THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 31694/96

by Franz and Aloisia HOCHREINER [Note1]

against Austria [Note2]

The European Court of Human Rights ( Third Section) sitting on 24 November 1998 as a Chamber composed of

Mr N. Bratza , President ,

Mr J.-P. Costa,

Mrs F. Tulkens ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mrs H.S. Greve ,

Mr K. Traja ,

with Mrs S. Dollé, S ection 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 12 February 1992 by Franz and Aloisia HOCHREINER [Note3] against Austria and registered on 3 June 1996 under file No. 31694/96;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicants are a couple. They are farmers residing in Linz , Upper Austria. In the proceedings before the Court they are represented by Mr. Josef Lindlbauer , a lawyer practising in Enns .

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

On 14 June 1968 the Federal Ministry for Defence ( Bundesministerium fűr Landesverteidigung ) issued a decree  ( Verordnung )  under the Ammunition Depot Act ( Munitionslagergesetz ) declaring that parts of the applicants’ land fell within the danger zone ( Gefährdungsbereich ) of the Ebelsberg ammunition depot. It appears that certain restrictions on the use of the property  at issue follow from such a declaration.

On 9 July 1969 the applicants lodged a request for compensation with the Linz District Court ( Bezirksgericht ).

On 21 April 1981 the Federal Ministry for Defence issued a second decree including two further plots of land belonging to the applicants in the danger zone of  the Ebelsberg ammunition depot. The decree entered into force on 1 May 1981.

On 22 February 1989 the applicants, represented by counsel, specified their compensation claim as regards the plots of land affected by the 1968 decree and extended their claim as regards the plots of land affected by the 1981 decree.

On 28 November 1990 the Linz District Court dismissed the applicants’ compensation claim as regards damages resulting from the 1968 decree as well as regards damages resulting from the 1981 decree. Referring to the relevant provisions of the Ammunition Depot Act, the court noted that anyone claiming damages resulting from a decree under the said Act had to file a request for compensation within one year of the entry into force of  the respective decree. As to the 1968 decree, the applicants had filed their compensation claim within the time-limit. However, they had implicitly waived their right to compensation as they had not pursued their claim for twenty years. As to the 1981 decree, the applicants had only filed their request on 22 February 1989. The court noted that the applicants had claimed to have made a supplementary request when lodging their first claim, in which they requested the court to take any changes of the danger zone into account and to take any necessary steps to compensate them for future damages. The court explicitly noted that it was irrelevant whether or not the applicants had filed the said supplementary request. Even if it had been made as claimed by the applicants, it did not fulfil the requirements of a compensation claim as is did not specify the plots of land concerned and the amount of compensation requested. The applicants had only made these submissions on 22 February 1989, i.e. outside the one year time-limit.

On 19 March 1991 the Linz Regional Court ( Landesgericht ) upheld the District Court’s decision as regards the refusal of compensation for damages resulting from the 1981 decree. However, it quashed the said decision as regards the refusal of damages resulting from the 1968 decree and referred the case back to the District Court. Subsequently, the applicants were granted compensation in this respect.

On 10 September1991 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicants’ appeal on points of law. Referring to the relevant provisions of the Ammunition Depot Act, it noted that the claim to compensation only arises once the respective decree is issued. Thus, even assuming that the applicants had in 1969 filed a supplementary request relating to possible future damages, such a request was inadmissible. As the applicants failed to specify their compensation claim within one year of the entry into force of the 1981 decree, their request was out of time and had to be rejected.

COMPLAINTS

The applicants complain about the refusal of their compensation claim for damages resulting from the 1981 decree under the Ammunition Depot Act. They claim that, together with their request for compensation under the 1968 decree, they had made a supplementary request for future damages and argue that the courts should have accepted this request as a compensation claim with regard to the 1981 decree. They invoke Article 6 § 1 of the Convention alone as well as in conjunction with Article 14. They also claim that their right to property was violated.

THE LAW

The applicants complain under Article 6 § 1 of the Convention alone and in conjunction with Article 14 about the refusal of their compensation claim for damages resulting from the 1981 decree under the Ammunition Depot Act.

Article 6 § 1, so far 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. ...”:

Article 14 prohibits discrimination in the securement of Convention rights and freedoms.

The Court recalls that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights  and freedoms protected by the Convention (Eur. Court HR, Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45).

In the present case the courts proceeded on the assumption that the applicants had, in 1969, actually made a request for compensation of any future damages. However, as to the law, they considered that such a request was irrelevant as regards the 1981 decree, on the ground that it did not sufficiently specify the plots of land concerned and the damages suffered. Consequently, they found that the applicants’ compensation claim lodged in February 1989 was out of time and dismissed it on that ground. There is no indication that the applicants, represented by counsel, could not duly present their arguments or that the proceedings were otherwise unfair. Accordingly, there is no appearance of a violation of Article 6 of the Convention. Nor is there any appearance of a violation of Article 6 taken in conjunction with Article 14 of the Convention.

The Court has further examined the applicants’ complaint about an alleged violation of their right to property under Article 1 of Protocol No. 1, which provides 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 finds that the impugned decree, declaring that parts of the applicants’ land fall within the danger zone of an ammunition depot, constitutes a control of the use of property within the meaning of the second paragraph of this Article. However,  the applicants have not substantiated their complaint and there is nothing to indicate that the measure was unlawful or did not serve a legitimate aim. Moreover, the law provided for compensation. The decision to introduce a one year time-limit for raising the compensation claim falls within the margin of appreciation which the State enjoys in achieving a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (Eur. Court HR, Fredin v. Sweden judgment of 18 February 1991, Series  A no. 192, pp. 16-17, §§ 48-51). Thus, there is no indication of a violation of Article 1 of Protocol No. 1.

It follows that the whole application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. DOLLÉ N. BRATZA

Registrar President

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.