CASE OF ERNST AND ANNA LUGHOFER v. AUSTRIA
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
6. The applicants' farm was the object of land consolidation proceedings (Zusammenlegungsverfahren) instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde) on 22 February 1973. 7. On 21 August 1984 the District Authority held a hearing at which the farmers concerned could express their wishes (Wunschverhandlung) and on 22 August 1985 the District Authority ordered the provisional transfer of the properties concerned, inter alia, land owned by the applicants. In July 1989 the District Authority issued a consolidation plan (Zusammenlegungsplan). The applicants appealed, claiming that they had not received adequate land in exchange for their parcels AK 2 and AK 8. On 5 July 1990 the Upper Austria Regional Land Reform Board (Landesagrarsenat) dismissed the applicants' appeal after an oral hearing held in private, but in the presence of the parties and their lawyer. 8. On 25 September 1990 the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the above decision. They also asked the Court to hold an oral hearing. 9. On 15 December 1992 the Administrative Court dismissed the complaint, rejecting at the same time, in accordance with Section 39 (2) no. 6 of the Administrative Court Act, the applicants' request for an oral hearing. 10. 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. By virtue of legislation enacted in December 1993 (Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform Boards are now public. 11. Pursuant to Section 36 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), 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)). 12. 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."