Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17312/90

by H.L. and A.L.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 25 July 1990 by

H.L. and A.L. against Austria and registered on 17 October 1990 under

file No. 17312/90;

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 applicants are a married couple living in Mittersill. The

first applicant was born in 1927 and the second applicant in 1931.

They are represented by Mr. E. Proksch, a lawyer practising in Vienna.

It follows from their statements and the documents submitted that

on 22 August 1988 the office of the Regional Government

(Landesregierung) in Salzburg ordered the applicants to pay a total of

AS 1,250.07 to the Forest Administration for the use in 1987 of forest

wood which they were permitted to exploit in relation to real estate

of which they are the owners. It is stated in the order that according

to a friendly settlement deed (Regulierungsurkunde) of 1869 and a

friendly settlement decision (Regulierungserkenntnis) of 1870, a

certain amount of kreutzer had to be paid for the use of forest wood.

According to legislation passed in the meantime and which came into

effect on 1 July 1986 a kreutzer corresponded to 85 pennies (Groschen).

It is further stated that the authorities were not competent to examine

whether the legislation in which the conversion from kreutzer to

pennies was compatible with the Constitution or not. Furthermore,

there was no reason to suspend the proceedings pending a decision of

the Constitutional Court (Verfassungsgerichtshof).

The applicants' appeal (Berufung) was rejected by the Salzburg

Provincial Land Reform Board (Landesagrarsenat - "The Provincial

Board") on 27 January 1989. Insofar as the applicants had complained

that the order complained of had been given without an oral hearing

it is stated that an oral hearing was not provided for in the relevant

procedural law. Furthermore, the amount of forest wood used by the

applicants was uncontested as well as the fact that no payment had been

effected by the applicants in return for the use of the wood. Insofar

as the applicants had alleged the non-constitutionality of the

legislative provisions on which the order complained of was based, a

decision is referred to of the Constitutional Court given on

6 October 1988 according to which the relevant legislation, namely the

Salzburger Einforstungsrechtegesetz, was compatible with constitutional

law.

The applicants then lodged a complaint (Beschwerde) with the

Administrative Court (Verwaltungsgerichtshof) which was rejected on

5 December 1989. The Administrative Court also refers to the

Constitutional Court's decision of 6 October 1988 according to which

the legislative provision relating to the conversion of kreutzers to

pennies was constitutional.

The Court stated in this respect that both the friendly

settlement deed and the friendly settlement decision constituted an act

of public authority (Hoheitsakt).

Insofar as the right to use the forest wood was stipulated in a

friendly settlement deed which was to be considered as a private law

contract it is pointed out by the Administrative Court that the

validity of such contracts depended on confirmation by public authority

(hoheitliche Bestätigung) in accordance with an imperial patent

(Kaiserliches Patent) of 5 July 1853. This also followed from a

ministerial decree of 31 October 1857.

Consequently, the reasons on which the Constitutional Court's

decision of 6 October 1988 were based also applied to the case at

issue.

The monetary conversion provided for in the legislation in

question had been justified for objective reasons and was in conformity

with legislative provisions regulating the rights of forest wood users.

The determination by the regional legislation of these rights and of

the amounts due for the use of forest woods did not constitute an

expropriation.

Insofar as the applicants had complained that Mr. P., head of the

division of the Salzburg Regional Government which gave the decision

of 22 August 1988, had participated in the decision-making, it is

pointed out by the Administrative Court that the decision was signed

by another civil servant, namely Mr. Feyertag and was taken by this

civil servant alone, but even considering that Mr. P. was likewise

involved in the proceedings, there was no reason to consider him to be

biased. Finally, the Administrative Court pointed out that the

calculation of the amount due by the applicants had not been questioned

by them.

The applicants submit that the Administrative Court's judgment

was communicated on 26 January 1990.

COMPLAINTS

The applicants consider that the legislative provisions applied

in their case and their present obligation to pay for the use of forest

wood stemming from their own property constitutes a violation of the

right to the peaceful enjoyment of possessions as guaranteed by Article

1 of Protocol No. 1. They submitted that contrary to a friendly

settlement decision the friendly settlement agreement in their case was

a private law contract and therefore did not justify the interference

complained of. They also consider that the proceedings in question

violated Article 6 of the Convention. The lower instances were, in

their submission, not impartial and independent tribunals. The

Administrative Court and the Constitutional Court did, on the other

hand, in their submission not have sufficient competence to examine

both legal and factual issues.

THE LAW

1. The applicants first invoke Article 1 of Protocol No. 1

(P1-1) which reads:

"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.

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."

However, even assuming that domestic remedies were exhausted the

applicants have not shown that their property right related to a forest

area comprises the right to an unrestricted use of forest wood. It

follows from the decision of the Austrian Administrative court that in

the past century the right to use forest wood grown on private property

was accorded by public authority. This regulation is based on an

imperial patent and a ministerial decree of 31 October 1857. The

regulation is, according to the Administrative Court, which in this

respect also referred to the Austrian Constitutional Court's

jurisprudence, still valid.

Consequently it cannot be found that the applicants were deprived

of any property right. Rather their obligation to pay for the use of

the wood of their forests is to be considered as a consequence of the

State's right to enforce laws which it considers necessary to control

the use of property within the meaning of Article 1 para. 2 of Protocol

No. 1 (P1-1-2) to the Convention.

It has not been shown that in the present case the regulation in

question amounted to an abusive interference imposing on the applicants

an individual and excessive burden.

It follows that there is no appearance of a violation of the

Article invoked by the applicants and this part of the application

therefore has to be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention as being manifestly ill-founded.

2. The applicants have further invoked Article 6 (Art. 6) of the

Convention alleging generally a violation of their right to a fair

trial.

However, it has not been shown in the present case that there

were factual issues before the Administrative Court which that court

was prevented from examining (cf. Eur. Court H.R., Ettl and others

judgment of 23 April 1987, Series A No. 117, p. 17, para. 34; Zumtobel

judgment of 21 September 1993, Series A, No. 268-A, para. 32).

Consequently it cannot be found that the Administrative Court was in

any way limited in its competence to examine the issues raised by the

applicant. The Administrative Court found that there was no basis in

the domestic law for the applicant's alleged claim. It has not been

shown that this finding is inconsistent with any provisions of the

Austrian legal order or arbitrary for any other reason.

It follows that there is, in the particular circumstances of the

case, no appearance of a violation of Article 6 (Art. 6) of the

Convention and to this extent the application has therefore likewise

to be rejected as being manifestly ill-founded.

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) (A. WEITZEL)

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H.L. AND A.L. v. AUSTRIA

H.L. AND A.L. v. AUSTRIA

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