Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23464/94

by Johann and Elisabeth KÜHBERGER

against Austria

The European Commission of Human Rights (First Chamber) sitting

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

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 17 January 1994

by Johann and Elisabeth KÃœHBERGER against Austria and registered on

15 February 1994 under file No. 23464/94;

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 facts of the case, as submitted by the applicants, may be

summarised as follows.

The applicants, born in 1934 and 1939 respectively, are Austrian

nationals. They are residing in Durban, South Africa. In the

proceedings before the Commission they are represented by Mr. Hafner,

a lawyer practising in Altmünster.

In 1973 the applicants bought a plot of land in Bad Aussee. On

27 July 1979 the Mayor (Bürgermeister) of Bad Aussee, upon the

applicants' request, designated their plot of land for building

purposes.

In 1981 the Bad Aussee municipality issued a zoning plan

(Flächenwidmungsplan) designating the applicants' plot of land as open

land (Freiland). On 9 December 1981 the said zoning plan was approved

by the Office of the Styria Regional Government (Amt der steier-

märkischen Landesregierung). Subsequently, it was published on the

notice board of the Bad Aussee municipality and entered into force on

2 January 1982.

On 4 July 1991 the applicants informed the Bad Aussee

municipality that they intended to sell the plot of land at issue and

requested whether it could, according to the prior designation, be used

for building purposes.

By letter of 9 July 1991 the Bad Aussee municipality replied that

the plot of land had meanwhile been designated as open land. The

applicants received this letter on 15 July 1991.

On 19 July 1991 the applicants requested compensation under S. 34

of the Styria Regional Planning Act (Raumordnungsgesetz) for the loss

in value of their plot of land and also requested reinstatement to the

status quo (Wiedereinsetzung) as regards the one-year time-limit laid

down in this provision for asserting such a claim. They submitted in

particular that they had only learned from the letter of the Bad Aussee

municipality, which they had received on 15 July 1991, that their plot

of land may no longer be used for building purposes. They had been

prevented from making their claim in time, as they were permanently

residing in South Africa and the zoning plan had never been served on

them. Further, they could not have knowledge of its eventual

publication.

On 18 February 1992 the Liezen District Administrative Authority

(Bezirksverwaltungsbehörde) dismissed the applicants' request for

reinstatement and rejected their compensation claim as having been

lodged out of time. The District Administrative Authority, referring

to the case-law of the Administrative Court (Verwaltungsgerichtshof),

found that S. 71 of the Code of Administrative Procedure (Allgemeines

Verwaltungsverfahrensgesetz), concerning reinstatement to the status

quo, only applied if a party, in the course of administrative

proceedings, failed to comply with a procedural time-limit. However,

the said provision did not apply to asserting a substantive claim, like

the compensation claim under S. 34 of the Styria Regional Planning Act,

which became extinct unless it was asserted within one year after the

entry into force of the relevant zoning plan.

On 14 January 1993 the Office of the Styria Regional Government

dismissed the applicants' appeal. It noted the applicants' submissions,

that the time-limit was a procedural issue, as their request for

compensation was aimed at a procedural act, namely that of issuing a

decision. However, it confirmed the District Administrative Authority's

view. It further noted in particular that the zoning plan at issue had

been duly published on the municipality's notice board. As the

applicants were residing in South Africa they could have been expected

to nominate a person to represent them in proceedings concerning their

plot of land.

On 26 June 1993 the Administrative Court dismissed the

applicant's complaint. It confirmed that, according to S. 71 of the

Code of Administrative Procedure, reinstatement to the status quo only

applied to procedural time-limits but not to a time-limit for asserting

a substantive claim, like the one laid down in S. 34 of the Styria

Regional Planning Act. The administrative authorities had, thus,

rightly dismissed the applicants' request. The decision was served on

the applicants' counsel on 20 July 1993.

COMPLAINTS

1. The applicants complain that the zoning plan, which changed the

planning designation of their plot of land and, thus, constituted an

interference with their right to property, was never served on them.

They submit that, for this reason, the interference at issue was not

in accordance with the general principles of international law. They

also complain that the proceedings relating to the zoning plan were

unfair in this respect. They invoke Article 1 of Protocol No. 1 and

Article 6 of the Convention.

2. The applicants also complain under Article 6 of the Convention

that they could not claim compensation under S. 34 of the Styria

Regional Planning Act, as any such claim became extinct one year after

the entry into force of the zoning plan, although they did not know

about its existence. Thus, they were denied access to court.

THE LAW

1. The applicants complain that the zoning plan of 1981, which

changed the planning designation of their plot of land, was never

served on them. They invoke Article 1 of Protocol No. 1 (P1-1) and

Article 6 (Art. 6)of the Convention.

Article 26 (Art. 26) of the Convention provides that the

Commission may only deal with a matter "after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken." The "final decision" refers only

to domestic remedies with can be considered to be "effective and

sufficient" for the purpose of rectifying the subject-matter of the

complaint (No. 11763/85, Dec. 9.3.89, D.R. 60 p. 137).

In the present case the relevant zoning plan was issued in 1981

and the applicants learned about its existence and the change in the

planning designation of their plot of land by letter of 9 July 1991 of

the Bad Aussee municipality, which they received on 15 July 1991.

Thereupon, they requested compensation for the loss of value of their

plot of land and reinstatement to the status quo as regards the time-

limit for asserting the compensation claim. The final decision in these

proceedings was given by the Administrative Court on 26 June 1993 and

served on the applicants on 20 July 1993. They introduced their

application on 17 January 1994.

The Commission finds that the above proceedings do not constitute

an effective remedy as regards the violation alleged by the applicants,

namely that the zoning plan, which changed the designation of their

plot of land, was not served on them. The decisions concerning the

zoning plan were taken in 1981. However, the applicants only learned

about the existence of the zoning plan by letter of the Bad Aussee

municipality, which they received on 15 July 1991. In these

circumstances, the Commission finds that this date has to be taken as

the starting point for the six-months'-period laid down in Article 26

(Art. 26) of the Convention. Given the date of introduction of the

application, namely 17 January 1994, the applicant's failed to comply

with the requirements of Article 26 (Art. 26).

It follows that this part of the application has to be rejected

in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicants complain under Article 6 (Art. 6) of the

Convention that they could not claim compensation under S. 34 of the

Styria Regional Planning Act, as any such claim became extinct one year

after the entry into force of the zoning plan, although they did not

know about the latter's existence. Thus, they were denied access to

court.

Article 6 (Art. 6), so far as relevant, reads as follows:

" In the determination of his civil rights and obligations ...,

everyone is entitled to a fair ... hearing ... "

The Commission recalls that Article 6 (Art. 6) extends only to

disputes over "civil rights and obligations" which can be said, at

least on arguable grounds, to be recognised under domestic law; it does

not in itself guarantee any particular content for "civil rights and

obligations" in the substantive law of the Contracting States (see

Eur. Court H.R. Bodén judgment of 27 October 1987, Series A no. 125-B,

p. 39, para. 28).

In the present case the zoning plan, changing the designation of

the applicants' plot of land, entered into force on 2 January 1982. The

applicants, on 19 July 1991, requested compensation under S. 34 of the

Styria Regional Planning Act and reinstatement to the status quo as

regards the time-limit for asserting their claim. However, the Liezen

District Administrative Authority rejected their claim. It found that,

according to S. 34 of the Styria Regional Planning Act, the claim at

issue becomes extinct unless it is asserted within one year after the

entry into force of the relevant zoning plan. As regards the

applicants' request for reinstatement into the status quo, it found

that the relevant provision of the Code of Administrative Procedure

only applied to procedural time-limits but not to time-limits for

asserting a substantive claim. Subsequently, the Office of the Styria

Regional Government and the Administrative Court confirmed this

decision.

In these circumstances, the Commission finds that the applicants,

at the time of their request of 19 July 1991, could not claim to have

a right to compensation under Austrian law. Thus, the proceedings

relating to the said request did not involve a determination of their

civil rights and obligations within the meaning of Article 6 (Art. 6)

of the Convention. Consequently, the applicants cannot claim a right

of access to court in this matter.

It follows that this part of the application is incompatible

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

of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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KÜHBERGER v. AUSTRIA

KÜHBERGER v. AUSTRIA

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