Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12235/86

by Firma F.M. ZUMTOBEL and Martin ZUMTOBEL

against Austria

The European Commission of Human Rights sitting in private on

15 October 1991, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 June 1986 by

Firma F.M. ZUMTOBEL and Martin ZUMTOBEL against Austria and registered

on 13 June 1986 under file No. 12235/86;

Having regard to :

-the observations submitted by the respondent Government on

23 July 1990 and the observations in reply submitted by the

applicants on 11 October 1990;

-the submissions of the parties at the hearing of 15 October 1991;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The first applicant was, when filing the application, a

commercial firm in Dornbirn, established as a limited partnership

(Kommanditgesellschaft) under Austrian law. The second applicant, an

Austrian citizen, resides at Dornbirn in Austria. When filing the

application, he was the general partner (Mehrheitsgesellschaft) of the

first applicant and its manager (Geschäftsführer). Meanwhile, the

first applicant has changed its legal structure and is completely owned

by the second applicant.

Before the Commission the applicants are represented by

Mr. W.L. Weh, a lawyer practising in Bregenz.

Particular circumstances of the case

I.

The case concerns the construction in Vorarlberg of the L 52, a

new Provincial Road (Landesstrasse) as a bypass (Umfahrung) in the area

of the Rankweil municipality. In the course of the planning procedure

the construction was discussed inter alia in separate landscape

proceedings concerning the compatibility of the proposed stretch of

road from the environmental point of view. The project was open for

consultation, and possible objection, by the public in the Rankweil

municipal office from 1 October to 1 November 1984. The project also

concerned the applicants' property though they filed no objection

thereto.

On 28 February 1985 the Provincial Road Administration

(Landesstrassenverwaltung) of the Vorarlberg Provincial Government

(Landesregierung) instituted expropriation proceedings in relation to

2,140 m² real property of the first applicant. The expropriation was

based on the Vorarlberg Provincial Road Act (Landesstrassengesetz) and

was to enable construction of the L 52. As a result, the first

applicant's property, formerly a continuous area of some 55,000 m², was

to be divided into two smaller areas of approximately 20,000 m² and

30,000 m² respectively. The property of other owners was only to be

marginally affected.

Expropriation proceedings were then conducted before the

administrative authorities of the Provincial Government. The

authorities consulted several experts. During these proceedings the

first applicant filed several requests for the taking of evidence,

concerning inter alia a report of the Court of Audit

(Rechnungshofsbericht); the views of an expert opinion on the

protection of the environment; the decision of the Feldkirch, Meiningen

and Rankweil municipalities on the stretch of road to be built; and an

opinion by the environmental department of the Provincial Government.

On 25 June 1985 a hearing was held. According to the minutes of

the hearing the first applicant's representative was present as well

as the chairman and three experts, i.e. for road construction,

landscape protection and road traffic "of the Office of the Provincial

Government" ("vom Amt der Landesregierung"). There were furthermore

present representatives of the Feldkirch Provincial Road Construction

Office and the Rankweil municipality as well as a sworn valuation

expert (gerichtlich beeideter Sachverständiger für die Durchführung der

Schätzung).

At the hearing, the experts submitted their opinions and made

further submissions thereupon. The experts for road construction and

for road traffic submitted in particular that the proposed stretch of

road was important for the traffic between Rankweil and Feldkirch, as

the existing connection between the two communities led through densely

built areas. The existing road was partly very narrow, had various

sharp bends, and crossed with many other roads. In the experts' views,

the existing road was also very dangerous for children on their way to

school. A different route for the stretch was not possible, inter alia

in view of a pre-fixed crossing with another important road.

By decision of 13 February 1986 the Office (Amt) of the

Vorarlberg Provincial Government ordered the expropriation.

In its decision the Provincial Government fixed the compensation

to be paid to the first applicant as amounting to 620 AS per m². This

sum was based on the valuation of the expropriated land by a sworn

valuation expert (gerichtlich beeideter Sachverständiger). The

Provincial Government did not, however, follow this expert's further

view that an additional sum should be adjudicated in view of the

depreciation (Wertminderung) of the first applicant's remaining land.

It also rejected the first applicant's request to hear a second

valuation expert.

The expropriation was to take effect as soon as the compensation

had been paid to the first applicant, and it was further stated that

the Provincial Road Administration would have five years from the date

of the decision to complete the construction work. In view of the

legal obligation to retransfer the expropriated land in case the object

of the expropriation was not actually implemented, the Provincial

Government did not find it appropriate to expressly recognise the right

to retransfer as requested by the first applicant.

In its decision the Provincial Government further noted that the

expert for road traffic had confirmed the necessity to construct the

new road, and that the experts for road construction and for landscape

protection found no better solution. In particular, it was impossible

for the new road to avoid crossing through the land owned by the first

applicant.

The Provincial Government rejected the first applicant's

objections against the expropriation, inter alia that it was premature,

as the projected road had not legally existed when the proceedings were

instituted and that the planning procedure concerning that road was

defective, several experts and public bodies having earlier pronounced

themselves against the project. Various requests of the first

applicant to be fully informed of the planning procedure were rejected

as being irrelevant. The first applicant's request to consult a

neutral road traffic expert on the necessity of the road was dismissed

on the ground that the particular official expert was not biased in

favour of the Provincial Road Administration and that he had delivered

a convincing report.

The Provincial Government finally rejected the first applicant's

claim for reimbursement of its own costs of procedure by analogous

application of Section 44 of the Railway Expropriation Act

(Eisenbahn-Enteignungsgesetz). It found that this Act was not

applicable and that the Road Act did not provide for the reimbursement

of the expropriated party's own costs.

II.

Against this decision the first applicant lodged a complaint

(Beschwerde) with the Constitutional Court (Verfassungsgerichtshof).

Therein he also requested the Court to order suspensive measures.

With reference inter alia to Article 6 para. 1 of the Convention,

the first applicant submitted in particular that an administrative

expropriation procedure subject to the ultimate control of the

Administrative and the Constitutional Courts was not in conformity with

this provision and violated its right of access to a court with full

jurisdiction on both questions of fact and law. The first applicant

further alleged a violation of the principle of equality of arms due

to the fact that the authority only heard the official experts attached

to it and refused to hear any independent experts.

The first applicant moreover invoked Article 1 of Protocol No.

1 to the Convention, read alone and in conjunction with Article 14 of

the Convention, claiming that the expropriation was unlawful on various

grounds. In particular, the proceedings had been instituted

prematurely when the road construction project had not legally existed.

It was not necessary to construct the road and the relevant planning

procedure had been defective. By refusing to consider arguments

against the road project, the expropriation authority had taken an

arbitrary decision. Finally, the first applicant's property rights had

been unlawfully interfered with by the refusal of the reimbursement of

its costs caused by the expropriation proceedings.

On 7 May 1986 the Constitutional Court refused the first

applicant's request for suspensive measures.

On 27 November 1987, the Constitutional Court, in non-public

proceedings under Article 144 para. 2 of the Federal Constitution

(Bundes-Verfassungsgesetz), decided not to deal with the complaint as

it lacked prospects of success.

In its decision the Constitutional Court referred to its previous

case-law concerning the authorities' discretion when fixing the outline

of a road and concerning Article 6 of the Convention (see below

Relevant domestic law and practice). The Constitutional Court found

no indication of unconstitutionality of applicable legal rules. The

case did not appear to raise specific constitutional issues, but only

questions of lawfulness to be decided by the Administrative Court.

III.

Against the decision of the Provincial Government of 13 February

1986 the first applicant also filed a complaint with the Administrative

Court (Verwaltungsgerichtshof). Therein it invoked in essence the same

arguments as before the Constitutional Court, this time alleging

violations of procedural and substantive law. It also requested

suspensive measures and the appointment of an expert.

On 7 April 1986 the Administrative Court dismissed the request

for suspensive measures.

By decision of 22 September 1989 the Administrative Court

dismissed the first applicant's complaint.

In its decision the Administrative Court stated that it had no

doubts concerning the organisation of the authorities competent to

decide on expropriations for road construction purposes. It refused

to refer this matter to the Constitutional Court, as raising an issue

under Article 6 of the Convention. The Administrative Court accepted

that a party to expropriation proceedings for road construction

purposes could contest the appropriateness of the project. It

considered that Section 44 para. 1 of the Vorarlberg Provincial Road

Act required the balancing of contradicting interests, namely traffic,

and landscape protection, while also taking into account the economic

suitability of the planned road.

The Court found that the first applicant had failed to

demonstrate that the contested decision was unlawful. The decision

states:

[Translation]

"Against the background of the object of examination falling to

the Administrative Court according to Section 41 of the

Administrative Court Act it cannot be regarded as unlawful that

the respondent authority - from the vantage point of the

interests of traffic - based its decision on the relevant facts

in particular that no other, more expedient solution - than the

one proposed for the new construction of the L 52 in the proposed

road construction project - was possible. As can be seen from

the facts established in the contested decision, the respondent

authority took the view that it was in the interests of traffic

to remove through-traffic from the Rankweil-Brederis built-up

area, while at the same time this would create a useful

contribution to the existing road network in the Feldkirch-

Rankweil area."

[German]

"Vor dem Hintergrund der dem Verwaltungsgerichtshof nach Abs. 41

VwGG gestellten Prüfungsaufgabe kann es nicht als rechtswidrig

erkannt werden, wenn die belangte Behörde - unter dem

Gesichtspunkt der Interessen des Verkehrs - ihrem Abspruch als

maßgebenden Sachverhalt zugrunde legte, daß eine andere,

zweckmäßigere Lösung - als der vorgesehene Neubau der L 52 im

gegenständlichen Baulos - nicht möglich sei. Wie sich aus den

Feststellungen im angefochtenen Bescheid ergibt, ist die belangte

Behörde bei ihrem Abspruch davon ausgegangen, daß es im Interesse

des Verkehrs gelegen sei, den Durchzugsverkehr aus dem

besiedelten Gebiet von Rankweil - Brederis herauszuführen, wobei

auch eine sinnvolle Ergänzung des bestehenden Straßennetzes im

Raum Feldkirch - Rankweil geschaffen werde."

The Administrative Court further explained why, in its view no

doubts arose in respect of the evidence provided by the official

experts. The Court also noted that the contested decision took account

of environmental protection when assessing the interests at stake. It

had been lawful to limit the proceedings to the part of the road which

affected the first applicant's property and to conduct the

expropriation proceedings before the adoption of the ordinancy of the

provincial road.

With regard to the first applicant's complaint about the lack of

independence of the experts in the expropriation proceedings the Court

noted that the expropriating authority was in principle required to

consult its own official experts. The merely general reference to the

problem of dependency did not suffice to prove partiality, which had

to be examined in each individual case.

In respect of the first applicant's complaint that it could not

consult all the documents the Court noted that the first applicant had

not been a party to the landscape proceedings for which reason it was

not permitted to consult the respective case-file. With regard to a

report of the Court of Audit and other documents the Court found

nothing therein which was relevant to the first applicant's case. The

Court also noted that the expert opinion of the independent traffic

expert Be. had actually been included in the expropriation file, though

the first applicant could not claim a right to receive photocopies

therefrom.

The Court then addressed the first applicant's request for the

preparation of a new expert opinion by a neutral traffic expert by

referring to a ruling of the enlarged Panel of the Administrative Court

as follows:

[Translation]

"According to this ruling, the Administrative Court is barred

from taking evidence which the administrative authority may have

failed to take, and from taking evidence itself in order to

supplement the facts that have been ascertained during

investigations. However, the Administrative Court may take

evidence to determine whether there has been an essential

procedural defect and is therefore authorised to take evidence

for examining the question whether a procedural defect is

essential or whether the incriminated authority might have

arrived at a different decision by avoiding the alleged

procedural defect; the Administrative Court may resort to these

measures also in order to review the assessment of evidence.

With regard to the above explanations concerning the weighing up

of interests by the respondent authority and the factual basis

by which they are carried, the Administrative Court sees no

reason to accede to the request to take evidence."

[German]

"Danach is es dem Verwaltungsgerichtshof verwehrt, in der von der

Verwaltungsbehörde behandelten Sache anstelle der belangten

Behörde eine von dieser allenfalls versäumten Beweisaufnahme

nachzuholen und in Ergänzung des Vermittlungsverfahrens zur

Feststellung des Sachverhaltes selbst Beweise aufzunehmen. Der

Verwaltungsgerichtshof kann aber Beweise aufnehmen, um zu prüfen,

ob ein wesentlicher Verfahrensmangel vorliegt, und er ist demnach

berechtigt, zur Prüfung der Frage, ob ein Verfahrensmangel

wesentlich ist oder ob die belangte Behörde unter Vermeidung des

gegebenen Verfahrensmangels zu einem anderen Bescheid hätte

kommen können, eine Beweisaufnahme durchzuführen; dies auch zum

Zwecke der Kontrolle der Beweiswürdigung. Im Hinblick auf die

obigen Darlegungen zur Interessensabwägung der belangten Behörde

und der diese tragenden Sachverhaltsgrundlagen sieht sich der

Verwaltungsgerichtshof jedoch nicht zur beantragten

Beweisaufnahme veranlaßt."

As to the refusal to reimburse the applicants' costs incurred in

connection with the expropriation proceedings, the Administrative Court

considered itself incompetent as this matter was part of the question

of compensation to be decided by the civil courts.

IV.

Meanwhile, the first applicant requested the Feldkirch District

Court (Bezirksgericht) to determine the compensation for the

expropriated land. On 17 December 1987 the latter awarded the first

applicant compensation of 1,460,000 AS for the expropriated real

property, and a lump sum of 8,503,032.50 AS for the depreciation of the

remaining real property. The Provincial Government was ordered to pay

the total sum of 9,963,032.50 AS within 14 days.

Upon appeal (Rekurs), the Feldkirch Regional Court

(Landesgericht) reduced in its decision of 24 March 1988 the total sum

to 4,560,000 AS. The first applicant's further appeal (Revisionrekurs)

was dismissed by the Supreme Court (Oberster Gerichtshof) on 6 October

1988. In these proceedings the applicant was also awarded costs

amounting to 199,350 AS.

Relevant domestic law and practice

As to the expropriation proceedings

According to Section 5 of the Vorarlberg Provincial Road Act the

Provincial Government may declare by Ordinance (Verordnung) that roads

or parts thereof become Provincial Roads (Landesstrassen), even if they

have not yet been built. Para. 2 of Section 5 states:

[Translation]

"The Provincial Government must declare all roads as Provincial

Roads which are necessary for the traffic between communities.

Those roads shall be considered necessary which are the only

immediate road connection from one community to the next and

which can also be used by lorries. There shall be no necessity

if such a traffic communication is provided for by a third party

..."

[German]

"Die Landesregierung hat die für den überörtlichen Verkehr

notwendigen Strassen als Landesstrassen zu erklären. Notwendig

sind diejenigen Strassen, welche die einzige, auch für

Lastkraftwagen benützbare unmittelbare Strassenverbindung von

einer Gemeinde in eine Nachbargemeinde oder über die Landesgrenze

darstellen. Eine Notwendigkeit liegt nicht vor, wenn von anderer

Seite für eine solche Verkehrsverbindung Vorsorge getroffen wird

..."

In practice, Section 5 implies that if real property is

expropriated for the construction of a Provincial Road, the Provincial

Government must enact an Ordinance. The latter will contain the name,

number and length of the road and a short description thereof. Thus,

the Provincial Government express their intention to construct the

road. To the extent that the Ordinance does not describe in detail the

stretch to be constructed, the persons whose property shall be

expropriated have the right in the expropriation proceedings to call

in question the adequateness of the proposed stretch.

Section 44 para. 1 of the Provincial Road Act states the

conditions for expropriation as follows:

[Translation]

"In order to construct or maintain Provincial Roads and Municipal

Roads, an expropriation is only admissible if another stretch of

road, or its maintenance, is not possible which is more adequate

from the point of view of traffic, economy and protection of the

environment."

[German]

"Zum Bau oder zur Erhaltung von Landesstraßen und Gemeindestraßen

ist eine Enteignung nur zulässig, wenn eine andere unter dem

Gesichtspunkt des Verkehrs, der Wirtschaftlichkeit und des

Landschaftsschutzes zweckmäßigere Führung oder Erhaltung der

Straße nicht möglich ist."

According to Section 46 of the Provincial Road Act, "the

expropriating agency has to compensate the expropriated party for all

pecuniary disadvantages arising from the expropriation" ("Der Enteigner

hat den Enteigneten für alle durch die Enteignung verursachten

vermögensrechtlichen Nachteile angemessen zu entschädigen").

Section 47 concerns the expropriation proceedings. Thus, if no

agreement can be reached as to the amount of compensation, a sworn

court expert must assess the value. Once the expropriation has been

determined, the expropriated party may apply within six weeks to a

court for the judicial determination of the amount of compensation.

The Austrian Constitutional Court's interpretation of the scope of

Article 6 para. 1 of the Convention

The Austrian Constitutional Court pronounced itself on the

applicability and scope of Article 6 para. 1 of the Convention to

proceedings originating before Austrian administrative authorities in

its decision of 14 October 1987 (B 267/86, VfSLG 11500/1987). The

Court distinguished between decisions concerning the core of civil law

(i.e. disputes among private persons) and decisions on disputes which

only concern civil rights in their effects (namely the relationship

between the private person and the public). In order to avoid a

complete change of the Austrian state structure, the Court considered

that the requirements of a tribunal within the meaning of Article 6

para. 1 of the Convention should depend on whether the dispute

concerned the one or the other category. With regard to decisions

concerning civil rights only in their effects the Court found that it

sufficed under Article 6 para. 1 if a tribunal undertook a mere

subsequent control of the decision. The decision continues:

[Translation]

"Such a subsequent control would in any event have to suffice if,

regardless of its nature as a merely subsequent control which did

not provide for renewed proceedings, the court effectively (and

not merely theoretically and in the abstract) has the possibility

to convince itself of the correctness of the solution as well as

of the facts and the law applied and can also execute its

judgment on the matter. Such a control falls to the Austrian

Administrative Court in the light of an understanding of the

Administrative Court Act which is oriented towards the

Constitution."

[German]

"Eine solche nachprüfende Kontrolle müsste jedenfalls dann

genügen, wenn sie ungeachtet ihres bloss nachprüfenden, nicht auf

einer Neudurchführung des Verfahrens beruhenden Charakters dem

Gericht - nicht bloss theoretisch und abstrakt, sondern im

Ergebnis auch wirksam - Gelegenheit gibt, sich von der

Richtigkeit der Lösung sowohl der Tat - wie der Rechtsfrage zu

überzeugen und sein Urteil über die Sache auch durchzusetzen, wie

dies bei einem an der Verfassung orientierten Verständnis des

Verwaltungs-gerichtshofgesetzes dem österreichischen VwGH

aufgetragen ist."

Jurisdiction of the Austrian Constitutional and Administrative Courts

According to Article 144 of the Austrian Federal Constitution

(Bundes-Verfassungsgesetz) an appeal can be filed with the

Constitutional Court in which the applicant can claim a violation of his

constitutional rights. He can also complain that his rights have been

violated on account of an unlawful ordinance, an unconstitutional Act,

or an unlawful international treaty.

According to Article 130 para. 1 of the Federal Constitution the

Administrative Court will review allegations of unlawfulness of an

administrative decision. According to Section 130 para. 2, "no

unlawfulness exists where legislation forbears from the establishment of

a binding rule on an administrative authority's conduct, leaving the

determination of such conduct to the authority itself, and the authority

has made use of this discretion in the spirit of the law"

("Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von einer

bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und die

Bestimmung dieses Verhaltens der Behörde selbst überläßt, die Behörde

aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch gemacht

hat"). The Administrative Court is also competent to deal with

complaints that the administrative authority has violated its duty to

take a decision (Article 132).

Section 41 of the Administrative Court Act provides, insofar as

relevant:

[Translation]

"(1) Insofar as the Administrative Court does not find

unlawfulness on account of a lack of jurisdiction of the authority

against whom the appeal is directed or on account of a violation

of procedural provisions (Section 42 para. 2 [2] and [3]) ..., the

Court must examine the contested decision on the basis of the facts

as accepted by the authority against which the appeal is directed

within the framework of the alleged complaint ... If it is of the

opinion that reasons would be relevant for the decision on the

unlawfulness of the contested decision ... which were so far not

known to a party, it must hear the parties thereupon and, if

necessary, adjourn the proceedings."

[German]

"(1) Der Verwaltungsgerichtshof hat, soweit er nicht

Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder

wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42

Abs. 2 Z 2 und 3) ... den angefochtenen Bescheid auf Grund des von

der belangten Behörde angenommenen Sachverhaltes im Rahmen der

geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist er der

Ansicht, dass für die Entscheidung über die Rechtswidrigkeit des

Bescheides in einem der Beschwerdepunkte ... Gründe massgebend

sein könnten, die einer Partei bisher nicht bekanntgegeben wurden,

so hat er die Parteien darüber zu hören und wenn nötig, eine

Vertagung zu verfügen."

As regards the decisions of the Administrative Court, Section 42

para. 2 of the Administrative Court Act provides, insofar as relevant:

[Translation]

"(2) The contested decision must be quashed

1. on account of the unlawfulness of its content,

2. on account of unlawfulness due to the lack of

jurisdiction of the authority against which the

appeal is directed,

3. on account of unlawfulness due to a violation of

procedural provisions in particular because

a) the authority against which the appeal is

directed has determined the facts on an

important point contrary to the

case-file, or

b) the facts require supplementation in an

important point, or

c) procedural provisions have been disregarded

which, if taken into consideration by the

authority against which the appeal is

directed, would have led to a different

decision of the authority."

[German]

"(2) Der angefochtene Bescheid ist aufzuheben

1. wegen Rechtswidrigkeit seines Inhaltes,

2. wegen Rechtswidrigkeit infolge Unzuständigkeit

der belangten Behörde,

3. wegen Rechtswidrigkeit infolge Verletzung von

Verfahrensvorschriften, und zwar weil

a) der Sachverhalt von der belangten Behörde

in einem wesentlichen Punkt aktenwidrig

angenommen wurde oder

b) der Sachverhalt in einem wesentlichen

Punkt einer Ergänzung bedarf oder

c) Verfahrensvorschriften ausser acht gelassen

wurden, bei deren Einhaltung die belangte

Behörde zu einem anderen Bescheid hätte

kommen können."

The proceedings before the Administrative Court consist of an

exchange of written observations between the parties (Section 36) and an

oral hearing of their legal arguments (Sections 39 and 40). The parties

have a right to request a hearing (Section 39, para. 1 [1]).

Position of experts

With regard to the position of experts in expropriation

proceedings, Section 52 para. 1 of the Act on General Administrative

Procedure (Allgemeines Verwaltungsverfahrensgesetz) provides that if in

such cases evidence by experts is necessary, "official experts must be

employed who are attributed to the authority or are at their disposal"

("so sind die der Behörde beigegebenen oder zur Verfügung stehenden

amtlichen Sachverständigen [Amtssachverständige] beizuziehen"). Section

53 refers to Section 7 according to which administrative organs must

renounce office in matters concerning inter alia their family members or

"if there are other important reasons which may raise doubts as to their

full impartiality" ("wenn sonstige wichtige Gründe vorliegen, die

geeignet sind, ihre volle Unbefangenheit in Zweifel zu ziehen").

COMPLAINTS

Under Article 6 para. 1 of the Convention the applicants complain

that in the expropriation proceedings they did not have a procedure in

conformity with this provision before an independent and impartial

tribunal having full jurisdiction on questions of law and fact. The

applicants also complain of the unfairness of the proceedings in that

the experts in the proceedings before the Provincial Government were not

independent on account of their position in the Provincial Road

Administration. Moreover, the applicants were not allowed to consult

various documents, in particular concerning the landscape proceedings,

a report of the Court of Audit, and the expert opinion of an independent

traffic expert Be.

With reference to Article 1 of Protocol No. 1 to the Convention the

applicants complain that the expropriation was not justified under the

first paragraph. It was unlawful and not in the public interest. The

complaints point out that the expropriation interfered with the planned

extension of a supermarket which they have on adjoining property.

Furthermore the review by the Constitutional and the Administrative

Courts did not include a comprehensive assessment of the conflicting

public and private interests with a view to establishing a fair balance

between them.

The applicants also allege a violation of Article 13 of the

Convention in that in the proceedings before the Constitutional and

Administrative Courts suspensive effect was refused to their complaints.

The latter cannot therefore be regarded as effective domestic remedies.

Finally, under Article 14 of the Convention the applicants

complain that no administrative appeal is possible against a decision

under the Road Act to expropriate, while such appeals are available

under other expropriation statutes.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 June 1986 and registered on

13 June 1986.

On 6 March 1989 the Commission decided to adjourn further

examination of the admissibility of the application until the

Administrative Court had given its decision.

The Administrative Court gave its decision on 22 September 1989.

The applicants filed comments thereupon on 4 December 1989.

On 2 April 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

limited to the issues under Article 6 para. 1 of the Convention and

Article 1 of Protocol No. 1.

Following a prolongation of the time-limit, the Government's

observations were received on 23 July 1990. Following a further

prolongation of the time-limit, the applicants' observations were

received on 11 October 1990.

On 29 May 1991 the Commission decided to invite the parties to a

hearing on the admissibility and merits of the applicants' complaints

under Article 6 para. 1 of the Convention.

The hearing took place on 15 October 1991. The Government were

represented by their Agent, Mr. W. Okresek, Head of Department at the

Federal Chancellery in Vienna, and by Mr. F. Haug of the International

Law Department in the Federal Ministry for Foreign Affairs in Vienna.

The applicants were represented by their lawyer, Mr. W.L. Weh. The

second applicant and Mr. E. Girardi, signing clerk (Prokurist) for the

first applicant, were also present.

THE LAW

1. The applicants complain under Article 6 para. 1 (Art. 6-1) of

the Convention that they had no access to a court within the meaning

of this provision. They also raise complaints under Article 1 of

Protocol No. 1 (P1-1) and Articles 13 and 14 (Art. 13, 14) of the

Convention.

The Government submit at the outset that the domestic proceedings

concerned only the first applicant and that the second applicant was not

directly affected by the contested decisions.

Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission may only deal with an application where a person "(claims)

to be the victim of a violation by one of the High Contracting Parties

of the rights set forth in (the) Convention". In the present case the

Commission considers that the second applicant was at the time of

filing the application the general partner and manager of the first

applicant. The second applicant was thus likewise affected by the

decisions complained of and can therefore claim to be a victim within

the meaning of Article 25 para. 1 (Art. 25-1) of the Convention (see

No. 10259/83, Dec. 10.12.84, D.R. 40 p 170).

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

applicants complain that in the expropriation proceedings they had no

access to a court with full jurisdiction on questions of law and fact.

They contend in particular that the Administrative Court cannot

independently assess the facts or the merits of a case, that there is

no oral hearing in these proceedings, and that this court can only

quash the previous decision. The applicants recall the indeterminate

concepts stated in Section 44 of the Provincial Road Act with which

the Administrative Court was confronted and which, in fact, were

determined by official experts.

The applicants further complain that the experts in the

expropriation proceedings before the Provincial Government were not

independent on account of their position in the Provincial Road

Administration. Reference is made to Section 20 of the Federal

Constitutional Act according to which all administrative organs are

subordinate to their superiors. The applicants also complain that they

were not allowed to consult various documents, in particular concerning

the landscape proceedings, a report of the Court of Audit, and the

expert opinion of an independent traffic expert.

Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant:

"1. In the determinatiom 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 ..."

The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable to expropriation proceedings which do not

relate to civil rights. Article 6 para. 1 (Art. 6-1) is directed at

the traditional core areas of private law, and it cannot be said that

the practice of the Convention States has changed this scope. Article

6 para. 1 (Art. 6-1) does not include relations between the individual

and the general public as only the effects of these relations concern

civil rights.

The Government submit that in any event this part of the

application is manifestly ill-founded. In particular, the applicants

had access to two courts, namely the Constitutional Court and the

Administrative Court. With regard to the scope of the Administrative

Court's review reference is made to Section 42 para. 2 subpara. 3 (a) -

(c) of the Administrative Court Act according to which the Court can

actually undertake a far-reaching review of the facts in a concrete

case. In the present case the Court did so within the criteria

established by Section 44 of the Provincial Road Act. The Government

refer in this context to a passage of the Administrative Court's

decision of 22 September 1989 (cited above in Particular circumstances

of the case, at III.). Finally, if the Court quashes a decision the

respondent authority is bound by its legal views.

The Government further submit that official experts are not subject

to instructions when preparing their opinions. In the present case the

opinions were reviewed by the Administrative Court as to their

conclusiveness. The applicants could also have submitted their own

private expert opinions in the expropriation proceedings and the

authorities would have been obliged to comment thereupon. Insofar as

the applicants complain that they could not consult certain documents,

the Government recall that the domestic authorities found that the

documents were irrelevant to the case.

The Commission, having regard to the parties' submissions under

Article 6 para. 1 (Art. 6-1) of the Convention, considers that these

complaints raise serious issues of fact and law which require an

examination of the merits. This part of the application cannot,

therefore, be declared manifestly ill-founded within the meaning of

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

3. Under Article 1 of Protocol No. 1 (P1-1) the applicants

complain that the expropriation was unlawful and not in the public

interest. By splitting the proceedings up into distinct cases, they

did not include a comprehensive assessment of the conflicting public

and private interests with a view to establishing a fair balance

between them.

The Government submit that the expropriation satisfied the

requirements of Article 1 of Protocol No. 1 (P1-1) in that there was

an actual need therefor, that the expropriation was in the public

interest and that it occurred as a last resort. The expert opinions

showed for instance the importance of rerouting the provincial road

inter alia to provide for the safety of school children. Thus a fair

balance was struck between public and private interests.

Article 1 of Protocol No. 1 (P1-1) to the Convention states as follows:

"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 applicants were deprived of their

possessions by the expropriation within the meaning of Article 1 para.

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

However, the Commission finds, with reference to the Administrative

Court's decision of 22 September 1989, that the expropriation was

"subject to the conditions provided for by law" within the meaning of

this provision in that the expropriation was based on the Vorarlberg

Provincial Road Act. Moreover, the Commission considers that the

authorities concerned struck a fair balance between public and private

interests. Thus, the authorities found that the expropriation was

necessary in particular to construct a provincial road as a bypass

between two communities where the existing road led through densely

populated areas. Moreover, after considering the demands of traffic and

the environment as well as the safety of school children on their way to

school, the authorities concluded that it was impossible to avoid the

new road crossing through the applicants property.

Insofar as the applicants may be understood as complaining that

compensation for the expropriation was insufficient, the Commission

recalls that Article 1 of Protocol No. 1 (P1-1) does not guarantee the

right to a particular amount of compensation. In view of the total

sum awarded to the applicants (see above, Particular circumstances of

the case, at IV.), the Commission does not find that compensation was

reduced to such an extent that it affected the very substance of their

right to compensation (see No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).

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.

4. Under Article 13 (Art. 13) of the Convention, the applicants

complain that in the proceedings before the Constitutional and

Administrative Courts their complaints were not effective in that they

were not endowed with suspensive effect.

The Commission has just declared admissible the applicants'

complaints concerning access to court within the meaning of Article 6

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

organs' case- law, the requirements under Article 13 (Art. 13) of the

Convention are less strict than, and are here absorbed by those of

Article 6 (Art. 6) of the Convention (see Eur. Court H.R., Philis

judgment of 27 August 1991, Serie A no. 209, para. 67). No separate

issue arises therefore under Article 13 (Art. 13) of the Convention.

It follows that this part of the application is also manifestly

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

the Convention.

5. Under Article 14 (Art. 14) of the Convention, taken together

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

Protocol No. 1 (P1-1), the applicants complain that no administrative

appeal is possible against a decision under the Road Provincial Act to

expropriate, whereas such appeals are available under other

expropriation statutes. However, the Commission finds no issue under

these provisions. It follows that the remainder of 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 ADMISSIBLE,

without prejudging the merits of the case, the

applicants' complaints under Article 6 para. 1 (Art. 6-1)

of the Convention concerning the access to, and the fairness

of the proceedings before, the Administrative Court;

DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J.A. FROWEIN)

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FIRMA F.M. ZUMTOBEL ; AND ZUMTOBEL v. AUSTRIA

FIRMA F.M. ZUMTOBEL ; AND ZUMTOBEL v. AUSTRIA