DECISION

AS TO THE ADMISSIBILITY

Application No. 18273/91

by the Estate of Johanna GEYER

against Austria

The European Commission of Human Rights (Second Chamber) sitting in private on 17 January 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. ŠVÁBY

Mr. K. ROGGE, 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 May 1991 by the Estate of Johanna Geyer against Austria and registered on 28 May 1991 under file No. 18273/91;

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

Having regard to the Commission's decision of 13 October 1993 to declare the application partly inadmissible and to communicate the remainder to the respondent Government for observations on its admissibility and merits;

Having regard to the observations submitted by the respondent Government on 26 January 1994 and the observations in reply submitted by the applicant on 10 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

The application was introduced by the estate of Mrs. Johanna Geyer . Mrs. Geyer , born in 1914, was an Austrian national who died in 1991.  She resided in Steyrermühl (Austria).  Before the Commission the estate is represented by Mr. K. Meingast , a lawyer practising in Gmunden (Austria), who already represented Mrs. Geyer in the domestic proceedings to which this application is related.

On 5 July 1991 the estate was assigned to Mrs. Geyer's niece Mrs. Gertrude Hutter as heir, who wishes to pursue the application.

A. Particular circumstances of the case

I

On 28 June 1974 the Upper Austria Regional Governor ( Landeshauptmann ) expropriated land owned by Mrs. Geyer and her husband, who died on 25 May 1987, for the purpose of constructing a new road.  The expropriation concerned 3000 square- metres of lot 886 and 600 square- metres of lot 887, both situated in the cadastral community ( Katastralgemeinde ) of Viechtwang .  The expropriation was ordered notwithstanding subsequent more accurate  measuring ( unbeschadet genauerer Vermessungen in der Natur ).  By the same decision compensation for expropriation was fixed.

On 18 November 1974 the Federal Minister for Construction and Technique ( Bundesminister für Bauten und Technik ) dismissed Mr. and Mrs. Geyer's appeal.

II

On 11 October 1985 the Gmunden District Administrative Authority ( Bezirkshauptmannschaft ) informed Mrs. Geyer that the coercive enforcement of the expropriation order was envisaged, as she neither expressly nor tacitly had consented to the expropriating authority taking possession of the land.

On 4 December 1985 the District Administrative Authority issued an enforcement order against Mrs. Geyer .  The Authority found that the expropriation order had become enforceable and that Mrs. Geyer had not yet transferred possession of the land to the Federal Roads Administration ( Bundesstrassenverwaltung ).

On 23 January 1986 the Regional Governor dismissed Mrs. Geyer's appeal but amended the District Authority's decision.  She was now ordered to tolerate that the Federal Roads Administration took possession of the land.

On 12 February 1986 the Federal Roads Administration took possession of the applicant's land by moving in on it with a caterpillar.

On 10 March 1986 Mrs. Geyer lodged a complaint with the Administrative Court ( Verwaltungsgerichtshof ) and requested it to grant suspensive effect to her complaint. She submitted that the expropriation decision was unenforceable as it mentioned neither the size nor the position of the expropriated area exactly.

The Federal Roads Administration submitted its observations on 16 May and on 10 June 1986, the Regional Governor on 20 May and on 10 June 1986.

On 21 August 1986 the Administrative Court decided not to grant suspensive effect to the complaint.

On 12 October 1987 Mrs. Geyer filed a new request for suspensive effect.  On 22 March 1988 she urged the Court to decide on her request of 12 October 1987 and on the complaint itself.

On 19 October 1990 the Administrative Court quashed the Regional Governor's decision of 23 January 1986.  The Court held that the              area to be expropriated must result in a clear manner from the authority's decision.  If only parts of lots of land were concerned, the necessary specification must be given by reference to a plan attached to the decision or to another sufficiently detailed plan on which the expropriation proceedings were based.  In the present case, the expropriation order did not contain such a reference and, thus, was not sufficiently clear as to which land precisely was claimed by the expropriating authority.  Therefore, enforcement proceedings relying on such a decision were inadmissible.

On 3 December 1990 the Regional Governor quashed the District Administrative Authority's enforcement order.

Meanwhile the construction works had apparently been carried out on the expropriated land.

III

On 29 October 1985 Mrs. Geyer applied to the Regional Governor for retransfer of the expropriated land invoking Section 20a of the Federal Roads Act ( Bundesstrassengesetz ).

On 25 April 1986 the Regional Governor decided to interrupt the proceedings for retransfer of property and instructed the Federal Roads Administration to finish the road construction by 30 September 1987.

On 12 May 1986 Mrs. Geyer appealed against this decision.  On 12 October 1987 she lodged a complaint ( Säumnisbeschwerde ) with the Administrative Court against the inactivity of the Federal Minister for Economic Affairs ( Bundesminister für wirtschaftliche Angelegenheiten ) in dealing with her appeal of 12 May 1986.  The Administrative Court ordered the Minister to decide on the appeal.

On 18 January 1988 the Minister dismissed the appeal and fixed 30 July 1988 as the new time limit for finishing the construction works.

On 7 March 1988 Mrs. Geyer introduced a complaint with the Constitutional Court ( Verfassungsgerichtshof ).  On 27 September 1988 the Constitutional Court refused to entertain the complaint and transferred it to the Administrative Court.  On 14 September 1989 the Administrative Court dismissed the complaint.

B. Relevant domestic law

Section 20 paras. 1 to 4 of the Federal Roads Act ( Bundesstraßengesetz ), insofar as relevant to the case, reads as follows:

(Translation)

"(1) The Regional Governor acting as Federal Roads Authority (Section 32) decides on the necessity, the object and the extent of an expropriation ...

(2) The expropriation order must also contain provisions on the amount of compensation. ...

(3) An appeal against the Regional Governor's decision on the necessity, the object and the extent of the expropriation can be lodged with the Federal Ministry for Construction and Technique.  No appeal lies against the amount of compensation granted in the administrative proceedings.  However, both parties are free to request the District Court, in whose judicial district the object of the expropriation is situated, to decide on the amount of the compensation.  Such a request has to be filed within three months from the time the expropriation order has come into force.  Once the court has been seized, the administrative authority's decision on the amount of compensation ceases to apply. ...

(4) The enforcement of the expropriation order cannot be prevented once the amount of compensation as decided by the Regional Governor or a security for compensation payable after the enforcement of the expropriation has been deposited with the courts."

Section 20a para. 1 of the Federal Roads Act reads as follows:

(Translation)

"If the expropriated land or a part of it has not been used for the purpose of the expropriation, the expropriated person may request a written decision on the retransfer of the property right to this land or the part concerned.  Such a request may be filed with the authority which decided on the expropriation after three years have elapsed from the time the decision on the expropriation has come into force.  In deciding on the request the authority has to apply the provisions on the expropriation mutatis mutandis (Section 20).  A claim for retransfer of property is heritable and saleable; it becomes extinct if the expropriated person does not file his claim with the authority within one year after having been invited by the expropriator to do so, but at the latest ten years after the expropriation order has come into force.  The authority has to set a reasonable time limit for the realisation of the project, if the expropriator furnishes prima facie evidence that the use of the expropriated land for the purpose of the expropriation is imminent, or that, for reasons for which he is not responsible, it cannot be used for the time being, but will be used in the near future.  The request has to be dismissed if the expropriator complies with the time limit.  It is, however, inadmissible to set a time limit if the fault for not putting the land to its appropriate use lies with the expropriator."

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention that the expropriation and enforcement proceedings have not been terminated within a reasonable time as required by Article 6 para. 1 of the Convention.

2. The applicant further complains that the expropriation proceedings were not conducted by an independent and impartial tribunal established by law as required by Article 6 para. 1 of the Convention.

3. The applicant finally complains under Article 1 of Protocol No. 1 to the Convention that the right to property was violated because the Administrative Court's inactivity in dealing with Mrs. Geyer's complaint against the enforcement order prejudiced her claim for retransfer of property.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 May 1991 and registered on 28 May 1991.

On 13 October 1993, the Commission (Second Chamber) decided to communicate to the respondent Government the applicant's complaint as to the length of the enforcement proceedings and the complaint under Article 1 of Protocol No. 1 and declared inadmissible the remainder of the application.

The Government submitted their observations on 26 January 1994 and the applicant's observations in reply were submitted on 10 March 1994.

THE LAW

1. The Commission first notes that the application was introduced by the estate of Mrs. Johanna Geyer who died in 1991, and that on 5 July 1991 her niece was put into possession of the estate. She wishes to pursue the application.

The Commission, having regard to the Convention organs' case-law, finds that the pecuniary nature of the claim and the close family relation between Mrs. Geyer and her heir allow that claim to be considered transferable (No. 10747/83, Dec. 6.5.86, D.R. 47 p. 106; Eur. Court H.R., Scherer judgment of 25 March 1994, Series A no. 287, p. 15, para. 31).

2. The applicant complains under Article 6 para. 1 of the Convention that the expropriation proceedings and subsequent enforcement proceedings were not conducted within a reasonable time as required by Article 6 para. 1 of the Convention.

Article 6 para. 1 of the Convention provides, as far  as relevant, as follows:

"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."

a. The Commission recalls that on 13 October 1993 it declared inadmissible the applicant's complaint under Article 6 para. 1 of the Convention about the length of the proceedings at issue as regards the expropriation proceedings, but adjourned its examination of the complaint as regards the enforcement proceedings.

b. The Government submit that the proceedings by which the expropriator obtains the right of property over the land have to be distinguished from the proceedings in which the expropriator obtains its possession.  Property is transferred once the expropriation order has become final and compensation is deposited with a court.  The taking of possession concerns the expropriator's taking factual control over the land.  As a rule, the authorities do not intervene at this stage but if, like in the present case, the expropriated person resists the expropriator taking possession, enforcement proceedings have to be instituted.  Mrs. Geyer lost her property right in 1974, when the expropriation order became final, and could no longer challenge the expropriation itself.  Since then she had no right of property and exercised her possession unlawfully.  The only purpose of the enforcement proceedings was to bring about a situation which was in compliance with the law and did not, therefore, concern the determination of her civil rights or obligations within the meaning of Article 6 para. 1 of the Convention.

The applicant maintains that property over expropriated land is only acquired when also its possession is transferred to the expropriator.  Thus, Mrs. Geyer was still the owner of the land when the expropriation order was enforced.  Therefore, the Administrative Court determined her civil rights and obligations when it decided on 19 October 1990 on the enforcement order and found that the expropriation order was defective and thus an insufficient basis for the enforcement proceedings.  Even assuming that Mrs. Geyer was no longer the owner of the land at the time of the enforcement of the expropriation order, she was its possessor, possession being a civil right under domestic law.  If an expropriator would take possession of the expropriated land without the consent of the expropriated person that person can resist this by filing an action for interference with possession, which is why the expropriator is forced to apply for an enforcement order.  It follows that in the enforcement proceedings at issue Mrs. Geyer's civil rights and obligations within the meaning of Article 6 para. 1 of the Convention were determined.  Article 6 para. 1 of the Convention was therefore applicable to the proceedings at issue.

c. The Government make no submissions on the further question whether if Article 6 para. 1 were held applicable, the enforcement proceedings were concluded within a reasonable time as required by that provision.  The applicant maintains that the duration of the proceedings at issue was excessive and that Article 6 para. 1 has, thus, been violated.

d. The Commission notes that the period to be considered started on 4 December 1985, when the enforcement order was issued. The proceedings ended on 3 December 1990, when the Regional Governor quashed the District Administrative Authority's enforcement order. Thus, the proceedings at issue lasted approximately 5 years.

Having made a preliminary examination of the parties' submissions, the Commission considers that the question of the applicability of Article 6 and the complaint regarding the length of the proceedings must be examined on their merits.  It follows that this part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention and must be declared admissible, no other ground for declaring it inadmissible having been established.

3. The applicant complains under Article 1 of Protocol No. 1 to the Convention that the right of property was violated because the Administrative Court's inactivity in dealing with Mrs. Geyer's complaint against the enforcement order prejudiced her claim for retransfer of property.

Article 1 of Protocol No. 1 reads 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 provision 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 Government submit that the proceedings before the Administrative Court on the enforcement order had no connection with the proceedings for retransfer of property.  Thus, even if the Administrative Court would have decided earlier on the enforcement order, this would have had no effect on the proceedings for retransfer of property.

The applicant submits that if the Administrative Court had decided on the complaint against the enforcement order before deciding on the complaint in the retransfer proceedings, the request for retransfer of property would eventually have been successful.  As this did not happen, the applicant suffered prejudice caused by the excessively long duration of the enforcement proceedings.

The Commission finds that the applicant's complaint under Article 1 para. 1 of Protocol No. 1 cannot be separated from the issue under Article 6 para. 1 of the Convention which requires an examination of the merits.  It therefore has to be declared admissible as well.             

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits of the case, the applicant's remaining complaints as to the length of the enforcement proceedings and the interference with her property rights.

Secretary to the Second Chamber President of the Second Chamber

    (K. ROGGE)     (H. DANELIUS)