FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55809/00 by Karl BERGER against Germany

The European Court of Human Rights (Fifth Section), sitting on 8 January 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 7 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Karl Berger, is a German national, who was born in 1949 and lives in Reischach ( Germany ). He was represented before the Court by J. Berger, a lawyer practising in Coburg ( Germany ). The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling ‑ Vogel, Ministerialdirigentin , Federal Ministry of Justice .

A. The circumstances of the case

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

The applicant ’ s mother owned real estates in the Municipalities of Reischach and Winhöring. In the 19 th century the real estates were crossed by a district road which within living memory had been used for pilgrimages to Altötting once a year in the period between 25 April and Pentecost. Because of its steep grade, the portion of the road running over the land is called “ Über die Himmelsstiege ” (steep track to heaven). In 1916 a new main road was build and the track lost its importance. The applicant ’ s mother was one of the three owners of the track. After her death the applicant became the owner of the track.

In 1958 the Bavarian Roads and Tracks Act ( Bayerisches Straßen- und Wegegesetz ) came into force. It imposed on all Bavarian municipalities a duty to register all roads and tracks on their territories. By an order of 1 June 1963 the Municipality of Reischach listed the part of the applicant ’ s track on its territory as a public field and forest track ( öffentlicher Feld- und Waldweg ) on the asset register of roads and tracks ( Bestandsverzeichnis ). On 1 August 1965 a public notice was posted on the official village bulletin board of the Municipality of Reischach to inform about the public display of the register. The register was open to inspection by the public from 1 August 1965 to 31 January 1966 during normal office hours at the municipal office. The applicant ’ s mother was not given written notice of the public display of the register.

On 27 November 1987, more than twenty years later, when disagreeing with the plans of the German Federal Post ( Deutsche Bundespost ) to lay cables, the applicant ’ s mother learned that her track had been registered as a public field and forest track.

On 6 February 1988 she filed an objection ( Widerspruch ) against the registration with the Municipality of Reischach .

By a decision of 20 July 1988 the Altötting District Authority ( Landratsamt ) rejected the objection on the ground that it had been filed out of time. The time-limit for filing an objection had expired one year after the last day of the public display of the roads register, namely on 31 January 1967. It noted that the track, formerly a public municipal track, had been registered by order of 1 June 1963 as a public road and forest track. The ownership of the track had not changed. The registration order was based on Article 67 of the Bavarian Roads and Tracks Act, a transitory provision applicable to roads that existed before 1 September 1959 while Article 6 of this Act was applicable to roads created after that date. The applicant ’ s mother had not been notified of the registration contrary to Article 67 § 3, fourth sentence of the Bavarian Roads and Tracks Act. However, the lack of notification did not invalidate the registration of the track. Information by other means, in particular by the public display of the register, was sufficient. The District Authority observed furthermore that the applicant ’ s mother, as a member of the Municipal Council at the material time, must have known about the change of the status of the track. It further held that the objection was in any event ill-founded. The track had always been subjected to a public right of way and was used mainly by adjoining propriety owners and pilgrims. The responsibility for the maintenance of the tracks was assigned to the proprietors. The registration of the track as a public field and forest track was therefore lawful.

On 1 September 1988 the applicant ’ s mother applied to the Munich Administrative Court ( Verwaltungsgericht ) which, in a judgment of 11 April 1989, dismissed her action.

The Administrative Court observed that, in accordance with Article 67 § 3, fourth sentence, of the Bavarian Roads and Tracks Act, all known persons affected by the registration must be notified. I t confirmed that failure to comply with this provision did not render the registration invalid. Section 58 § 1 of the Code of Administrative Court Procedure ( Verwaltungsgerichtsordnung ) provided a one month time-limit for filing an objection. Since the applicant ’ s mother, as a known person affected by the registration, had not been notified, section 58 § 2 of the Code of Administrative Court Procedure allowed her one year from the public display of the register in which to initiate proceedings. Noting that the register had been made available for public inspection from 1 August 1965 to 31 January 1966, the Administrative Court concluded that the one year ’ s time-limit for filing an objection had expired on 31 January 1967 and the objection filed on 8 February 1988 been lodged out of time.

The applicant ’ s mother appealed against this judgment.

On 1 August 1991 the Bavarian Court of Appeal ( Bayerischer Verwaltungsgerichtshof ) dismissed the appeal and refused to grant the applicant ’ s mother leave to appeal on points of law. It held that t he registration of the applicant ’ s track as a public field and forest track pursuant to Article 67 § 4 of the Bavarian Roads and Tracks Act was final. The Court of Appeal observed that the Reischach Municipality had publicly displayed the register during six months and previously announced its public display. With reference to its established case-law, the Court of Appeal recalled that giving a decision by public notification was not contrary to constitutional law, in particular to the right of property, and was justified in the present context with a view to clarifying the legal situation of roads and tracks , in accordance with the Bavarian Roads and Tracks Act. In the circumstances this way to proceed was objectively justified a nd struck a fair balance between the interest of the individual in adequate effective legal protection and the requirements of the public interest in classifying municipal roads and tracks for the purpose of legal clarification. Taking into account that the question as to the number of known landowners was frequently highly contentious, it would be impossible to achieve the revising function of the Act if all landowners had to be individually notified. It was not relevant that in the present case only three property owners were affected by the registration, since as a general rule a great number of persons responsible for the maintenance of unpaved field and forest tracks were concerned. It would be contrary to the goal of the legislation to rely on the factual situation of each single case . The legislature was justified to assume that the habitants of a municipality and property owners were vigilant, that interested and possibly affected persons were aware of the establishment of a roads register, a substantial, long-lasting and, as experience taught , complex task of municipal administration, and that the public display of the register would afford them a reasonable opportunity of effectively challenging the measures interfering with their rights. The Court of Appeal added that the applicant ’ s mother was not justified in contending that the registration of 1 June 1963 was irregular . The original form was worn out and had been reproduced on a form dating from 1964. There was no indication that an irregularity had affected the validity of the registration. In any event, the registration of the track constituted merely an internal preparatory step.

On 15 October 1991 the Federal Administrative Court ( Bundesverwaltungsgericht ) dismissed the appeal lodged by the applicant ’ s mother against the decision refusing her leave to appeal on points of law.

On 16 November 1991 the applicant ’ s mother filed a constitutional complaint with the Federal Constitutional Court ( Bundesverfassungsgericht ) against the previous decisions . She argued that the registration of her track as a public field and forest track breached her right of property. Article 67 § 3, fourth sentence, of the Bavarian Roads and Tracks Act expressly provided for an individual notification of known persons with an interest in the track. There was a duty for the State to inform persons about measures that could affect their rights, but it was not for individuals to establish whether any such measures had in fact been applied t o them.

On 14 March and 2 September 1994 the applicant ’ s lawyer wrote to the Federal Constitutional Court to enquire about the state of the proceedings. It replied that a date for a decision could not yet be indicated. In reply to a further request, the Federal Constitutional Court informed the applicant that a decision would be given at the beginning of 1996. In three further letters of 6 May 1996, 22 October 1997 and 6 May 1998 the applicant ’ s lawyer again sought information on the state of the proceedings.

After his mother ’ s death on 12 September 1996 , the applicant continued the proceedings before the Federal Constitutional Court .

On 17 September 1999 the Federal Constitutional Court , sitting as a bench of three judges, refused to accept the applicant ’ s constitutional complaint for adjudication.

The Federal Constitutional Court considered that the applicant ’ s complaint did not raise any issue of fundamental importance. The right to property included the constitutional right to effective legal protection. However, this right could be subject to restrictions, as long as these restrictions were appropriate, necessary, adequate and acceptable. The Bavarian legislature was allowed to inform the public about the register by way of public display. Under constitutional law it could not be criticised that the public display had the effect of a notification as long as this did not amount to an unjustifiable denial of judicial protection. In class action lawsuits concerning a large number of affected persons this possibility of notification was appropriate and a common feature of the domestic legal system.

It was true that single landowners were thereby imposed a duty to co-operate in that they had to acquaint themselves with the contents of the registration concerning them within a six months time-limit and, if necessary, object to the registration. This participation was, however, required because it would not be possible to accomplish within a reasonable time the legal modification and clarification of the status of all roads and tracks of a municipality without public notification. As a general rule, the duty to co-operate was also acceptable for the persons concerned. The legislature could expect that the local population would take note of a new legal classification of all roads and tracks of a municipality and that this would be a subject of discussion between land owners living locally and by this means be brought to the attention of those persons affected by the classification who had overlooked the public display.

As to the interpretation of Article 67 § 3 of the Bavarian Roads and Tracks Act, it was legitimate for the administrative courts to assume that the legislature had provided solely for the publication of the register. The information required by this provision must not necessarily be given by way of a formal notification, since the register as a whole was mentioned and not specific inscriptions on the register. The forth sentence of Article 67 § 3 of the Bavarian Roads and Tracks Act merely laid down that the persons concerned had to be informed about the public display and the time-limit for objecting to the register.

The Federal Constitutional Court further noted that the administrative courts had to strike a fair balance between the legitimate interests of the person concerned and the general interest to promote legal certainty. In the past the existence and the scope of rights related to roads and tracks had often given rise to litigation. The legislature intended to ensure legal certainty and finality in respect of all roads and tracks. The written clarification and unification of the rules concerning roads and tracks pursued the purpose to avoid administrative and civil lawsuits in future. This purpose would be seriously compromised if the persons concerned had to be individually notified and if more than ten years after the entry into force of the Roads and Tracks Act the existence and scope of non-registered rights had still to be determined in numerous litigations. When interpreting the forth sentence of section 67 § 3 of the Bavarian Roads and Tracts Act, the administrative courts gave more weight to the general interest to promote legal certainty than to the individual interest to be granted an temporarily unlimited right to appeal. However, according to the Federal Constitutional Court , this restriction of the right to access to court was objectively justified and had a sufficient legal basis.

B. Relevant domestic law

Article 67 § 3 of the Bavarian Roads and Tracks Act of 11 July 1958, in its relevant part, reads as follows:

“The registers of public roads are to be set up by the road constructing authorities within three years from the entry into force of this act. Following their setting up, they are to be publicly displayed in the municipalities – in areas not assigned to a municipality at the district administrative authority – for a period of six months. The road constructing authorities have to publicly announce in advance the running of this time-limit, thereby pointing out that objections to the register ’ s correctness and completeness can be made only within the course of this preclusive time-limit. Insofar as the parties are known, they are to be informed; proof of service is required . ( ...) ”

Unlike a private road, a public road is open to public use. In accordance with Article 3 § 1 no. 4 of the Bavarian Roads and Tracks Act, a road within the meaning of this Act includes a public field and forest track.

In accordance with Article 6 § 1, the road construction authority may declare a road to be a public road. Where the road construction authority declares a road to be a public road, the consent of the owner is required. An exception to this rule constitutes Article 67 § 4. When a registration of a road is final, the consent of the land owner is deem ed to have been given and the road is classified as a public road. The purpose of this provision is to assure legal certainty in respect of the classification of already existing roads in a short period of time after the entry into force of the Bavarian Roads and Tracks Act in 1958. Prior to the establishment of road registers, public roads and tracks on the territory of municipalities were not registered in the land registry . This situation gave rise to numerous court proceedings. The new legislation provides a means to avoid litigation and to establish uniform standards of the use of roads. The classification as a public road has the effect of conferring the public a right of way and assigning to the adjoining owners the responsibility for its maintenance.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the proceedings before the Federal Constitutional Court , which lasted seven years and ten months, were unduly long. He also alleged that he was denied a fair hearing. He contended that the courts disregarded relevant facts of his case and decided arbitrarily.

Invoking Article 1 of Protocol No. 1, the applicant complained that the interpretation of the forth sentence of Article 67 § 3 of the Bavarian Roads and Tracks Act by the German authorities was unlawful and did not respect the clear wording of this provision. It was incompatible with the right of property that the affected propriety owner was not personally informed of the registration.

THE LAW

1. The applicant complained that the proceedings before the Federal Constitutional Court lasted an unreasonably long time. He invoked Article 6 § 1 of the Convention which, in its relevant parts, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal...”

The Government maintained that in the circumstances of the present case the length of the proceedings had not been excessive. The Government emphasised the Federal Constitutional Court ’ s excessive caseload, which had obliged it to deal with more urgent cases, of considerable political and social importance, some of which concerned the after-effects of German reunification. Numerous efforts, they added, had already been made to lighten the Federal Constitutional Court ’ s burden and to reduce the backlog of cases.

The Court observes that the period to be taken into consideration began on 16 November 1991 when the applicant ’ s mother lodged a constitutional complaint with the Federal Constitutional Court and ended on 1 October 1999 when the decision of the Fed eral Constitutional Court of 17 September 1999 was notified to the applicant ’ s counsel. It thus lasted approximately seven years and ten months.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ’ s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The applicant further complained under Article 6 § 1 of the Convention that his right to a fair hearing had been violated by the German courts. He contended that they based their decisions on incorrect facts or intentionally disregarded relevant facts and, by dismissing his action as being time-barred, denied him the right of access to court.

The applicant contested that his track had been entered on the road asset register. He challenged in particular the authenticity of both the registration notice of 1 June 1963 and the advertisement announcing that the register would be at public display at the office of the Reichenbach municipality from 1 August 1965 to 31 January 1966. He mentioned in this respect that 1 June 1963 was the Saturday before Pentecost and that 1 August 1965 was a Sunday. Offices were closed at these dates. Furthermore the length of the track was incorrectly indicated. Furthermore, contrary to the findings of the Federal Constitutional Court , local people did not use the track any longer. They used at present the cycle and pedestrian path along the federal roadway which in the meantime had been constructed by the Reischach municipality.

T he Court reiterates that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I). Insofar as the applicant complained that the German courts did not correctly apply Article 67 of the Bavarian Roads and Tracks Act , the Court reiterates that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation ( see Edificaciones March Gallego S.A. v. Spain , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 290, § 33 ). The Court observes that in the instant case the German courts interpreted Article 67 § 3, fourth sentence, of the Bavarian Roads and Tracks Act as meaning that the propriety owner affected by the registration should individually be notified of the public display of the roads register, but that the failure to do so did not prejudice the register ’ s validity. According to them, public notice was a commonly used method to inform people and had the same effect as an individual notification. The Court sees no reason to call this interpretation into question. Furthermore, the Court cannot, in the circumstances of the present case, find that the applicant was prevented from arguing his case in an effective manner. The reasons on which the courts based their decisions are sufficient to exclude the assumption that the evaluation had been arbitrary. Assessing the proceedings in the applicant ’ s case as a whole, the Court finds no indication that they were unfairly conducted.

Insofar as the applicant complained about lack of access to court on the ground that the German courts dismissed his action as being time-barred, the Court observes that the applicant had in fact access to court and he availed himself of this right when appealing against the registration of his track. The administrative courts and the Federal Constitutional Court had regard in particular to the question of whether, in the absence of a personal notification, the applicant had been entitled to effective legal protection in respect of an administrative act which might have interfered with his right of property. They have thus examined the applicant ’ s arguments and dismissed them as under the relevant legislation and the relevant case-law they could not be satisfied.

It follows that this part of the application is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complain ed under Article 1 of Protocol No. 1 to the Convention that the registration of his track as a public field and forest track interfered with the peaceful enjoyment of his possessions.

Article 1 of Protocol No. 1 to the Convention 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 Government contended that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They pointed out that his objection against the registration order had been declared inadmissible for failure to comply with the requisite time-limit laid down under German law. This decision had been confirmed by the administrative courts and the Federal Constitutional Court .

The applicant contested this view.

The Court observes that in the present case the Federal Constitutional Court confirmed that the right of property contained an inherent constitutional right to effective legal protection and made an assessment as to whether this rule had been breached in the instant case. In these circumstances, the Court finds that the Government ’ s argument is so closely linked to the substance of the applicant ’ s complaint under Article 1 of Protocol No. 1 that it cannot be determined separately.

1. Whether there was an interference with the peaceful enjoyment of the applicant ’ s possessions within the meaning of Article 1 of Protocol No. 1

In the Government ’ s view, the application was in any event manifestly ill-founded since the impugned measure did not constitute an interference with the applicant ’ s rights under Article 1 of Protocol No. 1.

It was argued that the registration of the applicant ’ s track as a public track had not deprived him of his property but merely involved his responsibility and that of adjacent land owners for the maintenance and the obligation to keep the track open for public use. These restrictions on the exercise of the right of property had existed before. The track had always been used by the public, in particular for the annul pilgrimages to Altötting, and by adjacent propriety owners. The registration did not alter the use of the track or the value of the applicant ’ s land. Consequently the applicant ’ s track had been registered pursuant to Article 67 of the Bavarian Roads and Tracks Act which provided for the registration of an existing road, while Article 6 of the Bavarian Roads and Tracks Act related to the creation and the classification of a new road. However, the Government could accept that, the failure to notify a known landowner in accordance with the forth sentence of paragraph three of Article 67 of the Bavarian Roads and Tracks Act, amounted to a limitation on the applicant ’ s right of access to court, involving the control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1.

The applicant submitted that the track had been a public district road until 19 October 1916 when his grandfather exchanged land over which at present the federal road ran for the track at issue. From this moment onwards the track had ceased to be a public road. The mere fact that at the material time pilgrims used the track for a limited period during three week-ends did not justify the classification of the track as a public field and forest track. A pedestrian track was not a field and forest track.

The registration of the track constituted a serious interference with his possessions. As a result he was deprived permanently of essential property rights despite the fact that according to the land register he was formally the owner of the track. He and his legal successors were unable to enjoy their property as they would if it were their own private property . They must face public traffic on their track during day and night time. His grandfather would never have accepted such a deal.

The Court finds that the registration of the applicant ’ s track as a public field and forest track did not amount to a deprivation of property within the meaning of the first paragraph of Article 1 of Protocol No. 1 since the applicant remained the owner of the track, nor has it been shown that the property has been rendered worthless. Thus, the measure complained of constituted an interference with his right to the peaceful enjoyment of his possessions and must be considered as a control of the applicant ’ s use of his property falling within the scope of the second paragraph of Article 1 of Protocol No. 1 (see Haider v. Austria , (dec.), no . 63413/00 , 29 January 2004). The Court recalls that this provision allows Contracting States to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose, which means that there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Sporrong and Lönnroth , judgment of 23 September 1982, Series A no. 52, p. 24, § 64; Allan Jacobsson v. Sweden , judgment of 25 October 1989, Series A no. 163, p. 16, § 54).

2. Compliance with the requirement of lawfulness

The Court reiterates that an essential condition for an interference to be deemed compatible with Article 1 of Protocol No. 1 is that it should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).

In the present case, the Court notes that the registration of the applicant ’ s track as a public field and forest track was based on Article 67 of the Bavarian Roads and Tracks Act.

The Government asserted that the forth sentence of paragraph 3 of Article 67 of the Bavarian Roads and Tracks Act contained merely a recommendation rather than a legally binding requirement to personally inform known propriety owners. According to the legislature ’ s intention, the general public announcement that the roads registry would be displayed for inspection by the public was sufficient both for the register as a whole and for a specific registration to have its full effect in respect of affected property owners. The above provision merely imposed the announcement of the public display of the roads register and the indication of the limitation period, but not of the details relating to every single registration.

The applicant considered that the authorities had acted unlawfully. The interpretation of Article 67 § 3, fourth sentence , of the Bavarian Roads and T racks Act by the German courts ran counter to the clear wording and the object and purpose of this provision which was to give property owners the possibility to challenge entries on the road register that affected their rights. Consequently property owners had to be individually notified. Each of the three property owners were known to the municipality and should have been personally notified by recorded delivery of the registration of their part of the track. This registration concerned them personally and not necessarily other citizens of the municipality. The applicant contested the view of the Federal Constitutional Court that discussions with other persons afforded a reasonable opportunity to be informed of the situation.

The first sentence of Article 67 § 3 of the Bavarian Roads and Tracks Act provided that the municipality had to draw up roads asset registers within a time-limit of three years from the entry into force of the Act on 11 July 1958. This time-limit had expired on 11 July 1961. Thereafter the status of roads could be modified exclusively pursuant Article 6 of the Bavarian Roads and Tracks Act requiring a personal notification of the measure and the consent of the person affected by the modification. Private individuals could therefore trust that roads that had not been entered on the register by 11 July 1961 were not public roads within the meaning of the Bavarian Roads and Tracks Act.

The Court reiterates that it has limited power to review compliance with domestic law (see Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p. 16, § 47). It notes that the Administrative Court of Appeal conceded that a different assessment in regard to the obligation to notify the affected propriety owner would be logically possible, but would not correspond to the aim of the law, directed at ensuring legal certainty and finality in regard to the legal situation of all public roads within a short period. In that connection the Court observes that the applicant ’ s allegation of non-compliance with the procedure set forth in the fourth sentence of the third paragraph of Article 67 of the Bavarian Roads and Tracks Act (see above “Relevant domestic law”) as regards the requirement of personal notification of all known landowners was rejected by the domestic courts on the ground that this failure did not prejudice the validity of the roads registry as such. T he Court finds that the interpretation by the administrative courts of Article 67 § 3 of the Bavarian Toads and Tracks Act and the confirmation of that interpretation by the Federal Constitutional Court were comprehensible and cannot be considered as either manifestly erroneous or arbitrary. Indeed, that interpretation, though not based on the express terms of th is provision , is in harmony with the object and purpose of the Bavarian Roads and Tracks Act , which wa s to settle exhaustively, definitively and comprehensively all unresolved property issues of Bavarian roads and tracks.

The Court sees no reason to depart from the final finding reached in the domestic proceedings, namely that the public notification of the display of the roads register provided an adequate procedural protection for the right of property. The measure complained of was, therefore “lawful” within the meaning of Article 1 of Protocol No. 1. It remains to be ascertained whether it pursued a legitimate aim in the general interest and whether a “fair balance” had been struck between the means employed and the aim sought to be realised.

3. The aim of the interference

In the present case, the aim of the Bavarian Roads and Tracks Act was, according to the domestic courts, to clarify the legal situation of all roads and tracks within a short period and to avoid administrative and civil lawsuits in future. The Court does not doubt that these are legitimate interests for the purpose of Article 1 of Protocol No. 1.

4. Whether the interference was justified

Moreover, i n each case involving an alleged violation of that Article the Court must ascertain whether by reason of the State ’ s interference the person concerned had to bear a disproportionate and excessive burden (see , James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98 , p. 27, § 50; Mellacher and Others v. Austria , judgment of 19 December 1989 , Series A no. 169 , p. 34, § 48; Spadea and Scalabrino v. Italy , judgment of 28 September 1995, Series A no. 315 ‑ B, p. 26, § 33 ).

The Government submitted that public notification was justified by the general interest when a road registry was drawn up since it covered a large number of roads and tracks and multiple owners. It was not contrary to the principle of the protection of property rights that publication had the effect of notification as long as the right to effective legal protection was ensured. Admittedly the public announcement had the consequence of imposing a duty to co-operate on property owners, since they had to acquaint themselves within the six months ’ limitation period with the contents of the registration and, if necessary, make objections to it. This was, however, necessary because the legislature ’ s aim to clarify within a reasonable time the legal situation by means of establishing roads registers could not have been achieved without sole recourse to public display. The legislature had to strike a fair balance between the interests of the affected property owners to have a clear, practical and effective opportunity to defend their rights and the general interest of ensuring legal certainty and finality. In municipalities the number of property owners concerned was difficult to ascertain. It was therefore irrelevant that in the present case the registration of the applicant ’ s track affected only three property owners in all. The Government stressed that the legislation did not concern the question of some specific roads, but was directed at all the roads and tracks within a municipality.

The Government continued that the time-limit for bringing an appeal in the present case was one year and a half from the moment of the public display of the register. This period was sufficient to give any person affected the possibility to take note of the publication of the registry and to make use of remedies for the protection of his or her interests. The plan to set up road registries had been discussed at length in the municipalities. As a member of the municipal council the applicant ’ s mother was supposed to have known about this project.

The Government observed that official publication by public display in places customarily used for posting up public notes, such as municipal notice-boards, was a widespread form of public announcements. There was no reason not to apply this method of publication also to road registries. It struck a fair balance between the demands of the general interest of the community and the requirements of the protection of legal protection of the affected property owners.

The applicant contended that, the public display of the register did not justify an interference with his property rights. On the territory of the Reischach municipality only three propriety owners were concerned. All of them were known to the municipality and it would not have been difficult to notify them in person. Even if in bigger municipalities where a greater number of propriety owners could be concerned, public notification would have no legitimate justification.

As a consequence of the barring of his mother ’ s right to bring an action, she had been deprived of the opportunity to protect her interests.

By imposing the obligation on the municipality as road construction authority to notify the affected propriety owner, the legislature intended to protect the citizens ’ fundamental rights, namely the right to lawful proceedings and the right to the peaceful enjoyment of their possessions. Consequently Article 67 § 3 of the Bavarian Roads and Tracks Act required that a propriety downer affected by an entry in the road register be personally informed of this measure.

Furthermore it was difficult to understand that his track was classified in the Reischach municipality as a public field and forest track while the same track remained a merely private track on the territory of the neighbouring Winhöring municipality. In comparison to the propriety owners on the territory of the Winhöring municipality, he had to bear an individual and excessive burden that amounted to an interference with his enjoyment of his possessions without payment of compensation.

Finally, the applicant saw no public benefit in registering a track which, due to the construction of a new bicycle and pedestrian path next to the federal road, had lost its importance. The applicant concluded that the German authorities had manifestly failed to maintain a fair balance between the demands of the general interest invoked by them and his fundamental right of property.

The Court notes that the measure in question did not involve any form of expropriation by the State. The German courts found that the proceedings provided by the Bavarian Roads and Tracks Act guaranteed a sufficient protection of the applicant ’ s property rights. The reasons invoked, in particular the aim to classify all roads and tracks within a reasonable time with a view to clarifying the l egal situation of the roads and tracks and the uncertainty of the number of possibly affected propriety owners, were sufficient to justify the system of public notification. The Court is of the view that such considerations must be regarded as legitimate. It concludes that in these circumstances, the contested measure does not appear to be disproportionate and did not impose on the applicant an individual and excessive burden.

Turning lastly to the procedural requirement inherent in Article 1 of Protocol No. 1 (see, among other authorities, Jokela v. Finland , no. 28856/95, § 45, ECHR 2002-IV) , the Court finds that the proceedings viewed as a whole afforded the applicant a reasonable opportunity for putting his case to the competent authorities with a view to establishing a fair balance between the conflicting interests at stake.

Against this background, the Court finds that the national authorities did strike a fair balance between the demands of the public interest on the one hand and the applicant ’ s right to the peaceful enjoyment of his possessions on the other.

It follows that this part of the application is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.                                                                       

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint relating to the excessive length of the proceedings instituted before the Federal Constitutional Court ;

Declares inadmissible the remainder of the application.

Claudia Westerdiek P eer Lorenzen Registrar President