THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63151/00 by Maria Karolina STECK-RISCH and Others against Liechtenstein

The European Court of Human Rights (Third Section) , sitting on 10 October 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr P. KÅ«ris , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 12 October 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Maria Karolina Steck-Risch, Anton Georg Risch, Walter Risch, Paul Arnold Risch and Mamertus Risch, are Liechtenstein nationals. They are brothers and sisters, who were born in 1926, 1927, 1930, 1937 and 1939, respectively. The first and the second applicants live in Vaduz, the third applicant lives in Schaan and the fourth and fifth applicants live in Triesen. They are represented before the Court by Mr W. Weh, a lawyer practising in Bregenz (Austria).

A. The circumstances of the case

The facts of the case, as submitted by the applicants , may be summarised as follows.

The applicants are joint owners at a rate of one fifth each of two adjacent plots of land in Schellenberg registered under file No. 55/IV and 67/IV of the Schellenberg land register. They acquired the land by way of inheritance  in 1983.

On 29 September 1972, when the property at issue still belonged to the applicant’s father, the Schellenberg municipality issued a provisional area zoning plan ( Zonenplanfestsetzungsbeschluss ) designating the two parcels of land as non-building land. Before that, the property was not covered by any area zoning plan.

On 14 May 1980 the Schellenberg Municipal Council ( Gemeinderat ) dismissed the appeal by the applicants’ father.

On 24 November 1981 the area zoning plan ( Zonenplan ) was approved by the Liechtenstein Government.

The applicants’ request for a change of the designation of their land into building land ( Bauland ), dated 24 August 1994, was to no avail.

On 15 July 1997 the applicants requested compensation of 4.9 million Swiss Francs ( SFR ) for damages which had allegedly occurred due to the designation of their land as non-building land. They claimed that the material designation amounted to a de facto expropriation.

On 2 June 1998 the Liechtenstein Government, sitting in camera, dismissed their request. Referring to the constant case-law of the Swiss Federal Court ( Schweizerisches Bundesgericht ), the Government noted that the designation of land, which had not been subject to any area zoning plan before, as non-building land did not, as a general principle, demand compensation, special circumstances being required to bring such designation close to the notion of expropriation. The Government noted that no such circumstances pertained: The applicants’ land was neither opened up for building nor were there any plans of the municipality to prepare it for development. Further it noted that, contrary to the applicants’ submissions, the areas surrounding their property were likewise designated as non-building land. Referring to an expert’s report in the field of conservation of nature, which had been established in 1977, i.e. before the entry into force of the area zoning plan at issue, the Government found that the applicants could not rely on a legitimate expectation as to the designation of their property as building land. This expert’s report recommended that the environment of which the applicants’ property formed part be protected and remain without development. In these circumstances, the Government concluded that the impugned designation of the applicants’ property as non-building land did not amount to a de facto expropriation subject to compensation.

On 18 June 1998 the applicants filed an appeal against the above Government decision with the Liechtenstein Administrative Court ( Verwaltungsbeschwerdeinstanz ) . They claimed inter alia that the elements on which the Government had based its decision, had not been established in adversarial proceedings. In particular, the applicants alleged that they had not been given an opportunity to present their views regarding the question of whether or not their land had been opened up for development purposes which, in fact, had been the case. Thus, they requested that the parties be heard on the matter and that an inspection of the property be carried out. Further, they requested that the Administrative Court obtain the minutes of the Schellenberg Municipal Council’s meeting of 5 July 1995, which showed that the municipality had considered possibilities to include their property into the building area.

On 21 October 1998 the Schellenberg Municipality filed comments on the applicants’ appeal ( Gegenschrift ), requesting the Administrative Court to dismiss the appliants ’ appeal. They referred to the reasons underlying the designation of the applicant’s property as non-building land and claimed that the applicants’ predecessor had not appealed against the area zoning plan. Further, the municipality contested the applicants’ assertion that the said property was opened up. The municipality also submitted the minutes referred to by the applicants. The municipality’s comments were not served on the applicants.

On 25 June 1999 the Administrative Court, sitting in camera , dismissed the applicants’ appeal. The court was presided by judge G.W. As regards the applicants’ procedural complaints, the Administrative Court recalled that there was no right to a public hearing in administrative proceedings. The principle that parties be heard in proceedings did not necessarily require an oral hearing and it was for the administrative authorities to decide whether or not a case was ready for decision on the basis of the case file. Pointing out that the applicants had filed very detailed written submissions, the Administrative Court found that they had been given sufficient opportunity to adduce their arguments and evidence.

On 7 July 1999 the applicants filed a complaint under Section 23 of the Constitutional Court Act ( Staatsgerichtshofsgesetz ) with the Constitutional Court ( Staatsgerichtshof ), claiming that the principle of equality of arms had been violated in that the Administrative Court had based its decision on new submissions made by the Schellenberg Municipality to which they had had no possibility to reply. They also claimed that that decision violated their right to property and that the Administrative Court had failed to take evidence, in particular to hear them and to inspect the property.

On 10 February 2000 the Constitutional Court informed the applicants about the composition of the panel of five judges that would examine their case in private on 29 February 2000.

Subsequently, on 21 February 2000, the applicants filed a motion of bias against H.H., one of the panel judges, claiming that he was to be disqualified on account of his law firm partnership ( Kanzleigemeinschaft ) with G.W., the presiding judge of the proceedings before the Administrative Court.

On 29 February 2000 the Constitutional Court, sitting in camera , dismissed the applicants’ complaint, confirming that the designation of their property as non-building land did not amount to a de facto expropriation requiring compensation

Bearing in mind that the principle of equality of arms was a basic element of the fairness of proceedings, it agreed in principle with the applicants’ argument that they should have been afforded an opportunity to be informed of and comment upon the Schellenberg Municipality’s observations in reply to their appeal. In this regard, the court observed in particular that the submissions at issue had contained new information, namely, that the applicants’ predecessor had allegedly never filed an objection against the area zoning plan. If established, this would have had a negative bearing on the applicants’ legal position. However, the Constitutional Court noted that, in its decision, the Administrative Court had not relied on this new submission and concluded that, thus, no prejudice had flown from this procedural deficiency. Considering these special circumstances as well as the fact that the proceedings as a whole had been adversarial, the Constitutional Court concluded that the applicants’ procedural rights had not been impaired.

Further, the Constitutional Court reiterated that, as a general principle, it was for the administrative authority to establish the relevant facts and to decide on the admissibility of evidence. It followed from the Administrative Court’s detailed legal reasoning that the facts the applicants wanted to prove were not relevant. There was nothing to indicate that the administrative authority had arbitrarily refused to proceed to inspect the property in question, as such an inspection could not prove whether the conditions for a de facto expropriation pertained in 1972 and 1981, respectively, when the provisional area zoning plan and later the final area zoning plan were issued.

Finally, as far as the applicants’ allegations of bias were concerned, the Constitutional Court, referring to an academic commentary on Liechtenstein administrative law, recalled that a country of the size of Liechtenstein had limited human resources in the public sector. It stressed that, in such circumstances, questions of replacement should be dealt with cautiously if one did not wish to jeopardise put at risk the proper functioning of the Liechtenstein authorities. The court reiterated that, by virtue of Article 6 of the Constitutional Court Act, a judge of the Constitutional Court, being at the same time judge at another Liechtenstein court, must be disqualified from proceedings where a complaint concerned a decision issued by that court. However, the Constitutional Court found that the same did not apply to a judge who was merely acquainted with a judge who had taken part in the impugned decision. Moreover, it noted that, in a State based on the rule of law, the quashing of a decision by the Constitutional Court was nothing unusual and did not put the professional skills of the judges involved in that decision into doubt. In these circumstances, the court found that the applicants’ fears of bias could not be considered as being objectively justified.

On 14 April 2000 the Constitutional Court’s decision was served on the applicants.

B. Relevant domestic law

1. Applications to the Administrative Court

According to Article 97 of the Constitution, read in conjunction with Section 2 § 3 of the Act of 21 April 1922 on National Administrative Justice ( Landesverwaltungspflegegesetz ), all decisions or orders by the government are subject to appeal before the Administrative Court. The latter consists of a president who is a  trained lawyer and of his deputy, who are appointed by the Prince on the proposal of the Diet, and of four appeal judges and their substitutes, who are elected by the Diet. The president and his deputy must be Liechtenstein nationals. Their term of office coincides with that of the Diet and at any rate ends at such time as they are replaced.

Pursuant to section 100 § 2 of the Act on National Administrative Justice, the Administrative Court is competent to carry out full reviews of the matters brought before it. It may order an oral hearing, summon the parties and take evidence or repeat the proceedings as a whole (paragraph 3). If it does not consider an oral hearing necessary, and if the parties have not explicitly requested one, it may decide on the basis of the file (paragraph 4).

2. Applications to the Constitutional Court

According to Article 104 of the Constitution, the Constitutional Court is, inter alia , competent to protect rights accorded by the Constitution. Section 23 of the Constitutional Court Act of 5 November 1925 provides that decisions of a court or of an administrative authority may be challenged before the Constitutional Court by alleging that there has been an infringement of constitutional rights or of rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Pursuant to Article 105 of the Constitution, read in conjunction with Section 2 of the Constitutional Court Act, the Constitutional Court consists of a president and his deputy, four judges and their substitutes. The president and its deputy as well as two further judges have to be Liechtenstein nationals, and at least two judges and their substitutes must be trained in law. The judges of the Constitutional Court are elected by the Diet for a period of five years; the election of the president and the deputy ‑ president are subject to confirmation by the Prince (Section 4).

By virtue of Section 6 § 1 of the Constitutional Court Act, those judges of the Constitutional Court who are at the same time judges at another Liechtenstein court, are disqualified from proceedings where a complaint concerns a decision issued by that court or the complaint matter is otherwise of interest to them.

The Constitutional Court can hold an oral hearing, which in principle is held in public (Section 37 of the Constitutional Court Act). However, it lies in its discretion to organise such a procedure or not.

According to Section 38 § 1 of the Constitutional Court Act, the Constitutional Court shall quash the impugned decision if it concludes that there has been a breach of constitutional rights.

COMPLAINTS

1. The applicants raise a number of complaints under Article 6 of the Convention.

a. In their submission, the Administrative Court is not sufficiently independent from the executive as it has its seat in the Office of the Government. They claim that the term of office of its members is not fixed, but coincides with that of the Diet. Further, the applicants submit that the Administrative Court is not sufficiently independent from the Prince in that the appointment of the president of the Administrative Court is subject to his approval. As to the Constitutional Court, the applicants claim that it cannot be regarded as a tribunal with full jurisdiction as required under Article 6, as it can only inquire into the impugned proceedings from a constitutional point of view.

b. The applicants complain that H.H., one of the judges of the Constitutional Court deciding on their complaint against the Administrative Court’s decision, lacked impartiality as he and G.W., who had been presiding the proceedings before the Administrative Court, were partners in the same law firm.

c. The applicants submit that the proceedings at issue were in breach of Article 6 on account of the lack of a public oral hearing both before the Administrative Court and the Constitutional Court as well as the absence of any public pronouncement of their decisions. They claim that their requests for the taking of evidence implied a request to hold an oral hearing.

d. The applicants further claim that the proceedings before the Administrative Court were also unfair in that the latter had disregarded their requests for the taking of evidence, i.e. the hear the parties, to inspect the property at issue and to obtain the minutes of a specified meeting of the Schellenberg Municipal Council. Further, they claim that the principle of equality of arms had been violated in that the Schellenberg Municipality’s comments on their appeal were not communicated to them.

2. Finally, with reference to Article 1 of Protocol No. 1, the applicants submit that they did not receive compensation for the designation of their property as non-building land which amounted, in their view, to an unlawful infringement of their right to peaceful enjoyment of their possessions.

THE LAW

1. The applicants raise a number of complaints under Article 6 of the Convention, which, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, 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.”

a. The applicants complain that the Administrative Court which had, contrary to the Constitutional Court, full jurisdiction to deal with all factual and legal aspects of the case, did not qualify as a tribunal as it is not sufficiently independent from the executive.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted. Article 35 § 1 requires that the complaints intended to be made subsequently before the Court should have been made, at least in substance, to the appropriate domestic body. The obligation to exhaust domestic remedies entails normal use of remedies which can provide effective and sufficient redress (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 65-69).

The Court notes that, under Liechtenstein law, the Constitutional Court is competent to quash any decision of a court or an administrative authority that has been challenged before it, if it concludes that there has been a breach of constitutional rights or of rights guaranteed by the Convention. Having regard to these facts, the Court finds that a complaint to the Constitutional Court concerning the alleged breach of Convention rights has to be considered an effective remedy for the purposes of Article 35 of the Convention.

In the instant case, the applicants did file a complaint with the Constitutional Court. However, they did not raise in substance the question whether the Administrative Court was an independent and impartial tribunal within the meaning of Article 6 of the Convention.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

b. The applicants complain that H.H., one of the judges of the Constitutional Court deciding on their complaint against the Administrative Court’s decision, lacked impartiality, as he and G.W., who had been presiding the proceedings before the Administrative Court, were partners in the same law firm.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

c. Further, the applicants complain that throughout the proceedings they did not have a public hearing and that the decisions in the present proceedings were not pronounced in public.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

d. The applicants also complain that the proceedings before the Administrative Court were unfair in that the latter failed to communicate to them the comments of the Schellenberg municipality on their appeal and in that it disregarded their requests for the taking of evidence.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. The applicants complain that the Liechtenstein courts failure to award them compensation for the designation of their land as non-building land, amounted to a breach of Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court recalls that Article 1 of Protocol No. 1 aims at securing the peaceful enjoyment of existing possessions. Future income only constitutes a “possession” if it has been earned or where an enforceable claim exists (see Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, § 50; van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p.23, § 48), or where the applicant may argue that he has at least a “legitimate expectation” of obtaining the effective enjoyment of a property right (see the Pine Valley Developments Ltd. and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51).

The Court notes that the designation of the property at issue as non ‑ building land occurred in 1981, when the area zoning plan entered into force. At that time the property still belonged to the applicants’ father. Thus, when the applicants inherited it in 1983 it was already designated as non-building land. Consequently, they cannot - and indeed they do not - complain about the designation of the property in itself.

Their complaint is rather that the failure to award them compensation for the designation of their land as non-building land violated their right to peaceful enjoyment of their possessions. However, there is nothing to show that the applicants had at any time a “legitimate expectation” to obtain compensation, let alone an enforceable compensation claim. Therefore, the applicants’ complaint falls outside the scope of Article 1 of Protocol No. 1.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the alleged bias of one of the judges of the Constitutional Court, the alleged unfairness of the proceedings, in particular the failure of the Adminstrative Court to communicate to the applicants the comments of the Schellenberg municipality on their appeal and the lack of a public hearing and of any public pronouncement of the decisions;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President