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AS TO THE ADMISSIBILITY OF

Application No. 18822/91

by A.H.

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 6 September 1991

by A.H. against Austria and registered on 19 September 1991 under file

No. 18822/91;

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 applicant, may be

summarised as follows.

The applicant is an Austrian citizen, born in 1912. She resides

at Linz. Before the Commission she is represented by Dr. Walter Müller,

a lawyer practising at Linz.

The case concerns the expropriation proceedings instituted with

a view to the enlargement of a road in the commune of Hellmonsödt. The

applicant was opposed to this, maintaining that the enlargement was not

in the public interest and did not serve any meaningful purpose.

On 8 November 1990 the Office of the Provincial Government of

Upper Austria (Amt der Landesregierung) made an order for expropriation

involving approximately 80 square metres of the applicant's property,

and fixed a compensation totalling 512,856 Austrian schillings. The

Office of the Provincial Government stated inter alia that, according

to sections 57 and 58 of the 1975 Provincial Road Administration Act

(Landes-Straßenverwaltungsgesetz), expropriation of property for the

purpose of road enlargement was permissible, provided the necessity for

this purpose and for the purpose of the public road traffic had been

established. In the circumstances of the present case the Office

concluded that, on the basis of the expert opinions obtained and the

other material submitted, the expropriation was necessary and that the

area in question did not exceed what was actually needed for the

enlargement envisaged.

The applicant appealed against the expropriation order to the

Constitutional Court (Verfassungsgerichtshof). She claimed that the

expropriation proceedings had violated her right to peaceful enjoyment

of her possessions. She also alleged that her right of access to a

tribunal with full jurisdiction had been violated and that there had

been a breach of the principle of equality of arms. She referred inter

alia to Article 6 of the Convention and to Article 1 of Protocol No. 1

to the Convention.

On 11 June 1991, the Constitutional Court decided not to

entertain the application since, in view of its case-law on Article 6

of the Convention, the application did not have sufficient prospects

of success. Moreover, the Court noted that the case did not fall

outside the Administrative Court's (Verwaltungsgerichtshof)

jurisdiction.

The applicant did not challenge, in any way, the expropriation

order of 8 November 1990 in the Administrative Court.

COMPLAINTS

The applicant complains that she did not have access to a

tribunal satisfying the requirements of Article 6 of the Convention

before which she could challenge the expropriation order made by the

administrative authorities on 8 November 1990. In particular she

maintains that the Administrative Court does not have full jurisdiction

to review the appropriateness of the expropriation, something which,

in her opinion, is finally determined by the administrative authority.

THE LAW

The applicant complains that, in the determination of the

expropriation issues concerning her property, she did not have access

to a tribunal satisfying the requirements of Article 6 (Art. 6) of the

Convention.

In so far as relevant this provision reads as follows :

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

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

established by law."

The Commission notes that Article 6 (Art. 6) applies to the

proceedings referred to by the applicant, as they concerned a genuine

dispute over her property, and thus over a "civil right" within the

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

the applicant was entitled, under this provision, to bring the decision

of the Office of the Provincial Government of 8 November 1990 before

a tribunal within the meaning of Article 6 (Art. 6) of the Convention.

The Commission recalls from the facts of the present case that

the decision of the Office of the Provincial Government could be

appealed against on various grounds to the Constitutional Court and to

the Administrative Court. These appeals, however, would only be

consistent with Article 6 para. 1 (Art. 6-1) of the Convention if

conducted before a judicial body which has full jurisdiction.

The applicant brought her case before the Constitutional Court.

However, the Commission finds that this court did not, in the

circumstances of the present case, satisfy the above requirement. This

instance could inquire into the contested proceedings only from the

point of view of their conformity with the Constitution which did not

make it possible for it to examine all the relevant facts. The

Constitutional Court did not, therefore, have the power required under

Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R.,

Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 30).

The applicant could furthermore have lodged an appeal with the

Administrative Court, something which she chose not to do as such an

appeal, in her opinion, would have been meaningless.

The Commission does not agree with the applicant on this point.

From the above-mentioned Zumtobel case the Commission recalls that

under Article 130 of the Federal Constitution, the Administrative Court

has jurisdiction to hear inter alia applications alleging that an

administrative decision is unlawful (ibid. para. 18). Furthermore,

Article 42 of the Administrative Court Act (Verwaltungsgerichtshof-

gesetz) provides that the Administrative Court shall quash a decision

inter alia if it is unlawful by reason of its content, or on account

of a breach of procedural rules in that the respondent authority has

made findings of facts which are contradicted by the case file (ibid.

para. 19).

Accordingly, the Commission finds that the Administrative Court

is not entirely bound by the facts established by the administrative

authority. The scope of review by the Administrative Court must be

assessed in the light of the fact that expropriation is not a matter

exclusively within the discretion of the administrative authority.

Sections 57 and 58 of the Provincial Road Administration Act make the

lawfulness of such a measure subject to the condition that it has been

established that this measure is necessary for the road enlargement

envisaged and for the public road traffic. It is for the Administrative

Court to satisfy itself that these provisions have been complied with.

In these circumstances, and having regard to the respect which must be

accorded to decisions taken by the administrative authorities on

grounds of expediency and to the nature of the complaint made by the

applicant, the review by the Administrative Court cannot from the

outset be considered as not fulfilling the requirements of Article 6

para. 1 (Art. 6-1) of the Convention (ibid. para. 32).

Having regard to the above, the Commission finds that the

applicant did have access to a court and, in particular in the light

of the fact that she did not make use of this possibility under

domestic law to bring the expropriation issue before the Administrative

Court, the Commission finds that her complaint, i.e. that this court

did not have full jurisdiction to examine the case, does not disclose

any appearance of a violation of Article 6 (Art. 6) of the Convention.

It follows that the application is manifestly ill-founded within

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

For these reasons the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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A.H. v. AUSTRIA

A.H. v. AUSTRIA

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