AS TO THE ADMISSIBILITY OF

                      Application No. 20619/92

                      by Elisabeth BIRNLEITNER

                      against Austria

     The European Commission of Human Rights (Second Chamber) sitting

in private on 28 June 1995, the following members being present:

           Mr.   H. DANELIUS, President

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 S. TRECHSEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

           Ms.   M.-T. SCHOEPFER, 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 2 September 1992

by Elisabeth BIRNLEITNER against Austria and registered on

14 September 1992 under file No. 20619/92;

     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 1936 and living in

Aistersheim.  She is represented by Mr. W. L. Weh, a lawyer practising

in Bregenz.

     The facts of the present case as submitted by the applicant, and

which may be deduced from documents lodged with the application, may

be summarised as follows:

     On 3 May 1985 the mayor of the community of Aistersheim issued

a construction order (Baubescheid) in accordance with Section 57 (4)

and Section 59 (3) of the Upper Austrian Regional Road Administration

Act (Landes-Strassenverwaltungsgesetz - LStVG) providing for the

reconstruction (Umbau) of a public road.

     The order referred to the jurisprudence of the Administrative

Court (Verwaltungsgerichtshof) and stated that, in deciding on the

project in question, a balance had to be struck between public and

private interests.  Private interests should only be interfered with

if and to the extent that such interference was necessary in the public

interest.

     The order further stated that, according to expert opinion, the

road in question was too narrow between the properties Nos. 18 and 17;

therefore the Community Council had decided to widen the road and

requested the mayor to carry out the authorisation proceedings.  The

applicant, as one of the property owners concerned by the widening of

the road, had been heard but her objections, in the light of two expert

opinions, had to be rejected.

     Prior to the order, the Community Council had issued a decree

(Verordnung) on 27 December 1984 on the basis of Sections 8 and 9 of

the above-mentioned Road Administration Act. This order related to the

line of construction (Trasse) of the road project in question.

     The applicant's appeal against the mayor's order of 3 May 1985

was dismissed by the Aistersheim Community Council on 8 September 1988,

subsequent to supplementary investigation proceedings (ergänzende

Ermittlungsverfahren).

     The Council stated that the road construction works in question

had been provided for by the Community Council decree of

27 December 1984 and the mayor was bound by that decree.  Nevertheless

the applicant was free to formulate an objection.  The reasons for her

objection were not, however, considered to be decisive. The applicant

had relied on a private expert opinion to contradict the official

expert opinion (Amtssachverständigengutachten) and both opinions were

of equal evidential value, but in the circumstances the private expert

opinion was less conclusive. The private expert had effected a traffic

census during a calm period on 19 and 20 June 1985, but traffic was,

for example, more dense at harvesting time. Moreover, a project for the

construction of a road station had meanwhile been adopted. This was a

further indication that, contrary to the opinion of the private expert

and in agreement with the official expert, traffic would increase in

the future. Therefore the widening of the road in question was

necessary to secure fluid and safe road traffic.

     On further appeal this decision was confirmed by the Upper

Austrian Regional Government on 22 December 1988.  The Regional

Government stressed that the construction route of the new road had

been determined by the Community Council decree of 27 December 1984

which could not be challenged.  The applicant could complain about

tangible construction measures, but her complaints were unfounded; it

had been shown by official expert evidence that the widening of the

road from 3 to 5.50 metres was necessary in the interests of secure and

fluid road traffic, taking into account that traffic was likely to

increase.  The official expert opinion was conclusive and confirmed

that the road construction project envisaged was the best of all

possible solutions. The applicant's argument that the Community

Council, being the interested party, should not have competence to

issue a construction decree was unfounded.

     The applicant then lodged a constitutional complaint alleging

violations of her property right, the right to equal treatment and the

rights guaranteed by Article 6 of the Convention. On 12 June 1989 the

Constitutional Court (Verfassungsgerichtshof) rejected the applicant's

complaint.  The Court stated that while the applicant invoked the right

of property, of equality before the law and the right to a fair trial

(Article 6 of the Convention) her arguments were limited to alleging

that the violations of these rights were the consequence of an

incorrect application of non-constitutional law.  However, insofar as

constitutional law itself was concerned, the Constitutional Court

considered in the light of its constant jurisprudence that the

applicant's complaints had no prospects of success.  The Constitutional

Court also pointed out that the matter could be considered by the

Administrative Court.

     Before this court the applicant argued that the new road project

was unnecessary as the existing road was fully sufficient given that

there was hardly any traffic.  Also, an increase of traffic in the

future was not to be expected.  She concluded that the community had

no reason to realise the project which it had itself provided for in

the decree of 27 December 1984.  Lastly she argued that the

construction and expropriation measures should not have been brought

by the community but by the regional authorities.

     On 21 January 1992, the Administrative Court dismissed the

applicant's appeal (Beschwerde) stating that the decree of

27 December 1984 implied a public interest of the road construction

project.  The property owners affected by the decree were not parties

to the decree proceedings.  They could not contest the utility of the

new road as the decree had entered into legal force (dem Rechtbestand

angehörende).    The Court pointed out that the applicant nevertheless

had the possibility to raise her objection that the road project did

not serve a public interest by way of a constitutional complaint.  The

Administrative Court noted in this respect that the applicant had in

fact seized the Constitutional Court which had, however, rejected her

complaint.

     In the proceedings before the Administrative Court the applicant

therefore could no longer contest the necessity and utility of the new

road construction. It was of no relevance whether or not the

authorities were right in relying on the official expert opinion rather

than following the private expert opinion submitted by the applicant.

The applicant's submissions furthermore did not disclose any appearance

of a violation of constitutional rights necessitating the reference of

the matter back to the Constitutional Court.

     The Administrative Court also rejected as being unfounded the

applicant's argument that the local authorities lacked competence to

carry out the proceedings relating to the authorisation of the road

construction project.

     Meanwhile the District Authority (Bezirkshauptmannschaft) in

Grieskirchen had on 1 February 1989 issued an expropriation order,

according to which, inter alia, certain parts of the applicant's

property situated in Aistersheim were expropriated for the purposes of

the road construction.  The applicant was awarded AS 130,702 in

compensation for about 1,000 m2 of expropriated land.

     The applicant's appeal against the expropriation order was

rejected by the Regional Government on 19 August 1991.  Her request for

a stay of execution of the expropriation order was rejected at the same

time. The Regional Government stated that the proceedings relating to

the authorisation of the road construction project had been terminated

by a final decision. The only object of the expropriation proceedings

was the question of whether or not the expropriated properties were

needed for the authorised road construction project. This was not

seriously disputed by the applicant, nor had she shown that procedural

guarantees had been violated in the matter.

     The applicant then lodged a second constitutional complaint

requesting at the same time an interim order, staying the expropriation

proceedings.  The request for an interim order was rejected by the

Constitutional Court on 6 November 1991.

     On 9 June 1992 the Constitutional Court rejected the

constitutional complaint as offering no prospects of success.

     The applicant brought proceedings against the expropriation order

before the Administrative Court, which rejected the applicant's

complaint on 30 April 1992 as being unfounded.  The Court inter alia

stressed that the applicant could not challenge the expropriation order

by raising again the objection that the road construction was not

necessary.  The Court referred to its previous judgment of

21 January 1992 which explained that the road construction decree

implied a decision that the construction of the road was in the public

interest and thereby in a certain way was also binding in the

expropriation proceedings, as the property owners, affected by the

construction of the road, were barred from contesting the necessity of

the road construction which the expropriation served.  The fact that

the expropriation was effected several years later in no way affected

the legality of the proceedings as no substantial factual changes had

occurred in the meantime.

     Insofar as the applicant had invoked Article 6 of the Convention,

the Administrative Court referred to a decision of the Constitutional

Court of 14 October 1987 according to which the competence of

administrative authorities to decide on the question of expropriation

was compatible with Article 6.  Finally, the Administrative Court

referred to its previous decision of 21 January 1992 in which it had

pointed out that the applicant had the possibility of lodging a

constitutional complaint against the decisions relating to the

authorisation of the road construction.

COMPLAINTS

     The applicant considers that the expropriation proceedings

violated Article 6 of the Convention. She also invokes Article 1 of

Protocol N° 1.

     In this context the applicant first complains that the road

construction decree of 27 December 1984 was issued by the Community

Council without prior proceedings in due form. A constitutional

complaint against the construction decree would not have been an

adequate remedy as the Constitutional Court can neither control the

establishment of the facts nor the application of non-constitutional

law. Consequently, it had never been possible to have examined by a

court the question of whether or not a fair balance was struck between

the public interests and the interests of the property owner concerned

by the construction decree, which was binding for the authorities which

later issued the construction and expropriation orders.

     The applicant also complains that, in the proceedings relating

to the authorisation of the road construction project in the present

case, the official expert opinion was given preference over the private

expert opinion, although the official expert is a civil servant

employed by the authorities which issued the expropriation order.

     The applicant points out that the public authority concerned,

i.e. the Community Council, acts both as a party to the administrative

proceedings relating to the authorisation of the road construction and

the expropriation proceedings, and as the decision-making authority.

      Moreover, the applicant did not have a right to a full judicial

review of the authorities' decisions. The appeal to the Administrative

Court against the expropriation order could not be considered an

effective remedy because this court was bound by the construction

decree issued by the Aistersheim Community Council on 27 December 1984.

The situation complained of is alleged to be similar to that in the

Bodén and Obermaier cases (see Eur. Court H.R., Bodén judgment of

27 October 1987, Series A no. 125-B and Obermaier judgment of

28 June 1990, Series A no. 179).

     The applicant also alleges that the community of Aistersheim

designated a construction firm to carry out the road construction works

beginning on 30 July 1991, i.e. three weeks before the Regional

Government confirmed the expropriation order.  She considers that this

is proof of unlawful collusion between the local and regional

authorities.

     Finally, the applicant suggests joining the present application

with application no. 26507/95 which allegedly raises similar issues.

THE LAW

1.   The Commission has considered the applicant's request to join the

present matter with application no. 26507/95, but sees no cogent reason

to do so, since the applicant has failed to submit sufficient arguments

in support of his request.

2.   The applicant argues above all that her right to a court as

guaranteed by Article 6 (Art. 6) of the Convention (see Eur. Court

H.R., Golder judgment of 21 February 1975, Series A no. 18, p. 18,

para. 36) was violated in that the scope of the judicial review of the

domestic courts which dealt with her case was too limited.

a.   The Commission notes that contrary to the situation in the Bodén

case, to which the applicant refers (see judgment of 27 October 1987,

as cited above), she did have the possibility to complain to the

Constitutional Court about the community decree of 27 December 1984

affecting her property.  As was pointed out by the Administrative

Court's decision of 21 January 1992 she did thus have the possibility

to contest before the Constitutional Court that the community's road

construction project was in the "public interest".

     The Commission recalls, however, that the notion of "public

interest", is necessarily extensive and confers on the national

authorities wide discretionary powers.  The domestic courts therefore

will normally respect the legislator's assessment as to what is "in the

public interest" unless this assessment is without reasonable

foundation (cf. Eur. Court H.R., James and others, judgment of

21 February 1986, Series A no. 98, p. 32, para. 46).  The scope of the

control exercised by the Austrian Constitutional Court was therefore

limited in view of the nature of the right in question.  The Commission

cannot find that this limitation amounted to a violation of Article 6

(Art. 6) of the Convention.

b.   The applicant further complains about alleged unfairness of the

proceedings before the administrative bodies, in particular as regards

the expert opinions.  However, she has not shown that she could not

raise these complaints before the Administrative Court, in particular

that she could not put forward any evidence which she regarded as

pertinent (see Comm. Report 30.6.92,  Zumtobel v. Austria, Eur. Court

H.R., Series A no. 268-A, p. 22, para. 87).

     The applicant next complains of the limited scope of judicial

review of the Administrative Court.

     The Commission recalls that the Convention calls at least for one

of the following systems: either the first instance organs themselves

comply with the requirements of Article 6 para. 1 (Art. 6-1), or they

do not so comply, but are subject to subsequent control by a judicial

body that has full jurisdiction and does provide the guarantees of

Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Albert and Le Compte

judgment of 10 February 1983, Series A no. 58, p. 16, para. 29).

     In the present case, the applicant filed appeals with the

Administrative Court against the decisions of the Upper Austrian

Regional Government of 22 December 1988 and 19 August 1991.  The

Administrative Court gave its decisions on 21 January and

30 April 1992, respectively.

     In examining whether the Administrative Court constituted a

"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention, the Commission must confine itself as far as possible to

the circumstances of the case before it.  An important indication will

be whether the court itself in the circumstances of the case considered

that it lacked jurisdiction to examine the complaints raised (see Eur.

Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A,

p. 14, para. 32; Ortenberg judgment of 25 November 1994, Series A no.

295-B, para. 34).

     The Commission has first examined the proceedings leading to the

Administrative Court's decision of 21 January 1992.

     It notes that these proceedings concerned general legal

provisions, namely the decree of 27 December 1984 ordering the

construction of a road.  The applicant contested the necessity of this

construction.  The Administrative Court, however, did not refuse to

examine this complaint on the ground that its powers of review were too

narrow.  Rather it found that the complaint at issue could not be

directed against the decree as the latter had entered into legal force.

Insofar as the complaint at issue related to the question of whether

the road project was in the "public interest", the Court found that

this matter could be dealt with by the Constitutional Court.

     On the other hand the Administrative Court had in fact entered

into an examination of the lawfulness of the decree though it concluded

that no doubts arose in this respect.

     In these circumstances it cannot be found that the proceedings

in question reveal any appearance of a violation of Article 6

(Art. 6).

c.   The Commission has next examined the proceedings concerning the

expropriation of the applicant's property and leading to the

Administrative Court's decision of 30 April 1992.

     The Court then dealt again with the applicant's complaint that

the road construction as such was unnecessary; in this respect the

Court recalled that this matter had already been decided in its

decision of 21 January 1992.  There is, therefore, also in its decision

of 30 April 1992 no indication that the Court refused to examine the

complaint on the ground that its powers of review were too narrow.

     The Commission finds no support for the applicant's complaint

that she did not have access to a court within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention, and this part of the

application is therefore manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

3.   The applicant also invokes Article 1 of Protocol No. 1 (P1-1) of

the Convention, but the Commission finds no separate issue under this

provision.  The remainder of the application is therefore also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

     For these reasons, the Commission, by a majority,

     DECIDES TO REJECT the request for a joinder with

     Application No. 26507/95;

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber      President of the Second Chamber

       (M.-T. SCHOEPFER)                      (H. DANELIUS)