Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18051/91 Application No. 19115/91

by Elsa HUG-VONWALD by Elsa and Christian HUG-VONWALD

against Switzerland against Switzerland

The European Commission of Human Rights (First Chamber)

sitting in private on 7 April 1994, the following members being

present:

MM. A. WEITZEL, President

S. TRECHSEL

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 applications introduced on 8 January

1991 and 18 September 1991 by Elsa and Christian HUG-VONWALD

against Switzerland and registered on 8 April 1991 and 21

November 1991 under file Nos. 18051/91 and 19115/91;

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 applicant in Application No. 18051/91 (henceforth: the

first applicant) is a Swiss citizen born in 1923 residing at

Trimmis in Switzerland. She has also filed Application No.

19115/91 where she is joined by the second applicant, her

husband, a Swiss citizen born in 1917 who also resides at

Trimmis. Before the Commission the applicants are represented

by Mr. A. Weber, a lawyer practising in St. Gallen.

Application No. 18051/91

This application relates to the first applicant's real

property situated next to the Trimmis church.

In 1972 a building plan (Ortsplanung) was prepared which,

after approval by the Council of State (Regierungsrat) of the

Canton of Graubünden entered into force in 1973. As a result the

first applicant's property partly came to be situated in an area

designated for public buildings (Zone für öffentliche Bauten und

Anlagen) and as such subject to certain building restrictions.

In 1983 the Trimmis municipality, offering compensation of

60 SFr per m2, requested the first applicant to transfer

ownership of her property in order to enlarge the cemetery next

to the church. However, no agreement could be reached between

the parties.

In 1984 the Trimmis Popular Assembly (Gemeindeversammlung)

decided to institute expropriation proceedings against the first

applicant. In 1986 the Expropriation Commission

(Enteignungskommis-sion) determined compensation to the amount

of 80 SFr per m2.

The first applicant and the Trimmis municipality appealed

against this decision to the Administrative Court

(Verwaltungsgericht) of the Canton of Graubünden, each alleging

an incorrect calculation of compensation. The Court dismissed

these appeals on 18 February 1987.

The first applicant's administrative law appeal

(Verwaltungsge-richtsbeschwerde) was partly upheld by the Federal

Court (Bundesge-richt) on 2 March 1988 on the ground that the

Administrative Court had overlooked certain factors when

determining the amount of compensation.

Proceedings were resumed before the Administrative Court

which, after examining further evidence, confirmed on 7 December

1988 the compensation which it had previously fixed. The first

applicant's administrative law appeal was dismissed by the

Federal Court on 29 August 1989, the decision being served on 12

September 1989.

The Trimmis municipality offered the first applicant

compensation amounting to 306.251,15 SFr. The latter, however,

filed an appeal (Einsprache) with the Administrative Court,

requesting adjournment of

the proceedings until a revised building plan had entered into

force, and complaining that the expropriation lacked general

public interest.

In its decision of 23 January 1990 the Administrative Court

found that the appeal could only concern the correctness of the

payment (Richtigkeit der Zahlung) of compensation and not the

lawfulness of the expropriation. The Court nevertheless partly

upheld the appeal as the area to be expropriated had been

incorrectly calculated.

In her further appeal the first applicant complained that

there was no general public interest justifying expropriation.

On 10 May 1990 the Federal Court dismissed the appeal, the

decision being served on 9 July 1990. The Court found that it

could not hear complaints about the lawfulness of the

expropriation as the Administrative Court's decision of 23

January 1990 concerned solely the execution (Vollzugs-anordnung)

of the earlier judgment of 7 December 1988 which had entered into

force.

Application No. 19115/91

This application concerns the revision of the Trimmis

building plan in 1989. The plan assigned real properties of the

applicants to the area for public buildings or to the village

core area (Dorfzone).

The applicants' appeal against this plan was dismissed by

the Council of State of the Canton of Graubünden on 26 March

1990. The applicants filed an administrative law appeal and a

public law appeal with the Federal Court in which they complained

of the revised Building Plan; under Article 6 of the Convention

they contended that the Government was not an independent

judicial body.

These appeals were dismissed on 18 February 1991 by the

Federal Court. In its decision it regarded as unfounded the

applicants' complaint in their administrative law appeal that

certain buildings had been included in the building zone which

previously had been unlawfully built outside the building zone.

Insofar as the applicants in their public law appeal raised

complaints under the Convention the Federal Court found that they

had not complied with the requirements under Section 90 of the

Federal Judiciary Act for filing a public law appeal. In respect

of further property next to the church the Court found that it

had definitely decided this matter in its judgment of 10 May

1990; the applicants were no longer proprietors and had no

standing before the Court.

Finally, the Court examined the applicants' complaint as to

the allocation of building area in the building plan. The Court

dismissed the complaint since "measures serving to prevent

building zones of an excessive area or to reduce such building

zones lie in the public interest" ("liegen Massnahmen im

öffentlichen Interesse, die geeignet sind, das Entstehen

überdimensionierter Bauzonen zu verhindern oder solche Bauzonen

zu verkleinern").

COMPLAINTS

In Application No. 18051/91 the first applicant complains

under Article 6 of the Convention that there was no public

interest warranting expropriation of her property. She also

complains that no court approved the building plan of 1972; that

the Federal Court did not examine the issue of a public interest

justifying expropriation; and that no independent and impartial

court examined the expropriation.

In Application No. 19115/91 the applicants complain under

Article 6 para. 1 of the Convention that the Federal Court in its

decision of 18 February 1991 did not examine the issue of public

interest as regards the expropriation of the property adjacent

to the cemetery; and that there was no public interest warranting

this expropriation. Moreover, the Council of State of the Canton

of Graubünden was not a court, and no court ever examined the

building plan. The applicants complain that the Federal Court

incorrectly stated that they were no longer the proprietors of

the real property adjacent to the church.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1)

of the Convention that no court examined the Trimmis building

plan or the existence of a public interest justifying

expropriation of their real property. The applicants complain

that public interest did not warrant expropriation, and that the

Federal Court assessed certain facts incorrectly.

2. The Commission finds it convenient to join Applications Nos.

18051/91 and 19115/91 pursuant to Rule 35 of the Commission's

Rules of Procedure.

3. Insofar as the applicants complain that public interest did

not warrant expropriation of their property and that the Federal

Court incorrectly assessed certain facts, the Commission recalls

that under Article 19 (Art. 19) of the Convention its only task

is to ensure the observance of the obligations undertaken by the

Parties to the Convention. In particular, it is not competent

to deal with an application alleging that errors of law or fact

have been committed by domestic courts, except where it considers

that such errors might have involved a possible violation of any

of the rights and freedoms set out in the Convention. The

Commission refers on this point to its established case-law (see

e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236; No.

5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 p. 31, 45). Moreover, insofar as the

applicants appear to rely on Article 1 of Protocol No. 1 (P1-1),

the Commission notes that Switzerland is not a party to this

Protocol.

4. It is true that the applicants invoke Article 6 para. 1

(Art. 6-1) of the Convention which states, insofar as relevant,

that "in the determination of his civil rights and obligations

... everyone is entitled to a ... hearing by (a) tribunal ...".

The Commission finds that this provision is applicable to

the proceedings concerning the expropriation of the first

applicant's property adjacent to the Trimmis cemetery.

The Commission further recalls the Convention organs' case-

law according to which disputes over building plans amount to

"the determination of (an applicant's) civil rights" within the

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

Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990, Series

A no. 180-A, p. 12 et seq., paras. 30 et seq.). Article 6 para.

1 (Art. 6-1) of the Convention thus also applies to the

proceedings instituted by the applicants upon revision of the

Trimmis building plan in 1989.

5. The applicants complain under Article 6 para. 1 (Art. 6-1)

of the Convention that no court examined the Trimmis building

plan or whether the expropriation of their property complied with

a public interest.

a) Insofar as these complaints are directed against the Federal

Court's decision of 10 May 1990, that Court was solely concerned

with the execution of a judgment which had entered into legal

force. The Commission need not determine at what earlier stage

of the proceedings the first applicant should properly have

raised the complaints now raised before the Commission. It

suffices to note that in its decision of 10 May 1990 the Federal

Court held that it was no longer competent to deal with

complaints concerning the lawfulness of the expropriation.

In respect of these complaints, the applications are

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

(Art. 27-2) of the Convention.

b) The applicants also direct their complaints against the

decision of the Federal Court of 18 February 1991 in which it

dealt with the revised building plan of 1989.

The applicants complain in particular under Article 6 para.

1(Art. 6-1) of the Convention that only the Council of State and

not a court decided on the building plan. However, the

Commission recalls the case-law of the Convention organs

according to which the Convention calls at least for one of the

following systems: either the jurisdictional 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 after the Council of State of the Canton

of Graubünden gave its decision on 26 March 1990, the applicants

seised the Federal Court by means of an administrative law appeal

and a public law appeal. The latter gave its decision on 18

February 1991.

In examining whether the Federal 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 (see Eur.

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

268-A, para. 32).

In the present case, the applicants complain that the

Federal Court refrained from examining whether a public interest

warranted expropriation of their property adjacent to the church.

The Commission notes that the Federal Court did not refrain

from examining these issues on the ground that it declined

jurisdiction (see Eur. Court H.R., Zumtobel judgment, loc. cit.).

Rather, the Court declared the applicants' complaints under the

Convention inadmissible as not complying with the requirements

under the Federal Judiciary Act. In addition, in respect of the

property adjacent to the church the Court found that it had

definitely decided this matter in its previous decision of 10 May

1990; the applicants were no longer proprietors and had no

standing before the Court.

In any event the Commission notes that elsewhere in its

decision of 18 February 1991 the Federal Court in fact regarded

itself competent to examine the issue of public interest. Thus,

when examining the issue of excessive building zones the Court

expressly referred to public interest as warranting measures

which served to prevent such building zones or to reduce them.

The remainder of the applications 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 unanimously

1. DECIDES TO JOIN APPLICATIONS Nos. 18051/91 AND

19115/91;

2. DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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HUG-VONWALD v. SWITZERLAND

HUG-VONWALD v. SWITZERLAND

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