Search
document

Document text Analytics

K. v. AUSTRIA

Doc ref: 18809/91 • ECHR ID: 001-1259

Document date: January 13, 1992

Inbound citations: 1
•
Cited paragraphs: 0
•
Outbound citations: 1

K. v. AUSTRIA

Doc ref: 18809/91 • ECHR ID: 001-1259

Document date: January 13, 1992

Cited paragraphs only

Application No. 18809/91

by F.K.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 13 January 1992, the following members being present:

MM.J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

SirBasil HALL

Mr.C.L. ROZAKIS

Mrs.J. LIDDY

MM.M. PELLONPÄÄ

B. MARXER

Mr.M. de SALVIA, 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 11 July 1991 by

F.K. against Austria and registered on 16 September 1991 under file

No. 18809/91;

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 applicant is an Austrian farmer living in G. He is

represented by Messrs. E. and R. proksch, lawyers in Vienna.

The facts of the case, as submitted bdy the applicant, may be

summarised as follows.

On 2 December 1987 the Tyrolian Government granted the community

of Gerlos the right to use some of the applicant's real property, part

of which is farmland and the other part building land, as a skiing

slope. Compensation was fixed in the amount of AS 80,763 per annum.

Remedies against the restriction of the applicant's property

right were to no avail.

The applicant then brought an action claiming higher

compensation. On 27 September 1989 the District Court (Bezirksgericht)

in Zell granted compensation in the amount of AS 281,282.80 per annum.

An appeal by the defendant community was rejected by the Innsbruck

Regional Court (Landesgericht) on 25 May 1990.

An appeal on points of law (Revisionsrekurs) was partly granted

by the Supreme Court (Oberster Gerichtshof) which decided on

13 December 1990 that the annual compensation fixed by the lower court

was to be limited to a period of 25 years. The Court stated that

according to the evaluation method on which the experts had

unobjectionally based their opinions it could be expected that the

losses incurred by the applicant would be offset within 25 years.

Payments unlimited in time would exceed the market value.

On 11 July 1991 the Supreme Court rejected the applicant's

request to amend its decision of 13 December 1990 to the effect that,

if the use of the applicant's premises as a skiing slope would exceed

25 years, further compensation would then have to be assessed.

COMPLAINTS

The applicant submits that the compensation to be paid to him was

wrongly calculated without taking into account also the agricultural

value of his land. Furthermore he points out that even the expert

opinions obtained in his case consider it necessary to reevaluate after

25 years the losses incurred by him on account of the use of his

premises as a skiing slope. He alleges a violation of Article 1 of

Protocol No. 1 to the Convention.

THE LAW

The applicant invokes Article 1 of Protocol No. 1 (P1-1) which

guarantees the right to peaceful enjoyment of possessions. This

provision in principle grants a right to compensation in case of an

expropriation. However, it does not give a right to a particular

amount of compensation. It is true that in some cases a substantial

reduction of the compensation could be regarded as affecting the very

substance of the right to compensation (cf. Eur. Court H.R., James and

Others judgment of 21 February 1986, Series A no. 98, p. 36 para. 54).

In the present case the Austrian courts considerably increased

the amount of compensation due to the applicant while the Supreme Court

limited the annual payments to a period of twenty-five years. The

Court's finding that within this time-limit the total of the payments

made by then would constitute adequate compensation was based on expert

opinion and there is nothing to show that it is arbitrary nor that it

deprives the applicant of a considerable share in the value of his land

amounting to a disproportionate interference contrary to Article 1 of

Protocol No. 1 (P1-1) (cf. No. 14265/88, Dec. 19.1.89; No. 13728/88,

Dec. 17.5.90).

It follows that the application must 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 President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

LEXI

Lexploria AI Legal Assistant