Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18273/91

by the Estate of J.G.

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 17 May 1991 by the

Estate of J.G. 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 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 the estate of Mrs. J. G.. Mrs.

G. was an Austrian national born in 1914 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. G. in the domestic proceedings

to which this application is related.

Mr. Meingast informed the Commission that on 5 July 1991 the

estate had been assigned to Mrs. G. H. as heir and that she wished 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. G. and her husband,

who subsequently 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 Mrs. G.'s

appeal. She did not file a complaint with the Constitutional Court

(Verfassungsgerichtshof) or the Administrative Court

(Verwaltungsgerichtshof).

II

On 11 October 1985 the Gmunden District Administrative Authority

(Bezirkshauptmannschaft) informed Mrs. G. that the coercive enforcement

of the expropriation order was envisaged, as she neither expressly nor

tacitly had consented to the expropriator taking possession of the

land.

On 4 December 1985 the District Administrative Authority issued

an enforcement order against Mrs. G.. The Authority found that the

expropriation order had become enforceable and that Mrs. G. had not yet

transferred possession of the land to the Federal Roads Administration

(Bundesstrassenverwaltung).

On 23 January 1986 the Regional Governor dismissed Mrs. G.'s

appeal but amended the District Authority's decision. She was now

ordered to tolerate that Federal Roads Administration took possession

of the land.

On 10 March 1986 Mrs. G. lodged a complaint with the

Administrative Court 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. G. 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. G. 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 Road

Administration to finish the road construction by 30 September 1987.

On 12 May 1986 Mrs. G. 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. G. introduced a complaint with the

Constitutional Court.

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:

"(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.

An appeal against the amount of compensation granted in the

administrative proceedings is inadmissible. 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."

"(1) Über die Notwendigkeit, den Gegenstand und Umfang der

Enteignung entscheidet der Landeshauptmann als

Bundesstraßenbehörde...

(2) Der Enteignungsbescheid hat zugleich eine Bestimmung über

die Höhe der Entschädigung zu enthalten. ...

(3) Gegen die Entscheidung des Landeshauptmannes über die

Notwendigkeit, den Gegenstand und den Umfang der Enteignung ist

die Berufung an das Bundesministerium für Bauten und Technik

zulässig. Eine Berufung bezüglich der Höhe der im

Verwaltungswege zuerkannten Entschädigung ist unzulässig. Doch

steht es jedem der beiden Teile frei, binnen drei Monaten nach

Rechtskraft des Enteignungsbescheides die Entscheidung über die

Höhe der Entschädigung bei jenem Bezirksgericht zu begehren, in

dessen Sprengel sich der Gegenstand der Enteignung befindet. Mit

Anrufung des Gerichtes tritt die verwaltungsbehördliche

Entscheidung über die Höhe der Entschädigung außer Kraft. ...

(4) Der Vollzug des rechtskräftigen Enteignungsbescheides kann

jedoch nicht gehindert werden, sobald der vom Landeshauptmann

ermittelte Entschädigungsbetrag oder eine Sicherheit für die erst

nach Vollzug der Enteignung zu leistende Entschädigung

gerichtlich erlegt ist."

According to the amendment of the Federal Roads Act 1987, Federal

Gazette 1987/78, the Ministry for Construction and Technique was

replaced by the Ministry for Economic Affairs.

Section 20a para. 1 of the Federal Roads Act 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

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."

"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."

According to Section 26 of the Administrative Court Act

(Verwaltungsgerichtshofgesetz) and Section 82 of the Constitutional

Court Act (Verfassungsgerichtshofgesetz) complaints to these Courts

have to be lodged within six weeks from the time when the decision of

the administrative authority was served on the applicant.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the expropriation proceedings have not been conducted 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. G.'s complaint

against the enforcement order prejudiced her claim for retransfer of

property.

THE LAW

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

Convention that the expropriation proceedings were not conducted within

a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

Article 6 para. 1 (Art. 6-1) of the Convention provides, as far

as relevant, as follows:

"In the determination of his civil rights and obligations or of

any criminal charge against him, 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 application was introduced

by the estate of Mrs. J. G. who died in 1991, that on 5 July 1991 the

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 expropriation of land

and the enforcement of the expropriation.

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

pecuniary nature of the claim allows that claim to be considered

transferable (No. 10747/83, Dec. 6.5.86, D.R. 47 p. 106).

b) The Commission considers that the applicant's complaint about the

length of the expropriation proceedings refers to two sets of domestic

proceedings. The first set of proceedings concerned the Regional

Governor's expropriation order of 28 June 1974, while the second

concerned the District Administrative Authority's enforcement order

of 4 December 1985.

As regards the expropriation proceedings, the Commission recalls

that under Article 26 (Art. 26) of the Convention it can only deal with

this complaint after all domestic remedies have been exhausted,

according to the generally recognised rules of international law, and

within a period of six months from the date on which the final decision

was taken.

The Commission notes that Mrs. G. did not introduce a complaint

to the Constitutional Court and the Administrative Court against the

Federal Minister's decision of 18 November 1974 on the expropriation

of her land and that the expropriation order therefore became final in

the beginning of 1975, when the time limit of six weeks for the

introduction of a complaint to the Administrative or Constitutional

Court expired. The Commission notes further that the present

application was introduced on 17 May 1991.

It follows that the applicant has not complied with the time

limit stipulated by Article 26 (Art. 26) of the Convention. This part

of the application must, therefore, be rejected under Article 27 para.

3 (Art. 27-3) of the Convention.

c) As regards the enforcement proceedings, the Commission notes that

the District Administrative Authority issued an enforcement order on

4 December 1985, that the Regional Governor dismissed Mrs. G.'s appeal

on 23 January 1986 and that the Administrative Court quashed the

Regional Governor's decision on 19 October 1990. The Commission

considers that it cannot, on the basis of the file, determine whether

there has been a violation of Article 6 (Art. 6) as regards the length

of the enforcement proceedings without the observations of both

parties.

The Commission therefore adjourns this part of the application.

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 (Art. 6-1) of the

Convention.

The Commission recalls that under Article 26 (Art. 26) of the

Convention it can only deal with a matter after all domestic remedies

have been exhausted, according to the general generally recognised

rules of international law, and within a period of six months from the

date on which the final decision was taken.

The Commission notes that Mrs. G. did not introduce a complaint

to the Constitutional Court and the Administrative Court against the

Federal Minister's decision of 18 November 1974 on the expropriation

of her land and that therefore the expropriation order became final.

The Commission notes further that the application was lodged on 17 May

1991. It follows that the applicant did not comply with the time limit

stipulated by Article 26 (Art. 26) of the Convention. This part of the

application must therefore also be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

As regards the enforcement proceedings, the Commission recalls

that under Article 25 para. 1 (Art. 25-1) of the Convention it may only

deal with an application if the applicant can claim to be a victim of

a violation, by one of the High Contracting Parties, of the rights set

forth in the Convention or its Protocols.

On the question whether the applicant may claim to be a victim

of an alleged violation as regards the requirements of a "tribunal"

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

the Commission observes that on 19 October 1990 the Administrative

Court quashed the Regional Governor's decision which had dismissed the

applicant's appeal against the enforcement order and that on

3 December 1990 the Regional Governor quashed the District

Administrative Authority's enforcement order.

In these circumstances the Commission concludes that the

applicant's complaint was resolved before the introduction of the

present application in such a way that she could not claim to be a

victim within the terms of Article 25 para. 1 (Art. 25-1) of the

Convention. It follows that this part of the application is

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

3. The applicant finally complains under Article 1 of Protocol No. 1

(P1-1) to the Convention that the right to property was violated

because the Administrative Court's inactivity in dealing with Mrs. G.'s

complaint against the enforcement order prejudiced her claim for

retransfer of property.

Article 1 of Protocol No. 1 (P1-1) 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 Commission considers that it cannot, on the basis of the

file, determine whether there has been a violation of Article 1 of

Protocol No. 1 (P1-1) without the observations of both parties.

This part of the application must therefore be adjourned.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the complaint under Article

6 para. 1 (Art. 6-1) of the Convention as to the length of the

enforcement proceedings and the complaint under Article 1 para.

1 of Protocol No. 1 (P1-1);

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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ESTATE OF J.G. v. AUSTRIA

ESTATE OF J.G. v. AUSTRIA

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