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R.M. v. AUSTRIA

Doc ref: 16261/90 • ECHR ID: 001-1601

Document date: June 30, 1993

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Cited paragraphs: 0
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R.M. v. AUSTRIA

Doc ref: 16261/90 • ECHR ID: 001-1601

Document date: June 30, 1993

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 16261/90

by R.M.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. E. BUSUTTIL, Acting President of the First Chamber

F. ERMACORA

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 4 December 1989

by R.M. against Austria and registered on 7 March 1990 under file No.

16261/90;

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 applicant is an Austrian citizen living in Ottnang. He is

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

It follows from the applicant's statements and the documents

submitted that the applicant is the owner of a small agricultural

property which he uses for organic biological cultivation.

On the basis of a consolidation plan for his community the

competent agrarian authorities (Gmunden) on 22 September 1982

provisionally allotted to the applicant a new plot of land while his

previous property was allotted to other farmers.

In consequence of the applicant's appeal the consolidation plan

was amended and his property was returned to him in 1988.

Alleging that the yield of the provisionally allotted property

was inferior to the yield from his original property the applicant

requested compensation in the amount of AS 95,000.

This request was rejected by the competent agrarian authorities

on the ground that it had no basis in Austrian law.

On 26 September 1989 the Austrian Constitutional Court

(Verfassungsgerichtshof) rejected the applicant's constitutional

complaint stating that there was no appearance of a violation of

constitutional rights.

The applicant also appealed to the Administrative Court

(Verwaltungsgerichtshof). This court rejected the appeal on 21

September 1989 as being unfounded. The court confirmed that under the

existing law there was no basis for the applicant's claim.

COMPLAINTS

The applicant submits that his claim for compensation constitutes

a civil right within the meaning of Article 6. He considers that the

agrarian authorities which rejected his complaint for compensation can

not be considered as an impartial tribunal established by law.

The applicant furthermore alleges a violation of Article 1 para.

1 of Protocol No. 1.

THE LAW

1. The applicant has invoked Article 6 (Art. 6) of the Convention

arguing that he did not have access to an independent tribunal which

could have examined his claim for compensation.

However, even assuming that Article 6 (Art. 6) applies, 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. 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.

Consequently 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 to be

rejected as being manifestly ill-founded.

2. The applicant has further complained that his right to the

peaceful enjoyment of possessions, as guaranteed by Article 1 of

Protocol No. 1 (P1-1), was violated, alleging that the plot of land

allocated to him was not adequate.

Article 1 of Protocol No. 1 (P1-1) provides:

"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."

The Commission considers that the measure in question concerned

the regulation of the use of the applicant's property. It first notes

that the applicant has not contested that the measure was taken on the

basis of domestic law. The Commission further considers that the

consolidation of agricultural land is in the general interest.

Finally, as far as the question of a fair balance between the general

interest of the community and the requirements of the protection of the

individual's fundamental rights is concerned (cf. Eur. Court H.R.,

Sporrong and Lönnroth judgment of 24 September 1982, Series A No. 52,

p. 26, para. 69), the Commission notes that in the applicant's case the

consolidation plan was eventually amended and the applicant was

returned his original property. The loss which he allegedly incurred

in respect of yield is not of such importance as to constitute a reason

for considering the provisional attribution of other land as a

disproportionate measure imposing an intolerable, excessive burden on

the applicant.

It follows that this part of the application has likewise to be

rejected as being 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 Acting President of the

First Chamber

(M.F. BUQUICCHIO) (E. BUSUTTIL)

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