In the case of Schädler-Eberle v. Liechtenstein,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Angelika Nußberger, President,
Mark Villiger,
Boštjan M. Zupančič,
Ann Power-Forde,
André Potocki,
Paul Lemmens,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 18 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
56422/09) against the Principality of Liechtenstein lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Liechtenstein national, Ms Karolina Schädler-Eberle
(“the applicant”), on 14 October 2009.
The applicant was represented by Mr W.L. Weh, a
lawyer practising in Bregenz, Austria. The Liechtenstein Government (“the
Government”) were represented by Ms A. Frick, Minister of Justice, and by their
Agent, Mr D. Ospelt, Ambassador Extraordinary and Plenipotentiary, Permanent
Representative of Liechtenstein to the Council of Europe.
The applicant alleged, in particular, that the
Administrative Court’s refusal to take evidence in an adversarial manner in a
public, oral hearing had violated her rights under Article 6 of the Convention.
On 24 January 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1925 and lives in
Triesenberg.
A. Background to the case
On 25 and 27 February 2000 a land development
plan (Zonenplan) was adopted by referendum in the Municipality of
Triesenberg. According to that plan, two plots of land owned by the applicant
fell within a zone in which the construction of buildings was not authorised.
B. The municipality’s decision
By submissions of 28 March 2000 the applicant,
who was represented by counsel throughout the proceedings, lodged an objection
with the Municipality of Triesenberg. She contested the lawfulness of the land
development plan, which she considered in breach of her right to equality and
to protection of her property and requested that the plots of land in question
be designated as building land.
On 15 November 2000 the Municipality of
Triesenberg dismissed the applicant’s objection. It found, in particular, that
the applicant’s plots of land were not fully developed for lack of complete
water installations. Her real property had not been classified as building land
in the municipality’s land development plan at issue, which was the first land
development plan ever adopted for the area in question, for reasons of
protection of the environment and of the landscape as the plots of land were
situated outside the area inhabited throughout the year. It had been justified
to treat the area in which the applicant’s plots of land were situated in a
different manner than three areas which were fully developed and on large parts
of which buildings had already been erected.
The decision was issued and sent to the applicant
on 22 January 2001.
C. The Government’s decision
On 27 and 28 April 2004 the Liechtenstein
Government dismissed the complaint made by the applicant on 7 February 2001
about the municipality’s decision. They considered the land development plan to
be lawful. Endorsing the reasons given by the municipality, they argued, in
particular, that even if the applicant’s plots of land may have been building
land under the provisional building rules of 1983, the applicant did not have a
claim that her plots of land, which were not fully developed, should be
designated as building land in the municipality’s first land development plan.
That plan defined the use of the real property covered by it for the first time
in accordance with the law. The citizens of Triesenberg had been aware that
there would be a land development plan, as prescribed by law, in the future and
the authorities had not undertaken to designate the applicant’s plots of land
as building land. The Government considered that it had not been necessary to
hear the parties in person or to inspect the property in question as the
relevant facts were clear from the applicant’s submissions and the documents
relating to the land development plan.
D. The proceedings before the Administrative Court
On 14 May 2004 the applicant lodged a complaint
against the Government’s decision with the Liechtenstein Administrative Court (Verwaltungsgerichtshof).
She requested the Administrative Court to obtain certain documents concerning
the land development plan from the municipality, to hold a public oral hearing,
to designate her plots of land as building land or to grant her compensation
for her factual expropriation and to declare the referendum adopting the land
development plan void. The applicant further asked the court to question
several witnesses whose submissions would show that the referendum had been
manipulated.
On 2 June 2004 the Municipality of Triesenberg
submitted observations to which the applicant replied on 12 June 2004.
On 14 June 2004 the Municipality of Triesenberg
submitted further documents and photographs on the court’s request. The court
informed the applicant thereof and further obtained the Government’s file and
extracts from the land register on the plots of land in question.
On 30 June 2004 the Administrative Court,
without having held a public oral hearing, dismissed the applicant’s complaint.
The Administrative Court found that there was
nothing to indicate that Triesenberg’s land development plan as submitted to
the citizens and as adopted by referendum had breached the applicant’s
legitimate expectations that her real property be designated as building land.
Even assuming that, as alleged by the applicant, prior to the referendum on the
land development plan, officials of the municipality had raised her hopes that
the applicant’s plots of land could be designated as building land at some
point in the future, it was clear that in the land development plan to be
adopted by referendum, those plots of land were not designated as building
land. Therefore, it was not necessary to take the evidence offered by the
applicant or to hold a public oral hearing.
Having regard to the documents submitted by the
applicant, there was also no proof that the referendum of 25 and 27 February
2000 had been unlawfully manipulated.
E. The proceedings before the Liechtenstein
Constitutional Court
1. The parties’ submissions before the Constitutional
Court
On 26 August 2004
the applicant, who was from then on represented by counsel, lodged a
constitutional complaint with the Liechtenstein Constitutional Court against
the decision taken by the Administrative Court.
The applicant complained under Article 6 of the
Convention that despite her express request and despite the fact that none of
the authorities previously involved in the proceedings had held an oral
hearing, the Administrative Court had refused to take evidence in an
adversarial manner in an oral public hearing, contrary to its practice in
comparable cases. In particular, it had not examined the witnesses she had
named. Instead, that court had taken a lot of evidence and had obtained
observations and replies only in a written procedure.
Referring to her complaints made before the
Administrative Court, she further complained under Article 6 of the Convention
about the procedure of adoption of the land development plan in Triesenberg.
Relying on Article 1 of Protocol no. 1 to the Convention, she also argued that
the unlawful land development plan had disproportionately interfered with her
property rights.
The applicant requested the Constitutional Court
to hold an oral hearing.
In its reply to the applicant’s observations,
the Administrative Court confirmed that, contrary to previous proceedings
before it in which Triesenberg’s land development plan had been at issue, it
had indeed not held a public oral hearing in the applicant’s case. It argued
that the situation of the plots of land concerned was commonly known and clearly
shown on the photographs in the file and that the applicant had been given the
opportunity to comment on the few documents obtained by it in writing.
Moreover, in proceedings concerning land development, it did not, as a rule,
hold public oral hearings.
On 15 May 2006 the Liechtenstein Constitutional
Court held a public hearing. The composition of the court subsequently changed,
without a new hearing being held despite the applicant’s request.
2. The Constitutional Court’s judgment
On 4 November 2008 the Constitutional Court, in
its deliberations in private, decided to dismiss as inadmissible the applicant’s
request to declare void the referendum of 25 and 27 February 2000 on the land
development plan in the Municipality of Triesenberg as the applicant had failed
to lodge a separate complaint in respect of that referendum with the
Government. It further rejected the remainder of the applicant’s complaints as
ill-founded. It found, however, ex officio that the applicant’s right to
a hearing within a reasonable time under the Liechtenstein Constitution and
Article 6 § 1 of the Convention had been violated in the proceedings before it
as the proceedings had been too long. It ordered that therefore, Liechtenstein
was to bear the applicant’s costs of the proceedings, amounting to statutory
lawyer’s fees of some 2,960 Swiss francs (CHF), and the court costs, amounting
to CHF 1,700 (file no. StGH 2004/58).
The Constitutional Court’s judgment, served on
the applicant’s counsel on 14 April 2009, gave the following reasons.
(a) Lack of a public oral hearing before the
Administrative Court
As regards the applicant’s complaint that the
Administrative Court had failed to hold a public oral hearing, the
Constitutional Court found that under Article 6 § 1 of the Convention, which
the applicant could rely on in the proceedings before it, as a rule, an oral
hearing had to be held.
However, when ratifying the Convention,
Liechtenstein had made extensive reservations concerning, inter alia,
the publicity of hearings as prescribed by Article 6 § 1. That reservation was
to be considered as complying with Article 57 of the Convention. Even though
some of the statutes to which the reservation applied had been changed in the
meantime, such as the Constitutional Court Act, the reservation concerning the
publicity of the proceedings has not been withdrawn.
In determining whether the proceedings before
the Administrative Court complied with the Constitution, the Constitutional
Court found that the National Administrative Justice Act (Gesetz über die
allgemeine Landesverwaltungspflege) of 21 April 1922 (see paragraph 36
below) was applicable to the proceedings before the Administrative Court. It
considered the reservation made by Liechtenstein in relation to Article 6 § 1
of the Convention, as far as, inter alia, that Act was concerned, to be
valid. Therefore, the requirement of a public hearing, and thus the requirement
of an oral hearing under Article 6 § 1 of the Convention did not apply to the
proceedings before the Administrative Court.
The Constitutional Court noted, however, that
under its recent case-law, the principle of a public hearing had to be
considered as a vital aspect of the right to a fair trial and was thus part of
the foundations of a democratic State governed by the rule of law. The
applicant could be understood to have also complained about the lack of a fair
trial as she had complained under Article 6 of the Convention that the
Administrative Court had refused to take evidence in an adversarial manner in
the course of a public oral hearing. The right to a fair trial under Article 6
§ 1 was not covered by any reservation made by Liechtenstein when ratifying the
Convention and was also protected by the Liechtenstein Constitution. The
European Court of Human Right’s case-law on the scope of the right to a fair
trial under Article 6 therefore had to be taken into account in the proceedings
at issue.
The Constitutional Court noted that under
Article 100 § 4 of the National Administrative Justice Act (see paragraph 36
below), the Administrative Court had discretion in deciding whether or not to
hold an oral hearing, but it had to exercise that discretion in accordance with
fundamental procedural rights. The Administrative Court had argued that an oral
hearing had not been necessary because the applicant’s submissions, even if
correct, did not warrant the conclusion that the land development plan was
unlawful. In the proceedings before the Constitutional Court, the
Administrative Court had further argued that the situation of the plots of land
concerned had been commonly known and clearly shown on the photographs in the
file.
The Constitutional Court agreed that the
Administrative Court had been in a position to determine all factual and legal
questions by having regard to the parties’ written observations and the
documents contained in the file. Moreover, the legal question whether in the
course of the referendum on the land development plan the principles of good
faith and of the protection of legal interests had been respected and whether
the referendum had been manipulated had not been complex.
Therefore, having regard to the principles
developed in the Strasbourg Court’s case-law concerning a public oral hearing
(the court referred, in particular, to Schuler-Zgraggen v. Switzerland,
24 June 1993, Series A no. 263; Speil v. Austria (dec.), no. 42057/98, 5
September 2002; and Vilho Eskelinen and Others v. Finland [GC], no.
63235/00, ECHR 2007-IV), the applicant’s right to a fair trial had not
been violated by the Administrative Court’s refusal to hold a public oral
hearing. The Administrative Court had thus exercised its discretion under
Article 100 § 4 of the National Administrative Justice Act in accordance with
fundamental procedural rights.
(b) The remainder of the applicant’s complaints
The Constitutional Court considered that the
applicant had failed to exhaust domestic remedies in relation to her further
complaints under Article 6 and Article 1 of Protocol no. 1 of the Convention
because she had not submitted these complaints to the lower authorities and the
Administrative Court.
The Constitutional Court further argued that, in
any event, the land development plan had not breached the applicant’s right to
property. The failure to designate the applicant’s plots of land as building
land in the municipality’s first land development plan did not deprive her of a
possession, but merely regulated the use of her real property. There were also
no exceptional circumstances indicating that the applicant’s real property had
to be designated as building land and she could not, therefore, claim
compensation.
Moreover, the Constitutional Court found that
the applicant’s complaint under Article 6 about the procedure of adoption of
the land development plan in Triesenberg was ill-founded, in particular because
the applicant had had access to the Administrative Court, an independent and
impartial tribunal with full jurisdiction on both facts and law under
Article 100 § 2 of the National Administrative Justice Act (see paragraph
36 below).
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND
PRACTICE
A. The National Administrative Justice Act
Section 100 of the National Administrative
Justice Act (Landesverwaltungspflegegesetz) of 21 April 1922 (LGBl.
(Official Gazette) 1922, no. 24) was amended by the Act of 27 November 2003 on
the Amendment of the National Administrative Justice Act, which entered into
force on 20 January 2004 (see LGBl. (Official Gazette) 2004, no. 33). The term
“(Administrative) Complaints Instance” ((Verwaltungs-) Beschwerdeinstanz)
was replaced in that provision by “Administrative Court” (Verwaltungsgerichtshof).
Section 100 of the National Administrative
Justice Act of 21 April 1922, on the Administrative Court’s jurisdiction, as
amended and in the version in force at the time of the present proceedings,
insofar as relevant, provides as follows:
“(2) The Administrative Court shall have the powers and
obligations of a court of full jurisdiction (unlimited review) with regard to
any matter brought to it by way of a complaint in so far as no rights or
legally recognised interests of parties individually are at issue.
(3) Accordingly, the Administrative Court may of its own motion
order a hearing involving the appearance of the parties to present oral
argument, take evidence, and in general conduct the whole proceedings anew.
(4) However, the Administrative Court may also, if it considers
an oral hearing of the parties to be unnecessary, or if the parties have not
expressly requested such a hearing, review the contested decision on the basis
of the files ...”
According to court practice, hearings before the
Administrative Court are not open to the public.
B. Council of Europe documents relating to
reservations to the Convention
In its Recommendation 1671 (2004), entitled
“Ratification of protocols and withdrawal of reservations and derogations made
in respect of the European Convention on Human Rights”, adopted on 7 September
2004, the Parliamentary Assembly of the Council of Europe found:
“... 6. Some member states, when ratifying the Convention,
entered one or more reservations under its Article 57 and some of these
reservations, entered several years ago, have not been withdrawn.
7. Such reservations are permitted to the extent that
legislation in force at the time in the territory of the contracting party is
not in conformity with a particular provision of the Convention. They should
not therefore be of a permanent nature and should be confined to the period
required to bring the legislation in question into conformity with the
Convention. ...
9. It must nevertheless be acknowledged that numerous states
have in fact withdrawn reservations, declarations or derogations, as is the
intended practice. The Assembly welcomes such conduct and congratulates the
states in question for their commitment to the protection of human rights and
their respect for the principles of international law.
10. The Assembly consequently recommends that the Committee of
Ministers invite the States Parties to the European Convention on Human Rights
to: ...
10.2. withdraw any reservations which they made upon ratifying
the European Convention on Human Rights after, where appropriate, amending the
legislation which justified the reservation in order to bring it into
conformity with the Convention, within three years of the adoption of the
present recommendation; ...”
In the reply adopted by the Committee of
Ministers on 8 June 2005, at the 929th meeting of the Ministers’
Deputies, to Parliamentary Assembly Recommendation 1671 (2004), the Committee
of Ministers agreed with the desirability of withdrawal of reservations made to
the Convention or its protocols (see document CM/AS(2005)Rec1671 final, § 2).
It did not consider it appropriate to fix, as the Assembly suggested, a general
three-year deadline for the withdrawal of reservations (see ibid., § 8).
III. LIECHTENSTEIN’S RESERVATION IN RESPECT OF
ARTICLE 6 OF THE CONVENTION
The reservation contained in Liechtenstein’s
instrument of ratification, deposited on 8 September 1982 and modified with a
declaration contained in a letter from the Permanent Representative on 23 May
1991, registered at the Secretariat General on 24 May 1991, in relation to
Article 6 § 1 of the Convention reads as follows:
“In accordance with Article 64 of the Convention [Article 57
since the entry into force of the Protocol No 11], the Principality of
Liechtenstein makes the reservation that the principle that hearings must be
held and judgments pronounced in public, as laid down in Article 6, paragraph
1, of the Convention, shall apply only within the limits deriving from the
principles at present embodied in the following Liechtenstein laws:
- Act of 10 December 1912 on civil procedure, LGBl. 1912 No.
9/1
- Act of 10 December 1912 on the exercise of jurisdiction and
the competence of the courts in civil cases, LGBl. 1912 No. 9/2
- Code of Criminal Procedure of 18 October 1988, LGBl. 1988 No.
62
- Act of 21 April 1922 on non-contentious procedure, LGBl. 1922
No. 19
- Act of 21 April 1922 on national administrative justice,
LGBl. 1922 No. 24
- Act of 5 November 1925 on the Supreme Court (``Haute Cour’’),
LGBl. 1925 No. 8
- Act of 30 January 1961 on national and municipal taxes, LGBl.
1961 No. 7
- Act of 13 November 1974 on the acquisition of immovable
property, LGBl. 1975 No. 5.
The statutory provisions of criminal procedure relating to
juvenile delinquency, as contained in the Act on Criminal Procedure in Matters
of Juvenile Delinquency of 20 May 1987, LGBl. 1988 No. 39.”
The relevant part of the French version of that
reservation provides:
« Conformément à l’article 64 de la
Convention [article 57 de la Convention depuis l’entrée en vigueur du Protocole
No 11], la Principauté de Liechtenstein émet la réserve que le principe de la
publicité des audiences et du prononcé des jugements, contenu dans l’article 6,
paragraphe 1, de la Convention, ne s’appliquera que dans les limites dérivées
des principes qui trouvent actuellement leur expression dans les lois
liechtensteinoises suivantes :
...
- Loi du 21 avril 1922 sur la justice administrative nationale,
LGBl. 1922 No 24
... »
The modifications to the original reservation
contained in Liechtenstein’s instrument of ratification, made with a declaration
dated 23 May 1991, concerned only the references to the Code of Criminal
Procedure (a new version of 1988 having replaced the previous version of 1913)
and to the statutory provisions of criminal procedure relating to juvenile
delinquency.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF A PUBLIC ORAL HEARING
The applicant complained that the Administrative
Court’s failure to hold a public oral hearing, in which evidence should have
been taken in an adversarial manner, had breached her rights guaranteed by
Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.
Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.”
The Government contested that argument.
A. Admissibility
The Government asserted that the Court could not
deal with the applicant’s complaint that there had not been a public hearing
before the Administrative Court in the proceedings concerning the
classification of the applicant’s property in a land development plan since
those proceedings were covered by Liechtenstein’s reservation in respect of
Article 6 of the Convention.
The applicant contested that view.
The Court considers that
the Government’s objection is closely related to the merits of the applicant’s
complaint. It will therefore examine it together with the merits of this
complaint.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Liechtenstein’s reservation in respect of Article 6
(a) Compliance of the reservation with Article 57
The Court therefore has to determine, at the
outset, whether Liechtenstein’s reservation at issue is in conformity with
Article 57 of the Convention, which 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.
2. Any reservation made under this article shall
contain a brief statement of the law concerned.”
(i) The parties’
submissions
(α) The
Government
In the Government’s submission, the reservations
made by Liechtenstein on ratification of the Convention complied with Article
57 of the Convention and were thus valid. The validity of the reservations had
been repeatedly thoroughly examined and confirmed by the Constitutional Court.
This was true, in particular, for the reservation made with regard to Article 6
§ 1 of the Convention concerning the principle that hearings must be held and
judgments be pronounced in public.
The Government argued, in particular, that the
reservation at issue could not be considered as a prohibited reservation of a
general nature. The wording of the reservation referred to a specific
Convention Article, Article 6 § 1, and, more specifically, to the
requirement that “... everyone is entitled to a fair and public hearing ...”
and that “[j]udgment shall be pronounced publicly”.
The reservation further contained an exhaustive
list of Liechtenstein laws to which it applied, including the Act of 21 April
1922 on national administrative justice here at issue. Moreover, a statement of
the contents of the national laws concerned had been made in the reservation in
that the latter referred to “the limits deriving from the principles at present
embodied in the following Liechtenstein laws ...”. Thereby, it had been
clarified that these laws contained different rules, diverging from those laid
down in Article 6 § 1 of the Convention, on the public nature of proceedings at
the time of Liechtenstein’s ratification of the Convention.
The Government further submitted that the
current version of Article 100 § 4 of the National Administrative Justice
Act, at issue in the present application, was still covered by the reservation.
Since the time Liechtenstein has made its reservation, the said provision had
only been changed in that the term “Administrative Complaints Instance” had
been replaced by “Administrative Court”, without its content having been
modified.
(β) The applicant
The applicant considered that the reservation
made by Liechtenstein on its ratification of the Convention was incompatible
with Article 57 of the Convention and thus invalid. She argued that as the
purpose of reservations was to allow the respondent State during an interim
period to adapt its national legislation so that it met the standards of the
Convention, the reservation was by now already obsolete for lapse of time. It
was further doubtful whether the modification, by Liechtenstein, of its
reservation in 1991, following ratification of the Convention, was valid.
Furthermore, the applicant submitted that the
reservation was invalid, in any event, for being incompatible with the public
order of the Council of Europe. Under the present-day standards of the
Convention, it had to be considered as contrary to European public order to
allow national courts an unfettered discretion as to whether or not to hold a
hearing. It also rendered the case-law of the Liechtenstein courts inaccessible
to the public.
Moreover, in the applicant’s submission, the
reservation in question did not meet the specific requirements laid down in
Article 57 of the Convention. She argued that the reservation, by attempting to
exempt from the applicability of Article 6 all procedures before a court in
Liechtenstein, covered the entirety of Liechtenstein’s legal order. It
therefore amounted to a prohibited reservation of a general character. She
referred, inter alia, to the Court’s judgment in the case of Belilos
v. Switzerland (29 April 1988) in support of her argument.
The applicant further claimed that the
reservation failed to comply with paragraph 2 of Article 57 as it did not
contain a brief statement of the law concerned. Such a statement would have
been impossible as it would have had to comprise Liechtenstein’s whole legal
order. The applicant relied, inter alia, on the Court’s judgments in the
cases of Weber v. Switzerland (22 May 1990) and Gradinger v.
Austria (23 October 1995) to support her view.
In addition, the new version of the National
Administrative Justice Act, at issue in the present application and applying to
the Administrative Court, was no longer covered by the reservation. Changing
“Administrative Complaints Instance” into “Administrative Court” in the
relevant law was not simply a change of terms, but a substantive change, given
that the new tribunal was to conform to the minimum standards of a court. The
reservation was therefore not applicable to the Administrative Court. The
applicant relied on the Court’s judgment in the case of Stallinger and Kuso
v. Austria (23 April 1997) in that context.
(ii) The Court’s assessment
(α) Recapitulation of the relevant principles
In order for a reservation to be applicable to
the case at issue, the measures or proceedings complained of must have been
governed by the law(s) covered by the reservation (compare, for instance, Gradinger
v. Austria, 23 October 1995, § 39, Series A no. 328-C; Koslova
and Smirnova v. Latvia (dec.), no. 57381/00, 23 October 2001; and Dacosta
Silva v. Spain, no. 69966/01, §§ 34, 37, ECHR 2006-XIII).
The Court reiterates that, in order to be valid, a reservation to the
Convention must satisfy the following conditions: (i) it must be made at the
moment the Convention is signed or ratified (Article 57 § 1, first sentence);
(ii) it must relate to a particular provision of the Convention (Article 57 §
1, first sentence); (iii) it must relate to specific laws in force at the
moment of ratification (Article 57 § 1, first sentence); (iv) it must not be a
reservation of a general character (Article 57 § 1, second sentence); and (v)
it must contain a brief statement of the law concerned (Article 57 § 2; see
also Shestjorkin v. Estonia (dec.), no. 49450/99, 15 June 2000;
and Liepājnieks v. Latvia (dec.), no. 37586/06, § 45, 2 November
2010 with many further references).
As to the requirement that the reservation must relate to specific laws in force at the moment of
ratification, the Court considered that that condition was not complied with
where a new legislative provision was not essentially identical to the
provision in force at the time of ratification, but extended the measures
covered by the reservation, such as the domestic courts’ power to refuse to
hold a public hearing (see Fischer v. Austria, 26 April
1995, § 41, Series A no. 312; compare also Stallinger and Kuso v. Austria,
23 April 1997, § 48, Reports 1997-II; Eisenstecken v. Austria, no.
29477/95, § 25, ECHR 2000-X; and Dacosta Silva, cited above, §
37).
The Court reiterates that Article 57 § 1 (former
Article 64 § 1) of the Convention requires precision and clarity. The term
“reservation of a general character” denotes in particular a reservation which
does not refer to a specific provision of the Convention or is couched in terms
that are too vague or broad for it to be possible to determine their exact
meaning and scope (see Belilos v. Switzerland, 29 April 1988, § 55,
Series A no. 132; Shestjorkin, cited above; Koslova and Smirnova,
cited above; and Steck-Risch v. Liechtenstein (dec.), no. 63151/00,
ECHR 2004-II).
As regards the “brief statement of the law
concerned” required by Article 57 § 2, the Court reiterates that this
requirement both constitutes an evidential factor and contributes to legal
certainty. The purpose of Article 57 § 2 is to provide a guarantee - in
particular for the other Contracting Parties and the Convention institutions -
that a reservation does not go beyond the provisions expressly excluded by the
State concerned. This is not a purely formal requirement, but a condition of
substance (see Belilos, cited above, § 59; Weber v. Switzerland,
22 May 1990, § 38, Series A no. 177; Steck-Risch, cited above; and Dacosta
Silva, cited above, § 37).
That requirement does not mean, however, that it
is necessary to provide a description, even a concise one, of the substance of
the texts in question. A reference to the Official Gazette - preceded by an
indication of the subject-matter of the relevant provisions - makes it possible
for everyone to identify the precise laws concerned and to obtain any information
regarding them and provides a safeguard against any interpretation which would
unduly extend the field of application of the reservation (see Chorherr v.
Austria, 25 August 1993, § 20, Series A no. 266-B; and Steck-Risch,
cited above; compare also Shestjorkin, cited above; and Koslova and
Smirnova, cited above, where an annex to the reservation contained, in
addition, a brief outline of the main aim and scope of each law).
Finally, in the Court’s case-law, reservations, which
restrict the fundamental rights protection guaranteed by the Convention, have
been interpreted narrowly (compare, inter alia, Eisenstecken,
cited above, §§ 24-30; Schmautzer v. Austria, 23 October
1995, § 31, Series A no. 328-A; Umlauft v. Austria, 23
October 1995, § 34, Series A no. 328-B).
(β) Application of these principles to the
present case
The Court notes at the outset that the
proceedings before the Administrative Court, which refused to hold a public
oral hearing, were governed by the National Administrative Justice Act of 21
April 1922, section 100 § 4 of which authorised that court not to hold a
hearing in certain circumstances. The said Act on national administrative
justice was covered by Liechtenstein’s reservation in respect of Article 6 § 1.
The reservation is therefore applicable to the present case.
As to the validity of that reservation, the
Court observes that it has already had an opportunity to examine the
reservation’s conformity with Article 57 of the Convention as regards a public
hearing in its decision in the case of Steck-Risch (cited above). In
that decision, it found that the reservation complied with Article 57 of the
Convention. The Court considered, in particular, that the reservation referred
to a specific provision of the Convention, namely Article 6 § 1, and to one
specific requirement contained therein, namely that hearings must be held and
judgments pronounced in public. It did not, therefore, attain the degree of
generality prohibited by the second sentence of Article 57 § 1 (see Steck-Risch,
cited above).
Moreover, in the case of Steck-Risch
(cited above), the Court confirmed that the reservation at issue contained a
“brief statement of the law concerned”, as required by Article 57 § 2. It was
clear that the reservation excluded from the scope of Article 6 - as far as the
publicity of hearings and the public pronouncement of judgments were concerned
- proceedings which were covered by the laws enumerated. The title of each law
gave an indication of its subject-matter and was followed by a reference to the
Official Gazette, which made it possible for everyone to identify precisely
which laws were covered and to obtain information about them.
The Court further notes that the applicant in
the present case forwarded a number of additional arguments for the Court to
hold that the reservation at issue was invalid. She submitted, in general, that
the reservation had become obsolete for lapse of time as the purpose of
reservations was only to allow a respondent State to adapt its national
legislation to the standards of the Convention during an interim period which
had expired.
The Court observes that it has been stressed by
the Parliamentary Assembly, in its Recommendation 1671 (2004), that
reservations should not be of a permanent nature. They should be confined to
the period required to bring the legislation in question into conformity with
the Convention and should be withdrawn afterwards (§§ 7 and 10.2 of the
Recommendation, see paragraph 38 above). Nevertheless, a reservation made in
conformity with Article 57 of the Convention remains valid as long as it has
not been withdrawn by the respondent State.
The Court further takes note of the applicant’s
argument that the reservation at issue, which allowed domestic courts an
unfettered discretion whether or not to hold a hearing, was invalid for being
incompatible with the public order of the Council of Europe. The Court does not
agree with this view either. It is sufficient for it to observe in that context
that it has previously recognised as valid a similar reservation made by a
different Contracting Party (see Helle v. Finland, 19 December 1997, §§
43-47, Reports 1997-VIII; and Laaksonen v. Finland, no.
70216/01, § 24, 12 April 2007).
The applicant in the present case further
contested that the reservation at issue still related to a law in force at the
moment of Liechtenstein’s ratification of the Convention in 1982. She argued
that the new version of the National Administrative Justice Act, at issue in
the present application and applying to the Administrative Court, was no longer
covered by the reservation because the change of “Administrative Complaints
Instance” into “Administrative Court” in it was a substantive change to that
Act.
The Court notes that Liechtenstein’s reservation
refers to the National Administrative Justice Act of 21 April 1922, which is
still in force. It further considers that the replacement of the term
“Administrative Complaints Instance” into “Administrative Court” in that Act,
and in particular in its section 100, did not extend the domestic court’s power
to refuse to hold a public hearing compared to the provision in force at the
time of Liechtenstein’s ratification of the Convention.
Finally, as regards the applicant’s complaint
about the modification, by Liechtenstein, of its reservation in 1991, after
ratification of the Convention, the Court recalls that the silence of the
depositary or the Contracting States does not deprive the Convention
institutions of the power to make their own assessment on the validity of a
reservation (see Belilos, cited above, § 47). It notes, however, that the
modification made by the Government with a declaration dated 23 May 1991 to the
original reservation in the instrument of ratification of the Convention on
8 September 1982, in any event, did not concern the National
Administrative Justice Act by which the domestic proceedings here at issue were
governed.
In sum, the reservation made by Liechtenstein in
respect of Article 6 § 1 complies with the requirements of Article 57 of the
Convention and is therefore valid.
(b) Scope of the reservation
The Court must therefore examine the scope of
that reservation, that is, in how far that reservation dispenses it from
examining the applicant’s complaint under Article 6. It notes that the latter
encompasses several aspects, including the right to a public hearing - that is,
a hearing to which the public is admitted - , the right to an oral hearing of
the case before the Administrative Court (possibly without the public being
present) (compare already Steck-Risch, cited above) and the right to
adversarial, fair proceedings. Only the first aspect of the complaint,
concerning the lack of publicity of the hearing before the Administrative
Court, is clearly covered by Liechtenstein’s reservation.
(i) The parties’ submissions
(α) The Government
The Government took the view that the
reservation made by Liechtenstein in respect of the publicity of proceedings
barred the Court from examining the applicant’s complaint about the
Administrative Court’s failure to hold a public oral hearing, notably also
under the aspect of the right to a fair trial.
The Government conceded that the Constitutional
Court had found in the present proceedings that the principle of a public
hearing was a vital aspect of the right to a fair trial. Thereby, that court
closed a gap in the Liechtenstein catalogue of fundamental rights which did not
expressly protect that principle. It had further found that the right to a fair
trial was also laid down in Article 6 of the Convention and was not directly
covered by a reservation on ratification.
However, the Constitutional Court was free to
interpret the Liechtenstein Constitution in that manner, because it was not bound
by any reservations in respect of the Convention when applying fundamental
rights derived from the Constitution.
Conversely, in the Government’s submission, the
Court was obliged to respect the reservations made by Liechtenstein in relation
to the Convention when examining a breach of the right to a public hearing. In
particular, unlike the Constitutional Court, the Court did not have
jurisdiction to examine the right to a public hearing as an aspect of the right
to a fair trial. The right to a public hearing and the right to a fair hearing
were two different procedural rights explicitly laid down in Article 6 § 1,
which the Court had to examine separately. If the Court considered these two
rights as inseparably interconnected, it could examine the respect of the right
to a fair trial only in so far as it did not concern the public nature of the
proceedings to which the reservation applied.
(β) The applicant
The applicant argued that the reservation made
by Liechtenstein in respect of the publicity of proceedings did not extend to
holding an oral hearing with the parties alone, including the questioning of
witnesses. Article 6 § 1 guaranteed three distinct rights, namely the right to
a controversial oral hearing, the right to a public hearing and the right to a
public pronouncing of the judgment. Under the Court’s case-law, reservations
had to be interpreted in a restrictive manner (the applicant referred, inter
alia, to Schmautzer, cited above). Liechtenstein’s reservation only
concerned the publicity of the hearing and the public pronouncing of judgments.
It did not cover oral hearings, be it in camera, with the parties alone being
present.
(ii) The Court’s assessment
(α) Recapitulation of the relevant principles
The Court notes at the outset that, unlike the
right to a “fair” and “public” hearing, the right to an “oral” hearing is not
expressly laid down in Article 6 § 1. However, it is well established in the
Court’s case-law that, as a rule, Article 6 § 1 entails an entitlement to an
“oral hearing”, that is, a hearing of the parties (and / or their
representatives) in person by the court, whether conducted in public or in
private. The Court has, on many occasions, considered the right to an “oral”
hearing as an aspect of the right to a “public” hearing. It has repeatedly
reiterated in that context that the entitlement to a “public hearing”
necessarily implied the right to an “oral hearing” (see, inter alia, Döry
v. Sweden, no. 28394/95, § 37, 12 November 2002; compare also Schuler-Zgraggen
v. Switzerland, 24 June 1993, § 58, Series A no. 263). It further found
that in proceedings before a court of first and only instance the right to a
“public hearing” under Article 6 § 1 entailed an entitlement to an “oral
hearing” unless there were exceptional circumstances that justified dispensing
with such a hearing (see, inter alia, Fredin v. Sweden (no. 2),
23 February 1994, §§ 21-22, Series A no. 283-A; Fischer v. Austria,
26 April 1995, § 44, Series A no. 312; Allan Jacobsson v. Sweden (no. 2),
19 February 1998, § 46, Reports 1998-I; Miller v. Sweden, no.
55853/00, § 29, 8 February 2005; Schelling v. Austria, no. 55193/00,
§ 30, 10 November 2005; Jussila v. Finland [GC], no. 73053/01, §
42, ECHR 2006-XIII; Kugler v. Austria, no. 65631/01, § 46, 14 October 2010; and Andersson v. Sweden, no. 17202/04, § 47, 7 December 2010).
However, the Court has equally stressed, on
numerous occasions, the intrinsic link between the right to a “public” and the
right to a “fair” hearing (see, in particular, Jussila, cited above, §§
42, 48). It reiterates that the public character of proceedings before the
judicial bodies referred to in Article 6 § 1 protects litigants against the
administration of justice in secret with no public scrutiny; it is also one of
the means whereby confidence in the courts, superior and inferior, can be
maintained. By rendering the administration of justice visible, publicity
contributes to the achievement of the aim of Article 6 § 1, namely a fair
trial, the guarantee of which is one of the fundamental principles of any
democratic society, within the meaning of the Convention (see, for instance, Pretto
and Others v. Italy, 8 December 1983, § 21, Series A no. 71; Speil v.
Austria (dec.), no. 42057/98, 5 September 2002; and Martinie v.
France [GC], no. 58675/00, § 39, ECHR 2006-...).
The Court has further considered that if, as a
consequence of a valid reservation, an applicant could not derive from the
Convention any general right to an oral hearing, such a reservation did not
exempt the domestic courts from ensuring the fairness of the proceedings. It
remained for the Court to examine, in these circumstances, whether the
proceedings before the domestic courts as qualified by the reservation were
fair within the meaning of Article 6 (compare Laukkanen and Manninen v.
Finland, no. 50230/99, § 38, 3 February 2004; Laaksonen, cited
above, §§ 25, 32; and V. v. Finland, no. 40412/98, § 61, 24 April 2007).
Finally, the Court recalls that one of the
elements of a fair hearing within the meaning of Article 6 § 1 is the right to
adversarial proceedings; each party must in principle have the opportunity not
only to make known any evidence needed for his claims to succeed, but also to
have knowledge of and comment on all evidence adduced or observations filed
with a view to influencing the court’s decision (see, amongst others, Mantovanelli
v. France, 18 March 1997, § 33, Reports 1997-II). Moreover, the
requirement of “equality of arms” implies that each party must be afforded a
reasonable opportunity to present his case - including his evidence - under
conditions that do not place him at a substantial disadvantage vis-à-vis his
opponent (see, for instance, Dombo Beheer B.V. v. the Netherlands,
27 October 1993, § 33, Series A no. 274; and Helle, cited above, §§
53-54).
(β) Application of these principles to the
present case
In determining the scope of Liechtenstein’s
reservation to the Convention in the light of the above case-law, the Court
notes that, according to the wording of that reservation, Liechtenstein
declared “that the principle that hearings must be held and judgments
pronounced in public (in the French text: “que le principe de la publicité des
audiences et du prononcé des jugements ...”, see paragraph 41 above), as laid
down in Article 6, paragraph 1, of the Convention, shall apply only within the
limits deriving from the principles at present embodied in the following
Liechtenstein laws ...”, inter alia, the National Administrative Justice
Act (see paragraph 40 above). Section 100 § 4 of the latter Act provides that
the Administrative Court may, “if it considers a hearing of the parties to be
unnecessary ... review the contested decision on the basis of the files” (see
paragraph 36 above).
The Court considers that the applicant’s
complaint about the Administrative Court’s failure to hold a public oral
hearing comprises two aspects. By referring to a “public” hearing, it
addresses, on the one hand, the right to a hearing to which the public and the
press are admitted. As shown above (see paragraph 83), the publicity of hearings
in that sense serves to render the administration of justice transparent and to
subject it to public scrutiny. By referring to an “oral” hearing, on the other
hand, reference is made to a hearing of the parties (and / or their
representatives) in person by the court, possibly without the public being
present (see paragraph 82 above). This serves to allow both parties to present
their arguments to the court, to clarify, in particular, questions of fact in
an oral exchange and to examine evidence and assess its credibility by hearing
also the comments of the parties concerned. An oral hearing can therefore be
vital in ensuring adversarial proceedings and thus the fairness of the
proceedings as a whole.
The Court notes that in the case of Steck-Risch
(cited above), it found that the complaint about the failure to hold a public
hearing and that about the lack of an oral hearing were two distinct issues. In
that case, it could, however, leave open the question whether Liechtenstein’s
reservation under Article 6 § 1 covered not only the complaint about the lack
of publicity, but also that about the failure to hold an oral hearing with the
parties. The applicant in that case, unlike the applicant in the present case,
had, in any event, not exhausted domestic remedies in respect of the latter
complaint.
In the present case, the Court considers that
the wording of Liechtenstein’s reservation, in so far as it refers to the
principle that “hearings must be held and judgments pronounced in public, as
laid down in Article 6, paragraph 1, of the Convention” is not clear in its
scope. Unlike, for instance, Finland’s reservation in respect of the right to a
public hearing, which expressly states that “Finland cannot guarantee a right
to an oral hearing insofar as the current Finnish laws do not provide such a
right ...” (see for that reservation and its interpretation, for instance, V.
v. Finland, cited above, § 60), it does not give a clear indication of
whether or not it addresses the right to an oral hearing. It could either be
read as referring only to “hearings ... in public” or to “hearings” alone, as
opposed to “judgments pronounced in public”; only the latter interpretation
would point towards oral hearings being covered by the reservation.
It is true that Liechtenstein’s reservation in
respect of Article 6 refers to the limits deriving from the principles embodied
in the National Administrative Justice Act. Section 100 § 4 of that latter Act
expressly provides that the Administrative Court may review the contested
decision on the basis of the files “if it considers a hearing of the parties
to be unnecessary” (emphasis added). The latter Act thus refers to oral
hearings of the parties. This does not, however, become clear from the wording
of the reservation as such.
Likewise, the reference to Article 6 § 1 of the
Convention does not give a clear indication of the scope of the reservation.
The second sentence of Article 6 § 1, in allowing the exclusion of the press
and public - but not of the parties - from the hearing, is an argument for
considering that only the publicity of hearings is covered by the reservation.
Under the Court’s case-law in respect of Article 6 § 1, the right to an “oral”
hearing has been considered as an aspect of the right to a “public” hearing
(see paragraph 82 above), which is clearly covered by Liechtenstein’s
reservation in respect of Article 6. However, the Court has equally stressed
the intrinsic link between the right to a “public” and the right to a “fair”
hearing and found that publicity contributed to the achievement of the aim of
Article 6 § 1, namely a fair trial (see paragraph 83 above), in respect of
which Liechtenstein did not make a reservation.
The Court recalls that reservations must be
interpreted restrictively (see paragraph 65 above). Neither the right to a fair
hearing nor the right to an oral hearing has expressly been mentioned in Liechtenstein’s
reservation in respect of Article 6 and an interpretation of that reservation
does not lead to the clear conclusion that oral hearings are covered by it.
Therefore, Liechtenstein’s reservation covers the right to a public hearing,
but not the right to an oral hearing.
The applicant’s complaint about the lack of an
oral hearing is not, therefore, incompatible ratione materiae with the
provisions of the Convention. The Court is therefore competent to examine the
applicant’s complaint under Article 6 in this respect.
2. Compliance with Article 6 § 1
(a) The parties’ submissions
(i) The Government
The Government submitted that, even assuming the
Court’s jurisdiction to examine the applicant’s complaint which they contested,
the failure of the Administrative Court to hold an oral hearing had not
violated Article 6 § 1 of the Convention. The reasons given by the
Administrative Court for not holding a public hearing were in accordance with
this Court’s case-law on permissible restrictions on the publicity of hearings.
That case-law was quoted in the Constitutional Court’s judgment in the
present case, the reasoning of which the Government endorsed.
(ii) The applicant
The applicant considered that she had had a
right to a public oral hearing under Article 6. The Administrative Court’s
unlimited discretion to hold or not to hold a hearing had breached that
provision. There had not been any exceptional circumstances which would have
allowed that court to dispense with a hearing in her case.
The applicant further stressed that, as had been
confirmed by the Government, hearings with the parties had taken place in
several comparable cases before the Administrative Court. As the Court had
confirmed in its judgment in the case of Kugler (cited above), it was necessary to hold an oral hearing and
to take evidence in an adversarial manner in urban planning cases before the
only genuine court instance capable of assessing the case in its entirety,
which, in the present case, had been the Administrative Court. The
applicant further argued that the witnesses which she had named should have
been heard by the Administrative Court.
(b) The Court’s assessment
(i) Recapitulation of the relevant principles
The Court reiterates that in proceedings before
a court of first and only instance the right to a “public hearing” under
Article 6 § 1 entails an entitlement to an “oral hearing” unless there are
exceptional circumstances that justify dispensing with such a hearing (see the
references in paragraph 82 above). The obligation to hold a hearing is
therefore not absolute. The exceptional character of the circumstances that may
justify dispensing with an oral hearing essentially comes down to the nature of
the issues to be decided by the competent national court, not to the frequency
of such situations. It does not mean that refusing to hold an oral hearing may
be justified only in rare cases (see Andersson, cited above, § 48; and Jussila, cited above, §
42).
There may be proceedings in which an oral
hearing may not be required: for example where there are no issues of
credibility or contested facts which necessitate a hearing and the courts may
fairly and reasonably decide the case on the basis of the parties’ written
observations and other written materials (see Jussila, cited above, § 41;
and also Allan Jacobsson, cited above, § 49; and Döry, cited
above, § 37).
The Court has further acknowledged that the
national authorities may have regard to the demands of efficiency and economy
and found, for example, that the systematic holding of hearings could be an
obstacle to the particular diligence required, for instance, in social security
cases - which are generally rather technical and are often better dealt with in
writing - and ultimately prevent compliance with the reasonable-time
requirement of Article 6 § 1 (see, in particular, Jussila, cited above,
§ 42; and Schuler-Zgraggen, cited above, § 58; Miller,
cited above, § 29; Schelling, cited above, § 30; Brugger v. Austria,
no. 76293/01, §§ 21-22, 26 January 2006; Martinie, cited above, § 41;
and Andersson, cited above, § 48).
Moreover, a hearing may be dispensed with if a
party unequivocally waives his or her right thereto (see, for instance, Fischer,
cited above, § 44) and there are no questions of public interest making a
hearing necessary (see, for instance, Döry, cited above, § 37).
The overarching principle of fairness embodied
in Article 6 is, as always, the key consideration (see Jussila, cited
above, § 42, with further references).
(ii) Application of these principles to the present
case
In determining whether Article 6 § 1 conferred
on the applicant the right to an oral hearing before the Administrative Court
in the circumstances of the case, the Court notes at the outset that the
Administrative Court was the first and only tribunal vested with full
jurisdiction to examine the merits of the applicant’s case. Moreover, as the applicant
explicitly requested a hearing before that court, there is no question of her
having waived her right thereto. The applicant thus had a right to an oral
hearing before the Administrative Court unless there were exceptional
circumstances relating to the nature of the issues to be decided which
justified dispensing with such a hearing.
The Court observes that the applicant
considered an oral hearing in her case necessary, in particular, because the
Administrative Court should have questioned several witnesses she had named.
She argued that the witnesses’ submissions would have proved that the
referendum in which the land development plan at issue was adopted had been
manipulated. The Court further notes that the Administrative Court had
considered it unnecessary to hear these witnesses in person because, even
assuming that the applicant’s allegations, which she wished to prove by this
witness’s evidence, were correct, the land development plan was lawful.
The Court takes note, in this connection, of
the Administrative Court’s finding that the witnesses named by the applicant
were to confirm that the land development plan had been “manipulated” in that
officials of the municipality had raised hopes, prior to the adoption of that
plan, that the applicant’s plots of land could be designated as building land
at some point in the future. Therefore, even if the witnesses had been called
to a hearing in support of the applicant’s allegation of such manipulation, it
is difficult to see how evidence of hopes as distinct from any enforceable
undertaking could constitute evidence of manipulation. Further, it would have
been clear that in the land development plan that had yet to be adopted by
referendum, the applicant’s plots of land had not, in fact, been designated as
building land (see paragraph 15 above). The Administrative Court could
therefore reasonably hold that the witnesses, even if they had been called,
would not have cast doubts on the lawfulness of the land development plan at
issue.
Moreover, that court considered that the
situation of the plots of land concerned was commonly known and clearly shown
on the photographs in the file. In the domestic court’s view, it was therefore
not necessary to take additional evidence offered by the applicant in order to
clarify the facts of the case. In the Administrative Court’s assessment of the
case before it, which cannot be considered as unreasonable, there were not,
therefore, any contested facts relevant to the outcome of the case or any
issues of credibility which necessitated further clarification in a hearing.
Further, the Administrative Court obtained
documents and photographs concerning the land development plan, as requested by
applicant, and gave the applicant an opportunity to reply to the Municipality
of Triesenberg’s observations in writing and to comment on the evidence
obtained by the court. The applicant therefore had knowledge of and could
comment on all evidence adduced or observations filed with a view to
influencing the court’s decision, as required in adversarial proceedings.
Finally, there is nothing to indicate that by the Administrative Court’s
written conduct of the proceedings, the applicant was not afforded an
opportunity, as required by the principle of “equality of arms”, to present her
case, including her evidence, under conditions that did not place her at a
substantial disadvantage vis-à-vis the opposing Municipality of Triesenberg.
In these circumstances, the Court accepts that
the Administrative Court could fairly and reasonably decide the applicant’s
case concerning the designation of her property as non-building land on the
basis of the parties’ written observations and other written materials.
The foregoing considerations are sufficient to
enable the Court to conclude that there were circumstances, as defined by its
case-law (see, in particular, paragraphs 97-99 above), which justified the
absence of an oral hearing in the applicant’s case. Respect for the overarching
principle of a fair trial does not lead to a different conclusion.
It follows that in this part of the application,
in so far as it falls within the Court’s competence ratione materiae,
there has been no violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying on Article 6 of the Convention, the
applicant further complained that the land development plan of the Municipality
of Triesenberg was adopted by a secret vote of its citizens, and not by judges,
in a referendum which had been manipulated in that wrong information had been
given and false promises had been made to the voters. Moreover, the legality of
the land development plan and that of the procedure for its adoption had not
been fully examined in the proceedings before the domestic authorities and
courts, but had only been tested for lack of arbitrariness.
In the applicant’s submission, the allegedly
unlawful land development plan had also disproportionately interfered with her
right to respect for her property under Article 1 of Protocol no. 1 to the
Convention in that it had designated her land, which was suitable for
construction, as non-building land without awarding her compensation.
The Court has examined the remainder of the
applicant’s complaints as submitted by her. However, having regard to all
material in its possession, the Court finds that, even assuming the exhaustion
of domestic remedies in all respects, these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols.
It follows that the remainder of the
application must be rejected as manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the lack
of a public oral hearing under Article 6 of the Convention admissible and the
remainder of the application inadmissible;
2. Holds that there has been no violation of
Article 6 of the Convention.
Done in English, and notified in writing on 18 July 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Angelika
Nußberger
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Nußberger,
Lemmens and Jäderblom is annexed to this judgment.
A.N.
J.S.P.
CONCURRING OPINION OF JUDGES NUSSBERGER, LEMMENS AND
JÄDERBLOM
1. We voted with our colleagues in finding that there had been
no violation of Article 6 of the Convention. We disagree, however, with the
reasoning of the majority. In our opinion the absence of an oral hearing is
covered by Liechtenstein’s reservation relating to Article 6 § 1 of the
Convention.
2. We agree with the majority’s conclusion that the
reservation is valid (see paragraphs 59-75). Our disagreement relates to the
interpretation given by the majority to the reservation (see paragraphs 82-93).
Our analysis starts with the text of the reservation. Since
Liechtenstein drafted its reservation in English and French, we have looked at
both versions. We note, with the majority, that the wording of the reservation
refers to the publicity of hearings, not to hearings as such (see paragraph 89
of the judgment). The question is, however, what this reference to the
“publicity” of hearings encompasses. More specifically, should it be understood
as including a reference to the oral character of proceedings?
In interpreting the reservation, made in 1982, the case-law of
the Convention organs existing at that time should be taken into account. We
would like to refer in particular to two reports of the European Commission of
Human Rights from 1981. In these reports the Commission examined whether purely
written proceedings (at the cassation stage) complied with the requirement of a
“public hearing” (see Sutter v. Switzerland, no. 8209/78,
Commission report of 10 October 1981, and Axen v. Germany, no. 8273/78,
Commission report of 14 December 1981). Both cases were referred to the Court.
At the time of the depositing of Liechtenstein’s instrument of ratification,
the right to oral proceedings was therefore a contentious issue. If the Court
recognised such a right, it was likely that it would do so by considering it as
an aspect of the right to a “public hearing”.[1]
We conclude from all this that the reference to the “public hearing”
requirement in Liechtenstein’s reservation should not necessarily be
interpreted as referring exclusively to the publicity requirement. On the
contrary, given the circumstances, the wording used lends itself to an
interpretation covering the more general requirement of oral proceedings as
well.
More importantly, the reservation itself refers to the
principles (concerning the public character of hearings and the public
pronouncement of judgments) embodied in a number of Liechtenstein laws,
including the Act of 21 April 1922 on national administrative justice. The
relevant provision of that act is Section 100 § 4, which provides that the
Administrative Court can decide “on the basis of the files”, that is to say,
after purely written proceedings, if an “oral hearing” is considered unnecessary
or not requested by the parties. The reference to this provision is a clear
indication that Liechtenstein intended to have the reservation cover not only
the public character of the hearing, but also, more generally, the oral
character of the proceedings.
Furthermore, a strict interpretation such as the one followed
by the majority would lead to the conclusion that non-public oral proceedings
are, just like public oral proceedings, an option envisaged by the Convention.
This contradicts, however, the underlying philosophy of Article 6 of the
Convention according to which judicial proceedings have to be transparent.
Excluding the public is allowed only in exceptional circumstances (see the
second sentence of Article 6 § 1) and can never be the general rule. While
Article 57 of the Convention allows States to make a reservation in respect of
a particular provision of the Convention and thus to exclude the applicability
of a given rule, this must nevertheless not be done in such a way that the
remainder of the Convention provision cannot stand on its own. Holding, like
the majority does, that Liechtenstein refused only to be bound by the
obligation to hold public hearings, and not by the obligation to have oral
proceedings, leads to such a result. Indeed, to consider that Liechtenstein is
obliged only to organise - as a matter of principle - oral proceedings, and not
to ensure that the hearings are public, strips the requirement of a public
hearing of its character as a general rule.
On the basis of the above-mentioned elements, we conclude that
the purely written character of the proceedings before the Administrative Court
is covered by Liechtenstein’s reservation. In so far as the applicant complains
of the lack of an “oral hearing”, we consider that her complaint is
incompatible ratione materiae with the provisions of the Convention.
3. In so far as the applicant complains of the refusal by the
Administrative Court to take the additional evidence proposed by her, and in
particular its refusal to hear the witnesses she had proposed, we believe that
this is a separate complaint which has to be examined from the standpoint of
the right to a fair trial.
We agree with the majority that it was not unreasonable for
the Administrative Court to consider that it was able to decide the case on the
basis of the material already available to it, and that there was no need to
seek further clarification (see paragraphs 104-105).
Therefore, we do not discern any violation of the applicant’s
right to a fair trial in this regard.
