THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35019/97 by Helmut LUDESCHER against Austria

The European Court of Human Rights (Third Section), sitting on 23 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 January 1997 and registered on 21 February 1997,

Having regard to the partial decision of 7 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national living in Weiler (Austria). He is represented before the Court by Mr W.L. Weh , a lawyer practising in Bregenz (Austria).

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

On 19 March 1991 the Feldkirch District Administrative Authority ( Bezirkshauptmannschaft ), referring to the relevant provisions of the Forestry Act ( Forstgesetz ), ordered the applicant to reforest a plot of land owned by him. In its decision, the authority specified that the applicant should plant 270 larches. In its reasoning, it noted that until October 1986 the northern part of the plot of land had been fully covered with larches and robinias and that the previous stock of trees was shown by the still existing stumps. Following the unlawful felling of the forest, the applicant had used the land as a sheep-run.

On 4 July 1991 Vorarlberg Regional Government ( Landeshauptmann ) dismissed the applicant's appeal.

On 18 September 1991 the Administrative Court ( Verwaltungsgerichtshof ), upon the applicant’s appeal dated 26 August 1991, opened proceedings and requested the Vorarlberg Regional Government to file observations within a period of eight weeks. These observations were received by the Administrative Court on 25 October 1991.

On 24 June 1996 the Administrative Court dismissed the applicant’s appeal. The decision was served on 17 July 1996.

COMPLAINT

The applicant complains of the length of the appeal proceedings before the Administrative Court concerning the reforestation of his land.

THE LAW

The applicant complains of the length of the appeal proceedings before the Administrative Court concerning the reforestation of his land. He relies on Article 6 § 1 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...”

The Government submit that Article 6 § 1 is not applicable to the proceedings at issue. The proceedings concerned an order for reforesting land after the applicant had removed trees without being entitled to do so. Thus, he had not used the land in a way prescribed by law, and the proceedings on the reforesting order did not therefore relate to a dispute over a right which was recognised under domestic law.

As regards compliance with Article 6 § 1, the Government submit that the length of the proceedings before the Administrative Court was caused by a considerable and unforeseen rise in the number of complaints between 1990 and 1995 which led to an overburdening of that court. However, the legislator took a number of measures to alleviate the workload of the Administrative Court and the number of Administrative Court judges and non-judicial personnel was increased.

This is disputed by the applicant. He submits that in the proceedings on the reforesting order there has been a genuine dispute over questions of fact and law. The main question underlying the reforesting order, and on which its lawfulness depended, was whether before the applicant had removed the trees from his land there had existed a forest within the meaning of the Forest Act. This was a question of fact on which he and the authorities had been in dispute. While he considered that the trees on his land did not constitute a forest, the authorities and the Administrative Court did. Moreover, in his view the length of the proceedings before the Austrian Administrative Court, is in breach of the "reasonable time" requirement laid down in Article 6 § 1 of the Convention.

The Court observes that the proceedings started before the Administrative Court on 26 August 1 991 when the applicant lodged his appeal. The proceedings terminated on 7 July 1996 when the decision of the Administrative Court of 24 June 1996 was served upon the applicant. The proceedings thus lasted nearly four years and ten months for one instance.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the remainder of the application.

S. Dollé J.-P. Costa Registrar President