FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36519/97 by Marianne PETSCHAR against Austria

The European Court of Human Rights (First Section), sitting on 17 January 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 6 October 1996 and registered on 17 June 1997,

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 observations and the supplementary observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Marianne Petschar, is an Austrian national, born in 1940, and living in Villach. She is represented before the Court by Mr J. Gradenegger .

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

On 3, 7, 8, 9 and 10 May 1984 expropriation hearings were held at the Villach Office for Road Construction ( Straßenbauamt ) for the construction of a motorway. On the latter date the applicant concluded an agreement concerning the expropriation of part of her estate under the Federal Roads Act ( Bundesstraßengesetz ) and the amount of compensation. Due to the construction of the motorway she lost access to two parcels of land with forest.

On 19 September 1984 the Kärnten Regional Governor ( Landeshauptmann ), upon the construction company’s request, issued a clearing decree ( Rodungsbescheid ) under the Forestry Act ( Forstgesetz ), subject to a number of conditions, including the order to build an appropriate access road for the applicant. However, the decree did not determine the exact location of this road and could therefore not be enforced.

On 10 August 1987 the applicant and other land-owners requested the Villach District Agricultural Authority ( Agrarbezirksbehörde ) to grant them rights to construct a road for transporting wood over third person’s property ( Bringungsrechte ).

On 28 October 1987 the Villach District Agricultural Authority held a hearing and on 21 December 1987 an expert opinion was delivered.

On 28 November 1988 the Villach District Agricultural Authority, referring to the Regional Forestry Roads Act ( Güter - und Seilwege Landesgeset z ) issued a decree granting the applicant and other land owners a right to construct a road for transporting timber over third persons’ property during six months per year.

On 27 December 1988 the applicant appealed against this decision as she considered the period too short to cultivate her forest. On 18 September 1989 the Regional Agricultural Authority ( Landesagrarbehörde ) quashed the District Agricultural Authority’s decision and referred the case back to it, finding in particular that it had failed to determine the exact location of the road to be constructed.

On 13 February and on 9 May 1990 the Villach District Agricultural Authority held hearings. On 27 September 1990 the applicant filed an application with the Regional Agricultural Authority for a transfer of jurisdiction to the higher authority as the Villach District Agricultural Authority had failed to render a decision within the statutory six months’ time-limit. Thereupon, the District Agricultural Authority held a hearing on 30 October 1990, at which the applicant withdrew her request. On 2 November 1990 an on-site hearing took place.

On 4 December 1990 the Villach District Agricultural Authority re-issued an order granting the applicant and other land owners the right to construct a road for transporting timber over third persons’ property. One of the land-owners concerned appealed.

On 21 October 1991 the Regional Agricultural Authority quashed the Villach District Agricultural Authority’s decision and again referred the case back to it.

On 3 November 1992 the Villach District Agricultural Authority requested the Villach District Administrative Authority ( Bezirkshaupt-mannschaft ) to issue permits required under the Environmental Protection Act ( Naturschutzgesetz ) and the Forestry Act.  On 19 May 1993 the Villach District Administrative Authority suspended the proceedings as the District Agricultural Authority had stated that it would elaborate a new draft project as to the exact location of the road at issue.

On 16 September 1994 the District Agricultural Authority held a hearing at which several experts on environmental protection issues and forestry issues were heard. The applicant requested that an expert in the field of geology be heard in addition.

On 3 April 1995 a geological expert submitted an opinion from which it followed that the then draft project could not be carried out.

At the hearing on 21 December 1995 alternatives were discussed.

On 22 February 1996 the landowners were requested to comment on one of these alternatives, which the applicant opposed.

On 30 April 1996 an on-site inspection took place in the presence of the land owners concerned in order to examine another alternative.

On 15 May 1996 the District Agricultural Authority decided to elaborate a new draft project. On 21 May 1996 the applicant was informed and on 11 July 1996 the draft project was explained to the land owners concerned. The applicant submitted objections against the implementation of the new project on 12 August 1996.

On 20 November 1996 the order to work out a detailed project was issued.

On 23 January 1997 the Villach District Agricultural Authority appointed an expert, whose draft project was sent to the parties on 26 February 1997.

On 31 July 1997 a hearing was held at which the road network leading to the project site was examined.

On 13 August 1997 all issues of water rights, forestry and nature conservation affected by the construction of a road for transporting timber were dealt with in a common hearing. In the following months the permits under the Environmental Protection Act, the Water Rights Act and the Forestry Act were given.

On 7 July 1998 a hearing relating to an adjacent road took place.

On 15 September 1998 the Villach District Agricultural Authority granted the applicant and other land owners the right to construct a road and to transport timber over third persons’ property.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings.

2. She further complains under Article 1 of Protocol No. 1 about the Regional Governor’s failure to provide her with an access road upon the expropriation of part of her land in 1984. She also complains that the length of the ensuing proceedings deprived her of the enjoyment of her property.

THE LAW

1. The applicant complains about the length of proceedings relating to her property. She invokes Article 6 § 1 of the Convention as well as Article 1 of Protocol No. 1.

Article 6 § 1, so 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...”

Article 1 of Protocol No. 1 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.”

a) As to Article 6 of the Convention, the Government submit that different sets of proceedings have to be distinguished. First, the expropriation proceedings, in which the applicant could and should have requested an access road, which she failed to do. Second, the proceedings relating to the clearing decree, relating exclusively to the property of the construction company. In these proceedings the applicant, being a third party, could only invoke public interest in the preservation of the forest at issue. And third, the proceedings concerning the applicant’s request to be granted a right to construct a road for transporting timber over third persons’ property, which serve the public interest of maintaining an efficient agricultural structure. According to the Government only the last set of proceedings is to be taken into account, the starting point being 28 November 1988, when the Villach District Agricultural Authority issued the decree granting the applicant a right to construct a road for transporting timber over third persons’ property.

The applicant contests the Government’s view. According to her, the period to be taken into account for calculating the length of the proceedings already started in 1984. She contends that the obligation to build an access road results directly from the law, namely from section 12 § 1 of the Federal Roads Act, which obliges the Federal State to undertake necessary measures to maintain traffic connections when access roads are disrupted upon the construction of federal roads.

The Court notes that the expropriation proceedings and the proceedings resulting in the clearing decree were both terminated in 1984. For the purpose of the applicant’s complaints, they are separate proceedings and are not connected to the proceedings relating to the applicant’s request to be granted a right to construct a road for transporting timber over third persons’ property. These latter proceedings started on 10 August 1987 with the applicant’s and other land owners’ request. They were terminated on 15 September 1998 and, therefore, lasted eleven years and one month.

As regards compliance with Article 6 the Government contend that the proceedings were complex. In particular they point out that in proceedings before the agricultural authorities, the claimant does not have to submit a draft project. In the present case the elaboration of the project necessitated the taking of expert opinions on water rights, forestry law and environmental protection issues. Delays were caused by the fact that on-site meetings could not be held in the cold season. Furthermore, on the applicant’s request the expert opinion of a geologist was obtained, the preparation of which took a longer period of time. The applicant only once made use of the opportunity to expedite the proceedings in order to transfer jurisdiction to the higher administrative authority.

The applicant maintains that the length of the proceedings is in breach of the “reasonable time” requirement. She submits in particular that the authorities failed to handle the case diligently.

b) As to the applicant’s complaint under Article 1 of Protocol No. 1 that the duration of the proceedings deprived her of the enjoyment of her property, the Government contend that there was no interference with the applicant’s right to property as in 1984 she agreed to the transfer of ownership of the parcels concerned to the motorway construction company. The requirement imposed on the motorway company by the subsequent clearing decree of 19 September 1984, to build an access road for the applicant lacked a legal basis and the applicant could therefore not derive a legal title from it. Finally, the proceedings relating to the applicant’s request to construct a road for transporting timber did not constitute an interference with her property rights either. On the contrary, they were concerned with granting her rights to use third persons’ property.

The applicant maintains that the duration of the proceedings also interfered with the peaceful enjoyment of her possessions as she has not been able to use her land following the disruption of the access road by the construction of a motorway.

c) The Court considers that an examination of the merits of this part of the application is required.

2. The applicant further complains under Article 1 of Protocol No. 1, about the Regional Governor’s failure to provide her with an access road upon the expropriation of part of her land in 1984.

The Government contend that the applicant waived her right to an access road in the expropriation proceedings, since she signed an agreement on the expropriation of her land and compensation relating thereto without having requested the construction of an access road. Further, according to the Administrative Court’s case-law, the applicant would, despite the agreement, have been free to appeal against the expropriation decree. In the alternative, the Government argue that the applicant failed to exhaust domestic remedies.

The applicant contests the Government’s view and contends that she has never waived her rights to have access to her land. She argues that section 12 § 1 of the Federal Roads Act obliges the Federal State to undertake the necessary measures to maintain traffic connections when access roads have been disrupted by the construction of federal roads.

The Court notes that the applicant had the possibility to obtain an access road in the expropriation proceedings. However, she failed to assert her rights either in the agreement concerning expropriation or in an appeal against the expropriation decree. Thus, she failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In any case, the expropriation proceedings by which the applicant lost access to her land, were terminated in 1984 and the complaint is therefore also inadmissible for non-compliance with the six-months-rule laid down in Article 35 § 1.

It follows that this part of the complaint must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits of the case, the applicant’s complaints relating to the length of the proceedings and her complaint that the duration of the proceedings deprived her of the enjoyment of her property;

Declares inadmissible the remainder of the application.

E. F ribergh C.L. Rozakis Registrar President