Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19364/92

by Werner BODINGBAUER

against Austria

The European Commission of Human Rights sitting in private on

6 April 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber,

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 November 1993

by Werner BODINGBAUER against Austria and registered on 17 January 1992

under file No. 19364/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1926 and living in

Steyregg. He is represented by Messrs. Haselauer and Steiner, lawyers

practising in Linz.

It follows from the applicant's statements and the documents

submitted that on 22 June 1989 the competent local authorities

(Bezirkshauptmannschaft) issued an expropriation order against the

applicant which concerned 33 square meters of real property belonging

to the applicant and situated in front of an apartment building

likewise belonging to him. The strip of land was needed for the

purposes of a pedestrian walkway. The expropriation order also

provided for compensation in the amount of AS 800 per square meter.

It is also mentioned in the order that the measure in question does not

restrict the use of the applicant's remaining property as the existing

facilities which had previously been installed on the expropriated

strip of land for the purposes of the tenants would be tolerated.

The applicant's appeal was rejected by the Regional Government

of Upper Austria (Amt der O.Ö. Landesregierung) on 18 January 1990.

It is stated in the decision that the expropriation was in accordance

with Section 8 of the Upper Austrian Construction Act (Bauordnung).

The necessity of the expropriation followed from the fact that the

construction planning scheme (Bebauungsplan) of the City of Steyregg

had foreseen the pedestrian walkway.

The applicant then lodged a constitutional complaint alleging,

inter alia, a violation of Article 6 of the Convention.

On 24 September 1990 the Austrian Constitutional Court

(Verfassungsgerichtshof) decided that in view of its constant

jurisprudence the complaint had no chance of success. The court

therefore refused to deal with it and referred the matter to the

Administrative Court.

On 4 April 1991 the Administrative Court (Verwaltungsgerichtshof)

rejected the applicant's appeal as being unfounded. This court

likewise considered that the expropriation was necessary in the public

interest in view of the city's development plan. It was true that the

expropriation legalised the existing situation but the fact that

previously the public use of the applicant's property had not been

lawful did not render the expropriation itself unlawful. Also the fact

that according to the planning scheme parking lots were foreseen in

front of the applicant's house could not render the expropriation

unlawful as this might, at best, affect the legality of the planning

scheme itself. In any event, the planning scheme provided for a

pedestrian zone in the street in question and therefore parking lots

were also in the public interest. Furthermore, the court noted that

the applicant's interests had also been taken into account as the

existing tenants' facilities were tolerated. The decision of the court

was served on the applicant on 27 May 1991.

COMPLAINTS

The applicant submits that the expropriation constitutes a

disproportionate burden for him because it is not absolutely necessary

for the purposes of the pedestrian walkway and because he himself and

his tenants need the property for depositing goods or parking bicycles.

He invokes Article 1 of Protocol No. 1.

In addition he invokes Article 6 of the Convention stating that

in first and second instance his appeals against the expropriation

order were decided by civil servants and not by independent tribunals.

This fact was not remedied by the possibility of appealing to the

Constitutional and Administrative Courts as these courts were bound by

the facts as established by the lower authorities.

THE LAW

1. The applicant has mainly complained that his right to the

peaceful enjoyment of possessions, as guaranteed by Article 1 of

Protocol No. 1 (P1-1), was violated, alleging that the expropriation

of part of his property for the purposes of a pedestrian walkway

contributed a disproportionate burden given that the strip of land in

question was not absolutely needed for the walkway whereas his tenants

needed it for private purposes.

Article 1 para. 1 of Protocol No. 1 (P1-1) provides:

"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 Commission first notes that the applicant has not contested

that the measure in question was taken on the basis of domestic law.

The Commission further considers that the installation of pedestrian

walk-ways are in the general interest. As far as the question of a

fair balance between the general interest of the community and the

requirements of the protection of the individual's fundamental rights

is concerned (cf. Eur. Court H.R., Sporrong and Lönnroth judgment of

24 September 1982, Series A No. 52, p. 26, para. 69), the Commission

notes that certain facilities for the applicant's tenants, that had

been in use before the expropriation measure was taken, continued to

be tolerated while the applicant has not shown that beyond this use,

the strip of land was absolutely needed for other important private

purposes. Finally, the applicant has not alleged that the compensation

paid was not in reasonable relation to the value of the property.

It can in these circumstances not be found that the competent

authorities exceeded their margin of appreciation and imposed an

intolerable, excessive burden on the applicant and/or his tenants.

It follows that this part of the application has to be rejected

as being manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

2. The applicant has further invoked Article 6 (Art. 6) of the

Convention arguing that he did not have access to an independent

tribunal which could have examined both the factual as well as the

legal issues in the dispute relating to the expropriation matter.

The Commission notes however that the Administrative Court fully

and carefully considered all submissions and arguments advanced by the

applicant and consequently there is nothing to show that this court was

in any way limited in its competence to examine all complaints raised

by the applicant.

It follows that there is, in the particular circumstances of the

case, no appearance of a violation of Article 6 (Art. 6) and to this

extent the application has therefore likewise to be rejected as being

manifestly ill-founded.

For these reasons the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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BODINGBAUER v. AUSTRIA

BODINGBAUER v. AUSTRIA

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