FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8749/02 by Ernst RIEBERER and Gottfried ENGLEITNER against Austria

The European Court of Human Rights ( First Section) , sitting on 7 October 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 14 February 2002 ,

Having regard to the President ' s decision of 8 July 2003 to communicate the complaint about the length of the proceedings to the respondent Government and to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention),

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Ernst Rieberer and Gottfried Engleitner are Austrian nationals, who were born i n 1951 and 1962 respectively and live in Vienna and Mitterbach. They were represented before the Court by Mr A. Friedberg, a lawyer practising in Vienna . The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Depar tment at the Federal Ministry for Foreign Affairs.

A. The circumstances of the case

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

In 1992 the applicants concluded a sales contract with the A. company in respect of real estate situated in Mitterbach .

On 21 April 1994 the applicants requested to be entered in the land register as owner s .

On 4 May 1994 bankruptcy proceedings were opene d as regards the A. company.

On 4 May 1994 the Lilienfeld District Court ( Bezirksgericht ) ordered the entry of the applicants as owners in the land register. Consequently, the applicant s were entered in the land register.

On 22 June 1994 the St. Pölten Regional Court ( Landesgericht ) quashed this decision upon the appeal of the A. company ' s bankruptcy trustee. It noted that a chair lift was situated on the real estate . It therefore qualified as a railway facility within the meaning of Section 26 § 4 of the Railway Act ( Eisenbahngesetz ) and no entry could be made in the land register until the sales contract had been approved by t he competent authority under that Act . The applicants did not appeal to the Supreme Court against this decision.

Thereupon, on 4 July 1994 the Lilienfeld District Court amended the land register, cancelling the entry of the applicants as owners.

On 14 September 1994 the A. company , represented by its bankruptcy trustee, requested the Lower Austria Regional Governor ( Landeshaupt - mann ) to approve the sales contract.

On 2 December 1994 the Lower Austria Regional Govern or refused the request, finding that due to the sales contract the A. company could no longer fulfil the legal obligations resulting from its licence to run the chair lift on the real estate at issue. Therefore, the transaction ran counter to the public interest. This decision was served on the A. company but, erroneously, not on the applicants. On 19 December 1994 the A. company filed an appeal.

On 4 October 1995 the Federal Minister of Public Economy and Transport ( Bundesminister für öffentliche Wirtschaft und Verkehr ) dismissed the A. company ' s appeal. This decision was served on the applicants.

Subsequently, on 20 November 1995 , the applicants filed a complaint with the Administrative Court ( Verwaltungsgerichtshof ). In these and the subsequent proceedings the applicants were represented by counsel.

On 20 December 1995 the Administrative Court rejected the applicants ' complaint. It noted that the applicants had not appealed against the Regional Governor ' s decision of 2 December 1994 and had therefore not exhausted available remedies.

On 11 April 1996 the second applicant requested the Lower Austria Regional Governor to approve the sales contract.

On 26 July 1996 the Lower Austria Regional Governor dismissed the second applicant ' s request.

On 17 January 1997 the Federal Minister for Science, Traffic and Art ( Bundesminister für Wissenschaft , Verkehr und Kunst ) rejected the second applicant ' s appeal. Subsequently, the latter lodged a complaint with the Constitutional Court .

On 31 July 1997 t he Constitutional Court refused to deal with the second applicant ' s complaint for lack of prospects of success and transmitted the case to the Administrative Court .

On 22 September 1997 the second applicant supplemented his complaint to the Administrative Court .

On 25 September 1997 the Administrative Court instituted preliminary proceedings.

On 18 February 1998 the Administrative Court dismissed the second applicant ' s complaint. Noting that the Regional Governor ' s decision of 2 December 1994 had become binding in respect of the A. company, it found that a separate request for approval of the sales contract by the second applicant did not justify a review of the case. However, according to the relevant provision of the General Administrative Procedure Act (see domestic law part below), the second applicant had been party to the above proceedings . He had been “omitted” in the proceedings, as the Regional Governor ' s decision had not been served on him. In accordance with the relevant case-law, i t was up to him to request that a copy of that decision be served on him, so as to enable him to file an appeal against it.

On 11 May 1998 , upon the applicant s ' request s made in April 1998 , they were served the Regional Governor ' s decision of 2 December 1994 .

On 18 December 1998 the Federal Minister for Science and Traffic ( Bundesminister für Wissenschaft und Verkehr ) dismissed the applicants ' appeal s .

On 1 February and on 2 February 1999 , respectively, the applicants filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ).

On 15 March 1999 the applicant s supplemented t h eir complain ts .

On 7 June 1999 the Constitutional Court declined to deal with the applicants ' complaints and transmitted the case to the Administrative Court .

On 17 August 1999 the applicants supplemented their complaint with the Administrative Court . On 30 August 1999 the Administrative Court instituted preliminary proceedings. On 13 October 1999 the applicants submitted supplementary observations. On 2 December 1999 the Federal Minister filed his comments. On 14 December 1999 the first ap plicant filed further submissions . On 26 January 2000 the F ederal Minister commented on the s e statements.

On 3 May 2000 the Administrative Court quashed the Federal Minister ' s decision of 18 December 1998 . It noted , in particular, that the Minister had wrong ly applied Section 26 § 4 of the Railway Act. T he transaction did not run counter to public interest as the bankruptcy trustee of the A. company had returned the licence for operating the cha ir lift in January 1997 and the real estate at issue did therefore no longer qualify as a railway facility.

On 12 July 2000 the Federal Minister for Traffic, Innovation and Technology ( Bundesminister für Verkehr , Innovation und Technologie ) quashed the Regional Governor ' s decision of 2 December 1994 .

In the meantime, the relevant legislation was changed and an approval of the transaction under the Railway Act was no longer required at all .

On 29 August 2000 the applicants requested the Lilienfeld District Court to enter the contract into the land register.

On 4 October 2000 the Lilienfeld District Court dismissed the applicants ' request.

On 22 February 2001 the St. Pölten Regional Court dismissed the applicants ' appeal. It noted that the sales contract had not been approved under the Railway Act before the expiry of the validity of the rank of creditors in the bankruptcy proceedings concerning the A. company. Therefore, the real estate at issue had fallen into the bankrupt ' s assets and had been sold by the bankruptcy trustee.

On 29 May 2001 (served on 14 August 2001 ) the Supreme Court rejected the applicants ' extraordinary appeal on points of law.

B. Relevant domestic law

1. Under Article 431 of the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) the procedure for the acquisition of real property is the entry of the acquisition title in the land register (see also Section 4 of the Land Register Act - Grundbuchsgesetz ).

Under Section 94 § 1 of the Land Register Act the Land Register Court can not proceed to enter a transaction in the land register until the transaction which is subject to approval has been approved by the competent authority.

2. Under the Section 26 §§ 3 and 4 of the Railway Act ( Eisenbahngesetz ) as in force at the relevant time, a sales contract concerning a train, a railway or real property qualified as railway facility was subject to approval by the competent authority. A sales contract without this a pproval was null and void (§ 5) .

3. The proc edure concerning the approval was governed by the General Administrative Procedure Act 1950 ( Allgemeines Verwaltungsverfahrens-gesetz ), secti on 8 of which reads as follows:

"Persons who ... take part in the proceedings on the basis of a right granted to them or an interest protected by the law ... are parties [to the proceedings] ."

According to the case-law of the Administrative Court a person is regarded as a party whenever an administrative measure has a direct bearing on his or her personal rights.

4. Section 62 of the Gener al Administrative Procedure Act provides that decisions of administrative authorities can be issued either by oral announcement or in a written form. According to the constant doctrine and the case-law of the Administrative Court, a decision of an administrative authority does not produce any legal effects on a party to which it had not been notified (see Antoniolli-Koja , Allgemeines Verwaltungsrecht , third edition, pp. 299, 581, with reference to Administrative Court VwSlg 8482A/1973, 8494A/1973, 9547A/1978, 9634A/1978, 10.542A/1981 and VwSlg 814A/1949, 8057 A/1971). A n “omitted party ” ( übergangene Partei ) can , therefore , in principle not take any legal remedies against the decision at issue. This party can, however, request a declaratory decision concerning its standing as a party in the proceedings at issue or request the service of the decision and file an appeal once the decision had been served upon it . ( see Ant oniolli-Koja , Allgemeines Verwaltungsrecht , cited above, p. 299 with reference to Administrative Court VwSlg 5794A/1962 ) .

5 . By virtue of Article 130 of the Federal Constitution ( Bundesverfassungsgesetz ), the Administrative Court has jurisdiction to hear, inter alia , applications alleging that an administrative decision is unlawful. Pursuant to Article 131 the application may be brought by any person claiming a violation of his or her rights by the administrative decision, provided that this person has exhausted all other remedies .

COMPLAINTS

The applicants complain ed under Article 6 of the Convention about the length of the proceedings and submit ted in particular that the Regional Governor ' s decision of 2 December 1994 had not been served upon them until 11 May 1998 .

The applicants further alleged that the Regional Court ' s decision of 22 June 1994 , stating that an approval under th e Railway Act was necessary, turned out to be wrong. They complain ed about the Austrian authorities ' refusal to enter the transaction in the land register despite the Administrative Court ' s finding that the sales contract did not need further approval under the Railway Act . They invoke d Article 1 of Protocol No. 1.

THE LAW

1. The applicants complained under Article 6 of the Convention about the length of the proceedings and submit in particular that the Regional Governor ' s decision of 2 December 1994 had not been served upon them until 11 May 1998 .

Article 6 § 1, as far as relevant, provides as follows:

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

( a ) The Court firstly notes that the applicants sought to acquire real property, which, according to Austrian law, requires entry of the acquisition title in the land register. In the present case, however, the Regional Court , by decision of 22 June 1994 overturned the District Court ' s decision on the ground that no entry could be made in the land register without the approval of the competent authority under the Railway Act. The Court, therefore, finds that the proceedings concerning this approval and concerning the subsequent request for entry of the transaction in the land register have to be considered as a whole.

The Court further finds that the issuing of the Regional Governor ' s decision of 2 December 1994 has to be considered as the starting point of the proceedings. The Court notes in this regard that the Regional Governor dismissed the A company ' s request for approval of its sales contract with the applicants and that this decision had a direct bearing on the civil rights of the applicants (see, mutatis mutandis , Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 39, § 94). The final decision in the proceedings at issue was taken on 29 May 2001 when the applicants ' request to enter the sales contract in the land register was rejected by the Supreme Court, and was served upon them on 14 August 2001. Thus, the proceedings lasted for some six years and eight months.

( b ) The Government acknowledged that the Regional Governor ' s decision of 2 December 1994 had by mistake not b een served upon the applicants. They submitted, however, that the applicants have failed to exhaust domestic remedies. In particular they had failed to file a request for a transfer of jurisdiction under S. 73 § 2 of the General Administrative Procedure Act in order to expedite the proceedings. They further argue d that considerable delays were attributa ble to the applicants, who failed to file a request for being served th e Regional Governor ' s decision for more than two and a half years. Given that the applicants were re presented by a lawyer , they must have been aware that , as “omitted parties” , they were required to apply for service of the decision in order to file an effective appeal .

The applicants contested the Government ' s argument s . They asserted that they continuously tried to obtain a decision on the merits of the case. The delay of the proceedings was attributable to the national authorities. First, they had passed them over as parties and , subsequently, in the appeal decision of Federal Minister of 4 October 1995 , which had been served upon them, they had failed to inform them that they could not complain against it without having appealed against the decision of 2 December 1994 .

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law. The Court further notes that it has already found that a request for a transfer of jurisdiction under S. 73 § 2 of the General Administrative Procedure Act constituted an effective remedy as regards complaints about the unreasonable length of Austrian administrative proceedings (see Egger v. Austria ( dec .), no. 74159/01, 9 October 2003) . The Court finds, however, that it is not necessary to examine whether such a request would have constituted an effective remedy in the particular c ircumstances of the present case, as it finds that the complaint is, in any way, inadmiss ible for the following reasons.

The Court recalls that the reasonableness of the length of the proceedings must be assessed with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute ( see, among may other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ V II).

The Court considers that the present case certainly involved a degree of complexity. As to the conduct of the authorities the Court notes that , within six years and eight months, the proceedings at issue came four times before three levels of jurisdiction. There were not periods of inactivity, except for the delay b etween the A . company ' s appeal of 19 December 1994 and the subsequent decision of the Federal Minister of 4 October 1995 .

As to the conduct of the applicants, the Court notes that they got knowledge of the Regional Governor ' s decision of 2 December 1994 at the latest in October 1995, when the Federal Minister ' s decision confirming this decision, was served upon them. However, they did not request the service of the Regional Gover nor ' s decision until April 1998, i.e. two and a half years later. Instead, the y unsuccessfully appeal ed against the decision of the Federal Minister . Subsequently, the first applicant did not take any procedural steps at all, while t he second applicant tried to obtain a new decision on the case. T his way of proceeding was , however, not effective, as the applicants, according to the case-law of the Administrative Court and the constant doctrine (see the domestic law part above), first should have requested the service of the impugned decision in order to appeal against it.

The applicants have not submitted any argument to show that they were prevented from doing so as soon as they became aware of the authorities ' failure to serve the decision of 2 December 1994 on them . Moreover, they were re presented by a lawyer , who could be expected to be familiar with the relevant case-law of the Administrative Court .

The Court, therefore, accepts the Government ' s argument that the applicant s ' conduct considerably contributed to the prolongation of the proceedings.

In conclusion, regard being had to all circumstances of the case and, more particularly, to the conduct of the applicants , the Court considers that the impugned proceedings do not disclose an unreasonable delay within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint 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 applicants further complained about an alleged violation of their right to peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 which, as far as relevant, provides 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 applicants complained in particular about the Regional Court ' s decision of 22 June 1994 , requiring an approval of the sales contract under the Railway Act and about the authorities ' subsequent refusal to enter the transaction in the land register. T he Court observes that, according to Austrian law, a sales contract concerning land can not take effect without a valid entry into the land register. The applicants ' entry into the land register as owners never became valid, as it was annulled by the impugned decision. Thus, the applicants complained in essence that they could not acquire property over the land at issue. However, Article 1 of Protocol 1 does not guarantee a right to acquire possessions (see , for instance, Beer v. Austria , no. 23962/94, Commission decision of 12 April 1996 ).

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.

For these reasons, the Court unanimously

Decides to discontinue the application under Article 29 § 3 of the Convention ;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President