AS TO THE ADMISSIBILITY OF
Application No. 17312/90
by H.L. and A.L.
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 25 July 1990 by
H.L. and A.L. against Austria and registered on 17 October 1990 under
file No. 17312/90;
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 applicants are a married couple living in Mittersill. The
first applicant was born in 1927 and the second applicant in 1931.
They are represented by Mr. E. Proksch, a lawyer practising in Vienna.
It follows from their statements and the documents submitted that
on 22 August 1988 the office of the Regional Government
(Landesregierung) in Salzburg ordered the applicants to pay a total of
AS 1,250.07 to the Forest Administration for the use in 1987 of forest
wood which they were permitted to exploit in relation to real estate
of which they are the owners. It is stated in the order that according
to a friendly settlement deed (Regulierungsurkunde) of 1869 and a
friendly settlement decision (Regulierungserkenntnis) of 1870, a
certain amount of kreutzer had to be paid for the use of forest wood.
According to legislation passed in the meantime and which came into
effect on 1 July 1986 a kreutzer corresponded to 85 pennies (Groschen).
It is further stated that the authorities were not competent to examine
whether the legislation in which the conversion from kreutzer to
pennies was compatible with the Constitution or not. Furthermore,
there was no reason to suspend the proceedings pending a decision of
the Constitutional Court (Verfassungsgerichtshof).
The applicants' appeal (Berufung) was rejected by the Salzburg
Provincial Land Reform Board (Landesagrarsenat - "The Provincial
Board") on 27 January 1989. Insofar as the applicants had complained
that the order complained of had been given without an oral hearing
it is stated that an oral hearing was not provided for in the relevant
procedural law. Furthermore, the amount of forest wood used by the
applicants was uncontested as well as the fact that no payment had been
effected by the applicants in return for the use of the wood. Insofar
as the applicants had alleged the non-constitutionality of the
legislative provisions on which the order complained of was based, a
decision is referred to of the Constitutional Court given on
6 October 1988 according to which the relevant legislation, namely the
Salzburger Einforstungsrechtegesetz, was compatible with constitutional
law.
The applicants then lodged a complaint (Beschwerde) with the
Administrative Court (Verwaltungsgerichtshof) which was rejected on
5 December 1989. The Administrative Court also refers to the
Constitutional Court's decision of 6 October 1988 according to which
the legislative provision relating to the conversion of kreutzers to
pennies was constitutional.
The Court stated in this respect that both the friendly
settlement deed and the friendly settlement decision constituted an act
of public authority (Hoheitsakt).
Insofar as the right to use the forest wood was stipulated in a
friendly settlement deed which was to be considered as a private law
contract it is pointed out by the Administrative Court that the
validity of such contracts depended on confirmation by public authority
(hoheitliche Bestätigung) in accordance with an imperial patent
(Kaiserliches Patent) of 5 July 1853. This also followed from a
ministerial decree of 31 October 1857.
Consequently, the reasons on which the Constitutional Court's
decision of 6 October 1988 were based also applied to the case at
issue.
The monetary conversion provided for in the legislation in
question had been justified for objective reasons and was in conformity
with legislative provisions regulating the rights of forest wood users.
The determination by the regional legislation of these rights and of
the amounts due for the use of forest woods did not constitute an
expropriation.
Insofar as the applicants had complained that Mr. P., head of the
division of the Salzburg Regional Government which gave the decision
of 22 August 1988, had participated in the decision-making, it is
pointed out by the Administrative Court that the decision was signed
by another civil servant, namely Mr. Feyertag and was taken by this
civil servant alone, but even considering that Mr. P. was likewise
involved in the proceedings, there was no reason to consider him to be
biased. Finally, the Administrative Court pointed out that the
calculation of the amount due by the applicants had not been questioned
by them.
The applicants submit that the Administrative Court's judgment
was communicated on 26 January 1990.
COMPLAINTS
The applicants consider that the legislative provisions applied
in their case and their present obligation to pay for the use of forest
wood stemming from their own property constitutes a violation of the
right to the peaceful enjoyment of possessions as guaranteed by Article
1 of Protocol No. 1. They submitted that contrary to a friendly
settlement decision the friendly settlement agreement in their case was
a private law contract and therefore did not justify the interference
complained of. They also consider that the proceedings in question
violated Article 6 of the Convention. The lower instances were, in
their submission, not impartial and independent tribunals. The
Administrative Court and the Constitutional Court did, on the other
hand, in their submission not have sufficient competence to examine
both legal and factual issues.
THE LAW
1. The applicants first invoke Article 1 of Protocol No. 1
(P1-1) which reads:
"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."
However, even assuming that domestic remedies were exhausted the
applicants have not shown that their property right related to a forest
area comprises the right to an unrestricted use of forest wood. It
follows from the decision of the Austrian Administrative court that in
the past century the right to use forest wood grown on private property
was accorded by public authority. This regulation is based on an
imperial patent and a ministerial decree of 31 October 1857. The
regulation is, according to the Administrative Court, which in this
respect also referred to the Austrian Constitutional Court's
jurisprudence, still valid.
Consequently it cannot be found that the applicants were deprived
of any property right. Rather their obligation to pay for the use of
the wood of their forests is to be considered as a consequence of the
State's right to enforce laws which it considers necessary to control
the use of property within the meaning of Article 1 para. 2 of Protocol
No. 1 (P1-1-2) to the Convention.
It has not been shown that in the present case the regulation in
question amounted to an abusive interference imposing on the applicants
an individual and excessive burden.
It follows that there is no appearance of a violation of the
Article invoked by the applicants and this part of the application
therefore has to be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention as being manifestly ill-founded.
2. The applicants have further invoked Article 6 (Art. 6) of the
Convention alleging generally a violation of their right to a fair
trial.
However, it has not been shown in the present case that there
were factual issues before the Administrative Court which that court
was prevented from examining (cf. Eur. Court H.R., Ettl and others
judgment of 23 April 1987, Series A No. 117, p. 17, para. 34; Zumtobel
judgment of 21 September 1993, Series A, No. 268-A, para. 32).
Consequently it cannot be found that the Administrative Court was in
any way limited in its competence to examine the issues raised by the
applicant. The Administrative Court found that there was no basis in
the domestic law for the applicant's alleged claim. It has not been
shown that this finding is inconsistent with any provisions of the
Austrian legal order or arbitrary for any other reason.
It follows that there is, in the particular circumstances of the
case, no appearance of a violation of Article 6 (Art. 6) of the
Convention and to this extent the application has therefore likewise
to be rejected as being manifestly ill-founded.
For these reasons the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy