CASE OF SCHELLING v. AUSTRIA
Violation of Art. 6-1;Not necessary to examine remaining complaints under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant is a farmer and lives in Langenegg. 9. On 16 August 1988 the applicant requested permissions under the Water Act (Wasserrechtsgesetz) and the Landscape Protection Act (Landschaftsschutzgesetz) which were necessary for putting a culvert through a drain on agricultural land owned by him. 10. Thereupon, on 14 September 1988 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) conducted an oral hearing on the applicant’s requests and inspected his land. 11. On 21 June 1990 the District Administrative Authority refused the requested permissions. The applicant appealed. 12. On 12 December 1990 the Vorarlberg Regional Governor (Landeshauptmann) granted the requested permission under the Water Act. 13. The Vorarlberg Regional Government (Landesregierung), on 2 April 1991, dismissed the applicant’s appeal insofar as it concerned the request for permission under the Landscape Protection Act. 14. On 28 May 1991 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Regional Government’s decision. 15. The Administrative Court quashed the Regional Government’s decision on the ground of procedural deficiencies on 6 May 1996 and remitted the case to the latter. It found that the authorities had failed to obtain detailed information concerning nature conservancy issues which were raised by the applicant’s project. 16. On 16 January 1997 the Regional Government invited the applicant to comment on the additional expert opinion on nature conservancy issues of the expert A. On 31 January 1997 the applicant submitted his comments, following which A. amended the expert opinion on 5 May 1997. 17. Subsequently, on 26 May 1997, the applicant lodged an application with the Administrative Court against the administrative authorities’ failure to decide (Säumnisbeschwerde). 18. 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. 19. On 4 November 1998 the Administrative Court requested the Regional Government to order expert A. to submit an additional expert opinion on nature conservancy issues, which A. delivered on 12 January 1999. 20. Subsequently, on 25 January 1999, the Regional Government invited the applicant to submit comments on the expert opinions on nature conservancy issues and on agriculture and forestry issues within two weeks. 21. On 24 February 1999 the applicant submitted comments on these opinions and requested an oral hearing. He also requested that the experts be summoned to the hearing and that the 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. 22. 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 the competence to decide on the merits had passed over to it as the Regional Government had failed to decide within the three-month time-limit set. 23. Further it found, in view of the expert opinions, that the applicant’s project interfered with the objects of the Landscape Protection Act as it would spoil the character of the landscape and that there existed no public interest which would justify the measure. Moreover, the applicant had not disproved the expert’s conclusion. 24. As regards the alleged bias of A., it found that the mere fact that the expert had already delivered an opinion at an earlier stage of the proceedings and that he was a civil servant was not in itself sufficient to raise doubts as to his independence and impartiality and that the applicant had failed to put forward any specific argument to cast doubt upon A.’s independence or impartiality. 25. Finally, the court held that it could abstain from an oral hearing and an inspection of the applicant’s land since the proceedings had been carried out correctly and the facts, insofar as relevant in view of the applicable law, were undisputed. This decision was served on the applicant’s counsel on 12 August 1999.