AS TO THE ADMISSIBILITY OF
Application No. 12235/86
by Firma F.M. ZUMTOBEL and Martin ZUMTOBEL
against Austria
The European Commission of Human Rights sitting in private on
15 October 1991, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 June 1986 by
Firma F.M. ZUMTOBEL and Martin ZUMTOBEL against Austria and registered
on 13 June 1986 under file No. 12235/86;
Having regard to :
-the observations submitted by the respondent Government on
23 July 1990 and the observations in reply submitted by the
applicants on 11 October 1990;
-the submissions of the parties at the hearing of 15 October 1991;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The first applicant was, when filing the application, a
commercial firm in Dornbirn, established as a limited partnership
(Kommanditgesellschaft) under Austrian law. The second applicant, an
Austrian citizen, resides at Dornbirn in Austria. When filing the
application, he was the general partner (Mehrheitsgesellschaft) of the
first applicant and its manager (Geschäftsführer). Meanwhile, the
first applicant has changed its legal structure and is completely owned
by the second applicant.
Before the Commission the applicants are represented by
Mr. W.L. Weh, a lawyer practising in Bregenz.
Particular circumstances of the case
I.
The case concerns the construction in Vorarlberg of the L 52, a
new Provincial Road (Landesstrasse) as a bypass (Umfahrung) in the area
of the Rankweil municipality. In the course of the planning procedure
the construction was discussed inter alia in separate landscape
proceedings concerning the compatibility of the proposed stretch of
road from the environmental point of view. The project was open for
consultation, and possible objection, by the public in the Rankweil
municipal office from 1 October to 1 November 1984. The project also
concerned the applicants' property though they filed no objection
thereto.
On 28 February 1985 the Provincial Road Administration
(Landesstrassenverwaltung) of the Vorarlberg Provincial Government
(Landesregierung) instituted expropriation proceedings in relation to
2,140 m² real property of the first applicant. The expropriation was
based on the Vorarlberg Provincial Road Act (Landesstrassengesetz) and
was to enable construction of the L 52. As a result, the first
applicant's property, formerly a continuous area of some 55,000 m², was
to be divided into two smaller areas of approximately 20,000 m² and
30,000 m² respectively. The property of other owners was only to be
marginally affected.
Expropriation proceedings were then conducted before the
administrative authorities of the Provincial Government. The
authorities consulted several experts. During these proceedings the
first applicant filed several requests for the taking of evidence,
concerning inter alia a report of the Court of Audit
(Rechnungshofsbericht); the views of an expert opinion on the
protection of the environment; the decision of the Feldkirch, Meiningen
and Rankweil municipalities on the stretch of road to be built; and an
opinion by the environmental department of the Provincial Government.
On 25 June 1985 a hearing was held. According to the minutes of
the hearing the first applicant's representative was present as well
as the chairman and three experts, i.e. for road construction,
landscape protection and road traffic "of the Office of the Provincial
Government" ("vom Amt der Landesregierung"). There were furthermore
present representatives of the Feldkirch Provincial Road Construction
Office and the Rankweil municipality as well as a sworn valuation
expert (gerichtlich beeideter Sachverständiger für die Durchführung der
Schätzung).
At the hearing, the experts submitted their opinions and made
further submissions thereupon. The experts for road construction and
for road traffic submitted in particular that the proposed stretch of
road was important for the traffic between Rankweil and Feldkirch, as
the existing connection between the two communities led through densely
built areas. The existing road was partly very narrow, had various
sharp bends, and crossed with many other roads. In the experts' views,
the existing road was also very dangerous for children on their way to
school. A different route for the stretch was not possible, inter alia
in view of a pre-fixed crossing with another important road.
By decision of 13 February 1986 the Office (Amt) of the
Vorarlberg Provincial Government ordered the expropriation.
In its decision the Provincial Government fixed the compensation
to be paid to the first applicant as amounting to 620 AS per m². This
sum was based on the valuation of the expropriated land by a sworn
valuation expert (gerichtlich beeideter Sachverständiger). The
Provincial Government did not, however, follow this expert's further
view that an additional sum should be adjudicated in view of the
depreciation (Wertminderung) of the first applicant's remaining land.
It also rejected the first applicant's request to hear a second
valuation expert.
The expropriation was to take effect as soon as the compensation
had been paid to the first applicant, and it was further stated that
the Provincial Road Administration would have five years from the date
of the decision to complete the construction work. In view of the
legal obligation to retransfer the expropriated land in case the object
of the expropriation was not actually implemented, the Provincial
Government did not find it appropriate to expressly recognise the right
to retransfer as requested by the first applicant.
In its decision the Provincial Government further noted that the
expert for road traffic had confirmed the necessity to construct the
new road, and that the experts for road construction and for landscape
protection found no better solution. In particular, it was impossible
for the new road to avoid crossing through the land owned by the first
applicant.
The Provincial Government rejected the first applicant's
objections against the expropriation, inter alia that it was premature,
as the projected road had not legally existed when the proceedings were
instituted and that the planning procedure concerning that road was
defective, several experts and public bodies having earlier pronounced
themselves against the project. Various requests of the first
applicant to be fully informed of the planning procedure were rejected
as being irrelevant. The first applicant's request to consult a
neutral road traffic expert on the necessity of the road was dismissed
on the ground that the particular official expert was not biased in
favour of the Provincial Road Administration and that he had delivered
a convincing report.
The Provincial Government finally rejected the first applicant's
claim for reimbursement of its own costs of procedure by analogous
application of Section 44 of the Railway Expropriation Act
(Eisenbahn-Enteignungsgesetz). It found that this Act was not
applicable and that the Road Act did not provide for the reimbursement
of the expropriated party's own costs.
II.
Against this decision the first applicant lodged a complaint
(Beschwerde) with the Constitutional Court (Verfassungsgerichtshof).
Therein he also requested the Court to order suspensive measures.
With reference inter alia to Article 6 para. 1 of the Convention,
the first applicant submitted in particular that an administrative
expropriation procedure subject to the ultimate control of the
Administrative and the Constitutional Courts was not in conformity with
this provision and violated its right of access to a court with full
jurisdiction on both questions of fact and law. The first applicant
further alleged a violation of the principle of equality of arms due
to the fact that the authority only heard the official experts attached
to it and refused to hear any independent experts.
The first applicant moreover invoked Article 1 of Protocol No.
1 to the Convention, read alone and in conjunction with Article 14 of
the Convention, claiming that the expropriation was unlawful on various
grounds. In particular, the proceedings had been instituted
prematurely when the road construction project had not legally existed.
It was not necessary to construct the road and the relevant planning
procedure had been defective. By refusing to consider arguments
against the road project, the expropriation authority had taken an
arbitrary decision. Finally, the first applicant's property rights had
been unlawfully interfered with by the refusal of the reimbursement of
its costs caused by the expropriation proceedings.
On 7 May 1986 the Constitutional Court refused the first
applicant's request for suspensive measures.
On 27 November 1987, the Constitutional Court, in non-public
proceedings under Article 144 para. 2 of the Federal Constitution
(Bundes-Verfassungsgesetz), decided not to deal with the complaint as
it lacked prospects of success.
In its decision the Constitutional Court referred to its previous
case-law concerning the authorities' discretion when fixing the outline
of a road and concerning Article 6 of the Convention (see below
Relevant domestic law and practice). The Constitutional Court found
no indication of unconstitutionality of applicable legal rules. The
case did not appear to raise specific constitutional issues, but only
questions of lawfulness to be decided by the Administrative Court.
III.
Against the decision of the Provincial Government of 13 February
1986 the first applicant also filed a complaint with the Administrative
Court (Verwaltungsgerichtshof). Therein it invoked in essence the same
arguments as before the Constitutional Court, this time alleging
violations of procedural and substantive law. It also requested
suspensive measures and the appointment of an expert.
On 7 April 1986 the Administrative Court dismissed the request
for suspensive measures.
By decision of 22 September 1989 the Administrative Court
dismissed the first applicant's complaint.
In its decision the Administrative Court stated that it had no
doubts concerning the organisation of the authorities competent to
decide on expropriations for road construction purposes. It refused
to refer this matter to the Constitutional Court, as raising an issue
under Article 6 of the Convention. The Administrative Court accepted
that a party to expropriation proceedings for road construction
purposes could contest the appropriateness of the project. It
considered that Section 44 para. 1 of the Vorarlberg Provincial Road
Act required the balancing of contradicting interests, namely traffic,
and landscape protection, while also taking into account the economic
suitability of the planned road.
The Court found that the first applicant had failed to
demonstrate that the contested decision was unlawful. The decision
states:
[Translation]
"Against the background of the object of examination falling to
the Administrative Court according to Section 41 of the
Administrative Court Act it cannot be regarded as unlawful that
the respondent authority - from the vantage point of the
interests of traffic - based its decision on the relevant facts
in particular that no other, more expedient solution - than the
one proposed for the new construction of the L 52 in the proposed
road construction project - was possible. As can be seen from
the facts established in the contested decision, the respondent
authority took the view that it was in the interests of traffic
to remove through-traffic from the Rankweil-Brederis built-up
area, while at the same time this would create a useful
contribution to the existing road network in the Feldkirch-
Rankweil area."
[German]
"Vor dem Hintergrund der dem Verwaltungsgerichtshof nach Abs. 41
VwGG gestellten Prüfungsaufgabe kann es nicht als rechtswidrig
erkannt werden, wenn die belangte Behörde - unter dem
Gesichtspunkt der Interessen des Verkehrs - ihrem Abspruch als
maßgebenden Sachverhalt zugrunde legte, daß eine andere,
zweckmäßigere Lösung - als der vorgesehene Neubau der L 52 im
gegenständlichen Baulos - nicht möglich sei. Wie sich aus den
Feststellungen im angefochtenen Bescheid ergibt, ist die belangte
Behörde bei ihrem Abspruch davon ausgegangen, daß es im Interesse
des Verkehrs gelegen sei, den Durchzugsverkehr aus dem
besiedelten Gebiet von Rankweil - Brederis herauszuführen, wobei
auch eine sinnvolle Ergänzung des bestehenden Straßennetzes im
Raum Feldkirch - Rankweil geschaffen werde."
The Administrative Court further explained why, in its view no
doubts arose in respect of the evidence provided by the official
experts. The Court also noted that the contested decision took account
of environmental protection when assessing the interests at stake. It
had been lawful to limit the proceedings to the part of the road which
affected the first applicant's property and to conduct the
expropriation proceedings before the adoption of the ordinancy of the
provincial road.
With regard to the first applicant's complaint about the lack of
independence of the experts in the expropriation proceedings the Court
noted that the expropriating authority was in principle required to
consult its own official experts. The merely general reference to the
problem of dependency did not suffice to prove partiality, which had
to be examined in each individual case.
In respect of the first applicant's complaint that it could not
consult all the documents the Court noted that the first applicant had
not been a party to the landscape proceedings for which reason it was
not permitted to consult the respective case-file. With regard to a
report of the Court of Audit and other documents the Court found
nothing therein which was relevant to the first applicant's case. The
Court also noted that the expert opinion of the independent traffic
expert Be. had actually been included in the expropriation file, though
the first applicant could not claim a right to receive photocopies
therefrom.
The Court then addressed the first applicant's request for the
preparation of a new expert opinion by a neutral traffic expert by
referring to a ruling of the enlarged Panel of the Administrative Court
as follows:
[Translation]
"According to this ruling, the Administrative Court is barred
from taking evidence which the administrative authority may have
failed to take, and from taking evidence itself in order to
supplement the facts that have been ascertained during
investigations. However, the Administrative Court may take
evidence to determine whether there has been an essential
procedural defect and is therefore authorised to take evidence
for examining the question whether a procedural defect is
essential or whether the incriminated authority might have
arrived at a different decision by avoiding the alleged
procedural defect; the Administrative Court may resort to these
measures also in order to review the assessment of evidence.
With regard to the above explanations concerning the weighing up
of interests by the respondent authority and the factual basis
by which they are carried, the Administrative Court sees no
reason to accede to the request to take evidence."
[German]
"Danach is es dem Verwaltungsgerichtshof verwehrt, in der von der
Verwaltungsbehörde behandelten Sache anstelle der belangten
Behörde eine von dieser allenfalls versäumten Beweisaufnahme
nachzuholen und in Ergänzung des Vermittlungsverfahrens zur
Feststellung des Sachverhaltes selbst Beweise aufzunehmen. Der
Verwaltungsgerichtshof kann aber Beweise aufnehmen, um zu prüfen,
ob ein wesentlicher Verfahrensmangel vorliegt, und er ist demnach
berechtigt, zur Prüfung der Frage, ob ein Verfahrensmangel
wesentlich ist oder ob die belangte Behörde unter Vermeidung des
gegebenen Verfahrensmangels zu einem anderen Bescheid hätte
kommen können, eine Beweisaufnahme durchzuführen; dies auch zum
Zwecke der Kontrolle der Beweiswürdigung. Im Hinblick auf die
obigen Darlegungen zur Interessensabwägung der belangten Behörde
und der diese tragenden Sachverhaltsgrundlagen sieht sich der
Verwaltungsgerichtshof jedoch nicht zur beantragten
Beweisaufnahme veranlaßt."
As to the refusal to reimburse the applicants' costs incurred in
connection with the expropriation proceedings, the Administrative Court
considered itself incompetent as this matter was part of the question
of compensation to be decided by the civil courts.
IV.
Meanwhile, the first applicant requested the Feldkirch District
Court (Bezirksgericht) to determine the compensation for the
expropriated land. On 17 December 1987 the latter awarded the first
applicant compensation of 1,460,000 AS for the expropriated real
property, and a lump sum of 8,503,032.50 AS for the depreciation of the
remaining real property. The Provincial Government was ordered to pay
the total sum of 9,963,032.50 AS within 14 days.
Upon appeal (Rekurs), the Feldkirch Regional Court
(Landesgericht) reduced in its decision of 24 March 1988 the total sum
to 4,560,000 AS. The first applicant's further appeal (Revisionrekurs)
was dismissed by the Supreme Court (Oberster Gerichtshof) on 6 October
1988. In these proceedings the applicant was also awarded costs
amounting to 199,350 AS.
Relevant domestic law and practice
As to the expropriation proceedings
According to Section 5 of the Vorarlberg Provincial Road Act the
Provincial Government may declare by Ordinance (Verordnung) that roads
or parts thereof become Provincial Roads (Landesstrassen), even if they
have not yet been built. Para. 2 of Section 5 states:
[Translation]
"The Provincial Government must declare all roads as Provincial
Roads which are necessary for the traffic between communities.
Those roads shall be considered necessary which are the only
immediate road connection from one community to the next and
which can also be used by lorries. There shall be no necessity
if such a traffic communication is provided for by a third party
..."
[German]
"Die Landesregierung hat die für den überörtlichen Verkehr
notwendigen Strassen als Landesstrassen zu erklären. Notwendig
sind diejenigen Strassen, welche die einzige, auch für
Lastkraftwagen benützbare unmittelbare Strassenverbindung von
einer Gemeinde in eine Nachbargemeinde oder über die Landesgrenze
darstellen. Eine Notwendigkeit liegt nicht vor, wenn von anderer
Seite für eine solche Verkehrsverbindung Vorsorge getroffen wird
..."
In practice, Section 5 implies that if real property is
expropriated for the construction of a Provincial Road, the Provincial
Government must enact an Ordinance. The latter will contain the name,
number and length of the road and a short description thereof. Thus,
the Provincial Government express their intention to construct the
road. To the extent that the Ordinance does not describe in detail the
stretch to be constructed, the persons whose property shall be
expropriated have the right in the expropriation proceedings to call
in question the adequateness of the proposed stretch.
Section 44 para. 1 of the Provincial Road Act states the
conditions for expropriation as follows:
[Translation]
"In order to construct or maintain Provincial Roads and Municipal
Roads, an expropriation is only admissible if another stretch of
road, or its maintenance, is not possible which is more adequate
from the point of view of traffic, economy and protection of the
environment."
[German]
"Zum Bau oder zur Erhaltung von Landesstraßen und Gemeindestraßen
ist eine Enteignung nur zulässig, wenn eine andere unter dem
Gesichtspunkt des Verkehrs, der Wirtschaftlichkeit und des
Landschaftsschutzes zweckmäßigere Führung oder Erhaltung der
Straße nicht möglich ist."
According to Section 46 of the Provincial Road Act, "the
expropriating agency has to compensate the expropriated party for all
pecuniary disadvantages arising from the expropriation" ("Der Enteigner
hat den Enteigneten für alle durch die Enteignung verursachten
vermögensrechtlichen Nachteile angemessen zu entschädigen").
Section 47 concerns the expropriation proceedings. Thus, if no
agreement can be reached as to the amount of compensation, a sworn
court expert must assess the value. Once the expropriation has been
determined, the expropriated party may apply within six weeks to a
court for the judicial determination of the amount of compensation.
The Austrian Constitutional Court's interpretation of the scope of
Article 6 para. 1 of the Convention
The Austrian Constitutional Court pronounced itself on the
applicability and scope of Article 6 para. 1 of the Convention to
proceedings originating before Austrian administrative authorities in
its decision of 14 October 1987 (B 267/86, VfSLG 11500/1987). The
Court distinguished between decisions concerning the core of civil law
(i.e. disputes among private persons) and decisions on disputes which
only concern civil rights in their effects (namely the relationship
between the private person and the public). In order to avoid a
complete change of the Austrian state structure, the Court considered
that the requirements of a tribunal within the meaning of Article 6
para. 1 of the Convention should depend on whether the dispute
concerned the one or the other category. With regard to decisions
concerning civil rights only in their effects the Court found that it
sufficed under Article 6 para. 1 if a tribunal undertook a mere
subsequent control of the decision. The decision continues:
[Translation]
"Such a subsequent control would in any event have to suffice if,
regardless of its nature as a merely subsequent control which did
not provide for renewed proceedings, the court effectively (and
not merely theoretically and in the abstract) has the possibility
to convince itself of the correctness of the solution as well as
of the facts and the law applied and can also execute its
judgment on the matter. Such a control falls to the Austrian
Administrative Court in the light of an understanding of the
Administrative Court Act which is oriented towards the
Constitution."
[German]
"Eine solche nachprüfende Kontrolle müsste jedenfalls dann
genügen, wenn sie ungeachtet ihres bloss nachprüfenden, nicht auf
einer Neudurchführung des Verfahrens beruhenden Charakters dem
Gericht - nicht bloss theoretisch und abstrakt, sondern im
Ergebnis auch wirksam - Gelegenheit gibt, sich von der
Richtigkeit der Lösung sowohl der Tat - wie der Rechtsfrage zu
überzeugen und sein Urteil über die Sache auch durchzusetzen, wie
dies bei einem an der Verfassung orientierten Verständnis des
Verwaltungs-gerichtshofgesetzes dem österreichischen VwGH
aufgetragen ist."
Jurisdiction of the Austrian Constitutional and Administrative Courts
According to Article 144 of the Austrian Federal Constitution
(Bundes-Verfassungsgesetz) an appeal can be filed with the
Constitutional Court in which the applicant can claim a violation of his
constitutional rights. He can also complain that his rights have been
violated on account of an unlawful ordinance, an unconstitutional Act,
or an unlawful international treaty.
According to Article 130 para. 1 of the Federal Constitution the
Administrative Court will review allegations of unlawfulness of an
administrative decision. According to Section 130 para. 2, "no
unlawfulness exists where legislation forbears from the establishment of
a binding rule on an administrative authority's conduct, leaving the
determination of such conduct to the authority itself, and the authority
has made use of this discretion in the spirit of the law"
("Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von einer
bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und die
Bestimmung dieses Verhaltens der Behörde selbst überläßt, die Behörde
aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch gemacht
hat"). The Administrative Court is also competent to deal with
complaints that the administrative authority has violated its duty to
take a decision (Article 132).
Section 41 of the Administrative Court Act provides, insofar as
relevant:
[Translation]
"(1) Insofar as the Administrative Court does not find
unlawfulness on account of a lack of jurisdiction of the authority
against whom the appeal is directed or on account of a violation
of procedural provisions (Section 42 para. 2 [2] and [3]) ..., the
Court must examine the contested decision on the basis of the facts
as accepted by the authority against which the appeal is directed
within the framework of the alleged complaint ... If it is of the
opinion that reasons would be relevant for the decision on the
unlawfulness of the contested decision ... which were so far not
known to a party, it must hear the parties thereupon and, if
necessary, adjourn the proceedings."
[German]
"(1) Der Verwaltungsgerichtshof hat, soweit er nicht
Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder
wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42
Abs. 2 Z 2 und 3) ... den angefochtenen Bescheid auf Grund des von
der belangten Behörde angenommenen Sachverhaltes im Rahmen der
geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist er der
Ansicht, dass für die Entscheidung über die Rechtswidrigkeit des
Bescheides in einem der Beschwerdepunkte ... Gründe massgebend
sein könnten, die einer Partei bisher nicht bekanntgegeben wurden,
so hat er die Parteien darüber zu hören und wenn nötig, eine
Vertagung zu verfügen."
As regards the decisions of the Administrative Court, Section 42
para. 2 of the Administrative Court Act provides, insofar as relevant:
[Translation]
"(2) The contested decision must be quashed
1. on account of the unlawfulness of its content,
2. on account of unlawfulness due to the lack of
jurisdiction of the authority against which the
appeal is directed,
3. on account of unlawfulness due to a violation of
procedural provisions in particular because
a) the authority against which the appeal is
directed has determined the facts on an
important point contrary to the
case-file, or
b) the facts require supplementation in an
important point, or
c) procedural provisions have been disregarded
which, if taken into consideration by the
authority against which the appeal is
directed, would have led to a different
decision of the authority."
[German]
"(2) Der angefochtene Bescheid ist aufzuheben
1. wegen Rechtswidrigkeit seines Inhaltes,
2. wegen Rechtswidrigkeit infolge Unzuständigkeit
der belangten Behörde,
3. wegen Rechtswidrigkeit infolge Verletzung von
Verfahrensvorschriften, und zwar weil
a) der Sachverhalt von der belangten Behörde
in einem wesentlichen Punkt aktenwidrig
angenommen wurde oder
b) der Sachverhalt in einem wesentlichen
Punkt einer Ergänzung bedarf oder
c) Verfahrensvorschriften ausser acht gelassen
wurden, bei deren Einhaltung die belangte
Behörde zu einem anderen Bescheid hätte
kommen können."
The proceedings before the Administrative Court consist of an
exchange of written observations between the parties (Section 36) and an
oral hearing of their legal arguments (Sections 39 and 40). The parties
have a right to request a hearing (Section 39, para. 1 [1]).
Position of experts
With regard to the position of experts in expropriation
proceedings, Section 52 para. 1 of the Act on General Administrative
Procedure (Allgemeines Verwaltungsverfahrensgesetz) provides that if in
such cases evidence by experts is necessary, "official experts must be
employed who are attributed to the authority or are at their disposal"
("so sind die der Behörde beigegebenen oder zur Verfügung stehenden
amtlichen Sachverständigen [Amtssachverständige] beizuziehen"). Section
53 refers to Section 7 according to which administrative organs must
renounce office in matters concerning inter alia their family members or
"if there are other important reasons which may raise doubts as to their
full impartiality" ("wenn sonstige wichtige Gründe vorliegen, die
geeignet sind, ihre volle Unbefangenheit in Zweifel zu ziehen").
COMPLAINTS
Under Article 6 para. 1 of the Convention the applicants complain
that in the expropriation proceedings they did not have a procedure in
conformity with this provision before an independent and impartial
tribunal having full jurisdiction on questions of law and fact. The
applicants also complain of the unfairness of the proceedings in that
the experts in the proceedings before the Provincial Government were not
independent on account of their position in the Provincial Road
Administration. Moreover, the applicants were not allowed to consult
various documents, in particular concerning the landscape proceedings,
a report of the Court of Audit, and the expert opinion of an independent
traffic expert Be.
With reference to Article 1 of Protocol No. 1 to the Convention the
applicants complain that the expropriation was not justified under the
first paragraph. It was unlawful and not in the public interest. The
complaints point out that the expropriation interfered with the planned
extension of a supermarket which they have on adjoining property.
Furthermore the review by the Constitutional and the Administrative
Courts did not include a comprehensive assessment of the conflicting
public and private interests with a view to establishing a fair balance
between them.
The applicants also allege a violation of Article 13 of the
Convention in that in the proceedings before the Constitutional and
Administrative Courts suspensive effect was refused to their complaints.
The latter cannot therefore be regarded as effective domestic remedies.
Finally, under Article 14 of the Convention the applicants
complain that no administrative appeal is possible against a decision
under the Road Act to expropriate, while such appeals are available
under other expropriation statutes.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 June 1986 and registered on
13 June 1986.
On 6 March 1989 the Commission decided to adjourn further
examination of the admissibility of the application until the
Administrative Court had given its decision.
The Administrative Court gave its decision on 22 September 1989.
The applicants filed comments thereupon on 4 December 1989.
On 2 April 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the application
limited to the issues under Article 6 para. 1 of the Convention and
Article 1 of Protocol No. 1.
Following a prolongation of the time-limit, the Government's
observations were received on 23 July 1990. Following a further
prolongation of the time-limit, the applicants' observations were
received on 11 October 1990.
On 29 May 1991 the Commission decided to invite the parties to a
hearing on the admissibility and merits of the applicants' complaints
under Article 6 para. 1 of the Convention.
The hearing took place on 15 October 1991. The Government were
represented by their Agent, Mr. W. Okresek, Head of Department at the
Federal Chancellery in Vienna, and by Mr. F. Haug of the International
Law Department in the Federal Ministry for Foreign Affairs in Vienna.
The applicants were represented by their lawyer, Mr. W.L. Weh. The
second applicant and Mr. E. Girardi, signing clerk (Prokurist) for the
first applicant, were also present.
THE LAW
1. The applicants complain under Article 6 para. 1 (Art. 6-1) of
the Convention that they had no access to a court within the meaning
of this provision. They also raise complaints under Article 1 of
Protocol No. 1 (P1-1) and Articles 13 and 14 (Art. 13, 14) of the
Convention.
The Government submit at the outset that the domestic proceedings
concerned only the first applicant and that the second applicant was not
directly affected by the contested decisions.
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission may only deal with an application where a person "(claims)
to be the victim of a violation by one of the High Contracting Parties
of the rights set forth in (the) Convention". In the present case the
Commission considers that the second applicant was at the time of
filing the application the general partner and manager of the first
applicant. The second applicant was thus likewise affected by the
decisions complained of and can therefore claim to be a victim within
the meaning of Article 25 para. 1 (Art. 25-1) of the Convention (see
No. 10259/83, Dec. 10.12.84, D.R. 40 p 170).
2 .Under Article 6 para. 1 (Art. 6-1) of the Convention the
applicants complain that in the expropriation proceedings they had no
access to a court with full jurisdiction on questions of law and fact.
They contend in particular that the Administrative Court cannot
independently assess the facts or the merits of a case, that there is
no oral hearing in these proceedings, and that this court can only
quash the previous decision. The applicants recall the indeterminate
concepts stated in Section 44 of the Provincial Road Act with which
the Administrative Court was confronted and which, in fact, were
determined by official experts.
The applicants further complain that the experts in the
expropriation proceedings before the Provincial Government were not
independent on account of their position in the Provincial Road
Administration. Reference is made to Section 20 of the Federal
Constitutional Act according to which all administrative organs are
subordinate to their superiors. The applicants also complain that they
were not allowed to consult various documents, in particular concerning
the landscape proceedings, a report of the Court of Audit, and the
expert opinion of an independent traffic expert.
Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant:
"1. In the determinatiom 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 ..."
The Government submit that Article 6 para. 1 (Art. 6-1) of the
Convention is not applicable to expropriation proceedings which do not
relate to civil rights. Article 6 para. 1 (Art. 6-1) is directed at
the traditional core areas of private law, and it cannot be said that
the practice of the Convention States has changed this scope. Article
6 para. 1 (Art. 6-1) does not include relations between the individual
and the general public as only the effects of these relations concern
civil rights.
The Government submit that in any event this part of the
application is manifestly ill-founded. In particular, the applicants
had access to two courts, namely the Constitutional Court and the
Administrative Court. With regard to the scope of the Administrative
Court's review reference is made to Section 42 para. 2 subpara. 3 (a) -
(c) of the Administrative Court Act according to which the Court can
actually undertake a far-reaching review of the facts in a concrete
case. In the present case the Court did so within the criteria
established by Section 44 of the Provincial Road Act. The Government
refer in this context to a passage of the Administrative Court's
decision of 22 September 1989 (cited above in Particular circumstances
of the case, at III.). Finally, if the Court quashes a decision the
respondent authority is bound by its legal views.
The Government further submit that official experts are not subject
to instructions when preparing their opinions. In the present case the
opinions were reviewed by the Administrative Court as to their
conclusiveness. The applicants could also have submitted their own
private expert opinions in the expropriation proceedings and the
authorities would have been obliged to comment thereupon. Insofar as
the applicants complain that they could not consult certain documents,
the Government recall that the domestic authorities found that the
documents were irrelevant to the case.
The Commission, having regard to the parties' submissions under
Article 6 para. 1 (Art. 6-1) of the Convention, considers that these
complaints raise serious issues of fact and law which require an
examination of the merits. This part of the application cannot,
therefore, be declared manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. Under Article 1 of Protocol No. 1 (P1-1) the applicants
complain that the expropriation was unlawful and not in the public
interest. By splitting the proceedings up into distinct cases, they
did not include a comprehensive assessment of the conflicting public
and private interests with a view to establishing a fair balance
between them.
The Government submit that the expropriation satisfied the
requirements of Article 1 of Protocol No. 1 (P1-1) in that there was
an actual need therefor, that the expropriation was in the public
interest and that it occurred as a last resort. The expert opinions
showed for instance the importance of rerouting the provincial road
inter alia to provide for the safety of school children. Thus a fair
balance was struck between public and private interests.
Article 1 of Protocol No. 1 (P1-1) to the Convention states 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 Commission considers that the applicants were deprived of their
possessions by the expropriation within the meaning of Article 1 para.
1 of Protocol No. 1 (P1-1).
However, the Commission finds, with reference to the Administrative
Court's decision of 22 September 1989, that the expropriation was
"subject to the conditions provided for by law" within the meaning of
this provision in that the expropriation was based on the Vorarlberg
Provincial Road Act. Moreover, the Commission considers that the
authorities concerned struck a fair balance between public and private
interests. Thus, the authorities found that the expropriation was
necessary in particular to construct a provincial road as a bypass
between two communities where the existing road led through densely
populated areas. Moreover, after considering the demands of traffic and
the environment as well as the safety of school children on their way to
school, the authorities concluded that it was impossible to avoid the
new road crossing through the applicants property.
Insofar as the applicants may be understood as complaining that
compensation for the expropriation was insufficient, the Commission
recalls that Article 1 of Protocol No. 1 (P1-1) does not guarantee the
right to a particular amount of compensation. In view of the total
sum awarded to the applicants (see above, Particular circumstances of
the case, at IV.), the Commission does not find that compensation was
reduced to such an extent that it affected the very substance of their
right to compensation (see No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Under Article 13 (Art. 13) of the Convention, the applicants
complain that in the proceedings before the Constitutional and
Administrative Courts their complaints were not effective in that they
were not endowed with suspensive effect.
The Commission has just declared admissible the applicants'
complaints concerning access to court within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention. According to the Convention
organs' case- law, the requirements under Article 13 (Art. 13) of the
Convention are less strict than, and are here absorbed by those of
Article 6 (Art. 6) of the Convention (see Eur. Court H.R., Philis
judgment of 27 August 1991, Serie A no. 209, para. 67). No separate
issue arises therefore under Article 13 (Art. 13) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
5. Under Article 14 (Art. 14) of the Convention, taken together
with Article 6 para. 1 (Art. 6-1) of the Convention and Article 1 of
Protocol No. 1 (P1-1), the applicants complain that no administrative
appeal is possible against a decision under the Road Provincial Act to
expropriate, whereas such appeals are available under other
expropriation statutes. However, the Commission finds no issue under
these provisions. It follows that the remainder of 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 ADMISSIBLE,
without prejudging the merits of the case, the
applicants' complaints under Article 6 para. 1 (Art. 6-1)
of the Convention concerning the access to, and the fairness
of the proceedings before, the Administrative Court;
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)
Full & Egal Universal Law Academy