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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> STALLINGER AND KUSO v. AUSTRIA - 14696/89;14697/89 [1997] ECHR 21 (23 April 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/21.html
Cite as: (1998) 26 EHRR 81, [1997] ECHR 21, [1998] 26 EHRR 81, 26 EHRR 81
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In the case of Stallinger and Kuso 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 B (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr C. Russo,
Mrs E. Palm,
Mr I. Foighel,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr P. Jambrek,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 30 November 1996 and
18 March 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 12/1996/631/814-815. 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 of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 26 January 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in two applications
(nos. 14696/89 and 14697/89) against the Republic of Austria lodged
with the Commission under Article 25 (art. 25) by
four Austrian nationals, Mr Alois Stallinger and Mrs Amalia Stallinger
and Mr Johann Kuso and Mrs Elisabeth Kuso, on 16 November 1988 and
27 February 1989 respectively.
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 of the Convention (art. 6-1).
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicants stated that they wished
to take part in the proceedings and designated the lawyer who would
represent them (Rule 31). The lawyer was given leave by the President
of the Chamber to use the German language (Rule 28 para. 3).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality (Article 43
of the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in the
presence of the Registrar, the President of the Court, Mr R. Ryssdal,
drew by lot the names of the other seven members, namely Mr B. Walsh,
Mr C. Russo, Mrs E. Palm, Mr F. Bigi, Mr D. Gotchev, Mr P. Jambrek and
Mr P. Kuris (Article 43 in fine of the Convention and Rule 21 para. 5)
(art. 43). Subsequently Mr I. Foighel and Mr J. Makarczyk,
substitute judges, replaced Mr Bigi, who had died, and Mr Walsh, who
was unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Austrian Government ("the Government"), the applicants' lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in consequence,
the Registrar received the Government's and the applicants' memorials
on 1 October and 3 October 1996 respectively. The Commission produced
the file on the proceedings before it, as requested by the Registrar
on the President's instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 November 1996. 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 Department, Federal
Chancellery, Agent,
Mr D. Hunger, Federal Ministry of Agriculture
and Forestry,
Mrs E. Bertagnoli, International Law Department,
Federal Ministry for Foreign Affairs,
Mrs I. Siess, Constitutional Department,
Federal Chancellery, Advisers;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicants
Mr E. Proksch, Rechtsanwalt, of the Vienna Bar, Counsel.
The Court heard addresses by Mr Weitzel, Mr Proksch and
Mr Okresek and also replies to its questions.
AS TO THE FACTS
I. The circumstances of the case
6. The applicants are farmers. Mr and Mrs Stallinger live in
Rohrbach, Upper Austria; Mr and Mrs Kuso live in Au am Leithagebirge,
Lower Austria.
Their land was involved in agricultural land-consolidation
proceedings (Zusammenlegungsverfahren).
A. The case of Mr and Mrs Stallinger
7. In December 1980 the Linz District Agricultural Authority
(Agrarbezirksbehörde - "the District Authority") published a
consolidation scheme concerning the Harrau-Rohrbach area. Following
various appeals from the applicants the scheme was amended on
two occasions. The amended schemes were published in September 1983
and February 1986.
8. On 16 October 1986, the Upper Austria Land Reform Board
(Landesagrarsenat - "the Regional Board"), which included
five civil servants and three judges (see paragraph 24 below),
dismissed a further appeal by the applicants against the
third consolidation scheme. The decision was rendered after an
oral hearing had been held in camera. The applicants, assisted by
counsel and other interested parties, including the mayor of Rohrbach,
appeared before the Board.
9. Having regard to an official expert opinion and a
private expert opinion submitted by the applicants as well as to
further evidence including the result of investigations carried out on
the spot by the expert members of the Regional Board in the absence of
the parties, the Board found that the compensatory parcels allotted to
the applicants constituted adequate compensation in exchange for their
former properties.
The applicants' allegation that some of their former plots had
a higher value because of future construction possibilities was
considered to be unproven in view of the fact that the land in question
was classified as agricultural and was used as such. Furthermore, it
followed from statements made by community officials that no change was
foreseen for the future. The fact that a certain K., named as a
witness by the applicants, was willing to pay an important price for
the plots in question was therefore considered to be irrelevant.
10. On 24 September 1987 the Constitutional Court
(Verfassungsgerichtshof), holding that the applicants' complaint did
not have sufficient prospects of success, declined to accept it for
adjudication and referred the case to the Administrative Court
(Verwaltungsgerichtshof). The Constitutional Court made reference to
the European Court of Human Rights' Ettl and Others v. Austria judgment
of 23 April 1987 (Series A no. 117).
11. On 3 May 1988 the Administrative Court dismissed the complaint,
rejecting at the same time, in accordance with section 39 (2) no. 6 of
the Administrative Court Act (see paragraph 28 below), the applicants'
request for an oral hearing.
Whereas the applicants had argued that the expert members of
the Regional Board were prejudiced by their own expert opinion when,
as in the case at issue, the Regional Board had set aside a
consolidation scheme and subsequently dealt with a complaint against
the new scheme, the Administrative Court referred to its own case-law
and that of the Constitutional Court as well as to the above-mentioned
Ettl and Others judgment according to which the participation of
expert members in the decisions of the regional boards was legally
unobjectionable.
In so far as the applicants had complained that expert members
of the Regional Board had effected an investigation on the spot in the
applicants' absence, the Administrative Court stated that the procedure
followed was in line with procedural law. It also pointed out that,
at the time they were summoned to the appeal hearing, the applicants
were notified the result of the investigation and could make the
relevant observations at that hearing.
The Administrative Court further found that no objections could
be raised against the Regional Board's assessment as to whether
building on some of the applicants' former properties was likely to be
subsequently allowed.
B. The case of Mr and Mrs Kuso
12. In May 1974 the Lower Austria Agricultural District Authority
(Agrarbezirksbehörde - "the District Authority") published a
provisional consolidation scheme concerning the Au am Leithagebirge
area. Following an appeal from the applicants, the scheme was amended.
13. On 9 September 1975 the District Authority issued a new
consolidation scheme.
14. On 31 January 1979, after a series of appeals, the
Lower Austria Land Reform Board (Landesagrarsenat -
"the Regional Board") partly granted the appeal but dismissed the
applicants' complaint that the parcels of land allotted to them were
insufficient and that they had therefore received inadequate
compensation.
15. On 5 November 1980, on the applicants' further appeal, the
Supreme Land Reform Board (Oberster Agrarsenat) quashed the
Regional Board's decision and referred the case back to the
District Authority on the ground that some of the compensatory parcels
allotted to the applicants appeared to be insufficient.
16. On 30 January 1984 the District Authority published a new
scheme which was confirmed by the Regional Board on 18 December 1984.
The Board considered that the applicants had received adequate
compensatory plots.
17. On 26 November 1985 the Administrative Court set the decision
of 18 December 1984 partly aside on account of a breach of procedural
provisions.
18. On 17 February 1987 the Regional Board after an in camera
hearing but without having carried out supplementary investigations
again dismissed the applicants' appeal against the consolidation scheme
of 30 January 1984.
19. On 24 September 1987 the Constitutional Court declined to
accept for adjudication the applicants' complaint on the ground that
it had no chances of success and referred it to the
Administrative Court.
20. On 19 April 1988 the Administrative Court dismissed the
complaint rejecting at the same time, in accordance with
section 39 (2) no. 6 of the Administrative Court Act (see paragraph 28
below), the applicants' request for an oral hearing.
In dealing with the applicants' complaints that the hearing
before the Regional Board had not been public, the Administrative Court
referred to the case of Ettl and Others mentioned above, and held that
such hearings were covered by Austria's reservation in respect of
Article 6 of the Convention (art. 6). It further rejected the
allegation that the Board, which was called to decide on two
consecutive appeals in the same matter, was not on that account an
impartial tribunal within the meaning of Article 6 (art. 6).
21. The Administrative Court further considered that the Board had
remedied the procedural shortcomings in respect of which its earlier
decision had to be set aside. In fact it had now given a detailed and
unobjectionable assessment of the respective value of the applicants'
former properties as compared with the compensatory parcels. The court
also considered that further evidence offered by the applicants in this
respect had correctly been rejected by the Board as being irrelevant.
22. In so far as the applicants had submitted that their case had
not been sufficiently discussed at the hearing and that substitute
members (Ersatzmitglieder) of the Regional Board had therefore not
sufficiently been informed of all the issues, the court first pointed
out that only one of the members of the Board participating in the
hearing of the applicants' appeal had been a supplementary member and
in any case all members as well as the parties had had the opportunity
to put questions in order to see to it that the facts were exhaustively
and correctly established.
II. Relevant domestic law and practice
A. Article 90 para. 1 of the Federal Constitution
23. Article 90 para. 1 of the Federal Constitution provides:
"Hearings by trial courts in civil and criminal cases shall be
oral and public. Exceptions may be prescribed by law."
B. Composition of the regional land reform boards
24. Regional land reform boards are composed of eight members, all
appointed by the government of the Land of the Austrian Federation in
which it exercises jurisdiction (see section 5 (2) and (4) of the
Federal Agricultural Authorities Act (Agrarbehördengesetz) 1950, as
amended in 1974). These are:
one Land civil servant, who is legally qualified
(rechtskundig), and acts as chairman;
three judges;
a legally qualified Land civil servant with experience in
land reform, who acts as rapporteur;
a senior Land civil servant (Landesbeamter des höheren
Dienstes) with experience in agronomic matters;
a senior Land civil servant with experience in forestry
matters; and
an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrensgesetz).
For each of the above members a substitute member has to be
appointed (section 5 (3) of the Federal Agricultural Authorities Act).
C. Hearings before land reform boards
25. Section 9 (1) of the Federal Agricultural Proceedings Act
(Agrarverfahrensgesetz) provided as follows:
"Land reform boards take their decisions after an oral hearing
in the presence of the parties."
It is the constant practice of administrative authorities to
hold oral hearings in camera unless the law provides otherwise.
26. By virtue of legislation enacted in December 1993
(Bundesgesetzblatt no. 901, p. 7160), hearings before
land reform boards are now public.
D. Hearings before the Administrative Court
27. Pursuant to section 36 of the Administrative Court Act
(Verwaltungsgerichshofgesetz), 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) no. 1 and 40 (4)).
28. Section 39 (1) of the Administrative Court Act provides that
the Administrative Court is to hold a hearing after its preliminary
investigation of the case where a complainant has requested a hearing
within the time-limit. Section 39 (2) no. 6, which was added to the
Act in 1982, provides however:
"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."
PROCEEDINGS BEFORE THE COMMISSION
29. Mr and Mrs Stallinger applied to the Commission on
16 November 1988; Mr and Mrs Kuso on 27 February 1989. They relied on
Article 6 para. 1 of the Convention (art. 6-1), complaining that the
land reform boards could not be regarded as independent and impartial
tribunals established by law and that they did not have a public
hearing. Under Article 1 of Protocol No. 1 (P1-1), the applicants
further complained that the new land assigned to them under the
consolidation arrangements yielded less than their former properties.
30. On 17 October 1991 the applications were joined (nos. 14696/89
and 14697/89). On 29 March 1993 the Commission declared the
applications admissible as far as the complaints under Article 6
para. 1 (art. 6-1) were concerned. In its report of 7 December 1995
(Article 31) (art. 31), it expressed the unanimous opinion
(a) that there had been no violation of the applicants' right
to the determination of their civil rights and obligations by "an
independent and impartial tribunal established by law";
(b) that there had been a violation of the applicants' right
to a public hearing;
(c) that there had been no violation of Mr and Mrs Stallinger's
right to a fair hearing.
The full text of the Commission's opinion is reproduced as an
annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
31. The applicants asked the Court to hold that Article 6 para. 1
of the Convention (art. 6-1) had been violated in their case on account
of the composition and procedure of the land reform boards.
32. The Government requested the Court to hold that Article 6 of
the Convention (art. 6) had not been violated in the case at issue.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
33. The applicants alleged a breach of Article 6 para. 1 of the
Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal ..."
Before the Court, the applicants' complaints concerned the
alleged lack of independence and impartiality of land reform boards as
well as the lack throughout the proceedings of a public hearing before
a "tribunal".
The Government disputed these contentions; the Commission only
agreed with the applicants that their right to a public hearing had not
been respected.
A. Right to an "independent and impartial tribunal"
34. The applicants submitted that the Regional and Supreme
Land Reform Boards could not be considered independent and impartial
tribunals within the meaning of Article 6 para. 1 of the Convention
(art. 6-1). Regional boards, in particular, are administrative bodies
composed of civil servants whose task is to decide on issues arising
from land-consolidation measures which are, themselves, of an
administrative nature. In this context, the applicants concentrated
their complaint on the role played by the expert members of the boards:
on an appeal, only they would visit the sites and draft a report which
may contain proposals for amendment of the consolidation measures;
subsequently, they would take part in the boards' secret deliberations,
where they would defend their proposals and eventually vote on their
merits. The fact that the parties were not allowed to make allegations
in respect of such proposals - which were not even communicated to them
- meant that the proceedings could not be considered adversarial.
35. The Government pointed out that the expert members of the
regional boards were not to be confounded with the ad hoc experts that
the boards could appoint in accordance with the provisions on
administrative procedure. They invited the Court to reach the same
conclusion as it did in the case of Ettl and Others v. Austria
(judgment of 23 April 1987, Series A no. 117) and dismiss the
complaint.
36. The Commission did not find any circumstances in the
present case that would justify departing from the existing case-law,
in particular reference to the principles established in the
Ettl and Others judgment (ibid.).
37. The Court notes that, with regard to the membership of and
procedure before land reform boards, the legal situation obtaining in
the present case was identical to that which it was called on to
examine in the case of Ettl and Others. The present applicants placed
particular emphasis on the characteristics of the role of the
expert members of the regional boards, which allegedly call into
question the boards' impartiality and the adversarial character of the
proceedings before them. However, as stated in the
Ettl and Others judgment (pp. 18-19, para. 40), "such experts are
needed in cases concerning land consolidation, which is an operation
that raises issues of great complexity and affects not only the owners
directly concerned but the community as a whole." On that occasion the
Court found that the fact that civil servants sat on account of their
experience of agronomy, forestry and agriculture, could not give rise
to doubts about the independence and impartiality of the boards
(ibid.). Furthermore, the Court noted that where these civil servants
prepare a written opinion on a given issue, the law requires "that it
be communicated to the parties, who must be given an opportunity to
submit their comments" (ibid.). Against that background the Court held
that the adversarial nature of the proceedings before the boards was
"unaffected by the participation of the 'civil-servant experts'"
(ibid.).
The applicants have failed to identify any convincing reason
why the Court should depart from its case-law. The Court therefore
finds no breach of the applicants' right under Article 6 para. 1
(art. 6-1) to have their case determined by "an independent and
impartial tribunal".
B. Right to a "public hearing"
38. The applicants further complained that the hearings before the
regional boards were not public and that the Administrative Court had
refused to hold a hearing.
39. Hearings in civil matters are subject in principle to a
reservation Austria made when ratifying the Convention. Although the
lack of a public hearing was held by the Court in its
Ettl and Others judgment (cited above, p. 19, para. 42) to be covered
by the Austrian reservation, the application of the latter in the
present case as well as its validity under the Convention have been
contested. The Court will therefore first have to ascertain if the
reservation in issue applies in the present case.
1. Austria's reservation
40. Austria's reservation in respect of Article 6 of the Convention
(art. 6) reads as follows:
"The provisions of Article 6 of the Convention (art. 6) 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 23 above)
41. Article 64 of the Convention (art. 64) 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."
42. In the Commission's view, Austria's reservation in respect of
Article 6 of the Convention (art. 6) is invalid for failure to comply
with the requirements of Article 64 para. 2 (art. 64-2), in that it
does not contain a "brief statement" of the laws concerned. In those
circumstances, the Commission did not find it necessary to examine
whether the reservation complied with the other requirements of
Article 64 (art. 64).
43. The Government again drew a parallel between the instant case
and that of Ettl and Others (cited above), in which the Court had held
that the reservation applied in proceedings before a court dealing with
issues of land consolidation. In their view, even if Article 90 of the
Federal Constitution (see paragraph 23 above) 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", as that concept has been interpreted by the
Convention organs. The same conclusion could be reached by looking at
the intention of the Federal Government at the time of making the
reservation.
44. The Government further sought to distinguish the present case
from that of Belilos v. Switzerland (judgment of 29 April 1988,
Series A no. 132), where the Court had held, inter alia, that the
requirement that the reservation contain a brief statement of the law
concerned, as "a condition of substance", had not been respected
(pp. 27-28, para. 59). In their submission, the reservation in issue
refers to all forms of procedures where a decision is taken which
concerns civil rights or criminal charges. The requirements of legal
certainty were thus satisfied.
45. The Court must therefore ascertain whether Austria's
reservation in respect of Article 6 (art. 6) covers the applicants'
alleged right to a "public hearing" in the present case.
46. By virtue of section 9 (1) of the
Federal Agricultural Proceedings Act (see paragraph 25 above), at the
material time hearings before land reform boards were only open to the
parties concerned and not to the public at large. However, in order
to comply with the requirements of Article 6 para. 1 (art. 6-1) it is
sufficient if that shortcoming is remedied in the course of subsequent
control to be carried out by a "judicial body that has full
jurisdiction" (see, mutatis mutandis, the Albert and Le Compte
v. Belgium judgment of 10 February 1983, Series A no. 58, p. 16,
para. 29; and the Ortenberg v. Austria judgment of 25 November 1994,
Series A no. 295-B, pp. 49-50, para. 31). It has not been suggested
that in the instant case the scope of the Administrative Court's
control was not sufficient.
47. The Court notes that the applicants expressly requested a
hearing before the Administrative Court but were refused
(see paragraphs 11 and 20 above). It thus has to be determined whether
the powers under which the Administrative Court acted, namely
section 39 (2) no. 6 of the Administrative Court Act (see paragraph 28
above), are covered by Austria's reservation.
48. In this respect the Court observes that that provision 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. It must therefore be concluded that the
applicants' complaint that the Administrative Court did not hold a
hearing is not excluded from review by the European Court on account
of 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 (see the Fischer v. Austria judgment of
26 April 1995, Series A no. 312, pp. 19-20, para. 41).
49. 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 of
the Convention (art. 64-1, art. 64-2) (ibid., p. 20, para. 42).
2. Compliance with Article 6 para. 1 of the Convention
(art. 6-1)
50. It remains to be examined whether in the present case Article 6
para. 1 (art. 6-1) conferred on the applicants the right to a public
hearing.
51. As stated above (see paragraph 46), only hearings in the
Administrative Court are at stake, hearings before land reform boards
not being open to the public. The Court notes that the practice of the
Administrative Court is not to hear the parties unless one of them asks
it to do so (see paragraphs 27 and 28 above). However, the present
applicants expressly requested an oral hearing in the
Administrative Court. This was refused on the ground that it was not
likely to clarify the case further (see paragraph 28 above).
Since the Government have not identified any exceptional
circumstances that might have justified dispensing with a hearing, the
Court considers that the Administrative Court's refusal amounted to a
violation of the applicants' Article 6 (art. 6) right to a "public
hearing".
C. Other complaints
52. Before the Commission Mr and Mrs Stallinger complained that the
fact that they were never summoned to the in situ inspection of the
land by the expert members of the Regional Board infringed their right
to a fair hearing. This complaint has not been pursued before the
Court, which sees no reason to entertain it of its own motion.
D. Conclusion
53. The Court finds that there has been a violation of Article 6
para. 1 of the Convention (art. 6-1).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
54. Article 50 of the Convention (art. 50) 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. Damage
55. The applicants submitted that the damage resulting from the
improper procedure to which they were subject amounted to a total of
400,000 Austrian schillings (ATS).
56. 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 a public hearing taken place.
57. Like the Delegate of the Commission, the Court observes that
the applicants have not sought to substantiate their claim for just
satisfaction under Article 50 (art. 50). Similarly, no
characterisation of the damage allegedly suffered has been put forward.
In any event, in so far as the claim may concern damage of a pecuniary
nature, the Court cannot speculate as to the outcome of the proceedings
had a public hearing taken place before the Administrative Court; the
claim must therefore be rejected. As to any non-pecuniary damage that
may have been sustained, the Court considers that the finding of a
violation of the Convention provides sufficient just satisfaction for
the purposes of Article 50 (art. 50).
B. Costs and expenses
58. The applicants further claimed ATS 200,000 in respect of costs
and expenses incurred in the domestic proceedings and in those before
the Strasbourg institutions.
59. The Government found the sum excessive. In their contention,
a global sum of ATS 30,000 would represent a reasonable compensation
for all relevant costs and expenses.
The Delegate of the Commission submitted that the amount
claimed under this head did not seem to be exaggerated.
60. The Court notes that, as to the costs incurred in the
domestic proceedings, only those related to the request for a public
hearing are of relevance. Since only one of the three complaints
declared admissible by the Commission has led to the finding of a
violation, the Court, making an assessment on an equitable basis as
required by Article 50 (art. 50), awards the applicants ATS 120,000 in
respect of costs and expenses.
C. Default interest
61. According to the information available to the Court, the
statutory rate of interest applicable in Austria at the date of
adoption of the present judgment is 4% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 6 para. 1 of
the Convention (art. 6-1) as regards the applicants' complaint
that they were not able to bring their case before an
independent and impartial tribunal;
2. Holds that there has been a violation of Article 6 para. 1 of
the Convention (art. 6-1) on account of the lack of a public
hearing before the Administrative Court;
3. Holds that the present judgment in itself constitutes
sufficient just satisfaction for any non-pecuniary damage
sustained;
4. Holds
(a) that the respondent State is to pay the applicants, within
three months, in respect of costs and expenses,
120,000 (one hundred and twenty thousand) Austrian schillings;
(b) that simple interest at an annual rate of 4% shall be
payable from the expiry of the above-mentioned three months
until settlement;
5. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 April 1997.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar