KIENAST v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23379/94

                      by Franz KIENAST

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 22 April 1998, the following members being present:

           MM    N. BRATZA, Acting President

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           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 27 January 1994

by Franz KIENAST against Austria and registered on 2 February 1994

under file No. 23379/94;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     26 April 1996 and the observations in reply submitted by the

     applicant on 26 June 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, an Austrian citizen born in 1943, is a public

notary by profession and resides at Groß-Gerungs.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

A.   Particular circumstances of the case

     The applicant is the owner of land in Loipersdorf (Styria),

registered under file No. 154 of the Loipersdorf Land Register

(Grundbuch).  Before 23 September 1992 it comprised, inter alia, parcel

No. 772/1 of 4231 square metres marked as garden (Garten) and in the

middle of it parcel No. 66/2 of 401 square metres marked as building

area (Baufläche).  The borders of these parcels were recorded in the

land tax register (Grundsteuerkataster).

     On 28 November 1989 the Mayor of Loipersdorf informed the

applicant that a new border register (Grenzkataster) for Loipersdorf

was under preparation and that on this occasion some parcels of land

had to be united.  As the applicant's land was affected by this measure

he was invited to give his consent on 7 December 1989 at the Town Hall.

     On 1 December 1989 the applicant informed the Feldbach Surveyor's

Office (Vermessungsamt) that he would not consent to a unification of

any of the parcels belonging to him.

     On 18 September 1992 the Feldbach Surveyor's Office submitted a

certificate (Anmeldungsbogen) to the Feldbach District Court

(Bezirksgericht), the competent Land Register Court (Grundbuchs-

gericht), in which it requested that the unification (Grundstücks-

vereinigung) of the applicant's parcels No. 772/1 and No. 66/2, be

entered on the land register.

     On 23 September 1992 the District Court amended the land register

as requested.  It struck out parcel No. 66/2 of the land register and

united the respective piece of land with parcel No.772/1.

     On 29 October 1992 the applicant appealed against this decision.

     On 26 January 1993 the Graz Regional Court (Landesgericht)

rejected the applicant's appeal.  The Regional Court found that the

Surveyor's Office had issued the certificate of 18 September 1992 under

Section 52 para. 3 of the Surveying Act (Vermessungsgesetz).  Under

this provision, the consent of the owner of land to a unification of

parcels was not necessary.  The Surveyor's Office's certificate

fulfilled the requirements of Section 12 para. 1 of the Surveying Act,

namely that the parcels concerned had the same owner and that no

different financial burdens were placed on them.  The further criterion

for a unification of parcels, namely that the unification was advisable

for presenting in the map parcels which were put to the same use, could

not be examined by the Land Register Courts.  In this respect they were

bound by the findings of the Surveyor's Office.

     The applicant lodged a further appeal on points of law

(Revisionsrekurs) with the Supreme Court (Oberster Gerichtshof).  He

submitted that the difference in treatment between owners of land which

was registered in the border register and those whose land was

registered in the land tax register was unconstitutional.  There was

no reason why unification of parcels only with regard to land

registered in the border register was subject to the consent of its

owner.  Furthermore, the unification of his parcels violated his right

to property in that it was impossible to divide them again and sell

separately the former parcels No. 772/1 and No. 66/2 because the latter

parcel would not meet the criterion of having a minimum surface

necessary for creating a separate parcel.

     On 29 June 1993 the Supreme Court dismissed the applicant's

further appeal on points of law.  This decision was served on the

applicant on 5 August 1993.

     The Supreme Court found that the Land Register Courts had to

amend the land register following a certificate of the Surveyor's

Office if the land register did not disclose any elements which spoke

against that measure.  A certificate of a Surveyor's Office was

therefore not a request to be examined by the courts but a formal

statement about its official acts (Amtshandlungen).  In this respect

the Land Register Courts were bound by the certificate of the

Surveyor's Offices.  Changes made by the Surveyor's Office must lead

to corresponding entries in the land register.

     The Supreme Court also found that the difference in treatment

between owners of land registered in the border register on the one

hand and the land tax register on the other hand as regards the

necessity of the owner's consent to the unification of parcels of land

was justified.  As the border register relied on technically more

advanced methods of surveying than the previous land tax register it

was more reliable and merited a higher degree of protection.  At

present the land tax register had only a transitory function until

border registers had been drawn up for all municipalities.  The Supreme

Court further noted that a later partition of the parcels which had

been united might not be possible in view of their size.  However, this

effect could not constitute an interference with the applicant's right

to property because it was in accordance with the intentions of the

legislator who wished to avoid the creation of parcels of land which

were too small.

     On 15 October 1992 the applicant filed an appeal with the Federal

Office of Weights, Measures and Surveying (Bundesamt für Eich- und

Vermessungswesen) against the Feldbach Surveyor's Office's certificate

(Anmeldungsbogen) and requested its annulment.

     Since the Surveyor's Office did not decide on the appeal, the

applicant, on 16 August 1993 filed a request for transfer of

jurisdiction to the superior authority (Devolutionsantrag) with the

Federal Minister for Economic Affairs (Bundesminister für

wirtschaftliche Angelegenheiten).  On 13 January 1994 the Minister

rejected the applicant's request as he found that the six months' time-

limit within which a decision has to be taken had not yet expired.

     Also on 15 October 1992 the applicant filed a request for a

declaratory decision with the Feldbach Surveyor's Office.  He argued

that the certificate had been unlawful and requested the declaration

that the conditions of Section 12 para. 2 of the Surveying Act had not

been met since he had not given his consent.  The applicant submitted

that he had promised his son to give him parcel No. 772/1.  Because of

the unification of the parcels he could no longer keep this promise.

Instead a partition map by a surveyor had to be drawn up which involved

considerable expenses.  Therefore he had a legal interest in the

declaratory decision requested.

     Since the Surveyor's Office did not decide the applicant, on

22 April 1993, filed a request for transfer of jurisdiction with the

Federal Office, requesting it to issue the declaratory decision.

Thereupon, on 1 September 1993, the Federal Office granted the

applicant's request for transfer of jurisdiction but rejected the

applicant's request for a declaratory decision.   The applicant filed

an appeal with the Federal Minister for Economic Affairs.

     At an unspecified date the applicant introduced a complaint with

the Administrative Court (Verwaltungsgerichtshof) against the

Minister's decision of 13 January 1994 and the Minister's inactivity

in dealing with his appeal against the Federal Office's decision of

1 September 1993.

     On 11 August 1994 the Administrative Court decided upon the

applicant's complaint.  It quashed the Minister's decision of

13 January 1994 as in its view the six months' time-limit had expired.

As regards the appeal against the Federal Office's decision of

1 September 1993 it decided in the place of the Minister and dismissed

the applicant's appeal as unfounded.  In the present case the

applicant's consent to the unification of the parcels had not been

necessary under Section 52 of the Surveying Act.  A request for a

declaratory decision could therefore not relate to this element.

     Meanwhile, on 1 March 1993 the applicant had also lodged a

hierarchical complaint (Aufsichtsbeschwerde) against the Feldbach

Surveyor's Office with the Federal Minister for Economic Affairs.

     On 22 July 1993 the Minister reacted to the applicant's

hierarchical complaint.  He found that a certificate of the Surveyor's

Office was an official document (öffentliche Urkunde) and not a

decision (Bescheid) so that it could not be attacked by an

administrative appeal (Berufung).  Furthermore, the unification of the

applicant's parcels No. 772/1 and 66/2 had been necessary for technical

reasons in order to ensure a clear presentation of the borders of the

applicant's land and to avoid an unclear and fragmented presentation

of parcels in the border register.

B.   Relevant domestic law

     The Surveying Act of 1968, Federal Law Gazette No. 306/1968

(Vermessungsgesetz 1968, BGBl. 306/1968) regulates the surveying of

land.  According to Section 8 of this Act the borders of parcels of

land have to be registered in a border register (Grenzkataster).  This

register is drawn up by the Surveyor's Office.  In particular, the

Surveyor's Office has to draw up maps for this purpose and to record

the topographic marks (Feldpunkte) for identifying the borders.  The

purpose of the border register is to indicate with binding force the

borders of land and to indicate the various types of land, their use

and scope as well as features intended to facilitate a clear

presentation of the parcel of land.  The border register is distinct

from the land register, which has the purpose of recording the

ownership over land.  It will replace the former land tax register,

which until its replacement continues to exist (Section 52).

     Under Section 12 of the Surveying Act unification of parcels of

land is subject to the following conditions: the parcels must be

situated in the same land register district (Katastralgemeinde) and

must be adjacent; they must have the same owner and the same burdens

(Belastungen) must encumber the parcels; the unification of the parcels

must be in the interest of expediency of the administration and no

objections of surveying technique (vermessungstechnische Erwägungen)

must speak against it (Section 12 para. 1).  The Surveyor's Office has

to notify the unification upon request of the owner or ex-officio with

the owner's consent (Section 12 para. 2).

     With regard to land registered in the land tax register,

Section 52 para. 2 of the Surveying Act provides that for the

preparation of the border register, the Surveyor's Office shall examine

the size of parcels of land and the use to which they are put in land

register districts or larger areas (Riede).  If in the course of such

an examination it appears that the unification of parcels of land is

advisable for the purpose of depicting in the map parcels which are put

to the same use and if the conditions of Section 12 para. 1 are met

these parcels can be united.  In such a case the consent of the owner

is not required (Section 52 para. 3).

     As regards parcels of land included in the land tax register, all

single plots of land which belong to the same owner but are put to

different use constitute different parcels.  Newly created parcels of

land included in the border register on the other hand are, as a rule,

those parts of land belonging to a land register district which differ

from the adjacent parts (only) in so far as they do not have the same

owner and/or incumbrances.  Parcels in the border register consist of

one or several use zones (Benützungsabschnitte) according to the

different use to which they are put.  Which use zones belong to one

parcel can be seen from the cadastral map (Katastralmappe) and the

register of parcels (Grundstücksverzeichnis).

COMPLAINTS

     The applicant complains under Article 6 of the Convention that

he had no fair hearing as regards the unification of his parcels of

land. He further complains under Article 1 of Protocol No. 1 that the

unification of the parcels of land violated his right to property.

Lastly he complains under Article 13 of the Convention that he had no

effective remedy to complain about the unification of the parcels.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 27 January 1994 and registered

on 2 February 1994.

     On 16 January 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

26 April 1996, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 26 June 1996.

THE LAW

1.   The applicant complains under Article 6 (Art. 6) of the

Convention that he had no fair hearing as regards the unification of

his parcels of land.  He also invokes Article 13 (Art. 13) of the

Convention.

     Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant to the case, reads as follows:

     "In the determination 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."

     Article 13 (Art. 13) of the Convention, insofar as relevant to

the case, reads as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority ..."

a.   In the Government's view the applicant has not exhausted domestic

remedies as required by Article 26 (Art. 26) of the Convention as he

has failed to institute proceedings for the partition of the parcels

which had been united.  Since the unification of the two parcels

concerned did not infringe his property rights or deprive him of the

possibility of using his land, he also could not claim to be the victim

of an alleged violation of the Convention.

     This is disputed by the applicant.  In his view he has exhausted

all domestic remedies at his disposal.  The filing of a request for

partition of the parcels which had been united could not be considered

an effective remedy.  He also had to be considered a victim of

violation of the Convention within the meaning of Article 25 (Art. 25).

While before the unification of the parcels he could dispose of them

separately, he could no longer do so afterwards.  It was immaterial

that he remained the owner of the land and that he could put it to the

same use as before.

     The Commission finds that the question whether or not the

applicant should have requested the partition of the land in order to

exhaust domestic remedies as required by Article 26 (Art. 26) of the

Convention and whether he can claim to be a victim of an alleged

violation of the Convention because of the unification of the parcels

of land are so closely connected to the merits of the application that

it cannot be declared inadmissible on these grounds.

b.   The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable in the present case as the proceedings for

the unification of the parcels of the former land tax register did not

determine the applicant's civil rights or obligations.  For the

preparation of the new border register the Feldbach Surveyor's Office

had carried out an investigation according to which on the applicant's

land the former building area on parcel No. 66/2 no longer existed in

practice.  However, in its vicinity, on parcel No. 772/1, two buildings

had been erected.  Since the situation in nature therefore no longer

corresponded to what was depicted in the map, the two parcels were

united and the newly established building areas were depicted in their

actual shape and position as areas dedicated to the same use.  This had

been necessary for achieving the aims of the new border register,

namely to show in a reliable manner the size of the parcels of land and

the use to which they are put.  The unification of the parcels

therefore merely constituted an administrative measure, comparable, for

instance, to the change of the numbering of a parcel and it neither

affected the applicant's right to use his possession nor his

contractual relations to third persons nor did it restrict his business

activities.  In any event Article 6 para. 1 (Art. 6-1) has been

complied with because the applicant did have access to the ordinary

courts which considered his appeals against the Land Register Court's

decision.

     The applicant submits that Article 6 para. 1 (Art. 6-1) of the

Convention was applicable to the proceedings at issue because the

unification of the parcels had considerably affected his position as

owner of the land since he could no longer dispose separately of the

two parcels.  He had already promised his son to transfer to him

ownership over parcel No. 772/1, a promise which he no longer could

keep, or only after incurring considerable expense by taking

proceedings for the partition of the parcels.  Furthermore, there has

been a violation of this provision because the scope of review by the

Austrian courts had not been sufficient to meet the requirements of

this provision.

     The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and fact under the Convention, including the question of the

applicability of Article 6 (Art. 6) of the Convention, the

determination of which should depend on an examination of the merits

of the application.  The Commission concludes, therefore, that this

part of the application is not manifestly ill-founded, within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.  No other

grounds for declaring it inadmissible have been established.

2.   The applicant complains that the unification of the parcels of

land violated his right to property.  He invokes  Article 1 of Protocol

No. 1 (P1-1) which reads 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 Government submit that the unification of the parcels

concerned neither deprived the applicant of his property rights over

the land nor has the possibility to use his land been affected in any

way.  He remained its owner and could put it to the same use as before.

     This is disputed by the applicant who submits that the

unification of the parcels of land concerned violated his right to

property because he can no longer dispose separately of the former

parcels No. 772/1 and No. 66/2.

     The Commission considers, in the light of the parties'

submissions, that also this part of the case raises complex issues of

law and fact under the Convention, the determination of which should

depend on an examination of the merits of the application.  The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  No other grounds for declaring it

inadmissible have been established.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

     merits of the case.

  M.F. BUQUICCHIO                                 N. BRATZA

     Secretary                                  Acting President

to the First Chamber                         of the First Chamber

 

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