THE FACTS

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

The applicant is a German citizen, born in 1923 and resident in
Hamburg.
He is represented by Dr. Franz C., a lawyer practising in Hamburg and
acting under a power-of-attorney dated 1 March 1972.

The applicant complains under Article 6 of the Convention about certain
proceedings before the Hamburg Administrative Court of Appeal
(Oberverwaltungsgericht) relating to a decision by the Hamburg building
authorities to widen the street on which his property is located.

From his statements and from documents submitted in support of his
application it appears that the applicant owns a house with garden at
the A. strasse in Hamburg. The house is situated about 9 metres away
from the street. In 1962 the competent authority of the City of Hamburg
decided that the street needed widening in view of the heavy traffic
on that street. In 1964 it tried to buy from the applicant a tract of
land 4.5 metres wide but the applicant refused to sell. In April 1964
the City started to widen the street and the works were finished except
for the pavement in front of the applicant's property.

In October 1964 the competent Hamburg authority took an administrative
decision by which it fixed the plans for the widening of the street
(Planfeststellungsbeschluss). Such decision is required under the
Federal Road Act (Bundesfernstrassengesetz) and it determines the
building project as such as well as any public law relations between
the authorities and the individuals affected by the project.

The applicant challenged that decision before the administrative
authorities and finally took his case before the Administrative Court
(Verwaltungsgericht) in Hamburg which decided on .. November 1965 to
set aside the plans. The City of Hamburg appealed (Berufung) against
this decision to the Administrative Court of Appeal
(Oberverwaltungsgericht) which fixed a hearing for .. May 1968. On that
day the Court decided at the applicant's request that (1) it would
submit to the parties a proposal for a settlement of the matter, (2)
if no settlement could be achieved, a decision would be communicated
to the parties after notification by one of the parties that the
settlement negotiations had failed, and (3) during the settlement
negotiations the parties should be authorised to inspect certain files
in the State Archive and to submit their observations within two weeks'
period.

It appears, however, that on the same day the Court prepared a
hand-written draft of its judgment setting aside the Administrative
Court's decision of .. November 1965 and dismissing the applicant's
case. This judgment of the Administrative Court of Appeal dated .. May
1968, was finally sent to the applicant who received it on .. January
1969.

On .. February 1969 the applicant lodged with the Federal
Administrative Court (Bundesverwaltungsgericht) a further appeal
(Revision) and on .. June 1969 he submitted the grounds of his appeal
alleging violations of procedural and of substantive law. As regards
his allegations concerning the proceedings the applicant also invoked
Article 6 (1) of the Convention claiming that, under that provision,
judgments should be pronounced publicly and might not simply be
communicated to the parties in writing. Furthermore, he complained that
the notification of the judgment had been considerably delayed, that
the judgment was taken even before the period for the submission of
further observations had expired, that the Court had recorded its
decision in an irregular manner by simply writing it on a piece of
paper thus opening the possibility of making subsequent changes, and
finally, that the Court had failed to grant a fair hearing in that it
did not investigate further certain facts which supported the
applicant's case.

The Federal Administrative Court dismissed the further appeal on ..
August 1971. As regards the allegation under Article 6 of the
Convention the Court referred to its previous jurisprudence according
to which that provision was applicable only in respect of civil rights
and criminal charges, but not in matters concerning administrative
laws. As regards the complaint that, contrary to the relevant provision
of the Code of Administrative Procedure (Verwaltungsgerichtsordnung)
the judgment of .. May 1968 was only served on .. January 1969 the
Court pointed out that the decision had been taken on the day of the
hearing but had been sent to the parties only after some time in view
of the settlement negotiations between them. Furthermore, there was no
substance in the applicant's complaint that, in view of the parties'
right to make further submissions the judgment should not have been
taken on the day of the hearing, as in fact neither side had made such
further submissions. As regards the complaint concerning the manner in
which the judgment had been recorded the Court found that this had only
been made after the period for submitting the grounds of appeal had
expired and it was therefore out of time. In any event this complaint
was ill-founded as were the other complaints concerning the Court's
failure to investigate certain further facts whose relevance the
applicant had failed to substantiate.

The Federal Administrative Court also rejected the applicant's
allegations regarding violations of substantive law. The decision was
communicated to the applicant on .. October 1971.

Complaints

The applicant now complains that contrary to Article 6 (1) of the
Convention the Hamburg Administrative Court of Appeal failed to
pronounce its judgment publicly and that a written judgment was served
on him only after a considerable period had elapsed since the decision
had been taken.

He explains that, in his opinion, the observance of this provision is
particularly important as it is necessary to avoid that a judgment will
be changed without the participation of all the judges in the case
after the deliberations. According to the applicant, this happened in
another case the facts of which he submits in support of his present
application. In the applicant's submission this possibility is
facilitated by the Administrative Court of Appeal's practice to write
its judgment on a piece of paper.

The applicant also complains that the relevant provision of the Code
of Administrative Procedure authorising communication of written
judgments instead of the public pronouncement was inconsistent with
Article 6 (2) of the Convention.

The applicant further complains under Article 6 of the Convention that
he was not granted a fair hearing in that, contrary to his request,
certain files were not taken into consideration and the Court failed
to inspect the premises in question. He states that it was not
forceable that the Court would take its decision after the hearing in
spite of the fact that the parties had been authorised to make further
submissions. Furthermore, he had made substantial submissions in his
grounds of appeal concerning the relevance and the significance of the
evidence adduced by him, but the Court had completely ignored his
arguments. He now submits to the Commission in detail the reasons why,
in his opinion, the said evidence was relevant in his case.

The applicant further submits that Article 6 of the Convention is
applicable to the proceedings in his case and that the findings of the
Federal Administrative Court to the contrary is not in line with the
interpretation to be given to the notion of "civil rights and
obligations" within the meaning of that provision.

He finally states that he has exhausted the remedies available to him
under German law, and that, in particular, it was not possible to base
a constitutional appeal on the European Court of Human Rights.

THE LAW

The applicant has complained that Article 6 (Art. 6) of the Convention
has been violated in various respects by reason of the proceedings
before the Administrative Court of Appeal in Hamburg relating to a
decision by the Hamburg building authorities to widen the street on
which his property is situated.

Article 6 (1) (Art. 6-1) of the Convention provides: "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 ...". The Commission must therefore first decide
whether the court proceedings relating to the above claim by the
applicant fall within the scope of that provision to the extent that
they involve the determination of his civil rights.

In this connection the Commission recalls its established jurisprudence
namely that, for the question whether a right is of a civil nature, it
is not decisive that the right claimed by the applicant constitutes a
"civil right" in the country concerned, and indeed the term "civil
rights and obligations" cannot be construed as a mere reference to the
domestic law of the High Contracting Party concerned. Instead, the
concept relates to an autonomous notion which must be interpreted
independently having regard to the nature of the claim and to the
purpose of the complaint. Only in this connection can the general
principles of the domestic law of the High Contracting Party be taken
into consideration (see decisions on the admissibility of Applications
No 508/60, Yearbook, Vol. 5, pp. 108, 122; No 1931/63, Yearbook, Vol.
7, pp. 213, 233; and No 3959/69, Collection of Decisions, Vol. 35, pp.
109, 122).

In the present case, the applicant's claim before the Hamburg courts
concerned the decision by the planning authorities
(Planfeststelungsbeschluss) to widen the street on which his property
is situated. This decision had been taken in accordance with the
provisions of the Federal Road Act (Bundesfernstrassengesetz), in view
of the heavy traffic in that street. Such decision is required under
the above Act in order to fix the building scheme as well as to
determine the basis of the relationship in public law as between the
authorities and the individuals affected by the project.

It is true that the said decision affected the applicant's private
property in that, although it did not as such concern its
expropriation, it would serve as a basis for any subsequent
expropriation measures which the authorities might be required to take,
if no agreement could be reached with the applicant as to the sale of
his land.

However, the proceedings which the applicant had instituted before the
Administrative Courts did not concern the determination of any of his
private rights in relation to his property. The purpose of his
complaint was to obtain a judgment from the courts setting aside an
administrative act which the authorities had taken in the execution of
their aim to provide for safe roads. Accordingly, the relevant
proceedings concerned the exercise of the duties and powers of the
competent authorities in the implementation of the above aim, as well
as the rights of the individual arising out of this bilateral
relationship which clearly falls in the domain of public law.

In the Commission's opinion, the present case is to be distinguished
from the Ringeisen Case in which the European Court of Human Rights
found Article 6 (1) (Art. 6-1) of the Convention to be applicable. In
that case, the relevant proceedings concerned the approval by the
competent authorities of a purchase contract between the applicant and
the sellers of a certain real property. This legal relationship between
private persons and the State's interference therewith by refusing to
approve the contract between them was emphasised by the European Court
when it decided in the Ringeisen Case that the result of the
proceedings had been decisive for private rights and obligations within
the meaning of Article 6 (1) (Art. 6-1) of the Convention (see European
Court of Human Rights, Ringeisen Case, judgment of 16 July 1971,
paragraph 94).

However, in the present case, the public authorities did not determine,
nor did they interfere, with any legal relationship existing between
the applicant and a third person but they were concerned in determining
the legal relationship between the applicant and themselves by deciding
how the applicant's property should be used in the public interest.

Consequently, the proceedings before the Hamburg Administrative Court
of Appeal, which are not the object of the applicant's present
complaint, were not concerned with the determination of his "civil
rights and obligations" and therefore fall outside the scope of Article
6 (Art. 6) of the Convention.

It follows that the Commission has no competence ratione materiae to
examine the application which must therefore be rejected as being
incompatible with the provisions of the Convention in accordance with
Article 27 (2) (Art. 27-2) thereof.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE.