THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42032/98 by Johann WIDMANN against Austria

The European Court of Human Rights ( Third Section) , sitting on 6 June 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan ,

Mrs H.S. Greve ,

Mrs E. Steiner , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 March 1998 and registered on 3 July 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 regard to the Court’s partial decision of 20 March 2001,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national living in Mittersill . He is represented before the Court by Mr E. Proksch , a lawyer practising in Vienna.

A. The circumstances of the case

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

The applicant is a farmer and owner of the Roßweg alp in Mittersill . According to a legal instrument of 1868 the owner of this alp is entitled to obtain timber from the Austrian Federal Forestry Administration to the extent necessary for the maintenance of the alp’s cabins.

1. First round of proceedings

On 30 October 1987 the applicant requested the Office of the Salzburg Regional Government as the agricultural authority of first instance ( Landesregierung als Agrarbehörde erster Instanz - “the Agricultural Authority”) to grant him the necessary quantity of timber for the maintenance of existing and the edification of new alpine cabins.

On 14 July 1988 the Agricultural Authority held a hearing and on 20 June 1989 a forestry expert delivered his opinion.

On 4 September 1989 the Agricultural Authority gave its decision, ordering the Federal Forestry Administration to provide the applicant with a certain quantity of timber within four weeks.

On 25 September 1989 the applicant appealed against this decision.

On 2 February 1990 the Salzburg Regional Land Reform Board ( Landesagrarsenat - “the Regional Board” ) dismissed the appeal and ordered the Federal Forestry Administration to provide the applicant with a smaller quantity of timber within four weeks. It found that timber was not due where cabins had tumbled down because of the applicants’ failure to maintain them properly.

On 27 June 1990 the applicant filed a complaint against this decision with the Administrative Court ( Verwaltungsgerichtshof ).

On 12 October 1993 the Administrative Court quashed the Regional Board’s decision. It considered, inter alia , that the notion of “maintenance” also comprised the restoration of a derelict cabin.

On 28 January 1994 the Regional Board granted the applicant’s appeal of 25 September 1989 and referred the case back to the Agricultural Authority.

2. Second round of proceedings

By decision of 6 June 1994 the Agricultural Authority opened supplementary proceedings with a view to amending the legal instrument of 1868. On 25 August 1994 and 25 January 1995 hearings were held. On 12 December 1994 an agricultural expert delivered his opinion as to the average annual timber supply necessary for the maintenance of the cabins.

On 6 February 1995 the Agricultural Authority issued a decision, by which it amended the legal instrument of 1868 and regulated the provision of timber for the owner of the Roßweg alp . The applicant appealed against this decision, claiming that a fixed annual supply of timber should be granted irrespective of the need to maintain the cabins.

On 23 June 1995 the Regional Board partly granted the appeal and amended the Agricultural Authority’s decision.

On 17 November 1995 the Regional Board granted the applicant’s request for leave to appeal out of time ( Wiedereinsetzung in den vorigen Stand ) to the Supreme Land Reform Board ( Oberster Agrarsenat - “the Supreme Board”) against the Regional Board’s decision.

On 6 March 1996 the Supreme Board, after having held a hearing, dismissed the applicant’s further appeal. It found that the legal instrument of 1868 only conferred a right to obtain timber for the maintenance of cabins, not a right to a fixed annual quantity of timber.

On 30 May 1996 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He complained, inter alia , about the length of the proceedings and an alleged violation of his right to property.

On 24 September 1996 the Constitutional Court refused to deal with the complaint for lack of sufficient prospects of success and remitted the case to the Administrative Court.

On 11 December 1997 the Administrative Court dismissed the applicant’s complaint. It confirmed that the applicant was entitled to obtain a variable quantity of timber dependent on the need to maintain his alp’s cabins, but not to obtain a fixed annual quantity. The decision was served on the applicant’s counsel on 28 January 1998.

B. Relevant domestic law

Section 73 of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities’ duty to decide. So far as relevant, it reads as follows:

“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay, and at the latest six months after the application or appeal has been lodged.

(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request ( Devolutionsantrag ). ...This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority.

(3) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it.”

Where the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, fails to decide within six months, an application under Article 132 of the Constitution against the administration’s failure to decide ( Säumnisbeschwerde ) can be lodged with the Administrative Court.

COMPLAINT

The remainder of the applicant’s complaints concerns the length of administrative proceedings under Article 6 § 1 of the Convention.

THE LAW

The applicant complains about the length of administrative proceedings under Article 6 § 1 of the Convention, which, as far as material, 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 Government contend that the applicant has failed to exhaust domestic remedies as he had not filed an application for transfer of jurisdiction ( Devolutionsantrag ) under Section 73 of the Code of General Administrative Procedure. In particular, he could have filed such an application with the Regional Board against the delay of the first-instance agricultural authority. Referring to the cases of Basic v. Austria (no. 29800/96, 30.01.2001, to be published in ECHR 2001) and Pallanich v. Austria (no. 30160/96, 30.01.2001) in which the Court has found that an application under Article 132 of the Constitution against the administration’s failure to decide constitutes an effective remedy, they argue that the same applies to an application under Section 73 of the Code of General Administrative Procedure. The applicant did not comment.

The Court does not consider it necessary in the present case to decide whether an application for transfer of jurisdiction under Section 73 of the Code of General Administrative Procedure may constitute an effective remedy against delay of administrative authorities. The Court observes that the case, between 27 June 1990 and 12 October 1993, i.e. for three years and three and a half months, was pending before the Administrative Court. The Court further notes that neither an application under Section 73 of the Code of General Administrative Procedure nor an application against the administration’s failure to decide lies against delays caused by the Administrative Court. The Court considers that the above period of time, during which the applicant had no remedy at his disposal to expedite the proceedings, was substantial. In these circumstances an application of Section 73 of the Code of General Administrative Procedure cannot be considered to be an effective remedy (see mutatis mutandis Holzinger (no. 2) v. Austria, no. 28898/95, §§ 21-22, 30 January 2001). Thus, the Government’s preliminary objection on non-exhaustion has to be dismissed.

b. As to the period to be taken into consideration, the Government contend that the “dispute” within the meaning of Article 6 § 1 of the Convention only arose with the decision by the Agricultural Authority of 4 September 1989. Prior to that date, the authority had done nothing in the case that was contrary to the applicant’s view. Furthermore, they assume that the proceedings ended on 11 December 1997 when the Administrative Court’s decision was taken. Further, the Government argue that the proceedings were of some complexity and were, taken as a whole, conducted with reasonable speed. The applicant did not comment.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudicing the merits of the case.

Vincent Berger Georg Ress Registrar President