AS TO THE ADMISSIBILITY OF

                      Application No. 16789/90

                      by Johanna GEYER

                      against Austria

      The European Commission of Human Rights (Second Chamber) sitting

in private on 13 October 1993, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

           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 6 June 1990 by

Johanna GEYER against Austria and registered on 28 June 1990 under file

No. 16789/90;

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

summarised as follows.

      The application was introduced by Mrs. J. Geyer, an Austrian

national born in 1914 and residing in Steyrermühl (Austria). Before the

Commission she was represented by Mr. K. Meingast, a lawyer practising

in Gmunden (Austria).

      Mr. Meingast informed the Commission that the applicant died on

2 February 1991 and that in the meantime the estate had been assigned

to Mrs. G. Hutter as heir.  Mrs. Hutter wishes to pursue the

application.

A.    Particular circumstances of the case

      On 28 June 1974 the Upper Austria Regional Governor

(Landeshauptmann) expropriated land owned by the applicant and her

husband, who died meanwhile on 25 May 1987, for the purpose of

constructing a new road.

      On 18 November 1974 the Federal Minister for Construction and

Technique (Bundesminister für Bauten und Technik) dismissed the

applicant's appeal.  The applicant did not file a complaint with the

Constitutional Court (Verfassungsgerichtshof) or the Administrative

Court (Verwaltungsgerichtshof).

      On 29 October 1985 the applicant applied to the Regional Governor

for retransfer of property over the expropriated land invoking Section

20a of the Federal Roads Act (Bundesstraßengesetz).  She submitted that

no construction work had so far been undertaken on the expropriated

land, although 11 years had passed since the expropriation had taken

place.  This constituted an inappropriately long delay in the

realisation of the planned road construction.

      On 25 April 1986 the Regional Governor decided to interrupt the

proceedings for retransfer of property and instructed the Federal Road

Administration (Bundesstraßenverwaltung) to finish the road

construction by 30 September 1987.

      On 12 May 1986 the applicant appealed against this decision to

the Federal Minister for Economic Affairs (Bundesminister für

wirtschaftliche Angelegenheiten).

      On 12 October 1987 the applicant lodged a complaint

(Säumnisbeschwerde) with the Administrative Court against the

inactivity of the Federal Minister for Economic Affairs in dealing with

her appeal of 12 May 1986.  The Administrative Court ordered the

Minister to decide on the applicant's appeal.

      On 18 January 1988 the Minister dismissed the applicant's appeal

and fixed 30 July 1988 as the new time limit for finishing the

construction works.

      On 7 March 1988 the applicant introduced a complaint with the

Constitutional Court.

      On 27 September 1988 the Constitutional Court refused to

entertain the applicant's complaint and transferred it to the

Administrative Court.

      On 26 January 1989 the applicant filed a supplementary complaint.

She submitted that she had acquired an unconditional claim for

retransfer of the expropriated land as the construction work had not

been accomplished by the time limit set by the Regional Governor.  The

extension of the time limit by the Minister was unlawful.  She further

submitted that the Minister had in his decision referred to several

appeals filed by her in administrative proceedings without identifying

them.  The Minister, therefore, could not conclude that the Federal

Roads Authority was not responsible for the delays in the construction

works.  She also submitted that a note by the Federal Roads Authority

according to which she had hindered the finishing of the road

construction works had not been communicated to her.

      On 14 September 1989 the Administrative Court dismissed the

applicant's complaint.  The Court held that the time limit for

finishing the construction works had not expired on 30 September 1987,

as it had been prolonged by the Minister's decision.  This prolongation

was lawful because the Regional Governor's decision had not come into

force.  The Court further held that it was not in dispute that the

applicant did file several appeals in this matter and that this was the

reason why the aim of the expropriation could not be achieved.  The

authority therefore was entitled to conclude that it was not the

expropriator's fault if the expropriated land could not be used for the

purpose of the expropriation so far.  The applicant could not be blamed

for filing these appeals; however, they had to be taken into account

when deciding whether the Federal Roads Administration was responsible

for the delays.  The authorities were not bound to enumerate all the

applicant's appeals because the applicant herself would know which

appeals she had filed.  Lastly as regards the complaint about a note

by the Federal Roads Authority not having been communicated to her, she

did not argue at which other conclusion the authority could have

arrived if this alleged procedural mistake had not occurred.

Therefore, the Court did not consider this a relevant procedural

mistake.

      The Court's judgment was served on the applicant on 7 December

1989.B.    Relevant domestic law

      Section 20a para. 1 of the Federal Roads Act (Bundesstraßen-

gesetz) reads as follows:

           "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 over

      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 had 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."

      "Wird der Enteignungsgegenstand ganz oder zum Teil nicht für den

      Enteignungszweck verwendet, so kann der Enteignete die

      bescheidmäßige Rückübereignung des Enteignungsgegenstandes

      beziehungsweise dessen Teiles nach Ablauf von drei Jahren ab

      Rechtskraft des Enteignungsbescheides bei der Behörde beantragen,

      die unter sinngemäßer Anwendung der im Enteignungsverfahren zu

      beachtenden Bestimmungen (Paragraph 20) zu entscheiden hat.

      Dieser Anspruch ist vererblich und veräußerlich; er erlischt wenn

      der Enteignete dieses Recht nicht binnen einem Jahr ab

      nachweislicher Aufforderung durch den Enteigner bei der Behörde

      geltend macht, spätestens jedoch zehn Jahre nach der Rechtskraft

      des Enteignungsbescheides.  Macht der Enteigner glaubhaft, daß

      die Verwendung des Enteignungsgegenstandes für den

      Enteignungszweck unmittelbar bevorsteht oder die Verwendung aus

      Gründen, die der Enteigner nicht zu vertreten hat, vorläufig

      nicht möglich ist, aber in absehbarer Zeit erfolgen wird, hat die

      Behörde dem Enteigner eine angemessene Ausführungsfrist zu

      bestimmen.  Bei deren Einhaltung ist der Antrag auf

      Rückübereignung abzuweisen.  Eine Fristsetzung ist jedoch in

      jedem Fall unzulässig, wenn den Enteigner an der bislang nicht

      entsprechenden Verwendung ein Verschulden trifft."

COMPLAINTS

1.    The applicant complains that the proceedings were not conducted

before an independent and impartial tribunal established by law as

required by Article 6 para. 1 of the Convention.

2.    The applicant complains further under Article 6 para. 1 of the

Convention that the administrative authorities which decided on her

request were biased.  She submits that the same authorities which were

responsible for the construction works and delays occurring therein

also decided in the proceedings on claims for retransfer of property,

in which they had to assess whether delays which occurred in the

construction works were attributable to them.

3.    The applicant also complains under Article 6 para. 1 of the

Convention that the proceedings before the Administrative Court were

unfair.  She submits that in these proceedings she was opposed by the

Regional Governor and the Minister for Economic Affairs, though both

were organs of the Republic of Austria.  She complains in particular

that she had to pay procedural costs to both the Regional Governor and

the Minister.

4.    Lastly, she complains under Article 1 of Protocol No. 1 that her

right to property has been violated by the refusal of the retransfer

of ownership over her expropriated property in unfair proceedings.

THE LAW

1.    The applicant complains that the proceedings were not conducted

before an independent and impartial tribunal established by law as

required by Article 6 para. 1 (Art. 6-1) of the Convention.

      Article 6 para. 1 (Art. 6-1) of the Convention provides, in so

far as relevant for the case, 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 first notes that the original applicant died in

1991 after having introduced the application, that on 5 July 1991 her

heir was put into possession of the estate and that this heir wishes

to pursue the application.  The Commission notes further that the

present application concerns proceedings for the retransfer of

ownership over expropriated land.

      The Commission, having regard to its case-law, finds that the

pecuniary nature of the claim allows that claim to be considered

transferable (No. 10474/83, Dec. 6.5.86, D.R. 47 p. 106).

b)    The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention applies only to disputes over "rights and obligations" which

can be said, at least on arguable grounds, to be recognised under

domestic law.  Article 6 (Art. 6) does not in itself guarantee any

particular content for "rights and obligations" in the substantive law

of the Contracting States (see Eur. Court H.R., Lithgow and others

judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).

      The Commission further recalls that the civil character of the

right at issue is not to be interpreted solely by reference to the

respondent state's domestic law and that it is enough that the outcome

of the proceedings should be decisive for private rights and

obligations (Eur. Court H.R., Allan Jacobsson judgment of 25 October

1989, Series A no. 163, p. 20, para. 72).

      The Commission has already held that expropriation proceedings,

notwithstanding their qualification under domestic law, were decisive

for the very substance of the private rights and obligations of the

person concerned in that these proceedings determined whether or not

he remains owner of the real property (Firma F.M. Zumtobel and Martin

Zumtobel v. Austria, Comm. Report 30.6.92, para. 56 et seq., to be

published in D.R.).

      Having regard to Section 20a of the Federal Roads Act, the

Commission notes that the applicant's claim for retransfer of property

is under domestic law a public law claim.  Section 20 a of the Federal

Roads Act provides for a right of an expropriated person to retransfer

of property over his land, subject to the fulfilment of the conditions

laid down in this provision.  The Commission notes further that the

applicant had filed a request for retransfer of property and that in

the following proceedings the fulfilment of the conditions laid down

in Section 20a of the Federal Roads Act was at issue.

      The Commission considers that if the applicant's claim had been

successful she would again have become owner of the land.  The right

of ownership, however, is without doubt a civil right.  Thus, the

outcome of the proceedings in which the applicant was involved before

the Administrative Court were decisive for her private rights and

obligations.

      Furthermore, the proceedings concerned a genuine and serious

dispute ("contestation") over the return of ownership over previously

expropriated land; hence, the dispute related to the actual existence

of a "right" (see Eur. Court H.R., Bodén judgment of 27 October 1987,

Series A no. 125-B, pp. 39 et seq., paras. 28 et seq.; Firma F.M.

Zumtobel and Martin Zumtobel v. Austria, Comm. Report 30.6.92, paras.

56 et seq.).

      The Commission thus finds that the applicant's claim for

retransfer of property must be considered as being of a civil nature

for the purpose of Article 6 para. 1 (Art. 6-1) of the Convention and

concludes that this provision is applicable to the proceedings at

issue.

      The applicant complains under Article 6 para. 1 (Art. 6-1) that

she did not have access to an independent and impartial tribunal.

      The Commission considers that the procedures before the Regional

Governor and the Federal Minister for Economic Affairs do not satisfy

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

However, these requirements are satisfied if subsequently the

applicant's civil rights have been determined before judicial bodies

that have full jurisdiction (Eur. Court H.R., Zumtobel judgment of 21

September 1993, para. 29, to be published in Series A no. 268A; Ettl

and others v. Austria, Comm. Report 3.7.85, Eur. Court H.R., Series A

no. 117, p. 23, para. 78).

      The Administrative Court fulfils the requirements of Article 6

para. 1 (Art. 6-1) of the Convention in matters which are not

exclusively within the discretion of administrative authorities and

where the Administrative Court considers the submissions on their

merits, point by point, without ever having to decline jurisdiction in

replying to them or in ascertaining various facts. (Eur. Court H.R.,

Zumtobel judgment of 21 September 1993, paras. 31 and 32).

      The Commission notes that in the present case it was not in

dispute that the applicant had filed several appeals in administrative

proceedings relating to the construction works on the expropriated land

and that this was the reason why the purpose of the expropriation could

not be realised.  The primary issue in the proceedings before the

Administrative Court was whether the resulting delay had to be

attributed to the authorities.  The second issue was whether the

Federal Minister for Economic Affairs could lawfully extend the time

limit for finishing the construction work.  These were, however,

essentially questions of law, which were duly considered by the

Administrative Court.

      As a result, the Commission considers that the requirements of

a "tribunal" within the meaning of Article 6 para. 1 (Art. 6)1) of the

Convention have been complied with.  It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

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

2.    The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that the administrative authorities which

decided on her request were biased.  She submits that the same

authorities which were responsible for the construction works and

delays occurring therein also decided in the proceedings on claims for

retransfer of property, in which they had to assess whether delays

which had occurred in the construction works were attributable to them.

      The Commission recalls that when a dispute over civil rights and

obligations has been successively examined by different organs, Article

6 para. 1 (Art. 6-1) does not demand that the first of these satisfy

the requirements of that provision (Eur. Court H.R., Le Compte, Van

Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 22

et seq., para. 51; No. 11179/84, Dec. 9.7.86, D.R. 48 p. 207 at 223).

      The Commission notes that the applicant introduced a complaint

with the Administrative Court against the decisions taken by the

allegedly biased Regional Governor and Federal Minister for Economic

Affairs.  The Commission further notes that the Administrative Court

reviewed the findings of the authorities as to whether delays which had

occurred were attributable to the authorities or not.  The applicant

does not complain that the Administrative Court was biased.

      The Commission thus finds that the applicant's claim was decided

by a tribunal whose impartiality the applicant does not question.  In

these circumstances there is no appearance of a violation of Article

6 para. 1 (Art. 6-1) of the Convention in this respect.

      It follows that this complaint is also manifestly ill-founded

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

3.    The applicant also complains under Article 6 para. 1

(Art. 6-1) of the Convention that the proceedings before the

Administrative Court were unfair.  She submits that in these

proceedings she was opposed by the Regional Governor and the Minister

for Economic Affairs though both were organs of the Republic of

Austria.  She complains in particular that she had to pay procedural

costs to both the Regional Governor and the Ministry.

      The Commission recalls that the right to a fair hearing implies

that the applicant be able to present her case under conditions which

do not place her under a substantial disadvantage vis-a-vis her

opponent (No. 9938/82, Dec. 15.7.86, D.R. 48 p. 21).

      As the applicant does not substantiate that, apart from higher

costs of procedure, she was put in such an unfavourable situation, the

Commission cannot find that the mere participation of two organs as

parties opposing the applicant in the proceedings at issue infringed

her right to a fair hearing as guaranteed by Article 6 para. 1

(Art. 6-1) of the Convention.

      It follows that also this complaint is manifestly ill-founded

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

4.    Lastly, the applicant complains under Article 1 of Protocol No.

1 (P1-1) that her right to property has been violated by the refusal

of the retransfer of her expropriated property in unfair proceedings.

      The Commission notes that the applicant was no longer owner of

the land as the property had already been transferred to the Federal

Road Administration and that her claim for retransfer was dismissed by

the authorities and the Administrative Court on the ground that the

conditions laid down by Section 20a of the Federal Roads Act were not

met.

      In these circumstances the Commission considers that the

applicant has failed to show that she actually had a claim to

retransfer of property under domestic law.

      It follows that also this complaint 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 Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)