Case: Ettl and Others v. Austria
Judgement date: 23 April 1987
Topic: Independence of the justice system
Aspect: Concurrent judicial functions in the same case

Summary of the facts:
The applicants were farmers whose land had been the subject of consolidation proceedings. According to them, the agricultural authorities before which the relevant proceedings were held, each of which consisted of three judges and five civil servants, did not constitute independent and impartial tribunals.

Summary of the Court's findings:
The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that the Provincial and Supreme Land Reform Boards, to which the applicants to which the applicants had appealed against a number of consolidation decisions affecting their land, were independent and impartial tribunals. The independence and impartiality of the judge members, it noted, were not in issue. As to the civil servants, their presence did not in itself contravene Article 6 § 1 of the Convention: the Constitution and the relevant legislation made provision for their independence and prohibited public authorities from giving them any instructions concerning their judicial duties. Moreover, the applicants did not claim that the civil servants who heard their case had received any such instructions as to the matters in dispute. The boards were independent not only of the executive but also of the parties to the case, namely the owners of the land concerned. Given this situation, the hierarchical links which existed in other contexts between civil servants from the same division within the Provincial or Federal civil service to which, they belonged were of no consequence either. Nor could the membership of the civil servants who sat on account of their experience of agronomy, forestry and agriculture give rise to doubts about the independence and impartiality of the boards . They were experts in their fields, and such experts are needed in cases concerning land consolidation, which is an operation that raises issues of great complexity.

The facts:
7. The applicants are Austrian farmers resident at Obritzberg in
Lower Austria. They complain of consolidation proceedings
(Zusammenlegungs-verfahren) in respect of their land in July 1973.
I. The circumstances of the case
1. The proceedings before the land reform boards
8. On 30 July 1973, the Lower Austrian District Agricultural
Authority (Agrarbezirksbehörde - "the District Authority") published a
consolidation plan for Obritzberg which included the applicants' land.
The applicants lodged an appeal with the Provincial Land Reform Board
(Landesagrarsenat - "the Provincial Board"), claiming that they had
not received land compensation as provided for in the Lower Austrian
Agricultural Land Planning Act (Flurverfassungs-Landesgesetz - see
paragraph 15 below). The grounds of appeal differed from one
applicant to the other according to the way in which the consolidation
plan affected each individual's property.
9. The Provincial Board gave its decisions on 26 and 27 May 1975,
after hearing the parties and several other landowners affected by the
changes the applicants were seeking. It determined the appeal on the
basis of the case-file and after some of the members had inspected the
site, and it made a number of variations in the land compensation
awarded to the applicants.
In accordance with section 5(2) of the Federal Agricultural
Authorities Act (Agrarbehördengesetz 1950, as amended in 1974 - see
paragraph 15 below), the Provincial Board was composed of three judges
- all three from the Court of Appeal on 26 May 1975, two from the
Court of Appeal and one from the Regional Court on 27 May 1975 - and
five civil servants from the Office of the Lower Austrian Provincial
Government (Amt der Landesregierung). The chairman was the head of
Division VI 4 of the Office, and the rapporteur was a civil servant in
that Division; a third member of the Board belonged to Division VI 11.
The remaining two members do not appear in the Office's organisational
chart for 1975/76, which was filed by the Government, but do appear in
the one for 1976/77 (i.e. of later date than the Provincial Board's
decision in the case); at that time, together with the chairman and
the rapporteur, they were in Division VI 3, which, according to the
Government, was set up in 1976 following a reorganisation of the
Office's administrative departments. In its report (paragraph 97) the
Commission relied not on the 1975/76 chart but on the 1976/77 one; it
noted that at the time the Provincial Board took its decision, four of
its ordinary members and their substitutes came from Division VI 3 and
the chairman, the rapporteur and two other members worked in
Division VI 4.
10. The applicants then appealed to the Supreme Land Reform Board
(Oberster Agrarsenat - "the Supreme Board"). On 6 October 1976, the
Supreme Board allowed the appeals of the Ettls and the Schalhases to
the extent that they were complaining of a danger that some of the
parcels of land allotted to them in compensation for their original
land might be eroded by water, and it consequently ordered that a
number of drainage measures should be taken; for the rest, their
appeals were dismissed, as were those of the Gunackers and the Haases
in their entirety.
The Supreme Board was composed of three judges - members of the
Supreme Court (Oberster Gerichthof) - and five civil servants from the
Federal Ministry of Agriculture and Forestry (Bundesministerium für
Land- und Forstwirtschaft) (section 6(2) of the Federal Agricultural
Authorities Act - see paragraph 18 below). Two of the civil servants
- the chairman and the rapporteur - belonged to Division I 7, which
was responsible among other things for providing the Board's
secretariat; the other three belonged to Divisions II C 7, II C 8 and
V A 3 respectively.
2. The proceedings in the Constitutional Court and the Administrative
Court
11. The applicants then lodged complaints with the Constitutional
Court (Verfassungsgerichtshof). In particular they claimed that they
had been deprived of their right to a decision by the lawful judge
(gesetzlicher Richter - Article 83(2) of the Federal Constitution
(Bundes-Verfassungsgesetz)), because under the legislation on the
organisation of the agricultural authorities several experts had to
sit on the Provincial Board and the Supreme Board. The applicants
found it unreasonable that these members should have voting rights in
cases where the issue under consideration was outside their field of
expertise or where they had themselves prepared the relevant expert
opinion. In addition, they claimed that there had been an
infringement of their right of property, secured in the Constitution.
They also referred in a general way to the relevant provisions of the
Human Rights Convention.
In judgments on 1 February (in the case of Mr. and Mrs. Haas),
28 February (in the case of Mr. and Mrs. Gunacker) and 19 March 1980
(in the case of Mr. and Mrs. Ettl and Mr. and Mrs. Schalhas), the
Constitutional Court rejected the complaints as unfounded. It pointed
out inter alia that Article 12(2) of the Federal Constitution
expressly provided for the participation of experts. At the
applicant's request, the court referred the cases to the
Administrative Court (Verwaltungsgerichtshof) for the latter to
determine whether any non-constitutional rights had been infringed.
12. In the Administrative Court the applicants challenged the
lawfulness of the land compensation awarded them. They claimed that
the requirements of the Lower Austrian Agricultural Land Planning Act
had not been complied with and also that there had been an
infringement of the provisions of the General Administrative Procedure
Act (Allgemeines Verwaltungsverfahrensgesetz) concerning the
impartiality of the administrative authorities and the right to a fair
trial - the experts had voted on a matter outside their professional
competence; there had been no written expert opinion; and none of the
boards had informed the parties of the findings of the investigation
(Ermittlungsverfahren).
On 11 November (in the case of Mr. and Mrs. Ettl and Mr. and
Mrs. Gunacker) and 25 November 1980 (in the case of Mr. and
Mrs. Schalhas and Mr. and Mrs. Haas), the Administrative Court held
that there had been a breach of the applicants' procedural rights; it
dismissed the other complaints.
The judgments, which were worded in similar terms, may be summarised
as follows (paragraph 52 of the Commission's report):
- Inasmuch as the applicants were accusing the expert members of the
Supreme Board of bias, their submissions were without foundation, as
the composition of the Board had been in accordance with the law.
- In so far as they were complaining that there had been no written
expert opinion on certain points, they had not indicated what relevant
facts had not been brought to the Supreme Board's knowledge for want
of such an opinion. Accordingly, there had not been any material
procedural irregularity (wesentlicher Verfahrensmangel).
- As to the investigation, they should have been informed both of the
findings of fact (Befund) and of the expert opinion itself
(Gutachten). However, as they did not specify what additional
evidence they would have adduced had they known the outcome of the
investigation, they again did not succeed in establishing that there
had been any material procedural irregularity.
- Lastly, the complaints that the Agricultural Land Planning Act had
not been complied with were without foundation. The Supreme Board
had, however, ordered a number of measures to be taken - drainage of
the land allocated to the Ettls, the Schalhases and the Haases, and
construction of an access way in the case of the Gunackers - without
specifying all the works that were necessary, without giving
sufficient reasons for its decisions and without having established
all the material facts. In the case of the Ettls, the Board had
obtained an opinion (Stellungnahme) from its agronomist member on the
problem of the erosion of certain land but had not communicated it to
the applicants, who had accordingly not been able to comment on it.
The Administrative Court consequently quashed the impugned decisions
on these points on grounds of procedural irregularity and remitted the
cases to the Supreme Board.
13. The Supreme Board allowed the applicants' appeals on
3 March 1982. The District Authority subsequently published a new
consolidation plan, which the applicants challenged before the
Provincial Board in the autumn of 1985.
The Court has not been informed of the progress of these proceedings.

Relevant law and the Court's assessment:
II. The relevant legislation
1. In general
14. Powers in respect of land reform in Austria are divided
between the Federation and the Länder. Legislation establishing
general principles is the responsibility of the Federation, while
implementing legislation and law enforcement is the responsibility of
the Länder (Article 12(1)(3) of the Federal Constitution). By
Article 12(2) of the Federal Constitution, decisions at final instance
and at Land level are taken by boards consisting of a "chairman,
judges, civil servants and experts"; "the board which decides at final
instance shall be set up within the appropriate Federal Ministry".
"Provision shall be made in a Federal Act for the organisation,
functions and procedure of the boards and for the principles for
organising the other authorities concerned with land reform". This
Act must provide that the executive shall not be able to set aside or
vary the boards' decisions; it cannot exclude appeals to the
provincial board against decisions by the authority of first instance.
15. Within this constitutional framework the Federal Parliament
has passed three Acts dealing with the following matters:
(i) the legal principles applicable to land reform (Federal
Agricultural Land Planning (General Principles) Act
(Flurverfassungs-Grundsatzgesetz 1951), as amended in 1977);
(ii) the organisation of the land reform boards and the principles for
organising the authorities of first instance (Federal Agricultural
Authorities Act (Agrarbehördengesetz 1950), as amended in 1974);
(iii) proceedings before agricultural authorities (Federal
Agricultural Proceedings Act (Agrarverfahrensgesetz 1950), which
refers to the General Administrative Procedure Act).
The Länder have regulated the matters for which they are made
responsible under the Federal legislation in provincial agricultural
land planning Acts (Flurverfassungs-Landesgesetze). In Lower Austria,
consolidation is governed by the Agricultural Land Planning Act 1975.
This replaced an Act of 1934 and was itself amended in certain
respects by an Act of 23 February 1979.
2. The agricultural authorities
16. The first-instance authority in Lower Austria is the District
Agricultural Authority, which is a purely administrative body. The
higher authorities are the Provincial Board, established at the Office
of the Provincial Government, and the Supreme Board, set up within the
Federal Ministry of Agriculture and Forestry.
Decisions (Bescheide) of the District Authority can be challenged by
way of appeal (Berufung) to the Provincial Board, whose decision is
final except where it has varied the decision in question and where
the dispute concerns one of the issues listed in section 7(2) of the
Federal Agricultural Authorities Act, such as the lawfulness of the
compensation in the event of land consolidation; in such cases an
appeal lies to the Supreme Board.
In Austrian law the land reform boards are classified as boards whose
members include judges (Kollegialbehörden mit richterlichem Einschlag)
and which constitute a kind of "specialised administrative tribunal".
17. The Provincial Board has eight members, all appointed by the
Government of the Land (section 5(2) and (4) of the Federal
Agricultural Authorities Act), viz.:
- one Land civil servant, who is legally qualified (rechtskundig), and
acts as chairman;
- three judges;
- a legally qualified Land civil servant with experience in land
reform, who acts as rapporteur;
- a senior Land civil servant (Landesbeamter des höheren Dienstes)
with experience in agronomic matters;
- a senior Land civil servant with experience in forestry matters; and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act.
18. The Supreme Board likewise has eight members (section 6(2) and
(4) of the Federal Agricultural Authorities Act), viz.:
- one legally qualified senior civil servant from the Federal Ministry
of Agriculture and Forestry, who acts as chairman;
- three members of the Supreme Court;
- a legally qualified senior civil servant from the Federal Ministry
of Agriculture and Forestry with experience in land reform, who acts
as rapporteur;
- a senior civil servant from the Federal Ministry of Agriculture and
Forestry with experience in agronomic matters;
- a senior civil servant from the Federal Ministry of Agriculture and
Forestry with experience in forestry matters; and
- an agricultural expert within the meaning of section 52 of the
General Administrative Procedure Act.
The judicial members are appointed by the Federal Minister of Justice,
and the others by the Federal Minister of Agriculture and Forestry.
19. Section 52 of the General Administrative Procedure Act, which
is referred to in sections 5(2) and 6(2) of the Federal Agricultural
Authorities Act, provides:
"1. If it becomes necessary to take expert evidence, the authority
shall rely on the services of the official experts
(Amtssachverständige) attached to it or put at its disposal.
2. However, by way of exception, the authority may also consult other
suitable persons sworn as experts if no official experts are available
or if it becomes necessary having regard to the particular
circumstances of the case. ..."
20. Members of land reform boards are appointed for five years and
may be re-appointed (section 9(1) of the Federal Agricultural
Authorities Act). They cease to hold office before the expiry of
their term if, inter alia, they no longer satisfy the conditions of
appointment (section 9(2)). Any member may, at his own request, be
relieved of his office on health grounds or for professional reasons
which prevent him from properly discharging his duties (section 9(3)).
If a judicial or civil-servant member is suspended from duty by
decision of a disciplinary tribunal, he shall automatically also be
suspended from duty as a member of a land reform board (section 9(4)).
21. The members of these boards discharge their duties
independently and are not subject to any instructions (section 8 of
the Federal Agricultural Authorities Act and Article 20(2) of the
Federal Constitution). The executive can neither set aside nor vary
their decisions (section 8 of the Federal Act and Article 12(2) of the
Federal Constitution - see paragraph 14 above). The decisions can be
challenged in the Administrative Court (section 8 of the Federal Act).
22. The pattern of organisation described above was the outcome of
a legislative change in 1974 following a judgment of the
Constitutional Court in the same year.
In the Constitutional Court's view, the land reform boards as
constituted under the 1950 Act could not be regarded as being
independent and impartial tribunals within the meaning of
Article 6 § 1 (art. 6-1) of the Convention - their members included at
that time a Minister from the Federal Government (in the case of the
Supreme Board) or the relevant provincial government (in the case of
the provincial boards), and the other members could be dismissed at
any time by the relevant authorities (judgment of 19 March 1974,
Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1974,
vol. 39, no. 7284, pp. 148-161).
The new legislation excluded from the boards anyone who was a member
of either the Federal Government or a provincial government,
introduced provisions governing the term of office and the dismissal
of members and provided for appeal to the Administrative Court
(sections 5(2), 6(2), 8 and 9 of the Federal Agricultural Authorities
Act 1974).
3. Procedure before land reform boards
23. Procedure before the land reform boards is governed by the
Federal Agricultural Proceedings Act (see paragraph 15 above),
section 1 of which stipulates that the General Administrative
Procedure Act shall apply - except for one section of no relevance in
the instant case - subject to the variations and additional provisions
made in the Federal Act.
The boards are responsible for the conduct of the proceedings
(section 39 of the General Administrative Procedure Act). By
section 9(1) and (2) of the Federal Act, the boards take their
decisions after a private hearing. This is normally attended by the
parties, who may consult the file (section 17 of the General
Administrative Procedure Act). The parties may appear in person or be
represented (section 9(3) of the Federal Act). The chairman may call
witnesses and, in order to obtain information, civil servants who
contributed to the decision at first instance and to the preparation
of the decision (section 9(5)).
Hearings begin with a report by the rapporteur; the board then
clarifies the subject-matter of the dispute by hearing evidence from
the parties and the witnesses and by looking at the legal and economic
situation in detail (eingehend) (section 10(2)). It proceeds on the
basis of the facts found by the authority below, but can also order
further investigations to be made by that authority or by one or more
of its own members (section 10(1)). The parties must be able to
acquaint themselves with the findings made as a result of the taking
of evidence (Beweisaufnahme) and to submit their comments
(section 45(3) of the General Administrative Procedure Act).
The boards deliberate and vote without the parties being present.
After discussing the outcome of the hearing, the rapporteur submits
conclusions (Antrag); anyone wishing to submit different conclusions
(Gegen- und Abänderungsanträge) must give reasons for them
(section 11(1) of the Federal Act). The chairman determines the order
in which the conclusions are put to the vote (ibid). The rapporteur
votes first, followed by the judges and then the other members,
including the chairman, who votes last and has a casting vote if the
votes are divided equally (section 11(2)).
If an appeal is brought - within the prescribed two weeks
(section 7(3)) - and is held to be admissible, the appropriate board
will, if the findings of fact are so defective that a new hearing
appears to be unavoidable, quash the disputed decision and remit the
case to the authority below; otherwise it will determine the merits of
the case itself (section 66(2) and (4) of the General Administrative
Procedure Act). It may vary either the operative part of the impugned
decision or the reasons given for the decision (section 66(4)).
Boards must determine cases without undue delay (ohne unnötigen
Aufschub) and in any event not later than six months after an
application has been made to them (section 73(1)). If the board's
decision (Erkenntnis) is not notified to the parties concerned within
that time, the parties may apply to the higher authority, which will
thereupon acquire jurisdiction to determine the merits
(section 73(2)). If the latter authority fails to give a decision,
jurisdiction passes - on an application by the interested party - to
the Administrative Court (Article 132 of the Federal Constitution and
section 27 of the Administrative Court Act).
Reasons must be given for the boards' decisions, which must summarise
clearly (klar und übersichtlich) the findings of the investigation,
the assessment of the evidence, and the ruling - on the basis of that
material - on the legal issues arising in the case (sections 58(2) and
60 of the General Administrative Procedure Act). Decisions are sent to
the parties; a board may, however, choose to give its decision
forthwith (section 13 of the Federal Act).
4. Appeals to the Constitutional Court and the Administrative Court
24. The decisions of land reform boards can be challenged in the
Constitutional Court. The latter reviews whether there has been any
infringement of an applicant's rights under the Constitution and
whether any decree (Verordnung) unauthorised by statute law or any
unconstitutional statute or international treaty unlawful
(rechtswidrig) under Austrian law has been applied (Article 144 of the
Federal Constitution).
25. As an exception to the general rule laid down in
Article 133(4) of the Federal Constitution, section 8 of the Federal
Agricultural Authorities Act provides for an appeal to the
Administrative Court against the decisions of land reform boards.
Application may be made to the Administrative Court before or after an
application to the Constitutional Court, which, if it rules that there
has been no infringement of the right relied on in the application to
it, will refer the case to the Administrative Court if the applicant
so requests (Article 144(3) of the Federal Constitution).
26. Under Article 130 of the Federal Constitution, the
Administrative Court hears applications alleging the unlawfulness of
an administrative act (Bescheid) or coercion (Befehls- und
Zwangsgewalt) against an individual or the breach by a competent
authority of its duty to take a decision. It also hears appeals
against decisions by boards whose members include judges - such as the
land reform boards - where such jurisdiction is conferred on it by
statute (see paragraphs 16, 22 and 25 above).
If the Administrative Court does not dismiss the application as
unfounded, it will quash the decision appealed against; it determines
the merits itself only where the relevant authority has failed in its
duty to give a decision (section 42(1) of the Administrative Court Act
(Verwaltungsgerichtshofgesetz)).
When reviewing the lawfulness of an administrative act or of a
decision by a board whose members include judges, the Court does so on
the basis of the facts found by the authority concerned and solely in
the light of the complaints made, unless the authority has acted ultra
vires or procedural requirements have not been complied with
(section 41 of the Administrative Court Act). In this connection the
Act specifically provides that the Court shall quash the act appealed
against - on grounds of procedural irregularity - where the facts the
administrative authority held to have been established are
contradicted in a vital respect by the file, or where they are
incomplete in such a respect or where there has been a failure to
comply with rules which, if they had been correctly applied, might
have resulted in a different decision (section 42(2)(3) of the
aforementioned Act).
If, during the consideration of a case, grounds emerge which were
previously unknown to the parties, the latter must be given an
opportunity to be heard by the court, which must adjourn the
proceedings if necessary (section 41(1) of the Act).
27. Procedure consists mainly in an exchange of pleadings
(section 36), followed (except in certain cases specified in the Act)
by a hearing inter partes, which will normally be held in public
(sections 39 and 40).
PROCEEDINGS BEFORE THE COMMISSION
28. The applicants applied to the Commission on 27 October 1980
(application no. 9273/81). They claimed that they had not had a
hearing by an independent and impartial tribunal as required by
Article 6 § 1 (art. 6-1) of the Convention.
29. The Commission declared the application admissible on
9 March 1984. In its report of 3 July 1985 (made under Article 31)
(art. 31), it reached the conclusion that there had been a breach of
Article 6 § 1 (art. 6-1) (ten votes to two).
The full text of the Commission's opinion and of the separate opinions
contained in the report is annexed to this judgment.
FINAL SUBMISSIONS TO THE COURT
30. At the hearing on 20 October 1986, the Court was asked
- by the Government "to hold that in the present case the provisions
of Article 6 § 1 (art. 6-1) of the European Convention on Human Rights
have not been violated and that therefore the facts underlying the
dispute do not indicate any breach by the Republic of Austria under
the Convention";
- by the Commission's Delegate to uphold the Commission's opinion; and
- by the applicants to find in their favour.
AS TO THE LAW
31. The applicants claimed that they had not had a "public"
hearing by an "independent and impartial tribunal". In their
submission, the Provincial and Supreme Land Reform Boards were not
sufficiently independent of the executive; at least some of their
members could not be considered to be impartial; and proceedings did
not take place in public. Subsequent review by the Administrative
Court had not, they contended, provided a remedy: it was available
only after lengthy administrative proceedings and had not been
sufficiently wide in scope, since it was in principle confined to
consideration of points of law. They argued that there had
consequently been a breach of Article 6 § 1 (art. 6-1) of the
Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... public hearing ... by an independent and
impartial tribunal established by law. ..."
The Government disputed these contentions; the Commission agreed with
the applicants that their right to a hearing by an "independent and
impartial tribunal" had not been respected.
1. Applicability of Article 6 § 1 (art. 6-1)
32. The Obritzberg agricultural consolidation plan concerned,
inter alia, land belonging to the Ettl, Schalhas, Gunacker and Haas
families, which was taken from them in exchange for land previously
belonging to other owners. The applicants contested - and continue to
contest - the lawfulness of the compensation obtained. Any decision
- whether favourable or unfavourable - by the authorities dealing with
the matter consequently affected, affects or will in the future affect
their property rights. The outcome of the proceedings complained of
is accordingly "decisive for private rights and obligations" (see the
Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, § 94, and
the Sramek judgment of 22 October 1984, Series A no. 84, p. 17, § 34),
so that Article 6 § 1 (art. 6-1) applies in the instant case; the
Government, moreover, conceded this.
2. Compliance with Article 6 § 1 (art. 6-1)
33. The dispute ("contestation") related to the consolidation plan
adopted and then published in July 1973 by the Lower Austrian District
Agricultural Authority. The dispute was submitted to the Provincial
Board, the Supreme Board, the Constitutional Court and the
Administrative Court in turn. It must therefore be determined whether
recourse to those authorities satisfied the requirements of
Article 6 § 1 (art. 6-1).
(a) "Independent and impartial tribunal"
34. The Provincial and Supreme Boards, the Administrative Court
and the Constitutional Court are clearly tribunals established by law
(see, mutatis mutandis, the above-mentioned Sramek judgment, p. 17,
§ 36). It is further necessary that they should have been independent
and impartial.
35. The Administrative Court and the Constitutional Court
undoubtedly satisfied that requirement, but, in the applicants'
submission, the same was not true of the Provincial and Supreme
Boards, mainly on account of their membership: the Provincial and
Supreme Boards comprised a majority of civil servants in a
hierarchical relationship with one another and three of whom sat as
experts, while the other two occupied the key positions of chairman
and rapporteur. The applicants also contended that the members' term
of office was too short. In their view, members should be appointed
for life, in order to ensure that they were not subject to any
pressure.
The Government saw these boards as "specialised administrative
tribunals" (see paragraph 16 above) such as have existed in Austria
since the last century. They maintained that the boards' members had
the necessary independence - in 1974, the legislature had adjusted the
organisation of the boards to comply with the requirements of
Article 6 (art. 6) as the Court had interpreted it in its judgment of
16 July 1971 in the Ringeisen case.
In the view of the Commission, on the other hand, the Provincial and
Supreme Boards did not have sufficient independence in the instant
case, as they contained a majority of officials some or all of whom
were from the same civil-service departments and in a position of
hierarchical subordination in respect of their other duties (see
paragraphs 97 and 98 of the Commission's report and paragraphs 9 and
10 above).
36. The Court notes that, at the time in question, the Provincial
Board included three judges; the head of Division VI 4 of the Office
of the Lower Austrian Provincial Government, who acted as chairman; a
member of the same division, as rapporteur; a member of Division VI
11; and two other civil servants from the Office of the Provincial
Government, one of them sitting as an agricultural expert (see
paragraph 9 above).
The Supreme Board consisted of three Supreme Court judges and five
civil servants from the Federal Ministry of Agriculture and Forestry
- the chairman and the rapporteur came from Division I 7, the other
three from Divisions II C 7, II C 8 and V A 3 (see paragraph 10
above).
37. The independence and impartiality of the judge members is not
in issue.
There remain the civil servants whom the Provincial Board and the
Supreme Board included as members pursuant to the Federal Agricultural
Authorities Act (see paragraphs 17 and 18 above).
38. It should be noted first of all that the fact that these civil
servants sat, and even constituted a majority, on the bodies concerned
does not in itself contravene Article 6 § 1 (art. 6-1) of the
Convention. The Federal Constitution and the Federal Agricultural
Authorities Act make provision for their independence and prohibit
public authorities from giving them any instructions concerning their
judicial duties (see paragraph 21 above; and the above-mentioned
Ringeisen judgment, Series A no. 13, pp. 39-40, §§ 95-97, and the
above-mentioned Sramek judgment, Series A no. 84, p. 19, § 41). Nor
did the applicants claim that the civil servants who heard their case
had received any such instructions as to the matters in dispute.
The boards were independent not only of the executive but also, inter
alia, of the parties to the case, namely the owners of the land
concerned (see the above-mentioned Ringeisen judgment, p. 39, § 95,
and the Campbell and Fell judgment of 28 June 1984, Series A no. 80,
p. 39, § 78). It should be emphasised that neither the Provincial
Government nor the Federal Government was a party to the case; in this
respect the present case is similar to the Ringeisen case and differs
from the Sramek case (see the above-mentioned Sramek judgment, ibid.).
39. Given the situation in law and in fact as found in the present
case, the hierarchical links which existed in other contexts between
civil servants from the same division are of no consequence from the
point of view of Article 6 (art. 6) either. It would appear,
moreover, that such links existed only between the chairman and the
rapporteur in each of the two boards.
40. As to the three civil servants who, pursuant to the Act, sat
on account of their experience of agronomy, forestry and agriculture,
their membership cannot give rise to doubts about the independence and
impartiality of the boards. They were experts in their fields; such
experts are needed in cases concerning land consolidation, which is an
operation that raises issues of great complexity and affects not only
the owners directly concerned but the community as a whole. The
boards' composition enables them to reach balanced decisions, having
regard to the various interests at stake. Besides, the domestic
legislation of the Council of Europe's member States affords many
examples of tribunals in which professional judges sit alongside
specialists in a particular sphere whose knowledge is desirable and
even essential in settling the disputes within the tribunals'
jurisdiction.
Where these civil servants prepare a written opinion on a given issue,
section 45(3) of the General Administrative Procedure Act requires
that it be communicated to the parties, who must be given an
opportunity to submit their comments (see paragraph 23 above). The
adversarial nature of the proceedings before the boards under the
Federal Agricultural Authorities Act and the General Administrative
Procedure Act (see the above-mentioned Sramek judgment, p. 18, § 38)
is accordingly quite unaffected by the participation of the
"civil-servant experts". In the case of the Ettls, the Administrative
Court in fact quashed the Supreme Board's decision, precisely on the
ground that the opinion of the member who was an agronomy expert had
not been brought to the applicants' knowledge (see paragraph 12
above).
41. As regards the length of the term of office of members of the
boards, the Federal Agricultural Authorities Act likewise satisfies
the conditions laid down in Article 6 § 1 (art. 6-1): the five-year
term, coupled with virtual irremovability during that period (see
paragraph 20 above), does not put the independence and impartiality of
these boards in doubt (see the above-mentioned Sramek judgment,
ibid.).
(b) "Public hearing"
42. In accordance with the Act, the sittings of the boards which
heard the instant case were attended by the parties but were not held
in public (see paragraph 23 above).
This lack of any public hearing, which is normally contrary to
Article 6 § 1 (art. 6-1), is covered, however, by the reservation
Austria made when ratifying the Convention. On this point, the Court
refers to its above-mentioned judgment in the Ringeisen case; it sees
no reason to depart from that judgment (pp. 40-41, § 98).
43. Accordingly, there was no breach of Article 6 § 1 (art. 6-1)
in respect of the Provincial and Supreme Boards. It is consequently
unnecessary to determine whether the Administrative Court's review
- taken by itself or in conjunction with the Constitutional Court's
review - complied, as regards its scope, with the requirements of
Article 6 § 1 (art. 6-1).