THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44861/98 by Peter MOOSBRUGGER against Austria

The European Court of Human Rights ( Third Section ) sitting on 25 January 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann , Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 August 1998 by Peter Moosbrugger against Austria and registered on 7 December 1998 under file no. 44861/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1933 and living in Hörbranz . He is represented before the Court by Mr Wilfried Weh , a lawyer practising in Bregenz .

A. Particular circumstances of the case

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

As a result of water regulation proceedings, part of the applicant’s real property was declared a water protection zone ( Wasserschutzzone ) which implied restrictions as to the management of his agricultural estate. On 23 November 1993 the Vorarlberg Provincial Government ( Landesregierung ) fixed compensation at 290,825 Austrian schillings (ATS).

On 25 January 1994 the applicant filed a motion with the Bregenz District Court ( Bezirksgericht ) against the community of Hörbranz requesting the court to re-assess compensation. He argued that, due to the establishment of the water protection zone, a loss in value had occurred which was much higher than the compensation fixed by the Provincial Government. Besides, his property could not be exploited as farm land any more and should therefore be considered as building land because it could probably be re-assigned as building land by the competent administrative authority. The loss in value should be calculated on this basis. He submitted that the diminution in value of his land was ATS 13 million if deemed apt for building, and at least ATS 2,3 million if deemed agricultural. In these and the subsequent proceedings the applicant was assisted by counsel.

On 15 April 1994 the District Court held a hearing and appointed an expert in building matters.

On 11 June 1994 this expert delivered his opinion. On 5 July the defendant commented on the expert opinion. On 18 July 1994 the applicant requested that the time-limit for commenting on the expert opinion be extended.

On 26 July 1994 the applicant requested that a second building expert be appointed.

On 22 September 1994 the District Court held a further hearing. The expert submitted his opinion and answered questions put by the court and the parties. The court refused the applicant’s request for a second expert. It noted that the expert opinion already delivered was conclusive. The court appointed an expert in agricultural matters.

On 6 October 1994 the applicant appealed against the refusal of his request for a second building expert. On 10 January 1995 he repeated this request.

On 12 January 1995 the agricultural expert delivered his opinion in writing. On 27 January 1995 the expert explained his opinion and answered questions put by the court and the parties at a hearing before the District Court.

On 6 March 1995 the Bregenz District Court refused to appoint a second building expert, but ordered the first expert to supplement his opinion.

On 24 April 1995 the Bregenz District Court, having regard to the submissions of the parties and experts, as well as documentary evidence, granted part of the applicant’s compensation claim. On 29 May 1995 the applicant appealed from this decision requesting a hearing to be held in the appeal proceedings. On 31 May 1995 the defendant also filed an appeal. On 26 July 1995 the Feldkirch Regional Court ( Landesgericht ), without a hearing, quashed the District Court’s decision and referred the case back to it.

On 4 October 1995 the applicant filed a further appeal which was dismissed by the Supreme Court ( Oberster Gerichtshof ) on 26 March 1996. In his appeal he did not complain about the refusal of his request for a hearing.

On 19 September 1996 the District Court held a hearing and appointed another agricultural expert. On 29 November 1996 he delivered his opinion in writing. On 30 January 1997 the expert explained his opinion and answered questions put by the parties and the court at a hearing before the District Court. The applicant again requested that a second building expert be appointed. The court refused this request stating that this was not necessary as the facts were already clear.

On 27 March 1997 the Bregenz District Court, having regard to the submissions of the parties, experts and witnesses, granted the applicant compensation of ATS 1,153.000. It noted that the applicant had exploited his estate for agricultural purposes and that it had considered the diminution in value from an agricultural point of view. It had not deemed his estate to be building land, as requested by the applicant, because he had never used it for this purpose and it was designated as farm land ( Freifläche Landwirtschaftsgebiet ) in the administrative authority’s area zoning plan ( Flächenwidmungsplan ).

On 29 April 1997 the defendant filed an appeal against this decision. On 5 May 1997 the applicant filed an appeal asking for a hearing to be held. On 27 May 1997 and 28 May 1997 the defendant and the applicant respectively filed comments on the other’s appeal.

On 10 June 1997 the Feldkirch Regional Court reduced the amount of compensation, whilst at the same time refusing a hearing. It upheld the District Court’s opinion that the calculation should be based on the agricultural land value because the applicant had used his land for farming, not for building. As to the hearing, it noted that no hearing was necessary as the appeals only related to legal issues.

On 15 July 1997 the applicant appealed against the compensation decision, requesting a calculation based on building land values. He also argued that the legal issue was related to questions of European Union law and that the case should therefore be referred to the Court of Justice of the European Communities according to Article 177 of the EEC Treaty. He did not complain about the refusal of a hearing. The defendant also filed an appeal. It appears that this appeal was not served on the applicant.

On 15 December 1997 the Supreme Court dismissed the appeals. It noted, like the other courts, that the applicant had made use of his real estate as farming land and that this kind of exploitation, and therefore the farm land value, were decisive for the calculation of any compensation. As to the applicant’s argument that his case was relevant under EU law, the Supreme Court found that it was not necessary to refer the case to the Court of Justice of the European Communities as the applicant had not raised any relevant European law issues. Besides it noted that the applicant was a farmer by profession and did not therefore fall within the scope of Article 59 of the EEC Treaty relating to the freedom to provide services. This decision was served on 11 February 1998.

COMPLAINTS

The applicant complains , under Article 6 of the Convention, that he was not given the opportunity to comment on the defendant’s appeal filed with the Supreme Court in the second set of proceedings. He further complains under Article 6 about the lack of a hearing in the appeal proceedings before the Feldkirch Regional Court and about the length of the proceedings.

The applicant also complains about the Supreme Court’s refusal to refer his case to the Court of Justice of the European Communities. He considers this refusal to be arbitrary and invokes Article 6 of the Convention and Article 1 of Protocol No. 1, in combination with Article 14 of the Convention.

Finally the applicant complains under Article 1 of Protocol No. 1 that he did not receive adequate compensation as the courts refused to calculate the compensation payments on the basis of building land values.

THE LAW

1. The applicant complains under Article 6 of the Convention that the defendant’s appeal filed with the Supreme Court in the second set of proceedings had not been communicated to him and that he had, therefore, not had the opportunity to comment on it. He further complains under Article 6 of the Convention about the lack of a hearing in the appeal proceedings before the Feldkirch Regional Court and about the length of the proceedings.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

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

a. As to the applicant’s complaint about the lack of communication of the defendant’s appeal the Court notes that, in the present case, the defendant’s appeal was dismissed by the Supreme Court. It did not, therefore, in any way affect the applicant’s position. Consequently, the Court finds that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention of the alleged violation of Article 6 § 1 (see mutatis mutandis no. 18892/91, Dec. 3.12.93, D.R. 76, p. 51 at p. 59; no 15831/89, Dec. 25.2.91, D.R. 69, p. 317 at p. 320).

It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

b. The applicant’s further complains about the lack of a hearing in the appeal proceedings before the Feldkirch Regional Court .

The Court, assuming exhaustion of domestic remedies, recalls that provided a hearing has been held at first instance, the absence of such a hearing before the second or third instance may be justified by the special features of the proceedings at issue. Thus, the absence of a hearing in “leave to appeal” proceedings or in appeal proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 of the Convention (see the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36).

In the present case the first decision of the Bregenz District Court, which was given after a hearing, was quashed by the Feldkirch Regional Court . In the second set of proceedings the District Court again held a hearing where the applicant had the opportunity to question the experts and to comment on the evidence. The Feldkirch Regional Court refused to hold a further hearing precisely on the ground that both parties’ appeals related only to questions of law. Moreover, the Court notes that the case concerned rather technical questions of assessing compensation. In these circumstances, the Court cannot find that the lack of a hearing at the appeal stage discloses any appearance of a violation of Article 6 of the Convention.

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

c. As to the further complaint about the length of the compensation proceedings, the Court notes that they started on 25 January 1994, when the applicant filed his compensation claim with the Bregenz District Court, and terminated on 11 February 1998, when the Supreme Court’s judgment was served. Thus, they lasted four years and slightly more than two weeks. There were two sets of proceedings each of them in three instances. The Court also notes that the case dealt with compensation issues of some complexity, which necessitated the taking of several expert opinions. Moreover, there are no particular delays imputable to the national authorities. The Court, therefore, cannot find that the length of the proceedings exceeded a reasonable time within the meaning of Article 6 of the Convention.

It follows that this aspect of the case must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court recalls that an absolute right to have a case referred to the Court of Justice of the European Communities cannot be derived from the provisions of the Convention. Nevertheless, there may be certain circumstances in which such a refusal by a national court might infringe the principle of the fairness of judicial proceedings, as set forth in Article 6 § 1 of the Convention, particularly when it appears to be arbitrary (see no. 20631/92, Dec. 12.5.93, D.R. 74, p. 279).

The Court notes, however, that the Supreme Court held that it was not necessary to refer the case to the European Court of Justice because no relevant question of EU law had been raised by the applicant. It further pointed out that the applicant’s case did not fall within the scope of Article 59 of the EEC Treaty as he was a farmer. Having regard to these circumstances, the Court finds that the facts of the present case do not disclose any violation of Article 6 of the Convention, or of Article 1 of Protocol No. 1, taken in conjunction with Article 14 of the Convention.

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

3. Finally, the applicant argues under Article 1 of Protocol No. 1 that he did not receive adequate compensation. He complains in particular that the national courts based their calculation on agricultural land values and not on building land values.

Article 1 § 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.”

The Court notes that the restrictions on the use of the applicant’s property which followed from the fact that part of it was declared a water protection zone, fall within the scope of the second paragraph of Article 1 of Protocol No.1. The applicant does not contest that they were based on Austrian law and pursued a legitimate aim in the general interest. It has to be determined, therefore, whether the interference with the applicant’s right to property was proportionate.

The applicant contends that the amount of compensation he received was inadequate. In this respect the Court notes that the national authorities took into account how the applicant had exploited his land before the restrictions were imposed and requested expert opinions to clarify to what extent he could possibly continue to exploit his land in the same way. As the applicant had always exploited his land as farming land for agricultural production, the courts based their assessment on these values. They refused to consider the applicant’s estate as building land because, according to the relevant area zoning plan, the land was designated as farming land. In these circumstances, the Court cannot find that the interference with the applicant’s right to property was in any way arbitrary or disproportionate.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé N. Bratza Registrar President