Richard SCHELLING v Austria - 46128/07 [2010] ECHR 2196 (16 September 2010)

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The European Court of Human Rights (First Section), sitting on 16 September 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou,

The applicant, Mr Richard Schelling, is an Austrian national who lives in Langenegg. He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 August 1988 the applicant had applied for a permit under the Landscape Protection Act (Landschaftsschutzgesetz) to put a culvert through a drain on agricultural land owned by him. On 14 September 1988 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) conducted an oral hearing at the applicant's request and inspected his land. On 21 June 1990 the District Administrative Authority refused the requested permission. The applicant appealed.

On 2 April 1991 the Vorarlberg Regional Government (Landesregierung) dismissed the applicant's appeal.

On 28 May 1991 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Regional Government's decision. On 6 May 1996 the Administrative Court quashed the Regional Government's decision on the ground of procedural deficiencies and remitted the case to them for reconsideration.

On 26 May 1997 the applicant lodged a complaint with the Administrative Court against the administrative authorities' failure to decide (Säumnisbeschwerde).

On 10 July 1997 the Administrative Court ordered the Regional Government to issue a decision within three months. Subsequently, the Regional Government appointed an expert on agriculture and forestry issues, who, after inspecting the applicant's land on 19 August 1997, delivered his opinion on 22 August 1997.

On 4 November 1998 the Administrative Court requested the Regional Government to order another expert, A., to submit an additional expert opinion on nature conservation issues, which A. delivered on 12 January 1999.

Subsequently, on 25 January 1999, the Regional Government invited the applicant to submit comments on the experts' opinions on nature conservation and agricultural and forestry issues. On 24 February 1999 the applicant submitted comments on these opinions and requested a public hearing.

On 6 July 1999 the Administrative Court dismissed the applicant's appeal against the District Authority's decision of 21 June 1990 concerning the request for permission under the Landscape Protection Act. It found that competence to decide on the merits had passed over to it since the Regional Government had failed to make a decision within the three-month time-limit set.

The Administrative Court held that it could dispense with an oral hearing and an inspection of the applicant's land since the proceedings had been carried out correctly and the facts, in so far as relevant in view of the applicable law, were undisputed. This decision was served on the applicant's counsel on 12 August 1999.

On 11 February 2000 the applicant lodged a complaint before the Court, arguing, inter alia, that the proceedings had been unreasonably long and that they had been unfair as no oral hearing had taken place before the Administrative Court. The application was registered under number 55193/00. The Court issued a partial decision on admissibility on 29 April 2003, in which it declared the complaint about the duration of the proceedings inadmissible as being manifestly ill-founded. In a final decision on admissibility issued on 25 November 2004 the Court declared the complaint about the lack of an oral hearing before the Administrative Court admissible.

By a judgment of 10 November 2005 the Court found a violation of Article 6 of the Convention, since the Administrative Court had not held an oral hearing. In particular, the Court held in the judgment:

“29. The Court notes that the applicant's case was considered, in a first round, by the Bregenz District Administrative Authority, and the Regional Government, i.e. purely administrative authorities, and then by the Administrative Court, which quashed the latter authority's decision. In a second round, the Regional Government failed to decide within the statutory time-limit and jurisdiction passed on to the Administrative Court. The applicant did not contest that the Administrative Court qualifies as a tribunal, and there is no indication in the file that the Administrative Court's scope of review was insufficient in the circumstances of the case (see, for instance, Fischer v. Austria, judgment of 26 April 1995, Series A no. 312, pp. 17-18, §§ 30-34 with further references). Thus, the Administrative Court was the first and only tribunal which examined the applicant's case.

30. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public, has been found to be invalid (see, Eisenstecken v. Austria, no. 29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public oral hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing. The Court has accepted such exceptional circumstances in cases where proceedings concerned exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, p. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In particular, the Court had regard to the rather technical nature of disputes over benefits under social-security schemes and has repeatedly held that in this sphere the national authorities, having regard to the demands of efficiency and economy, could abstain from holding a hearing if the case could be adequately resolved on the basis of the case-file and the parties' written observations (see, amongst others, Döry v. Sweden, cited above).

31. Turning to the circumstances of the present case, the Court notes that the applicant commented on the expert opinions submitted in the previous proceedings and requested, in particular, that the experts be summoned to an oral hearing and that the concerned land be inspected by the court. He stressed that the project would improve the productivity of the agricultural land and that therefore public interest existed in the realisation of his project as required under the applicable law. He also challenged the expert A. for bias as he had already delivered an opinion upon a request by the Regional Government and that his independence was doubtful as he was a civil servant bound by instructions.

32. The Court cannot find that in the present case the subject matter of the proceedings before the Administrative Court was of such a nature, namely a highly technical issue or of mere legal nature, as to dispense its obligation to hold a hearing.

33. There has accordingly been a violation of Article 6 § 1 of the Convention.”

In view of this finding of a violation the Court did not consider it necessary to examine the complaints about the alleged unfairness of the proceedings. The Court did not award the applicant compensation for pecuniary damage, holding that it could not speculate as to the outcome of the proceedings. The Court also dismissed the claims for non-pecuniary damage, holding that the finding of a violation constituted sufficient just satisfaction. The judgment became final on 10 February 2006.

On 21 February 2006 the applicant applied to the Administrative Court to reopen proceedings. He relied on the Court's judgment of 10 November 2005 and, since the Court had not awarded him damages, argued that the Court had assumed that restitution was possible at the national level. The applicant further contended that the opinion of the expert on nature conservation on which the decision had been based was in contradiction to other findings in the file. As this would constitute a violation of the principle of equality of arms, the applicant asked for another expert to be summoned to a hearing.

By a decision of 26 February 2007 the Administrative Court refused to reopen proceedings. Relying on Section 45 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), it held that reopening was only provided for by law if the provisions on the right to be heard had not been complied with in the previous proceedings, and if it could be assumed that the outcome of the proceedings would have been different if the right to be heard had been observed. The Administrative Court considered that the applicant had failed to argue which submissions he could have made at a hearing which would have led to a different outcome of the proceedings. It therefore refused to grant a reopening of the proceedings. It also held that the law did not provide that a judgment of the Court finding a violation of Article 6 of the Convention should automatically lead to the reopening of proceedings.

The Committee of Ministers, which supervises the execution of judgments of the Court in accordance with Article 46 § 2 of the Convention, has not yet adopted a Final Resolution.

“§ 45. (1) The reopening of proceedings which have been concluded by a judgment or decision shall be granted, on an application by a party, if ...

4. in the proceedings before the court the rules on the right to be heard have not been complied with and it can be assumed that the judgment or decision would otherwise have been different ...”

For the purpose of the present application, the relevant parts of Article 6 of the Convention read as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... within a reasonable time... by [a] ... tribunal ...”

According to the applicant, the period to be taken into consideration started when the decision of the Administrative Court of 6 May 1996 was served on counsel on 28 May 1996. The Administrative Court remitted the case to the Regional Government, which failed to issue a decision within a reasonable time; when the decision was eventually issued, the applicant complained about it to the Administrative Court, which dismissed it on 6 July 1999. That decision was served on the applicant's counsel on 12 August 1999. The duration complained about was thus three years and three months, and according to the applicant the case was not that complex.

The Court notes that this complaint concerns the same facts as the case brought by the applicant in application no. 55193/00 (see above). That complaint was declared inadmissible as manifestly ill-founded in the Court's partial decision as to the admissibility of 29 April 2003. According to Article 35 § 2 (b) of the Convention, the Court shall not deal with any application submitted under Article 34 of the Convention that is substantially the same as a matter that has already been examined by the Court. It follows that the complaint is thus inadmissible.

B. The complaint regarding the refusal to reopen proceedings by the Administrative Court

The applicant argues that since the Court found that the lack of a hearing before the Administrative Court constituted a violation of Article 6 of the Convention, the refusal of the Administrative Court to reopen proceedings constitutes a continuous violation of Article 6 of the Convention.

According to the applicant, the Administrative Court is also obliged to reopen proceedings because of the fact that no compensation for pecuniary or non-pecuniary damage was granted, as Article 41 of the Convention only provides for compensation if the internal law of the member State concerned allows for only partial reparation for a violation of the Convention. Furthermore, the refusal to reopen proceedings violates Article 46 § 1 of the Convention, as the Administrative Court's decision did not give effect to the Court's final judgment.

The applicant complains that the refusal to reopen proceedings also amounted to a new violation of Article 6 of the Convention.

As regards this complaint under Article 6, the Court considers it necessary to examine whether the present complaint is compatible with Article 6 of the Convention ratione materiae. According to the Court's case-law, Article 6 § 1 of the Convention does not guarantee a right to have proceedings reopened, and does thus not apply to applications for the reopening of proceedings (see, inter alia, Zawadzki v. Poland (dec.), no. 34158/96, 6 July 1999; Sablon v. Belgium, no. 36445/97, § 86, 10 April 2001; and Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010). Thus the Court finds that the complaint about the refusal to reopen proceedings is as such incompatible ratione materiae with Article 6 § 1 of the Convention. Furthermore, the applicant did not complain about any procedural unfairness in the proceedings for reopening.

The other complaint under Article 6 of the Convention was that a new violation had occurred by refusing to reopen the proceedings following the Court's finding of a violation of Article 6 in those proceedings, and that by this refusal, the state had failed to give effect to the Court's finding that he had not received a fair hearing.

Under Article 46 § 1 of the Convention, the States undertake to abide by the final judgment of the Court. According to the Court's jurisprudence, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII).

Under Austrian law, section 45 of the Administrative Court Act provides that there is a possibility to have proceedings re-opened. Re-opening will not occur automatically, but is subject to conditions, namely, a violation of a party's right to be heard in the previous proceedings, and the possibility that there would have been a different outcome of the case if the party had been duly heard. This is not in itself at variance with Article 46 § 1 of the Convention. In the present case the Administrative Court found that the applicant had failed to comply with section 45 of the Administrative Court Act in that he had not specified which arguments he had been prevented from submitting and to what extent these arguments might have lead to a different outcome of the case if there had been a hearing. In these circumstances the Court does not find any indication of a failure to comply with the obligations under Article 46 § 1 of the Convention.

Furthermore, the Court observes that under Article 46 § 2 of the Convention it is for the Committee of Ministers to supervise the execution of the Court's judgments. However, the Court reiterates that measures taken by a respondent State to implement a judgment delivered by the Court can become the subject of a new application that may be dealt with by the Court, if such an application raises a new issue that was not decided by the previous judgment (see, mutatis mutandis, Oberschlick v. Austria (dec.), nos. 19255/92 and 21655/93, ECHR 16 May 1995; Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003 IV; and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009 ...).

The Administrative Court noted that the Court had found a violation of Article 6 the Convention, However, as was already pointed out above, the Administrative Court dismissed the applicant's request for a re-opening of the proceedings on the ground that he had failed to comply with the conditions laid down in section 45 of the Administrative Court Act. The Court therefore finds that the Administrative Court's refusal was not connected with relevant new grounds capable of giving rise to a fresh violation of Article 6 § 1 of the Convention (see, mutatis mutandis, also Steck-Risch and Others v. Liechtenstein (dec.), cited above).

In view of the considerations above, the Court concludes that the present case raises no issues under Article 46 of the Convention.

Finally regarding the applicant's argument under Article 41 of the Convention, the Court notes that it had not awarded the applicant any pecuniary damages in its judgment of 10 November 2005 in application no. 55193/00 (see above), finding that it could not speculate what the outcome of the proceedings would have been if they had been in conformity with Article 6 of the Convention. As regards non-pecuniary damages, the Court did not award them either, considering that the finding of a violation constituted sufficient just satisfaction for any non-pecuniary damage. In the Court's view no conclusion can be drawn from this as regards reopening of the proceedings.

The Court would observe that the above-mentioned considerations are not intended to detract from the importance of ensuring that domestic procedures are in place which allow a case to be revisited in the light of a finding that Article 6 of the Convention has been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments and their availability demonstrates a Contracting State's commitment to the Convention and to the Court's case-law (see, inter alia, Lyons, cited above). The Court fully agrees on this issue with Recommendation No. R (2000) 2 adopted by the Committee of Ministers, in which the State Parties to the Convention are called upon to ensure that there are adequate possibilities of reopening proceedings at domestic level where the Court has found a violation of the Convention. It confirms that such measures may represent “the most efficient, if not the only, means of achieving restitutio in integrum” (see Verein gegen Tierfabriken Schweiz (VgT) (no. 2), cited above, §§ 33 and 89).

However, having regard to the considerations set out above, the Court finds that it is not competent to examine the applicants' complaint, and rejects the present application as incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Richard SCHELLING v Austria - 46128/07 [2010] ECHR 2196 (16 September 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2196.html Cite as: [2010] ECHR 2196