AS TO THE ADMISSIBILITY OF
Application No. 18822/91
by A.H.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
Mrs. M.F. BUQUICCHIO, Secretary to the 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 6 September 1991
by A.H. against Austria and registered on 19 September 1991 under file
No. 18822/91;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is an Austrian citizen, born in 1912. She resides
at Linz. Before the Commission she is represented by Dr. Walter Müller,
a lawyer practising at Linz.
The case concerns the expropriation proceedings instituted with
a view to the enlargement of a road in the commune of Hellmonsödt. The
applicant was opposed to this, maintaining that the enlargement was not
in the public interest and did not serve any meaningful purpose.
On 8 November 1990 the Office of the Provincial Government of
Upper Austria (Amt der Landesregierung) made an order for expropriation
involving approximately 80 square metres of the applicant's property,
and fixed a compensation totalling 512,856 Austrian schillings. The
Office of the Provincial Government stated inter alia that, according
to sections 57 and 58 of the 1975 Provincial Road Administration Act
(Landes-Straßenverwaltungsgesetz), expropriation of property for the
purpose of road enlargement was permissible, provided the necessity for
this purpose and for the purpose of the public road traffic had been
established. In the circumstances of the present case the Office
concluded that, on the basis of the expert opinions obtained and the
other material submitted, the expropriation was necessary and that the
area in question did not exceed what was actually needed for the
enlargement envisaged.
The applicant appealed against the expropriation order to the
Constitutional Court (Verfassungsgerichtshof). She claimed that the
expropriation proceedings had violated her right to peaceful enjoyment
of her possessions. She also alleged that her right of access to a
tribunal with full jurisdiction had been violated and that there had
been a breach of the principle of equality of arms. She referred inter
alia to Article 6 of the Convention and to Article 1 of Protocol No. 1
to the Convention.
On 11 June 1991, the Constitutional Court decided not to
entertain the application since, in view of its case-law on Article 6
of the Convention, the application did not have sufficient prospects
of success. Moreover, the Court noted that the case did not fall
outside the Administrative Court's (Verwaltungsgerichtshof)
jurisdiction.
The applicant did not challenge, in any way, the expropriation
order of 8 November 1990 in the Administrative Court.
COMPLAINTS
The applicant complains that she did not have access to a
tribunal satisfying the requirements of Article 6 of the Convention
before which she could challenge the expropriation order made by the
administrative authorities on 8 November 1990. In particular she
maintains that the Administrative Court does not have full jurisdiction
to review the appropriateness of the expropriation, something which,
in her opinion, is finally determined by the administrative authority.
THE LAW
The applicant complains that, in the determination of the
expropriation issues concerning her property, she did not have access
to a tribunal satisfying the requirements of Article 6 (Art. 6) of the
Convention.
In so far as relevant this provision reads as follows :
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by (a) tribunal
established by law."
The Commission notes that Article 6 (Art. 6) applies to the
proceedings referred to by the applicant, as they concerned a genuine
dispute over her property, and thus over a "civil right" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Accordingly,
the applicant was entitled, under this provision, to bring the decision
of the Office of the Provincial Government of 8 November 1990 before
a tribunal within the meaning of Article 6 (Art. 6) of the Convention.
The Commission recalls from the facts of the present case that
the decision of the Office of the Provincial Government could be
appealed against on various grounds to the Constitutional Court and to
the Administrative Court. These appeals, however, would only be
consistent with Article 6 para. 1 (Art. 6-1) of the Convention if
conducted before a judicial body which has full jurisdiction.
The applicant brought her case before the Constitutional Court.
However, the Commission finds that this court did not, in the
circumstances of the present case, satisfy the above requirement. This
instance could inquire into the contested proceedings only from the
point of view of their conformity with the Constitution which did not
make it possible for it to examine all the relevant facts. The
Constitutional Court did not, therefore, have the power required under
Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R.,
Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 30).
The applicant could furthermore have lodged an appeal with the
Administrative Court, something which she chose not to do as such an
appeal, in her opinion, would have been meaningless.
The Commission does not agree with the applicant on this point.
From the above-mentioned Zumtobel case the Commission recalls that
under Article 130 of the Federal Constitution, the Administrative Court
has jurisdiction to hear inter alia applications alleging that an
administrative decision is unlawful (ibid. para. 18). Furthermore,
Article 42 of the Administrative Court Act (Verwaltungsgerichtshof-
gesetz) provides that the Administrative Court shall quash a decision
inter alia if it is unlawful by reason of its content, or on account
of a breach of procedural rules in that the respondent authority has
made findings of facts which are contradicted by the case file (ibid.
para. 19).
Accordingly, the Commission finds that the Administrative Court
is not entirely bound by the facts established by the administrative
authority. The scope of review by the Administrative Court must be
assessed in the light of the fact that expropriation is not a matter
exclusively within the discretion of the administrative authority.
Sections 57 and 58 of the Provincial Road Administration Act make the
lawfulness of such a measure subject to the condition that it has been
established that this measure is necessary for the road enlargement
envisaged and for the public road traffic. It is for the Administrative
Court to satisfy itself that these provisions have been complied with.
In these circumstances, and having regard to the respect which must be
accorded to decisions taken by the administrative authorities on
grounds of expediency and to the nature of the complaint made by the
applicant, the review by the Administrative Court cannot from the
outset be considered as not fulfilling the requirements of Article 6
para. 1 (Art. 6-1) of the Convention (ibid. para. 32).
Having regard to the above, the Commission finds that the
applicant did have access to a court and, in particular in the light
of the fact that she did not make use of this possibility under
domestic law to bring the expropriation issue before the Administrative
Court, the Commission finds that her complaint, i.e. that this court
did not have full jurisdiction to examine the case, does not disclose
any appearance of a violation of Article 6 (Art. 6) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy