant's complaint that he was not able to bring his case
before a "tribunal";
2. Holds, unanimously, that there has been a violation of
Article 6 para. 1 (art. 6-1) of the Convention as regards the
lack of an oral public hearing before the Administrative Court;
3. Holds, unanimously, that Austria is to pay the applicant, within
three months, the sum of 200,000 (two hundred thousand) Austrian
schillings in respect of costs and expenses;
4. Rejects, unanimously, the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 26 April 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Mr Matscher;
(b) separate opinion of Mr Martens;
(c) concurring opinion of Mr Jambrek.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE MATSCHER
(Translation)
1. I voted with the majority of the Chamber to the effect that there
had been a breach of Article 6 para. 1 (art. 6-1) because the
Administrative Court had dispensed with a public oral hearing.
Nevertheless, I should like to draw attention to the following.
I value proceedings being oral and public in so far as this
amounts to a procedural safeguard; I attach no value to it where such
a procedure becomes a mere ritual (or a ceremony) or where it is sought
for purposes that have nothing to do with a procedural safeguard.
As an example of the first aspect of proceedings being oral
unnecessarily, I should like to mention the reading out of the
judgments of our Court (Rule 55 para. 2 of Rules A) at the crack of
dawn to a room that is usually empty except for a single official from
the Commission and a representative of the Government, who are bound
to attend out of consideration for the Court.
The second aspect to which I referred may arise for various
reasons:
- exploiting the fact of proceedings being oral and public to
proclaim to the general public political or other ideas which have very
little to do with the case being tried, in other words turning the
hearing before the court into a forum for an ideological debate. There
are a good many examples of this, both in national proceedings and
among hearings before our Court;
- relying - legitimately, in formal terms - on the absence of a
public oral hearing within the meaning of Article 6 para. 1 (art. 6-1)
to secure a finding of a breach in a case which discloses no other
failure to comply with the requirements of the Convention; here too
there are numerous examples in our case-law;
- requesting a hearing before a national court - where it is in
principle not mandatory under the applicable procedure - mainly in
order to be able to seek lawyers' fees for the hearing which, in a case
in which the sum in dispute is a large one, may be considerable, even
if the hearings amount to a pure formality, lasting a few minutes,
without even a semblance of any real oral argument; there are likewise
numerous examples of this in national courts of appeal and supreme
courts.
In neither of these respects is the fact of proceedings being
oral and public in the nature of a true procedural safeguard worthy of
protection.
2. The Chamber reached the finding of a breach by interpreting the
scope of Austria's reservation in respect of Article 6 (art. 6)
extremely narrowly. This is in keeping with the Court's tendency,
first shown in the Belilos v. Switzerland judgment of 29 April 1988
(Series A no. 132), to restrict the scope of reservations and
interpretative declarations, and even to eliminate them as far as
possible. From the point of view of international law, this practice
strikes me as highly questionable, given that Article 64 (art. 64)
expressly authorises States to make reservations, even if the
Convention makes them subject to certain conditions. The Contracting
States which made such reservations in respect of a Convention Article
or one of its Protocols did so in good faith, trusting to the
interpretation of certain provisions of the Convention that were
current at the time of ratification, and they could not foresee the
steady development that the case-law would undergo in the future. In
this way, many reservations and interpretative declarations have become
obsolete or, to put it another way, the mutual trust has been betrayed.
To return to the instant case: in the ordinary types of case that
come before the courts, Austrian law provides for a reasonable balance
between oral/public proceedings and written proceedings; in order to
preserve that position, Austria made a reservation in respect of
Article 6 (art. 6) that was naturally confined to the ordinary types
of court case. It could not foresee that as a result of the Convention
institutions' evolutive interpretation of the Convention, many
administrative and disciplinary matters which, according to the
prevailing judicial opinion at the time, were not caught by Article 6
(art. 6), would subsequently be covered by it.
Having regard to the mutual trust to which I referred above, the
Court took the view for some while that Austria's reservation covered
administrative proceedings which now are caught by Article 6 (art. 6)
(see, for example, the Ringeisen v. Austria judgment of 16 July 1971,
Series A no. 13, pp. 40-41, para. 98, and the Ettl and Others v.
Austria judgment of 23 April 1987, Series A no. 117, p. 19, para. 42).
This course, however, which I would describe as a wise one, is
apparently no longer taken. In saying that, I do not overlook that in
the instant case the reasoning in the judgment may be considered
correct since the scope for the proceedings in question to be oral and
public was formally restricted when section 39 (1) of the Act on
proceedings before the Administrative Court was reworded in 1982, that
is to say after the reservation had been made.
3. The result will be that the Austrian legislature will have to
amend section 39 (2) so as to make a public oral hearing compulsory
every time a party requests one. All this will make proceedings in the
Administrative Court longer and more expensive, without affording any
additional procedural safeguard to the parties.
4. Nevertheless, out of a spirit of solidarity with my colleagues
but not without hesitation, I voted in favour of finding a breach of
Article 6 para. 1 (art. 6-1) in that the proceedings in the
Administrative Court were neither oral nor public.
SEPARATE OPINION OF JUDGE MARTENS
1. The applicant's case originates in the revocation (in 1986) by
the Governor of Lower Austria of the tipping licence under which the
applicant exploited a refuse tip. The applicant, whose means of
subsistence were at stake, challenged that revocation under the
administrative proceedings open to him. It is common ground that
Article 6 (art. 6) of the Convention applies to these proceedings.
What is at issue before the Court is whether and, if so, to what extent
it was violated.
I. IS THE VERWALTUNGSGERICHTSHOF A TRIBUNAL WITHIN THE MEANING OF
ARTICLE 6 (art. 6) OF THE CONVENTION?
A. INTRODUCTION
2. Undoubtedly by far the most important issue in this case - from
a general viewpoint as well as for the applicant - is whether the
Verwaltungsgerichtshof (Administrative Court) is to be deemed a
tribunal within the meaning of Article 6 (art. 6) of the Convention.
In answering this question in the affirmative (paragraph 34 of its
judgment), the Court has evidently followed its Zumtobel v. Austria
judgment of 21 September 1993 (Series A no. 268-A) and its Ortenberg
v. Austria judgment of 25 November 1994 (Series A no. 295-B) (see
paragraph 32 of the judgment).
I was not a member of the Chambers which delivered those
judgments and to my regret I feel unable to subscribe to the doctrine
laid down therein (hereinafter "the Zumtobel doctrine").
3. The applicant's case falls within the ever growing but also
problematic category of proceedings which under national law are purely
administrative, whereas under the Convention they are considered as
determining civil rights or criminal charges. Since its judgment of
23 June 1981 in the case of Le Compte, Van Leuven and De Meyere v.
Belgium (Series A no. 43) the Court has consistently held that it is
not incompatible with the Convention for the first and second stages
(should there be a second stage) in such proceedings to be conducted
before administrative bodies which do not satisfy the requirements of
Article 6 (art. 6), provided that the individual can bring the ultimate
decision of those bodies for subsequent control before a court that
does afford the safeguards of that provision (1).
_______________
1. For cases concerning civil rights and obligations, see inter alia:
the Albert and Le Compte v. Belgium judgment of 10 February 1983,
Series A no. 58; the O. v. the United Kingdom judgment of 8 July 1987,
Series A no. 120-A, pp. 27-28, para. 63; the Belilos v. Switzerland
judgment of 29 April 1988, Series A no. 132, p. 31, para. 70; the
Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 15,
para. 30; the Obermeier v. Austria judgment of 28 June 1990, Series A
no. 179; the Oerlemans v. the Netherlands judgment of 27 November 1991,
Series A no. 219, pp. 21-22, paras. 53-56; the Beaumartin v. France
judgment of 24 November 1994, Series A no. 296-B, pp. 62-63, para. 38;
for cases concerning criminal charges, see inter alia: the Öztürk v.
Germany judgment of 21 February 1984, Series A no. 73, and the
Bendenoun v. France judgment of 24 February 1994, Series A no. 284.
_______________
It is common ground that neither the Governor (Landeshauptmann)
of Lower Austria - who took the original decision to revoke the
applicant's tipping licence - nor the Federal Minister of Agriculture
and Forestry (Bundesminister für Land- und Forstwirtschaft) - who
dismissed the applicant's administrative appeal against the original
decision - satisfied the requirements of Article 6 (art. 6) and that,
consequently, what is decisive is whether the Verwaltungsgerichtshof
- to which the applicant appealed from the Minister's decision - does.
The divergence between the Court and myself concerns both the
method of ascertaining whether the Verwaltungsgerichtshof fulfils the
essential requirements of a "tribunal" within the meaning of
Article 6 (art. 6) (see paragraphs 15 to 18 below) and the outcome of
that query (see paragraphs 19 to 21).
4. Before going into that divergence of opinion and before
explaining why I cannot subscribe to the Zumtobel doctrine, I note that
the applicant has alleged no other ground for doubting whether the
Verwaltungsgerichtshof fulfils the essential requirements of a
"tribunal" within the meaning of Article 6 (art. 6) than the scope of
its control.
B. GENERAL CONSIDERATIONS
5. Both judgments referred to in paragraph 2 above were unanimous.
However, it is not simply out of deference to the Court that I feel
that the Zumtobel doctrine calls for a thorough discussion. It is also
because I fear that it not only concerns the Austrian administrative
courts but may generally affect the category of proceedings mentioned
in paragraph 3 above. It is especially in view of the latter aspect
that I feel bound to speak against it.
I propose, firstly, to make some general remarks on the
consequences of applicability of Article 6 para. 1 (art. 6-1) in the
field of administrative law and, secondly, to analyse the Court's
case-law on the notion of a "tribunal" within the meaning of that provision.
1. Consequences of applicability of Article 6 para. 1 (art. 6-1)
in the field of administrative law
6. The Court's gradual widening of the ambit of Article 6 (art. 6)
into the field of administrative procedures undoubtedly creates
problems as well as tensions, since administrative procedure has
traditions and demands which are often at variance with the
requirements of the Convention. The Court, when setting and
maintaining that course, was without doubt well aware of those
problems, but was equally clearly prompted by the conviction that one
of the demands of the rule of law is that the type of dispute between
the individual and the executive referred to in paragraph 3 above must,
in the last resort, be decided by the judiciary. I would recall the
Court's fundamental statement in its Klass judgment (2):
"The rule of law implies, inter alia, that an interference by the
executive authorities with an individual's rights should be
subject to an effective control which should normally be assured
by the judiciary, at least in last resort, judicial control
offering the best guarantee of independence, impartiality and
proper procedure."
_______________
2. Klass and Others v. Germany judgment of 6 September 1978,
Series A no. 28, pp. 25-26, para. 55.
_______________
Consequently, the problems can never be resolved nor the tensions
mitigated at the price of impairing the very essence of the protection
to which the individual is thus entitled under Article 6 para. 1
(art. 6-1). The Court confirmed this when, right at the outset of the
case-law referred to in paragraph 3, it made it clear that the
aforementioned traditions and demands should be heeded, but only as far
as is compatible with effective protection of the individual's rights
under the Convention (3).
_______________
3. See the Le Compte, Van Leuven and De Meyere judgment (cited at
paragraph 3 above), p. 23, para. 51 under (a).
_______________
7. It follows that also in the context of administrative proceedings
coming within the ambit of Article 6 (art. 6) a fair balance has to be
struck between conflicting interests - that is to say, between
protecting the individual on the one hand and leaving sufficient
freedom of action to the executive authorities on the other.
It is in so doing that we meet the problems and tensions referred
to in paragraph 6 above. When endeavouring to strike the requisite
balance, it should not be overlooked that some of these tensions and
problems result from views already long overtaken by developments in
legal thinking and practice, such as for instance the doctrine that
there should be a strict partition between administration and judiciary
(4). It seems justified to presume that legal thinking and practice
in the member States generally go in the direction of acceptance of an
"effective control" of the executive by the judiciary (see the Klass
judgment, paragraph 6 above), a judicial control which is not always
restricted to the legality of administrative acts but may sometimes to
a certain extent include matters of expediency. In this context it is
not without importance that all member States have now accepted a final
control through the supervisory mechanism of the Convention, which is
essentially judicial in nature. This control by an international court
should help to dispose of remnants of the old doctrine to the effect
that the administration cannot be accountable to the judiciary (5).
_______________
4. This doctrine is, however, consecrated by Article 94 of the
Austrian Constitution as construed by the Verfassungsgerichtshof; in
its judgment of 14 October 1987, EuGRZ 1988, pp. 166 et seq., this
court held that a strict separation between judiciary and executive is
essential for the Austrian Constitution. It concluded therefrom that
the Constitution made it impossible to introduce a system of
administrative proceedings at two instances. On this important
judgment, see inter alia: W.L. Weh, EuGRZ 1988, pp. 438 et seq.; Merli,
ZaöRV 1988, pp. 251 et seq.; Holoubek, Grund- und Menschenrechte in
Österreich, pp. 73 et seq.
5. In this context the influence of the Court of Justice of the
European Communities should also be mentioned; as to the influence of
its case-law on national legal thinking and practice, see Schwartze,
op. cit. (note 6), pp. 93 et seq.
_______________
On the other hand, even a superficial glance at comparative
literature (6) makes it clear that there are certain areas where it is
imperative that administrative courts should be in a position to leave
sufficient freedom of manoeuvre to the executive authorities. I am
thinking of areas where highly technical questions or important
diplomatic issues are decisive or where the authorities may
legitimately maintain secrecy even towards the courts. If ever
judicial restraint is obligatory, it is in such areas.
_______________
6. See inter alia: Ule, Verwaltungsprozeßrecht (Beck, München, 1987),
pp. 408 et seq.; The protection of the individual in relation to acts
of administrative authorities (Council of Europe, 1975); Frowein,
Festschrift für Felix Ermacora (1988), pp. 141 et seq.; Banda,
Administratief procesrecht in vergelijkend perspectief (Tjeenk Willink,
Zwolle, 1989); Bok, Rechtsbescherming in Frankrijk en Duitsland
(Kluwer, Deventer, 1992); Schwartze, European Administrative Law (Sweet
and Maxwell, London, 1992), pp. 97 et seq.; Banda, Het onderzoek door
de rechter, in: Ten Berge et al., Nieuw Bestuursrecht (Kluwer,
Deventer, 1992), pp. 99 et seq.; Klap, Vage normen in het bestuursrecht
(Tjeenk Willink, Zwolle, 1994).
_______________
8. This brings me to another aspect of the above-mentioned balancing
exercise: one should, probably, take into account the particular
subject-matter of the proceedings in question. In another context the
Court has already indicated that the particular subject-matter is of
importance, notably as regards the degree of precision with which a law
conferring discretion upon administrative authorities should indicate
the scope of that discretion (7). Likewise, it would seem acceptable
that in administrative proceedings the scope of the control exercised
by the administrative judge should - to a certain extent - vary
according to the particular subject-matter of the case at hand. In
this context I would recall that the Court itself leaves the States a
wider margin of appreciation in some fields than in others.
_______________
7. See inter alia: the Herczegfalvy v. Austria judgment of
24 September 1992, Series A no. 244, p. 27, para. 89; the Chorherr v.
Austria judgment of 25 August 1993, Series A no. 266-B, pp. 35-37,
para. 25, and the Vereinigung Demokratischer Soldaten Österreichs and
Gubi v. Austria judgment of 19 December 1994, Series A no. 302,
pp. 15-16, para. 31.
_______________
A persuasive indication for this view is to be found in the
Court's judgments of 8 July 1987 in the cases of O., H., W., B. and R.
v. the United Kingdom (8). In these judgments the Court held that the
powers of the English courts were insufficient to satisfy fully the
requirement of Article 6 para. 1 (art. 6-1) that the tribunal should
have jurisdiction to examine the merits of the matter (9).
_______________
8. Series A nos. 120 and 121.
9. See for example: Series A no. 120, p. 28, para. 64.
_______________
The subject-matter of the proceedings was a parent's right of
access to his child taken into care. The parents had the possibility
of asking for judicial review. However, on an application for judicial
review, the courts would not review the merits of the decision but
would confine themselves to ensuring, in brief, that the authorities
had not acted illegally, unreasonably or unfairly (10). "In a case of
the present kind", said the Court, Article 6 para. 1 (art. 6-1)
required that the parents should be able to have "the local authority's
decision reviewed by a tribunal having jurisdiction to examine the
merits of the matter".
_______________
10. ibid., p. 27, para. 63.
_______________
The significance of this judgment can only be appreciated if it
is compared with that in the AGOSI case (11). In that case, which
concerned confiscation, the Court found the scope of the powers of the
English courts on an application for judicial relief to be sufficient
to satisfy the requirements of Article 1 of Protocol No. 1 (P1-1). To
reconcile these judgments, one has to assume either that the
requirements of Article 1 of Protocol No. 1 (P1-1) are less exacting
than those of Article 6 para. 1 (art. 6-1) - which is rather unlikely
- or that the difference of subject-matter was decisive for the
difference of outcome. If - as it would seem - the latter premise is
correct, one may perhaps presume that the Court would require power of
full control in all those cases where the proceedings, although
administrative in nature under national law, directly concern rights
coming within the ambit of Article 8 (art. 8) of the Convention, or in
which - more generally - the general interest is clearly much less
involved than that of the individual. An example of the latter
category may possibly be seen in the Obermeier case (see note 1), where
the subject-matter was the right of a disabled person not to be
dismissed unless dismissal was socially justified.
_______________
11. AGOSI v. the United Kingdom judgment of 24 October 1986,
Series A no. 108.
_______________
The examples given suggest that particular kinds of
subject-matter may result in stricter requirements as to the scope of
the tribunal's powers than are normally acceptable in the field of
administrative law under discussion: in such cases, it would appear,
the tribunal should have the power to overrule the administrative
decision and to give the final decision in the dispute. I am inclined
to think that there is no room for the opposite effect, that is: the
particular subject-matter entailing less strict requirements than are
normally acceptable. However that may be, I repeat that whatever
allowances may be made as regards the special characteristics of the
administrative proceedings at hand, these allowances should never be
taken to the point where the very essence of the guarantees for the
protection of the individual implied in Article 6 (art. 6) is impaired
(12).
_______________
12. Since, in my opinion, it is part of the essence of Article 6
(art. 6) that the "tribunal" should be able to determine all aspects
of the matter on the basis of its own investigation of the facts (see
notably paragraph 13 below), I am not persuaded by the plea made by the
Austrian Verfassungsgerichtshof in its decision referred to in note 4.
According to this almost emotional plea, in the category of cases under
discussion (see paragraph 3 above) the requirements of Article 6
(art. 6) should be deemed to be fulfilled even if the "tribunal" in
question were only competent to exercise a limited control, provided
such control would enable it to satisfy itself that, in outcome, the
administration's decision was right both as regards questions of law
and as regards questions of fact.
_______________
9. Finally, the Committee of Ministers has repeatedly stressed the
importance of uniform protection of the individual in the field of
administrative law in all member States (13). The Court has expressed
a similar view in terms of the principle of equality of treatment. It
has recently done so in its Salesi v. Italy and Schuler-Zgraggen v.
Switzerland judgments (14). This means, on the one hand, that in the
aforementioned balancing exercise one should be careful not to attach
undue weight to local particularities and traditions as regards the
organisation of administrative justice and, on the other, that States
should be treated equally. In this respect it may be recalled, for
instance, that the Benthem v. the Netherlands (15) judgment obliged the
Netherlands to reorganise completely their system of administrative
justice (16), just as a series of judgments made it necessary for
Sweden to do the same. Other States cannot claim that they should not
be obliged to bear similar consequences of the Court's gradual widening
of the ambit of Article 6 (art. 6) into the field of administrative
procedure, however unexpected this evolution of the case-law may have
been (17). They should not be allowed to seek shelter behind their
Constitution: if need be, they may be required to amend their
Constitution in order to comply with their obligations under the
Convention (18).
_______________
13. See Recommendations Nos. R (77) 31 (28 September 1977),
R (80) 2 (11 March 1980) and R (89) 8 (13 September 1989).
14. Judgment of 26 February 1993, Series A no. 257-E, p. 59,
para. 19, and judgment of 24 June 1993, Series A no. 263, p. 17,
para. 46.
15. Judgment of 23 October 1985, Series A no. 97.
16. I cannot refrain from noting that this reorganisation has lead to
the introduction of a completely new and uniform system of
administrative procedure based on the notion that the primary function
of rules of administrative procedure is to protect the individual: see
Daalder, De Groot and Van Breugel, De Parlementaire geschiedenis van
de Algemene wet bestuursrecht, Tweede Tranche (Samsom H.D. Tjeenk
Willink, Alphen aan den Rijn, 1994), pp. 174 et seq. (para. 2.3) and
pp. 460 et seq. (Afd. 8.2.6).
17. The Contracting States are under the obligation to organise their
legal systems so as to ensure compliance with the requirements of
Article 6 para. 1 (art. 6-1): see the De Cubber v. Belgium judgment of
26 October 1984, Series A no. 86, p. 20, para. 35.
18. If the Austrian Verfassungsgerichtshof in its decision referred
to in note 4 above was intending to suggest that under the reservation
to be discussed in paragraphs 23 et seq. below this cannot be required
of Austria, it is mistaken: the reservation is invalid.
_______________
2. Analysis of the Court's "full jurisdiction" doctrine
10. Coming now to the analysis announced in paragraph 5 above, I
would firstly recall that the requirement of "determination" by a
"tribunal" is one of the constitutive elements of the guarantee
afforded to the individual by Article 6 para. 1 (art. 6-1) (19).
_______________
19. See the De Wilde, Ooms and Versyp v. Belgium judgment of
18 June 1971, Series A no. 12, p. 41, para. 78.
_______________
In its case-law referred to in paragraph 3 above the Court has
made it clear that the requirement of the individual's being enabled
to have the ultimate decision of the administrative authorities
controlled by a "tribunal" within the meaning of Article 6 (art. 6)
means that the jurisdiction (20) of the relevant court should be such
that it may determine (21) all matters in issue, whether they concern
questions of law or of fact (22). Summarising this requirement in its
judgment of 23 September 1982 in the case of Sporrong and Lönnroth v.
Sweden (23), the Court said that the individual was entitled to have
his case heard by
"a tribunal competent to determine all the aspects of the
matter".
_______________
20. See the Le Compte, Van Leuven and De Meyere judgment
(paragraph 3 above), p. 23, para. 51.
21. See the Le Compte, Van Leuven and De Meyere judgment, loc. cit.,
and the Albert and Le Compte judgment (note 1 above), p. 16, para. 29.
As the latest authorities for the power to give a binding decision
being one of the essential elements of the notion of a tribunal within
the meaning of Article 6 (art. 6), see the Van de Hurk v. the
Netherlands judgment of 19 April 1994, Series A no. 288, p. 16,
para. 45; and the Beaumartin v. France judgment of 24 November 1994,
Series A no. 296-B, pp. 62-63, para. 38.
22. See note 19.
23. Series A no. 52, p. 31, para. 87.
_______________
11. One of the requirements of a "tribunal" within the meaning of
Article 6 (art. 6) being that it is "established by law", there is
little doubt to my mind that, when referring to the jurisdiction or
competence of the "tribunal" in question, the Court was adverting to
the very same notion and, consequently, to competence pursuant to the
law under which the "tribunal" was established. Accordingly, that law
- of course, as construed by the national courts - should be the basis
for determining whether or not the powers of the court in question are
sufficient.
12. What are questions of law may, at first sight, appear clear (24),
but may become less so if one takes into account the so called "vague
norms" to which, especially in the field of administrative law, our
legislatures frequently resort. Controlling the application of such
norms poses, as every lawyer familiar with "cassation" proceedings
knows, delicate problems of demarcation, since such application
undoubtedly has a factual component. However, in the present context
these niceties may be left aside since the Court specified that the
"tribunal" should be competent to determine both questions of law and
of fact. Which evidently means that, in principle, that "tribunal"
should be able to control fully the application of vague norms. "In
principle", since that application may be bound up with questions of
factual assessment which fall within the "discretion" of the
administrative authorities (see paragraph 7 above and paragraph 13
below) (25).
_______________
24. Since it is probably immaterial in the present case, I leave aside
the intriguing - and, as far as I know, hitherto unexplored - question
whether the basic idea of protection of the individual implies that the
"tribunal" should be invested with the power of applying the maxim ius
curia novit, and thus of going ex officio into questions of law not
raised by the parties.
25. It is interesting to note that according to Bok (see note 6),
pp. 150 and 193 et seq., both the French and the German administrative
courts take the view that they have power to control fully the
application of vague norms by the authorities without - except in
rather special cases - leaving room for discretion. However, see also
Klap (note 6), pp. 125 et seq., and 250.
_______________
13. For the sake of discussion (26), questions of fact may be divided
into at least two categories:
(1) questions about facts: the "tribunal" should be free to take
into account all facts which it deems relevant (27), it should be free
to determine whether such facts are established or not (28) and, if
not, be competent to take evidence;
(2) questions of factual assessment.
_______________
26. "For the sake of discussion": obviously the two categories
intertwine, since a tribunal lacking the power to take into account
other facts than those on which the executive authorities have based
themselves can less well control questions of factual assessment even
if in principle it is empowered to carry out such control.
27. Once again I pass over the question whether and to what extent the
"tribunal" - in order to compensate the imbalance between the parties
and better to protect the individual - should be free or even obliged
actively to try to ascertain the relevant facts. I note, for the rest,
that here lies another, rather difficult problem, viz. whether the
tribunal should review ex tunc or ex nunc: should it be allowed to take
into account new facts or not? I only note the problem, adding that
for the moment I am inclined to think that the requirements of
Article 6 para. 1 (art. 6-1) imply the power to review ex nunc. On the
ex tunc/ex nunc problem, see Teunissen in: Ten Berge et al., Nieuw
Bestuursrecht (Kluwer, Deventer, 1992), pp. 111 et seq. (who treats the
Article 6 (art. 6) aspect on pp. 126 et seq.); Schueler, Vernietigen
en opnieuw voorzien (Tjeenk Willink, Zwolle, 1994), pp. 215 et seq.
28. It should be competent to "rectify factual errors": see the Le
Compte, Van Leuven and De Meyere judgment (paragraph 3 above).
_______________
In this connection - especially as regards "questions of factual
assessment" - we touch a sensitive issue, for we enter the province of
the "discretion" of the administrative authorities. Does the
requirement that the "tribunal" should be "competent to determine all
the aspects of the matter" imply that it should have competence to
control fully all factual assessments made by those authorities?
I am convinced that this fundamental question should be answered
in the affirmative.
Of course, as stated already (see paragraph 7 above), it is
imperative to ensure that the executive authorities should have proper
freedom of manoeuvre, but that does not warrant accepting a restriction
on the "tribunal's" competence as to "questions of fact". It suffices
to accept that the "tribunal" be empowered to exercise judicial
restraint when and where that is called for. As explained in paragraph
8 above, there may be exceptional cases in this sphere where, in view
of the subject-matter of the proceedings in question, the "tribunal"
should fully control even all factual assessments made by the executive
authorities, but as a rule the "tribunal" should exercise judicial
restraint with respect to issues of expediency (29). Judicial
restraint, however, presupposes competence. Only a "tribunal" which
has full competence can decide, on the merits of each case, whether and
to what extent it must exercise restraint.
_______________
29. To that extent - but only to that extent - I agree with the
Zumtobel doctrine: see paragraph 32 in fine of the Zumtobel judgment
(paragraph 2 above).
_______________
If the legislature generally curtails the "tribunal's" competence
as to questions of fact, the latter's position is like that of a man
having to fight with one arm bound behind his back. It will sometimes
find that it simply cannot properly exercise its control over whether
the impugned administrative decision is lawful without to some extent
going into certain questions of fact. To illustrate the point I am
trying to make, I would recall that the Court, as a rule, does not
control findings of fact made by the national courts, but reserves
itself the right to do so where such control is indispensable for a
proper exercise of its task (30). What is at stake here is the
above-mentioned balancing operation between protecting the individual -
which requires full control - and leaving proper freedom of action to
the executive authorities. This balancing operation is far too subtle
and too dependent on the specific type of subject-matter of each case
to be left to the legislature; the rule of law implies that it should
be left to the judiciary, which should have the last word.
_______________
30. According to the consistent case-law of the German Constitutional
Court, where the right of freedom of expression is at stake,
unacceptable curtailment of that right can only be prevented if factual
assessments made by the normal courts are fully reviewable by the
Constitutional Court (see Bverfge 43,130 = EUGRZ 1977, pp. 109 et
seq.). The European Court has taken the same approach. As the latest
authority, see the (Grand Chamber) judgment of 23 September 1994 in the
case of Jersild v. Denmark (Series A no. 298), pp. 23-24, para. 31.
See also my concurring opinion in the case of Schwabe v. Austria
(Series A no. 242-B, pp. 40 et seq.) and paragraph 4 of my dissenting
opinion in the case of Prager and Oberschlick v. Austria (Series A
no. 313).
_______________
This view is in conformity with the spirit of the Court's
case-law, which, taken as a whole, warrants the conclusion: (1) that
one of the basic notions underlying the Convention is that the
individual should be effectively protected against arbitrariness, and
(2) that this implies that even assessments which fall within the
administration's discretion should, to a certain extent, be controlled
by the judiciary.
For the first proposition it suffices to refer to such judgments
as Silver and Others (31), Malone (32), Leander (33), Olsson (no. 1)
(34), Chappell (35), Eriksson (36), Kruslin (37) and Herczegfalvy (38).
_______________
31. Silver and Others v. the United Kingdom, judgment of
25 March 1983, Series A no. 61, pp. 33-34, paras. 88-89.
32. Malone v. the United Kingdom, judgment of 2 August 1984,
Series A no. 82, p. 32, para. 67.
33. Leander v. Sweden, judgment of 26 March 1987, Series A no. 116,
p. 23, para. 51.
34. Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A
no. 130, p. 30, para. 61 under (c).
35. Chappell v. the United Kingdom, judgment of 30 March 1989,
Series A no. 152-A, p. 24, para. 57.
36. Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156,
pp. 24-25, paras. 59-62.
37. Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A,
pp. 22-25, paras. 30-36.
38. Herczegfalvy v. Austria, judgment of 24 September 1992, Series A
no. 244, p. 27, para. 89.
_______________
As to the second, it should be noted firstly that already in the
judgment inaugurating its case-law under discussion the Court required
that the "tribunal" should be competent to examine such a typically
"discretionary" question as whether "the sanction is proportionate to
the fault" (39). Furthermore, in its Obermeier judgment the Court
found that judicial control of discretionary assessment by the
administrative authorities which was restricted to testing whether
these authorities had acted ultra vires - to be precise: had used their
discretion in a manner incompatible with the object and purpose of the
relevant law - did not constitute effective review. The Court did not
indicate what measure of control it would have held sufficient. It may
be that the case fell, in its opinion, in the above-mentioned category
where, in view of the subject-matter of the proceedings, only a full
review as to the merits is sufficient (40). This hypothesis is,
however, not necessary to understand the Court's finding: in view of
such judgments as Pudas (41), Allan Jacobsson (42), Mats Jacobsson (43)
and Skärby (44), one can very well surmise that the control in the
Obermeier case would have been found satisfactory if the "tribunal"
could have scrutinised not only whether the authorities had acted ultra
vires in making their assessment, but also whether they had duly
observed "generally recognised legal and administrative principles"
(45).
_______________
39. See the Le Compte, Van Leuven and De Meyere judgment
(paragraph 3 above), p. 23, para. 51 in fine.
40. See paragraph 8 above.
41. Pudas v. Sweden, judgment of 27 October 1987, Series A no. 125-A,
p. 15, para. 34.
42. Allan Jacobsson v. Sweden, judgment of 25 October 1989, Series A
no. 163, p. 20, para. 69.
43. Mats Jacobsson v. Sweden, judgment of 28 June 1990, Series A
no. 180-A, p. 13, para. 32.
44. Skärby v. Sweden, judgment of 28 June 1990, Series A no. 180-B,
p. 37, para. 28.
45. I am thinking of such principles as, for instance, that of
treating like cases alike, that of legal certainty and that of
proportionality.
_______________
14. A final aspect which deserves attention is the kind of decision
which the "tribunal" should take. It is clear from its case-law that
in the Court's opinion the power to bring the proceedings to an end by
means of a binding decision on all issues raised before it constitutes
an essential requirement of a "tribunal" within the meaning of
Article 6 (art. 6) (46).
_______________
46. As the latest authority, see the Van de Hurk v. the Netherlands
judgment of 19 April 1994, Series A no. 288, p. 16, para. 45. To avoid
misunderstanding, I would add that in my opinion this requirement does
not imply that the final decision of the "tribunal" should constitute
res judicata in the sense that new proceedings on the same issue would
be impossible or only possible under exceptional circumstances; it only
implies that the final decision should be made by the "tribunal" itself
and not by any other authority.
_______________
As to the contents of such a decision in the domain under
discussion, two further remarks seem appropriate.
Firstly: it follows from the foregoing considerations that the
appeal to the "tribunal" should be an appeal de novo: the individual
will have all the benefits of a fair trial (47) only if the tribunal
is in principle competent to review completely the original decision,
be it that it should be empowered to exercise restraint with regard to
such decisions and assessments by the executive authorities which, in
its opinion, should properly be left to their discretion. However,
even in this respect it should have competence to control at least
whether the authorities have duly observed "generally recognised legal
and administrative principles".
_______________
47. See Robertson-Merills, Human Rights in Europe (Manchester
University Press, Manchester and New York, 1993), p. 91.
_______________
Secondly: it is an open question whether the "tribunal" should
have the power to settle the case itself or whether it suffices if it
has the power to quash the administrative decision, leaving the final
settlement to the administrative authorities. It goes without saying
that the individual's protection is better served when the "tribunal"
has the former power, but it must be acknowledged that conferring that
power upon the judiciary goes against a long and deeply rooted
tradition in many member States. However that may be, it follows - I
would think - from the Court's AGOSI judgment (48) that the latter
alternative is in line with the principles underlying the above
case-law only when the administrative authorities, in finally settling
the case, have to exercise their discretion within the boundaries drawn
by the tribunal's decision (49) and if the "tribunal" has power to
quash if they overstep those boundaries.
_______________
48. AGOSI v. the United Kingdom, judgment of 24 October 1986,
Series A no. 108, p. 20, para. 58, in conjunction with p. 14, para. 38,
last dash.
49. In this respect the Verwaltungsgerichtshof meets the requirements
of Article 6 para. 1 (art. 6-1), since under Article 63 of the
Administrative Court Act, when the Verwaltungsgerichtshof has quashed
a decision of the administrative authorities, these have to decide
again according to the legal opinion of the Verwaltungsgerichtshof and
if they fail to do so the Verwaltungsgerichtshof may itself decide (see
the decision of the Verfassungsgerichtshof referred to in note 4).
_______________
C. METHODOLOGICAL OBJECTIONS
15. Having indicated in the foregoing paragraphs how the Court, on
the basis of its case-law preceding the Zumtobel doctrine, should have
decided these cases, I now come to the divergence between the Court and
myself as to the method of ascertaining whether the
Verwaltungsgerichtshof fulfils the essential requirements of a
"tribunal" within the meaning of Article 6 (art. 6).
It is a basic characteristic of the Zumtobel doctrine that the
Court simply refuses to decide this question once and for all, but
proclaims that it will do so only on a case-by-case basis ("in the
circumstances of the case") (50). My first methodological objection
is directed against both this refusal and the argument on which it is
based.
_______________
50. See the Zumtobel judgment (paragraph 2 above), p. 14, para. 32,
and paragraph 33 of the present judgment.
_______________
16. This refusal to decide the question once and for all is (merely)
based on the Court's doctrine that the Court "should confine itself as
far as possible to examining the question raised by the case before
it".
This doctrine is in my opinion no more than a regrettable petitio
principii. No provision of the Convention compels the Court to decide
in this way on a strict case-by-case basis. This self-imposed
restriction may have been a wise policy when the Court began its
career, but it is no longer appropriate (51). A case-law that is
developed on a strict case-by-case basis necessarily leads to
uncertainty as to both the exact purport of each judgment and the
precise contents of the Court's doctrine. Hence the need for comments.
Hence speculation by annotators, which creates further uncertainty.
The Court rightly is wont to stress that the protection of the rights
and freedoms under the Convention falls primarily to national
authorities. It should, however, not overlook that the reverse side
of this coin is that national authorities are obliged to seek guidance
in its case-law. It is thus duty bound to see to it that this case-law
meets the very same standards of clarity, precision and foreseeability
by which the Court usually measures laws of member States in the field
of fundamental rights and freedoms.
_______________
51. See also my concurring opinion in the case of Fey v. Austria,
Series A no. 255-A, p. 16, para. 1.
_______________
17. Furthermore, I fail to see how the legal uncertainty thereby
created by the Court's refusal to decide once and for all whether the
Verwaltungsgerichtshof meets the requirements of a "tribunal" may be
reconciled with its older case-law which, in my opinion, clearly
conveys the idea that the competence of the "tribunal" is to be
assessed on the basis of the provisions of the law, as construed by the
national courts, under which it is established (see paragraph 11
above).
18. My second objection to the Zumtobel doctrine concerns its tests
for assessing whether or not "in the circumstances of the case" the
scope of the Verwaltungsgerichtshof's competence satisfies the
requirements of Article 6 para. 1 (art. 6-1).
I say "tests", for there is a double test: the first test is
whether the decisive issue in the particular proceedings concerns a
matter which is "exclusively within the discretion of the
administrative authorities" (52); the second - which is to be applied
only if the answer under the first is in the negative - is whether in
the particular proceedings the Verwaltungsgerichtshof was able to
consider all the applicant's submissions "on their merits, point by
point, without ever having to decline jurisdiction in replying to them
or in ascertaining various facts".
_______________
52. See the Zumtobel judgment (paragraph 2 above), p. 13, para. 31,
and paragraph 34 of the present judgment. It would at least seem
questionable whether this first test is adequately formulated, since
under Article 130 para. 1 of the Federal Constitution (see
paragraph 20 below) the Verwaltungsgerichtshof lacks competence in so
far as the authorities have discretion.
_______________
An initial point to be made is that the second test is to a
certain extent irrational and perhaps even unfair, since it fails to
take into account that when - as is the case here - there are certain
legal restrictions as to the scope of a court's powers of review,
prudent lawyers will, of course, avoid making submissions with respect
to which that court will have to decline jurisdiction.
A second and, in my opinion, even more serious drawback is that
the two tests oblige the Court to carry out a very minute and delicate
examination both of the file and the relevant provisions of Austrian
law (53). It is by no means an easy task to ascertain whether the
decisive issue in the proceedings concerns a matter which is
"exclusively within the discretion of the administrative authorities".
The task of ascertaining whether, in the case before the Court, the
Verwaltungsgerichtshof was able to consider all the applicant's
submissions "on their merits", point by point, "without ever having to
decline jurisdiction in replying to them or in ascertaining various
facts" is even more delicate. In any event it requires a scrutiny of
the complete file (54) that can reasonably only be made by an
experienced lawyer, completely conversant with Austrian law and
Austrian legal practice and style of litigation. In my opinion this
aspect on its own is sufficient to condemn the Zumtobel doctrine.
_______________
53. Or, since it is to be feared that the Zumtobel doctrine will be
applied to administrative courts of other member States, of the law of
such States.
54. That is because the test at least implies that the Court should
compare "point by point" the applicant's submissions to the
Verwaltungsgerichtshof and the latter's judgment in order to ascertain
whether all submissions are really dealt with.
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D. MATERIAL OBJECTION
19. My material objection is that application of the Zumtobel
doctrine has led the Court to the conclusion that the scope of the
Verwaltungsgerichtshof's competence in the present case as well as in
the cases mentioned in paragraph 2 above satisfied the requirements of
Article 6 para. 1 (art. 6-1) of the Convention, whereas in my opinion
that scope - when assessed properly, that is according to the
principles set out in paragraphs 5 to 14 above on the basis of the
relevant legal provisions - does not fulfil these requirements.
20. It is perhaps significant that neither the present judgment nor
those mentioned in paragraph 2 above contain (a translation of) all
legal provisions relevant for ascertaining the scope of jurisdiction
of the Verwaltungsgerichtshof.
What is lacking is a reference to Articles 129a and 130 of the
Federal Constitution. Article 129a makes it clear that the essential
task of the Verwaltungsgerichtshof is to ensure the lawfulness
(Gesetzmäßigkeit) of the executive. Accordingly, Article 130 para. 1
gives the Verwaltungsgerichtshof jurisdiction to hear, inter alia,
complaints alleging unlawfulness (Rechtswidrigkeit) of an
administrative decision (55). Paragraph 2 of this provision specifies,
however, that there is no question of unlawfulness in so far as the law
refrains from imposing binding regulations with regard to the conduct
of the authorities themselves, and the authorities have used their
discretion in accordance with the object and purpose of the law (56).
Together, these provisions make it clear that even with respect to what
are usually called questions of law the Verwaltungsgerichtshof has no
full jurisdiction, since it can but very restrictively control
discretion, which severely limits its powers as far as so-called vague
norms are concerned (see paragraph 12 above).
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55. See paragraph 15 of the Court's judgment.
56. "Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von
einer bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht
und die Bestimmung dieses Verhaltens der Behörde selbst überläßt, die
Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch
gemacht hat."
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21. Sections 41 and 42 of the Administrative Court Act
(Verwaltungsgerichtshofsgesetz) (57) set forth the restrictions on the
Verwaltungsgerichtshof's competence with regard to questions of fact.
I do not intend to analyse these intricate provisions, nor to comment
upon them further than to say that at the least they do not easily
disclose an exact notion of the scope of the Verwaltungsgerichtshof's
control in this respect. It is no wonder, therefore, that their exact
meaning and - what is more important in the present context - the
question whether that scope is sufficient with regard to the
requirements of Article 6 para. 1 (art. 6-1) are the subject of
controversy in Austrian legal literature. In the proceedings before
the Court both parties have quoted those learned authors who supported
their view (58).
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57. See paragraphs 17 and 18 of this judgment.
58. Neither party quoted L.K. Adamovich and B.-C. Funk, Allgemeines
Verwaltungsrecht, (3., neubearb. Aufl. Springer, Wien, New York, 1987)
pp. 93-94, 449 and 453. I mention this book because the first-named
author is the President of the Austrian Constitutional Court. The
latter fact makes it significant that the authors write that it is open
to doubt (lassen es zweifelhaft erscheinen) whether the competence of
the Verwaltungsgerichtshof meets the requirements of Article 6
para. 1 (art. 6-1). They mention notably the principle that the
Verwaltungsgerichtshof may only quash a decision, that it has only a
limited competence to review the facts (begrenzte Sachverhaltsprüfung)
and also a limited possibility to review discretionary acts of the
executive. They add that fundamental changes in the system may prove
necessary.
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The Government relied on a very comprehensive and lucid essay by
K. Ringhofer (59), which has, however, much helped me to come to the
above conclusion. That is because Ringhofer has made it entirely clear
that, whatever the exact scope of the Verwaltungsgerichtshof's
jurisdiction, the appeal to that court cannot be considered an appeal
de novo (see paragraph 14 above): the relevant legal provisions are the
result of a compromise between the requirements of the protection of
the individual and those of the protection of the
Verwaltungsgerichtshof (60). The legislature realised that since the
Verwaltungsgerichtshof was to be the one and only administrative court
in Austria, giving it competence to control de novo all administrative
decisions was impossible, however desirable such a competence might be
in terms of the protection of individual rights. The compromise
consisted in setting up the appeal as one on questions of law only -
the Verwaltungsgerichtshof being in principle bound by the findings of
fact made by the administrative authorities - but allowing for certain
exceptions to these principles. How far these exceptions exactly go
is controversial, but even Ringhofer concedes that the competence of
the Verwaltungsgerichtshof as to questions of fact is restricted (61).
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59. K. Ringhofer, Der Sachverhalt im verwaltungsgerichtlichen
Bescheidprüfungsverfahren, in: Festschrift zum 100-jährigen Bestehen
des österreichischen Verwaltungsgerichtshofes, pp. 351-75.
60. Ringhofer, loc. cit., pp. 353, 358 and especially 361-62.
61. Ringhofer, loc. cit., p. 363. In its decision referred to in
note 4 the Austrian Verfassungsgerichtshof essentially confirmed
Ringhofer's analysis. It held: "However, the Constitution does not
permit the abandonment of the very system of limited control (das
System der nachprüfenden Kontrolle) or the conferment on the
Verwaltungsgerichtshof of the competence to give (at the request of one
of the parties) in all administrative matters a binding decision on the
dispute on the basis of a completely new investigation of the facts ...
The Verwaltungsgerichtshof could not fulfil that task, if only in view
of its magnitude."
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In my opinion that is decisive. One of the essential
constitutive elements of the protection which Article 6 para. 1
(art. 6-1) affords the individual involved in a dispute concerning
civil rights and obligations - or, for that matter, prosecuted under
a criminal charge (62) - is that "all aspects" of his dispute with the
authorities should be determined by a "tribunal". Article 130
para. 2 of the Constitution and section 41 (1) of the Administrative
Court Act - which one should not consider separately, since (as follows
from the above) they are clearly interrelated - bar such determination
by the Verwaltungsgerichtshof. Such is the core of the above
compromise. However, essentials do not allow of compromise.
_______________
62. In a judgment of the same date as its decision referred to in note
4 the Austrian Verfassungsgerichtshof has held that with regard to
criminal matters (im Bereich des Strafrechts) "the merely limited
control (die bloß nachprüfende Kontrolle)" of the
Verwaltungsgerichtshof did not meet the requirements of Article 6
para. 1 (art. 6-1). It is interesting to note (see Merli (note 4),
p. 257) that the Verfassungsgerichtshof did so although the Government
had relied in this case too on the analysis of Ringhofer (see note 59):
apparently, this analysis of its Vice-President impressed the
Verfassungsgerichtshof less than it did the European Court of Human
Rights!
To my mind this judgment of the Verfassungsgerichtshof with
regard to criminal matters is decisive since there is no ground to
distinguish between the requirements of a "tribunal" as far as the
determination of a criminal charge and that of civil rights and
obligations are concerned. The latter point has been conceded by the
Verfassungsgerichtshof: in its later case-law it has applied its
doctrine of the insufficiency of the Verwaltungsgerichtshof's
jurisdiction to administrative procedures which, in the European
Court's doctrine, concern "civil rights and obligations" within the
meaning of Article 6 para. 1 (art. 6-1), be it only if the rights at
stake can be said to belong to a special, self-created category of
"essentially civil rights" (see Holoubek, note 4).
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E. CONCLUSION
22. To sum up, neither the reasoning nor the outcome of the Zumtobel
doctrine is, in my opinion, acceptable. As compared with the Court's
previous achievements in the area under discussion, the Zumtobel
doctrine represents - clearly and deplorably - a step back. The Court
has tried to conceal this by referring, at the outset, to its "full
jurisdiction" doctrine (63). I hope that the foregoing considerations
have made it clear why that reference, in my opinion, is mere lip
service.
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63. See paragraph 28 of the present judgment.
_______________
For these reasons I have, firstly, but in vain, urged that the
present case be referred to a Grand Chamber and, secondly, voted for
the finding of a violation of Article 6 para. 1 (art. 6-1) on the basis
that the applicant's case was not heard by a tribunal within the
meaning of that provision.
II. THE AUSTRIAN RESERVATION
23. There is a second issue on which I wish to express my opinion,
although I have voted with the majority, namely the Austrian
reservation on Article 6 (art. 6) (64).
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64. For the text of the reservation, see paragraph 36 of the present
judgment.
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24. There were - in my opinion - three different possible ways of
dismissing the Government's plea based on this reservation:
(a) to hold that the reservation does not satisfy the
requirements of Article 64 para. 2 (art. 64-2) as construed in the
Court's Belilos v. Switzerland judgment (65) and, therefore, is
invalid;
(b) to hold that it does not apply to proceedings before the
Verwaltungsgerichtshof;
(c) to hold that it does not apply to the present refusal of oral
argument by the Verwaltungsgerichtshof.
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65. See note 1.
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25. Like the Commission the Court opted for possibility (c) (66).
I would, however, have preferred option (a).
_______________
66. See paragraph 41 of its judgment.
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To my mind option (c) has a rather artificial ring. The choice
of just that possibility may therefore suggest that the Court preferred
to avoid the other two options and may, on a subsequent occasion, be
lured into finding the reservation valid and applicable to proceedings
before the Verwaltungsgerichtshof. After all, as the Government have
stressed, the Court has already twice implicitly recognised the
reservation as valid and construed it broadly as encompassing
administrative proceedings also (67). Since in my opinion the a
fortiori construction of the Ringeisen judgment - which was followed
in the Ettl and Others judgment - is no longer tenable following the
Court's statement (in paragraph 59 of its Belilos judgment) that
reservations are to be construed stricto sensu, I do not like creating
the impression that the Court might be induced to maintain that old
construction. The less so because I think that it follows from the
Belilos judgment that the reservation is invalid (68). In this respect
I fully share the opinion of Mrs Liddy.
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67. See the Ringeisen v. Austria judgment of 16 July 1971, Series A
no. 13, p. 40, para. 98, and the Ettl and Others v. Austria judgment
of 23 April 1987, Series A no. 117, p. 19, para. 42.
68. This is also the prevailing opinion in Austria: see
C. Grabenwarter, Juristische Blätter, Jg. 116, p. 107, para. 5.
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CONCURRING OPINION OF JUDGE JAMBREK
I voted with the majority on all four points of the Court's
judgment. I am, however, of the opinion, that the principle, laid down
in paragraph 33 of the judgment (the European Court should confine
itself as far as possible to examining the question raised by the case
before it) should neither be phrased nor be applied in too restrictive
a way. Accordingly, the European Court should not hesitate also to
couch its findings in more general terms. In this respect, I would
recall the Court's recent description of the Convention "as a
constitutional instrument of European public order (ordre public)"
(Loizidou v. Turkey judgment of 23 March 1995, Series A no. 310, p. 24,
para. 75). It seems to me that reasoning not solely restricted to the
scope and the circumstances of the case would contribute better to the
quality of the Court's case-law in the service of the Convention as a
living constitutional instrument on European public order. In this
respect, my own views come close to the methodological objection raised
by Judge Martens in paragraph 16 of his separate opinion.