THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11816/02 by Josef EDER against Germany

The European Court of Human Rights (Third Section), sitting on 13 October 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr L. Caflisch , Mr C. Bîrsan , Mr V. Zagrebelsky , Mrs A. Gyulumyan , Ms R. Jaeger , Ms I. Ziemele, judges , and Mr M . Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 16 March 2002 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Josef Eder, is a German national who was born in 1938 and lives in Regen.

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

The applicant was the owner of several plots of land near Regen. The Regen Municipality planned the construction of week-end houses, sport and play grounds and a restaurant on this site which was composed of marshes and wetland. On 18 April 1974 the Lower Bavarian Planning Authority decided that the intended development did not comply with the objectives of spatial planning. One of the main grounds for that refusal was that the site was located in a nature preserve. There was also the danger of dissection of landscape by secondary residences and of an undesirable effect on the promotion of tourism.

On 19 September 1980 and 27 April 1981, when purchasing further plots of land (parcels nos. 334/6, 339, 340, 345/4 and 361/4) located in this area, the applicant was informed by the Regen Regional Administrative Authority ( Landratsamt ) that the land in question was part of a natural habitat intended to be designated as a nature conservation area.

On 5 August 1981 the Regen Municipality published a development plan despite the objections of the Lower Bavarian Planning Authority.

By decisions of 24 April, 14 May and 25 May 1982 the Regen Regional Administrative Authority prohibited the applicant from altering the natural condition of the land (parcel s nos. 339, 340 and 361/4), ordered him to refill the drainage ditches and informed him that the decisions would be implemented by the administrative authority at his own expense if he failed to carry out the expected activity within the time-limits fixed at one week and one month respectively. On 24 and 25 May 1982 the Regen Regional Administrative Authority proceeded to refill the ditches on one of the land parcels concerned (no. 339).

After a suspension for several years of appeal proceedings brought by the applicant, the Regensburg Administrative Court ( Bayerisches Verwaltungsgericht ), by a judgment of 4 June 2003 , found that the limitation periods were too short and that the implementation of the decisions was unlawful.

On 29 April 1982 the Regen Regional Administrative Authority refused to grant the applicant a planning permission for the development of the land. This decision became final.

By a decree of 7 June 1983 the Government of Lower Bavaria designated the area, including in part the applicant ’ s land (parcels nos. 334/6, 339, 340, 345/4 and 361/4), as a nature conservation area.

On 10 April 1984 the Regen Regional Administrative Authority transferred, as requested by the applicant, his real property situated in this area to the State of Bavaria fixing the compensation to be awarded to him at 115,513 Deutschmarks (DEM). It refused to purchase parcel number 361/4 on the ground that the use for agriculture on this respective plot of land remained unaffected by the Nature Conservation Decree of 7 June 1983 . It also refused to purchase the other remaining plots of the applicant ’ s land.

By a judgment of 28 April 1986 the Regensburg Administrative Court dismissed the appeals lodged by the applicant and the State of Bavaria against this decision. The judgment became final, the parties having withdrawn their respective appeals.

In 1988 the applicant sold the land not included in the area covered by the nature conservation decree (parcel s nos. 332/3, 337 and 335) as pasture respectively forest land.

On 27 November 1992 the Regen Administrative Authority supplemented its decision of 10 April 1984 , taking into account changes brought about in respect of the applicant ’ s land, such as the construction of a new road. No appeal was filed against this decision by the applicant. It accordingly became final.

By a judgment of 28 September 1989 the Munich Court of Appeal ( Oberlandesgericht München ) quashed a judgment of the Deggendorf Regional Court ( Landgericht ) of 28 October 1987 and increased the amount of compensation initially awarded to the applicant from DEM 115,513 to DEM 900,000. It refused to grant compensation in respect of parcel number 361/4, having regard to the binding effect of the judgment of the Regensburg Administrative Court of 28 April 1986 . On 17 June 1991 the Bavarian Regional Supreme Court ( Bayerisches Oberstes Landesgericht ) dismissed the applicant ’ s appeal on points of law. In 1992 the Federal Constitutional Court ( Bundesverfassungsgericht ), sitting as a bench of three judges, refused to admit the applicant ’ s constitutional complaint lodged against these decisions for adjudication.

On 11 March 1993 the applicant requested that the proceedings be re-opened and he be awarded compensation.

By a judgment of 20 February 1995 the Regensburg Administrative Court dismissed the applicant ’ s application for the re-opening of the proceedings. It ordered, however, the administrative authorities to decide on the applicant ’ s compensation claim in respect of the remaining plots of land (parcel s nos. 332/3, 335, 337 and 361/4).

On 12 December 1997 the Regen Regional Administrative Authority dismissed the applicant ’ s compensation claim. It found that the land was situated outside the nature conservation area and was thus not affected by restrictions of the land use. The development plan for the week-end residences had never been validated, nor had the applicant ever been the owner of building land. Furthermore, with the exception of parcel number 361/4 he had sold the plots of land (parcel s nos. 332/3, 335 and 337) in 1988. At the time of filing the compensation claim with the Administrative Authority in 1993 he did not own the land any longer. In any event, his compensation claim had not been filed within the period of three years after the date on which the nature protection decree had been issued.

The applicant appealed against this decision claiming to be entitled to be awarded by the State of Bavaria an adequate compensation for all the parcels of his land.

By a judgment of 24 January 2002 the Landshut Regional Court dismissed the applicant ’ s claim.

The applicant appealed against this judgment.

By a judgment of 20 January 2003 the Munich Court of Appeal dismissed the appeal. It found that the Regensburg Administrative Court, by a final judgment of 28 April 1984 , had confirmed the decision of the Regen Administrative Authority of 10 April 1984 concerning the question of the transfer of the applicant ’ s land. The question of compensation in respect of that land had been definitively settled by the judgment of the Munich Court of Appeal of 28 September 1991 following the dismissal of the applicant ’ s appeal on points of law by the Bavari an Regional Supreme Court on 17 June 1991 .

According to the Court of Appeal, the same reasoning applied to the applicant ’ s request to re-open the proceedings with a view to being granted a higher compensation under the compensation provisions of the Federal Building Code ( Bundesbaugesetz ). By a final judgment of 20 February 1995 – the applicant ’ s appeal on points of law had been dismissed by the Bavarian Court of Appeal ( Bayerischer Verwaltungsgerichtshof ) on 16 January 1997 – the Regensburg Administrative Court had refused to re-open the proceedings with a view to reassessing the amount of compensation in respect of the land whose property had been transferred to the State of Bavaria.

The remaining plots of land (parcels nos. 332/3, 335 and 337 361/4) were situated outside the area originally zoned for development and were thus neither adversely affected by the nature conservation decree nor by the decisions of the Regen Administrative Auth ority of 24 April and 14 and 25 May 1982 prohibiting the applicant from altering the natural conditions of this land (parcels nos. 339, 340 345/4 and 361/4).

According to the Court of Appeal, important considerations of nature conserv ation made the proposed development incompatible with the preservation of the valuable wetland in the area concerned. The applicant had never enjoyed a right to develop the land in question nor had he ever had a legitimate expectation of carry ing out the proposed development since the development plan had been invalid from the beginning. Furthermore the applicant was not entitled to compensation because agricultural use of the land was not prohibited. The Court of Appeal advised the applicant to accept the numerous court decisions given in his case which confirmed that the development plan had no legally binding effect and that the land in question was never designated for construction purposes.

On 20 November 2003 the Federal Court of Justice ( Bundesgerichtshof ) dismissed the applicant ’ s appeal against the decision refusing him leave to appeal on the ground that the case raised no issue of principle.

On 23 January 2004 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant ’ s constitutional complaint for adjudication.

In the meantime, by notices of 17 March and 18 July 1997 , the Zwiesel Tax Office ( Finanzamt) had assessed the applicant ’ s income tax taking into account the compensation paid to him by the State of Bavaria. The applicant ’ s appeals lodged against these decisions were dismissed by the Zwiesel Tax Office on 18 July 1997 , the Munich Finance Court ( Finanzgericht ) on 14 July 2000 and the Federal Finance Court ( Bundesfinanzgericht ) on 28 June 2001 . On 20 September 2001 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant ’ s constitutional complaint for adjudication.

On 24 October 2001 the Zwiesel Tax Office issued a new revised tax assessment claiming payment of income tax for the fiscal year 1991. The appeals lodged by the applicant were dismissed by the Zwiesel Tax Office on 24 October 2001 and the Munich Finance Court on 24 January 2003 . On 10 December 2003 the Federal Finance Court rejected the applicant ’ s appeal against the decision refusing him leave to appeal on points of law. It found that the applicant ’ s grounds of appeal did not satisfy the procedural requirements of the relevant provisions of the Finance Court Act ( Finanzgerichtsordnung ). It noted in particular that the complaints concerning the fairness of the proceedings and the interpretation of the facts allegedly in contrast to the clear contents of the files had not been submitted within the statutory time-limit.

On 9 January 2004 the Zwiesel Tax Office notified the applicant an enforcement decision of 16 December 2003 in respect of his tax liability relating to the period from 1991 to January 2003 in an amount of EUR 310,440.02, including interests, penalties for late payment and costs of the proceedings.

On 8 March 2004 the Federal Constitutional Court, sitting as a bench of three judges, refused to admit the applicant ’ s constitutional complaint for adjudication.

Simultaneously the Landshut Regional Court claimed from the applicant the payment of court costs. On 22 December 2003 the Viechtach District Court ( Amtsgericht ) issued a warrant of arrest against the applicant because he did not make an affidavit ( eidesstattliche Versicherung ) as to his assets.

On 21 April 2004 the Deggendorf District Court assessed the value of the applicant ’ s real estate at Regen and fixed the date for its compulsory sale at 16 November 2005 .

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he was denied a fair hearing in the proceedings relating to the question of the transfer and the compensation for his land as well as in the tax assessments and the enforcement proceedings which, in his submissions, had no legal basis. According to him, t he fair market value of his land should have been that of building land. He further contested the lawfulness of the n ature c onversation decree. Moreover, the courts never established correctly the facts. Evidence was not admitted or arbitrarily assessed , l egal prov is ions were ignored and s erious violations of his constitutional rights had occurred.

Invoking Article 1 of Protocol No. 1, the applicant complained that his right to the peaceful enjoyment of his possessions had been infringed as a result of the court decisions given in respect of his real property, the amount of compensation, the tax assessments and the court costs. He submitted that he was a victim of a n unlawful expropriation of building land and building land for future development. He claim ed compensation in an amount of EUR 5,000,000 .

Relying on Article 13 of the Convention, the applicant finally complained that he did not have an effective remedy in respect of his allegedly infringed Convention rights.

THE LAW

1. The applicant complained that the German courts assessed the evidence before them erroneously and decided on his compensation claims in respect of his real property arbitrarily, in breach of Article 6 § 1 of the Convention which, insofar as relevant, provides:

“In the determination of his civil rights ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”

a) Inso far as the applicant complains about the refusal to re-open the proceedings and the alleged unfairness related to these proceedings, it is recalled that there is no right under the Convention to the re-opening of proceedings in which a final decision exists, and the guarantees of Article 6 § 1 of the Convention do not apply to proceedings concerning the re-opening of a civil case (see, for instance, San Leonard Band Club v. Malta , no. 77562/01, § 40, 29 July 2004, Komanický v. Slovakia (dec.), no. 13677/03, 1 March 2005).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

b ) As far as the proceedings concerned the transfer of the applicant ’ s real property, the Court notes that the relevant decisions were given by the Regensburg Administrative Court on 28 April 1986 by which the lawfulness of the decision of the Regen Administrative Authority of 10 April 1984 was confirmed and the decision of the Regen Administrative Authority of 27 November 1992 by which it supplemented its previous decision taking into account changes brought about in respect of the applicant ’ s land.

The applicant withdr e w his appeal against the judgment of the Regensburg Administrative Court of 28 April 1986 . No appeal was filed against the decision of 27 November 1992 by the applicant. The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted within six months from the date of the “final” domestic decision.

It is true that the applicant filed a number of applications to have the proceedings reopened. However, it is to be recalled that a request for re-opening a case cannot usually be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see mutatis mutandis , among other authorities, Väinö Uskela v. Sweden , no. 10537/83, Commission decision of 10 October 1985, Decisions and Reports (DR) 44, p . 102).

It follows that t his part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

c ) As far as the proceedings concerned the amount of compensation awarded to the applicant by the State of Bavaria for the purchase of the applicant ’ s real property, the final decision was given by the Bavarian State Supreme Court on 17 June 1991, by which the applicant ’ s appeal on points of law against the judgment of the Munich Court of Appeal of 28 September 1989 was dismissed, respectively the decision of the Federal Constitutional Court given in 1992, that is more than six months before the date on which the application was submitted to the Court.

The Court recalls that an application for the reopening of proceedings does not restart the running of the six months ’ period referred to in Article 35 § 1 of the Convention, unless it is successful and results in a reopening of the proceedings (see, mutatis mutandis , Pufler v. France , no. 23949/94, Commission decision of 18 May 1994, Decisions and Reports (DR) 77, p. 140).

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

d) The applicant alleged that his right to a fair hearing had been violated by the German courts in the proceedings relating to their decisions on his compensation claims for his remaining plots of land which the Bavarian authorities had refused to acquire .

The Court notes that the applicant ’ s complaints concern in particular the decisions of the Landshut Re gional Court of 24 January 2002 , the Munich Regional Cou rt of Appeal of 20 January 2003 , the Federal Court of Justice of 20 November 2003 and the Federal Con stitutional Court of 23 January 2004 . It recalls that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among other authorities, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the instant case , the German courts concluded that the applicant ’ s land had never acquired the quality of building land or land for future development. The Court is of the opinion that the reasons on which they based this conclusion are sufficient to exclude the possibility that the evaluation of the evidence and the interpretation of domestic law were arbitrary. The mere fact that the applicant is dissatisfied with the outcome of the litigation cannot of itself raise an issue under Article 6 of the Convention.

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

e) The applicant further complained about the decisions given by the financial courts and the proceedings related thereto.

The Court recalls its case-law according to which tax disputes fall outside the scope of civil rights and obligations, despite the pecuniary effects which they necessarily produce for the taxpayer (see, inter alia , Ferrazzini v. Italy [GC], no. 44759/98, §§ 29 ‑ 31, 12 July 2001). Accordingly, Article 6 § 1 does not apply in the instant case.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

f) The applicant also complained about the alleged unfairness of the enforcement proceedings. However, even assuming he had exhausted the domestic remedies in this respect, the Court has not found any substantiated allegations which could lead to the conclusion that he was not afforded a fair hearing within the meaning of Article 6 § 1 of the Convention.

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

2. The applicant also alleged that he had been a victim of a breach of Article 1 of Protocol No. 1, which reads 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 applicant complained in particular about the alleged failure of the Bavarian authorities to validate the development plan or their failure to provide adequate compensation for the reduction in value of his property.

The Court notes in the first place that the issue before it does not concern the amount of compensation awarded to the applicant in return for the transfer of his land to the State of Bavaria, as the application has been declared inadmissible for non-exhaustion of domestic remedies and as having been introduced out of time in this respect (see paragraph 1 b ) and c ) above).

a ) As to the applicant ’ s remaining plots of land, the Court recalls that an applicant can allege a violation of Article 1 of Protocol No. 1 only insofar as the impugned decisions related to his or her “possessions” within the meaning of this provision. The concept of “possessions”, for the purposes of Article 1 of Protocol No. 1, applies to “existing possessions” (see Van der Mussele v. Belgium , judgment of 23 November 1983, Series A no. 70, p. 23, § 48), but can also cover assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Pine Valley Developments Ltd and Others v. Ireland , judgment of 29 November 1991, Series A no. 222, p. 23, § 51).

The Court observes that after a thorough examination of all aspects of the case, the German courts constantly found that in the absence of any valid development plan, the applicant ’ s land never had the quality of building land or land designated for future development in respect of which he was claiming compensation. They further found that the land parcels concerned were located outside the area originally zoned for development and were thus not adversely affected by the nature conservation decree. The Court finds no indication that in the instant case, this conclusion was arbitrary or contrary to the relevant provisions of national law. Moreover, the applicant pursued an economic objective, namely future financial gain. The Court reiterates that future income can only be considered to constitute a “possession” if it has already been earned or where an enforceable claim to it exists (see Størksen v. Norway , no. 198 19/92, Commission decision of 5 July 1994, Decisions and Reports 78-A), which was not the situation in the present case. In the final analysis, the Court considers that there is a difference between a mere hope regarding a property development project and a “legitimate expectation” for the purposes of Ar ticle 1 of Protocol No. 1 which must be more concrete and be based on a statutory provision or legal instrument, such as a final judicial decision (see Pressos Compania Naviera S.A. and Others v. Belgium , judgment of 20 November 1995, Series A no. 332, p. 21, § 31; Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000-I; and Stretch v. the United Kingdom , no. 44277/98, §§ 32-35, 24 June 2003).

The Court accordingly considers that the applicant ’ s hope of seeing his project come to fruition by building on it cannot be regarded as a “legitimate expectation” within the meaning of the case-law relating to Article 1 of Protocol No. 1. It therefore concludes that the applicant cannot lay claim to a “possession” as contemplated in Article 1 of Protocol No. 1 and that the facts complained of fall outside the scope of that provision.

It follows that this complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4.

b) The applicant also complained that the enforcement proceedings instituted against him with a view to recovering court costs and obtaining the payment o f income tax constituted a depri vation of his possessions cont rary to Article 1 of Protocol No . 1.

However, the Court observes that paragraph 2 of this Article provides for the right of a State to enforce such laws as it deems necessary inter alia to secure the payment of taxes or other contributions.

The costs of a judicial procedure are contributions within the meaning of this provision. In particular the obligation to pay the costs may act as a disincentive to unnecessary litigation and provides that at least some of a successful litigant ’ s costs may be recovered. This principle corresponds to similar regulations in the law of other High Contracting Parties (see X. v. Germany , no. 7544/76, Commissio n decision of 12 July 1978, DR. 14, p. 60, X. and Y. v. Austria , no. 7909/74, Commission decision of 12 October 1978 , (DR) 15, p.160, Antoniades v. the United Kingdom , no. 15434/89, Commission decision of 15 February 1990 , DR 64, p. 232).

The Court therefore considers that any interference wit h the applicant ’ s right to the peaceful enjoyment of his possessions can reasonably be considered as “necessary” within the meaning of Article 1, second paragraph of Protocol No . 1 as securing the payment of taxes and other contributions.

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

3. Finally, the Court has examined the applicant ’ s complaints under Article 13 of the Convention. It notes that he has benefited from a judicial determination of his actions against the Bavarian authorities and therefore he has had an effective domestic remedy required by Article 13.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

M ark Villiger Boštjan M. Zupančič Deputy Registrar President