CASE OF BIRNLEITNER v. AUSTRIA (No. 2)

FIRST SECTION

CASE OF BIRNLEITNER v. AUSTRIA (No. 2)

(Application no. 22601/09)

JUDGMENT

STRASBOURG

13 November 2014

This judgment is final but it may be subject to editorial revision.

In the case of Birnleitner v. Austria (No. 2),

The European Court of Human Rights (First Section), sitting as a Committee composed of:

Mirjana Lazarova Trajkovska, President,
Linos-Alexandre Sicilianos,
Ksenija Turković, judges,

and Søren Prebensen, Acting Deputy Section Registrar,

Having deliberated in private on 21 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 22601/09) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mrs Elisabeth Birnleitner (“the applicant”), on 13 April 2009.

2. The applicant was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.

3. On 30 August 2011 the application was communicated to the Government.

4. The applicant died on 9 August 2011. Her husband Mr Heinrich Birnleitner, the executor of the applicant’s estate, has continued the application.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1937 and lived in Aistersheim.

6. The applicant owned a landholding of some 150 hectares, which is an approved hunting ground (Eigenjagd). According to the Upper Austrian Hunting Act (Oberösterreichisches Jagdgesetz), every six years, the District Authority has to establish the boundaries of the Upper Austrian hunting grounds. In this respect, requests may be filed by landowners to have adjacent land allocated to their hunting grounds where, for the purpose of facilitating the exercise of hunting rights, boundaries need readjustment (Arrondierungsantrag). On 29 September 2004 the applicant filed such a request for readjustment in respect of the next six years’ hunting period, i.e. from April 2005 to March 2011.

7. On 28 December 2004 the Grieskirchen District Authority (Bezirkshauptmannschaft) partly granted the applicant’s request and assigned specified plots of third persons to the applicant’s hunting grounds, but dismissed her request concerning some other parcels of land.

8. On 21 October 2005 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).

9. On 15 March 2006 the Constitutional Court declined to deal with the applicant’s complaint due to lack of prospects of success and referred the case to the Administrative Court (Verwaltungsgerichtshof) on 18 April 2006. On 2 May 2006 the Administrative Court requested the applicant to complement the complaint. The applicant submitted her additional comments on 21 June 2006 and requested an oral hearing. On 31 August 2006 the Upper Austria Regional Government submitted its additional comments to the Administrative Court.

10. On 29 September 2008, after having held an oral hearing on the same day, the Administrative Court dismissed the complaint as unfounded. That decision was served on the applicant’s counsel on 13 October 2008.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

11. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

12. The Government contested that argument.

13. The period to be taken into consideration began on 28 December 2004, when the District Authority partly dismissed the applicant’s request of allocation of land to her hunting grounds (see Morscher v. Austria, no. 54039/00, § 38, 5 February 2004, and Wurzer v. Austria, no. 5335/07, § 45, 6 March 2012), and ended on 13 October 2008 with the serving of the Administrative Court’s decision. It thus lasted three years, nine months and sixteen days for two administrative and two judicial levels.

A. Admissibility

14. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

15. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

16. The Court notes that the proceedings at issue were of some complexity, as expert opinions were required, and the Administrative Court held an oral hearing. As to the parties’ conduct, the Court observes that the administrative authorities proceeded without any substantial delays in the first two instances, and that the applicant did not cause any delays either. However, the proceedings were pending before the Administrative Court for two years and six weeks between the parties’ additional submissions and the serving of the judgment, which warrants further examination.

17. Concerning the issue at stake for the applicant, the Court notes that the subject matter of the dispute did not concern the question whether or not she was able hunt on her grounds. Much rather, the proceedings in question merely aimed at facilitating the exercise of her hunting rights. The Court therefore considers that the matter was not of any particular importance for the determination of the applicant’s civil rights (see Gassner v. Austria, no. 38314/06, § 38, 11 December 2012). The Court does not see any important question of principle involved in the domestic proceedings instituted by the applicant for the readjustment of the boundaries of her hunting grounds. Moreover, the relevant overall period does not appear excessively long. The delay before the Administrative Court was partly caused by the fact that, upon the applicant’s request, it held an oral hearing.

18. In the light of the above, the Court concludes that there has been no violation of the relevant time requirement under Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

19. The applicant complained under Article 6 § 1 of the Convention of a lack of access to the Independent Administrative Tribunal as an appeals instance.

20. The Court reiterates that Article 6 does not oblige the Contracting States to submit disputes over civil rights and obligations to a procedure conducted at each of its stages before "tribunals" meeting the Article’s various requirements (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 51 (a), Series A no. 43). It further notes that the applicant had access to the Administrative Court, which is a tribunal within the meaning of Article 6 of the Convention (see Birnleitner v. Austria, cited above, § 39, 24 February 2005).

21. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren PrebensenMirjana Lazarova Trajkovska
Acting Deputy RegistrarPresident

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