FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45203/99 by Elisabeth BIRNLEITNER against Austria

The European Court of Human Rights (First Section) , sitting on 20 March 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 August 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Elisabeth Birnleitner, is an Austrian national, who lives in Aistersheim (Austria). She is represented before the Court by Mr W.L.Weh, a lawyer practising in Bregenz (Austria).

A. The circumstances of the case

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

The applicant owns a landholding of some 150 hectares, which is an approved hunting ground ( Eigenjagd ). According to the Upper Austria Hunting Act ( Oberösterreichisches Jagdgesetz ), every six years, the District Authority has to establish the boundaries of the Upper Austrian hunting grounds. In this respect, requests may be filed by landowners to have adjacent land allocated to their hunting grounds where, for the purpose of facilitating the exercise of hunting rights, boundaries need readjustment ( Arrondierungsantrag ).

On 30 September 1992 the applicant filed such a request for readjustment in respect of the next six years’ hunting period, i.e. from April 1993 to March 1999.

On 19 January 1993 the Grieskirchen District Authority ( Bezirkshauptmannschaft ) partly granted the applicant’s request and assigned specified plots of third persons to the applicant’s hunting grounds, but dismissed her request concerning some other parcels of land.

On 30 January 1993 the applicant appealed against this decision.

On 9 July 1993 the Upper Austria Regional Government ( Landesregierung ) quashed the decision and referred the case back to the District Authority, instructing the latter to take a new decision after having supplemented its proceedings.

On 14 October and 2 November 1993, respectively, the District Authority issued a new decision establishing the boundaries of the applicant’s hunting grounds. It dismissed the remainder of the applicant’s request for adjustment of the boundaries.

The applicant appealed against this decision.

On 25 January 1994 an inspection of the location was carried out.

On 10 March 1994 the appointed official hunting expert ( jagdfachlicher Amtssachverständiger ) filed an expertise on the question whether supplementary community land had to be assigned to the applicant’s hunting grounds.

On 22 March 1994 the Upper Austria Regional Hunting Committee ( Landesjagdbeirat ) commented on the applicant’s request.

On 28 April 1994 the applicant submitted the opinion of a private expert ( Privatsachverständiger ).

On 14 June 1994 the Upper Austria Regional Government partly granted the applicant’s appeal and modified the impugned decision concerning some of the borders but confirmed the dismissal of parts of the applicant’s request for additional adjustment.

The applicant filed a complaint with the Constitutional Court.

On or about 27 September 1994 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success and referred the case to the Administrative Court. This decision was served on the applicant’s lawyer in December 1994.

On 14 November 1995 the Administrative Court ordered the applicant to supplement his complaint

On 8 February 1996 the applicant complied with this request.

On 15 May 1996 the Regional Government filed its comments on the applicant’s complaint.

On 3 July 1996 the Administrative Court, quashing the decision on formal grounds, referred the case to the Regional Government and ordered the latter to further supplement the proceedings. The court found in particular that the authority had failed to duly take into account the private expert’s opinion submitted by the applicant. The authority should have obtained the official expert’s comment on the issues raised by the private expert. The decision was served on the applicant’s lawyer on 21 August 1996.

Thereupon, the Regional Government informed the official expert of the private expert’s submissions and ordered him to supplement his report accordingly

On 8 October 1996 the official expert complied with this request. His additional remarks were served on the applicant, who was given a time limit to file her comments.

On 4 November 1996 and 31 December 1996 the applicant requested for an extension of the time limit set.

On 20 January 1997 the applicant filed her comments in the form of an revised version of her private expert’s opinion.

It appears that the official expert, on 11 March 1997, commented on these further submissions, stating that they did not change his findings set out in the report of 8 October 1996.

On 16 July 1997 the Upper Austria Regional Government dismissed the applicant’s appeal against the District Court’s decision of 14 October and 2 November 1993.

On 20 August 1997 the applicant lodged a complaint against this decision with the Administrative Court and requested that an oral hearing be held.

On 4 November 1997 the Regional Government filed its comments on the applicant’s appeal. In these submissions, reference was made to the statements of the official expert on 11 March 1997. The Regional Government noted that this comment had not been communicated to the applicant because the official expert had added nothing to his report of 8 October 1996. These comments were served on the applicant’s lawyer on 17 November 1997.

On 21 January 1998 the Administrative Court dismissed the applicant’s appeal as being unfounded. The court dispensed with an oral hearing. This decision was served on the applicant’s lawyer on 18 February 1998.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the lack of an oral hearing. She further complains that the proceedings at issue lasted unreasonably long and that the principle of equality of arms was violated in that the official expert’s statement of 11 March 1997 has not been served on her.

THE LAW

1. The applicant raises a number of complaints under Article 6 of the Convention, which, insofar as relevant, reads as follows:

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

a. The applicant complains that throughout the whole proceedings she did not have a public hearing.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

b. The applicant also complains that the proceedings at issue lasted unreasonably long.

The Court finds that it can be left open whether Article 6 is applicable to the proceedings at issue or whether the applicant has exhausted all domestic remedies according to the generally recognised rules of international law as required by Article 35 § 1 of the Convention, as this part of her complaint is, in any event, manifestly ill-founded.

As regards the length of the proceedings at issue, the Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see for instance Humen v. Poland [GC], no. 26614/95, 15.10.99, § 60).

The Court observes that the proceedings started on 30 January 1993 when the applicant appealed against the decision of the Grieskirchen District Court of 19 January 1993 and were terminated on 18 February 1998, when the Administrative Court’s final decision was served on the applicant. Thus, they lasted for roughly five years and one month.

The Court finds that the proceedings were of a rather complex nature, involving two experts’ reports, submitted by an officially appointed hunting expert and a private expert. The Austrian authorities had to establish whether or not various parcels of land belonging to third persons had to be assigned to the applicant’s hunting grounds for the proper exercise of her hunting rights.

Altogether seven decisions were rendered in the proceedings, which involved four instances in the first and three instances in the second round of proceedings, including the Constitutional Court and the Administrative Court. As regards the conduct of the applicant, the Court observes that he filed two requests for an extension of a time limit given to him to comment on the official expert’s report, which caused a delay of approximately three months. As regards the conduct of the authorities, the Court considers that no major delays are imputable to the them and that at no stage did the proceedings come to a real standstill. Therefore, it concludes that, on the whole, the Austrian courts dealt expeditiously with the applicant’s case.

In the light of these circumstances , the overall length of the proceedings of five years and one month can still be regarded as reasonable within the meaning of Article 6 § 1 of the Convention.

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

c. Finally, the applicant complains that the proceedings violated the principle of equality of arms in that the Upper Austria Regional Government failed to communicate to her the official expert’s statement of 11 March 1997.

However, the Court is not required to decide whether this part of the application discloses any appearance of a violation of Article 6 as, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

The Court observes that the Upper Austria Regional Government, on 4 November 1997, commented on the applicant’s complaint filed with the Administrative Court. In these submissions, the Regional Government referred to the material statement made by official expert on 11 March 1997. Subsequently, these comments were served on the applicant on 17 November 1997. Admittedly, the Regional Government did not notify the applicant of the statement at issue. However, the Court observes that the applicant, who learned about that statement when the Regional Government’s submissions were served on him, refrained from raising this issue before the Administrative Court.

Accordingly, the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. It follows that also this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the lack of a public hearing;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President