AS TO THE ADMISSIBILITY OF
Application No. 18051/91 Application No. 19115/91
by Elsa HUG-VONWALD by Elsa and Christian HUG-VONWALD
against Switzerland against Switzerland
The European Commission of Human Rights (First Chamber)
sitting in private on 7 April 1994, the following members being
present:
MM. A. WEITZEL, President
S. TRECHSEL
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 applications introduced on 8 January
1991 and 18 September 1991 by Elsa and Christian HUG-VONWALD
against Switzerland and registered on 8 April 1991 and 21
November 1991 under file Nos. 18051/91 and 19115/91;
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 applicants, may
be summarised as follows:
The applicant in Application No. 18051/91 (henceforth: the
first applicant) is a Swiss citizen born in 1923 residing at
Trimmis in Switzerland. She has also filed Application No.
19115/91 where she is joined by the second applicant, her
husband, a Swiss citizen born in 1917 who also resides at
Trimmis. Before the Commission the applicants are represented
by Mr. A. Weber, a lawyer practising in St. Gallen.
Application No. 18051/91
This application relates to the first applicant's real
property situated next to the Trimmis church.
In 1972 a building plan (Ortsplanung) was prepared which,
after approval by the Council of State (Regierungsrat) of the
Canton of Graubünden entered into force in 1973. As a result the
first applicant's property partly came to be situated in an area
designated for public buildings (Zone für öffentliche Bauten und
Anlagen) and as such subject to certain building restrictions.
In 1983 the Trimmis municipality, offering compensation of
60 SFr per m2, requested the first applicant to transfer
ownership of her property in order to enlarge the cemetery next
to the church. However, no agreement could be reached between
the parties.
In 1984 the Trimmis Popular Assembly (Gemeindeversammlung)
decided to institute expropriation proceedings against the first
applicant. In 1986 the Expropriation Commission
(Enteignungskommis-sion) determined compensation to the amount
of 80 SFr per m2.
The first applicant and the Trimmis municipality appealed
against this decision to the Administrative Court
(Verwaltungsgericht) of the Canton of Graubünden, each alleging
an incorrect calculation of compensation. The Court dismissed
these appeals on 18 February 1987.
The first applicant's administrative law appeal
(Verwaltungsge-richtsbeschwerde) was partly upheld by the Federal
Court (Bundesge-richt) on 2 March 1988 on the ground that the
Administrative Court had overlooked certain factors when
determining the amount of compensation.
Proceedings were resumed before the Administrative Court
which, after examining further evidence, confirmed on 7 December
1988 the compensation which it had previously fixed. The first
applicant's administrative law appeal was dismissed by the
Federal Court on 29 August 1989, the decision being served on 12
September 1989.
The Trimmis municipality offered the first applicant
compensation amounting to 306.251,15 SFr. The latter, however,
filed an appeal (Einsprache) with the Administrative Court,
requesting adjournment of
the proceedings until a revised building plan had entered into
force, and complaining that the expropriation lacked general
public interest.
In its decision of 23 January 1990 the Administrative Court
found that the appeal could only concern the correctness of the
payment (Richtigkeit der Zahlung) of compensation and not the
lawfulness of the expropriation. The Court nevertheless partly
upheld the appeal as the area to be expropriated had been
incorrectly calculated.
In her further appeal the first applicant complained that
there was no general public interest justifying expropriation.
On 10 May 1990 the Federal Court dismissed the appeal, the
decision being served on 9 July 1990. The Court found that it
could not hear complaints about the lawfulness of the
expropriation as the Administrative Court's decision of 23
January 1990 concerned solely the execution (Vollzugs-anordnung)
of the earlier judgment of 7 December 1988 which had entered into
force.
Application No. 19115/91
This application concerns the revision of the Trimmis
building plan in 1989. The plan assigned real properties of the
applicants to the area for public buildings or to the village
core area (Dorfzone).
The applicants' appeal against this plan was dismissed by
the Council of State of the Canton of Graubünden on 26 March
1990.
The applicants filed an administrative law appeal and a
public law appeal with the Federal Court in which they complained
of the revised Building Plan; under Article 6 of the Convention
they contended that the Government was not an independent
judicial body.
These appeals were dismissed on 18 February 1991 by the
Federal Court. In its decision it regarded as unfounded the
applicants' complaint in their administrative law appeal that
certain buildings had been included in the building zone which
previously had been unlawfully built outside the building zone.
Insofar as the applicants in their public law appeal raised
complaints under the Convention the Federal Court found that they
had not complied with the requirements under Section 90 of the
Federal Judiciary Act for filing a public law appeal. In respect
of further property next to the church the Court found that it
had definitely decided this matter in its judgment of 10 May
1990; the applicants were no longer proprietors and had no
standing before the Court.
Finally, the Court examined the applicants' complaint as to
the allocation of building area in the building plan. The Court
dismissed the complaint since "measures serving to prevent
building zones of an excessive area or to reduce such building
zones lie in the public interest" ("liegen Massnahmen im
öffentlichen Interesse, die geeignet sind, das Entstehen
überdimensionierter Bauzonen zu verhindern oder solche Bauzonen
zu verkleinern").
COMPLAINTS
In Application No. 18051/91 the first applicant complains
under Article 6 of the Convention that there was no public
interest warranting expropriation of her property. She also
complains that no court approved the building plan of 1972; that
the Federal Court did not examine the issue of a public interest
justifying expropriation; and that no independent and impartial
court examined the expropriation.
In Application No. 19115/91 the applicants complain under
Article 6 para. 1 of the Convention that the Federal Court in its
decision of 18 February 1991 did not examine the issue of public
interest as regards the expropriation of the property adjacent
to the cemetery; and that there was no public interest warranting
this expropriation. Moreover, the Council of State of the Canton
of Graubünden was not a court, and no court ever examined the
building plan. The applicants complain that the Federal Court
incorrectly stated that they were no longer the proprietors of
the real property adjacent to the church.
THE LAW
1. The applicants complain under Article 6 para. 1 (Art. 6-1)
of the Convention that no court examined the Trimmis building
plan or the existence of a public interest justifying
expropriation of their real property. The applicants complain
that public interest did not warrant expropriation, and that the
Federal Court assessed certain facts incorrectly.
2. The Commission finds it convenient to join Applications Nos.
18051/91 and 19115/91 pursuant to Rule 35 of the Commission's
Rules of Procedure.
3. Insofar as the applicants complain that public interest did
not warrant expropriation of their property and that the Federal
Court incorrectly assessed certain facts, the Commission recalls
that under Article 19 (Art. 19) of the Convention its only task
is to ensure the observance of the obligations undertaken by the
Parties to the Convention. In particular, it is not competent
to deal with an application alleging that errors of law or fact
have been committed by domestic courts, except where it considers
that such errors might have involved a possible violation of any
of the rights and freedoms set out in the Convention. The
Commission refers on this point to its established case-law (see
e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236; No.
5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.
13.12.79, D.R. 18 p. 31, 45). Moreover, insofar as the
applicants appear to rely on Article 1 of Protocol No. 1 (P1-1),
the Commission notes that Switzerland is not a party to this
Protocol.
4. It is true that the applicants invoke Article 6 para. 1
(Art. 6-1) of the Convention which states, insofar as relevant,
that "in the determination of his civil rights and obligations
... everyone is entitled to a ... hearing by (a) tribunal ...".
The Commission finds that this provision is applicable to
the proceedings concerning the expropriation of the first
applicant's property adjacent to the Trimmis cemetery.
The Commission further recalls the Convention organs' case-
law according to which disputes over building plans amount to
"the determination of (an applicant's) civil rights" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see
Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990, Series
A no. 180-A, p. 12 et seq., paras. 30 et seq.). Article 6 para.
1 (Art. 6-1) of the Convention thus also applies to the
proceedings instituted by the applicants upon revision of the
Trimmis building plan in 1989.
5. The applicants complain under Article 6 para. 1 (Art. 6-1)
of the Convention that no court examined the Trimmis building
plan or whether the expropriation of their property complied with
a public interest.
a) Insofar as these complaints are directed against the Federal
Court's decision of 10 May 1990, that Court was solely concerned
with the execution of a judgment which had entered into legal
force. The Commission need not determine at what earlier stage
of the proceedings the first applicant should properly have
raised the complaints now raised before the Commission. It
suffices to note that in its decision of 10 May 1990 the Federal
Court held that it was no longer competent to deal with
complaints concerning the lawfulness of the expropriation.
In respect of these complaints, the applications are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) The applicants also direct their complaints against the
decision of the Federal Court of 18 February 1991 in which it
dealt with the revised building plan of 1989.
The applicants complain in particular under Article 6 para.
1
(Art. 6-1) of the Convention that only the Council of State and
not a court decided on the building plan. However, the
Commission recalls the case-law of the Convention organs
according to which the Convention calls at least for one of the
following systems: either the jurisdictional organs themselves
comply with the requirements of Article 6 para. 1 (Art. 6-1), or
they do not so comply, but are subject to subsequent control by
a judicial body that has full jurisdiction and does provide the
guarantees of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R.,
Albert and Le Compte judgment of 10 February 1983, Series A no.
58, p. 16, para. 29).
In the present case after the Council of State of the Canton
of Graubünden gave its decision on 26 March 1990, the applicants
seised the Federal Court by means of an administrative law appeal
and a public law appeal. The latter gave its decision on 18
February 1991.
In examining whether the Federal Court constituted a
"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention, the Commission must confine itself as far as
possible to the circumstances of the case before it (see Eur.
Court H.R., Zumtobel judgment of 21 September 1993, Series A no.
268-A, para. 32).
In the present case, the applicants complain that the
Federal Court refrained from examining whether a public interest
warranted expropriation of their property adjacent to the church.
The Commission notes that the Federal Court did not refrain
from examining these issues on the ground that it declined
jurisdiction (see Eur. Court H.R., Zumtobel judgment, loc. cit.).
Rather, the Court declared the applicants' complaints under the
Convention inadmissible as not complying with the requirements
under the Federal Judiciary Act. In addition, in respect of the
property adjacent to the church the Court found that it had
definitely decided this matter in its previous decision of 10 May
1990; the applicants were no longer proprietors and had no
standing before the Court.
In any event the Commission notes that elsewhere in its
decision of 18 February 1991 the Federal Court in fact regarded
itself competent to examine the issue of public interest. Thus,
when examining the issue of excessive building zones the Court
expressly referred to public interest as warranting measures
which served to prevent such building zones or to reduce them.
The remainder of the applications is therefore also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
1. DECIDES TO JOIN APPLICATIONS Nos. 18051/91 AND
19115/91;
2. DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy