Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31698/96

by J. F.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 April 1996 by

J. F. against Austria and registered on 3 June 1996 under file

No. 31698/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1940 and residing

in Grünau (Upper Austria). Before the Commission he is represented by

Mr. K. Meingast, a lawyer practising in Gmunden (Upper Austria).

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

A. Particular circumstances of the case

In February 1989 the applicant bought two parcels of land

situated in Scharnstein (Upper Austria) of a surface of approximately

1,9 hectares which are forest. Subsequently he replaced a forest hut

of a surface of 5 per 6 metres by one of a surface of 6 per 8,20

metres. The new hut was erected at a distance of 20 metres from the

place where the old one stood.

On 5 October 1992 the Gmunden District Administrative Authority

(Bezirkshauptmannschaft) ordered the applicant to remove the forest hut

and to re-plant trees on the place where it is situated. The Authority

found that in 1991 the applicant had erected the forest hut without any

permission and that an expert for forestry had found that given the

size of the applicant's forest and its accessibility (Aufschließung)

a hut was not necessary for the cultivation of his forest. The

applicant therefore used forest soil for other purposes than forestry,

which was prohibited by Section 17 para. 1 of the Forest Act

(Forstgesetz).

On 28 December 1992 the applicant appealed. He submitted that

on his land there had been a forest hut before, and that he had merely

replaced this hut by a more modern one. On the soil he used for the

construction of the hut there had not been trees but gravel.

Furthermore, in view of his health conditions, he needed the hut for

cultivating the forest. He lived 10 kilometres away from the forest,

suffered from pain in the back and had to lie down after working in the

forest. He also needed a place to change his clothes and to keep his

tools. The forest hut was therefore absolutely necessary for the

cultivation of his forest.

On 13 September 1993 the Upper Austria Regional Governor

(Landeshauptmann) dismissed the applicant's appeal. He observed that

on 17 June 1993 a further report by an official expert for forestry had

been obtained. According to this expert opinion the applicant's hut

was not strictly necessary for the purpose of cultivating his forest

in view of the forest's geographic situation, its size and its average

yield of 20 Fm. timber (Festmeter = cubic metre of solid timber) per

year. In the Regional Governor's view the question of necessity of the

hut had to be assessed on the basis of objective criteria, like the

ones used by the expert. Whether in view of his health situation the

applicant found it useful to use a hut was therefore of no relevance.

Moreover, the hut was built and equipped in a manner which indicated

its use as a weekend house. The Regional Governor therefore concluded

that the building of the hut on the applicant's land constituted use

of forest soil for other purposes than forestry (Rodung) which was

prohibited by Section 17 para. 1 of the Forest Act. Accordingly the

applicant had to remove the hut and replant trees on the place where

it had been built.

On 3 November 1993 the applicant filed a complaint with the

Constitutional Court (Verfassungsgerichtshof), complaining that the

order to remove the hut violated his right to property as guaranteed

by the Federal Constitution.

On 28 November 1994 the Constitutional Court declined to deal

with the applicant's complaint for lack of prospect of success and,

upon the applicant's request, referred the case to the Administrative

Court (Verwaltungsgerichtshof) on 31 January 1995.

On 24 March 1995 the applicant supplemented his complaint to the

Administrative Court and also requested that an oral hearing be held.

On 25 September 1995 the Administrative Court decided on the

applicant's complaint. Insofar the order concerned the removal of the

forest hut the Administrative Court dismissed the complaint. It found

that according to the findings of the expert the hut had not been

strictly necessary for cultivating the applicant's forest and had given

rather the impression of a weekend house. The Administrative Court did

not accept the applicant's argument that Section 17 of the Forest Act

should be understood as to allow for buildings in forests which were

useful for the cultivation of forests. Rather, it was in accordance

with its previous case-law that only such building may be erected which

are strictly necessary for the cultivation of a forest. Insofar the

order concerned the re-cultivation of the soil on which the hut is

erected the Administrative Court quashed the order. It noted that in

the course of the administrative proceedings the applicant had

maintained that before he had erected the hut no trees had been

standing on the ground but that it had been covered with gravel.

Taking these arguments into account the Administrative Court found that

the authorities had failed to establish whether the order for planting

trees on this particular piece of land had been necessary. The

Administrative Court also rejected, in accordance with

Section 39 para. 2 (6) of the Administrative Court Act

(Verwaltungsgerichtshofgesetz), the applicant's request for an oral

hearing. Referring to the European Court of Human Rights judgment in

the Fischer case (Fischer v. Austria judgment of 26 April 1995, Series

A no. 312), the Administrative Court found that also Article 6 of the

Convention did not require the holding of a hearing in the present case

because the essential facts had not been in dispute and the legal

questions to be decided had already been resolved in the Administrative

Court's previous case-law.

On 2 April 1996 the Regional Governor decided again on the

applicant's appeal against the District Administrative Authority's

order of 5 October 1992, insofar it concerned the order to re-plant

trees and quashed this part of the order. The Regional Governor

referred to a further expert opinion by an expert for forestry who had

found that while planting trees on this part of the applicant's land

was not necessary for the preservation of the forest, in view of its

position at the end of a forest road the space could be used as a

turning area for tractors and lorries.

On 28 November 1995 the Gmunden Administrative Authority warned

the applicant that if he did not remove the hut within three months,

it would arrange for the hut to be removed at the applicant's

expense. On 29 September 1997 the Gmunden District Administrative

Authority ordered the enforcement of the order to remove the forest hut

(Ersatzvornahme) and requested the applicant to advance a sum of

290 000 ATS for the works to be carried out by a private firm.

B. Relevant domestic law

Section 39 para. 1 of the Administrative Court Act (Verwaltungs-

gerichtshofgesetz) 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 para. 2 (6), which was added to the Act in 1982, provides

however:

[Translation]

"Notwithstanding a party's application, the Administrative Court

may decide not to hold a hearing when

...

6. It is apparent to the Court from the written pleadings of

the parties to the proceedings before the Administrative Court

and from the files relating to the prior proceedings that an oral

hearing is not likely to contribute to clarifying the case."

[German]

"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages

nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn

...

6. die Schriftsätze der Parteien des verwaltungsgerichtlichen

Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten

des Verwaltungsverfahrens erkennen lassen, daß die mündliche

Erörterung eine weitere Klärung der Rechtssache nicht erwarten

läßt."

COMPLAINTS

The applicant complains that in the proceedings under the Forest

Act the Administrative Court did not hold a public hearing as required

by Article 6 para. 1 of the Convention. He further complains that the

order to remove the forest hut violated his right to property as

guaranteed by Article 1 of Protocol No. 1. Lastly he complains that

this order also violated his right to respect for his home as

guaranteed by Article 8 of the Convention.

THE LAW

1. The applicant complains that in the proceedings under the Forest

Act the Administrative Court did not hold a public hearing as required

by Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission 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 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

2. The applicant further complains that the order to remove the

forest hut violated his right to property and relies on Article 1 of

Protocol No. 1 (P1-1), which provides as follows:

"(1) 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.

(2) 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 Commission observes that the prohibition under Section 17 of

the Forest Act to use forest land for other purposes than forestry on

which the order to remove the applicant's forest hut was based

constitutes a measure for the control of use of property within the

meaning of paragraph 2 of Article 1 of Protocol No. 1 (P1-1). However,

the decision to order the removal of the applicant's hut on the ground

that this building was not strictly necessary for the purpose of

cultivating the forest - the only reason for which the erection of a

building in a forest is permitted - did not alter the existing

authorised use of the land. In this respect the Commission observes

that the applicant's land was a forest and not designed as building

land. The Commission also recalls that, as a general rule, the rights

secured by Article 1 of Protocol No. 1 (P1-1) cannot be invoked in

order to extend property rights in domestic law by requiring planning

permissions for purposes which have never been permitted (No. 19178/91,

Dec. 14.10.93, unpublished). Thus, the decisions complained of do not

disclose any appearance of a violation of the applicant's right to

property as guaranteed by Article 1 of Protocol No. 1 (P1-1).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Lastly the applicant complains that the order to remove the

forest hut also violated his right to respect for his home as

guaranteed by Article 8 (Art. 8) of the Convention.

However the Commission is not required to determine whether or

not the facts alleged by the applicant disclose any appearance of a

violation of Article 8 (Art. 8) of the Convention as, under Article 26

(Art. 26) of the Convention it may only deal with a matter after all

domestic remedies have bee exhausted according to the generally

recognised rules of international law.

The Commission recalls that to exhaust domestic remedies the

person concerned must have raised before the national authorities, at

least in substance, the complaint he puts before the Commission

(No. 16810/90, Dec. 9.9.92, D.R. 73, p. 136; Eur. Court HR, Ahmet Sadik

v. Greece judgment of 15 November 1996, Reports-V, no. 20, para.

30). The Commission observes that the applicant in his complaint to

the Constitutional Court neither referred expressly to Article 8

(Art. 8) of the Convention nor relied on this provision in substance.

It follows that this part of the application must, therefore, be

rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the complaint as regards

the lack of a public hearing in the proceedings on the

applicant's request under the Real Property Transaction Act;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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J.F. v. AUSTRIA

J.F. v. AUSTRIA

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