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)
Full & Egal Universal Law Academy