AS TO THE ADMISSIBILITY OF
Application No. 19343/92
by Anna STOLZ
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 3 December 1991
by Anna STOLZ against Austria and registered on 15 January 1992 under
file No. 19343/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 29 June 1994 to communicate the
application;
- the observations submitted by the respondent Government on
23 November 1994 and the observations in reply submitted by the
applicant on 1 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen living in Linz. She is
represented by Mr. Aldo Frischenschlager, a lawyer practising in Linz.
It follows from the statements and the documents submitted that
the applicant and her husband owned certain real estate and that by
decision of 13 July 1963 given by the Office of the Regional Government
(Amt der OÖ Landesregierung) they were expropriated on the ground that
the city of Linz needed the properties for the construction of
additional tankport installations. The couple were granted
compensation in the amount of AS 1,357, 570.
Meanwhile the applicant has inherited her husband's share.
On 18 May 1988 the applicant made a request to the office of the
Regional Government for the re-transfer of the expropriated property
on the ground that it had so far not been used for the purpose
indicated in the expropriation proceedings.
This request was communicated for observations to the city of
Linz and to the present owner, the Linz Electricity - Heating -
Transport Company. Applicant's counsel received the observations on
7 October 1988. A reply on behalf of the applicant was submitted on
3 November 1988.
On 10 January 1989 the Regional Governor (Landeshauptmann)
informed the applicant that a project for the tankport installations
was under way and the necessary authorisation (Bewilligungsbescheid)
had been obtained and could be inspected by the public. Copies were
sent to applicant's counsel on 8 February 1989.
As the applicant received no further information or communication
concerning her request for re-transfer of her property she asked the
Federal Ministry for Agriculture and Forestry in accordance with
Section 73 (2) of the Act on Administrative Proceedings (Allgemeines
Verwaltungsverfahrensgesetz) to give a decision on behalf of the
competent authority which had been inactive for more than six months.
Her request reached the Ministry on 9 June 1988.
On 18 August 1988 the Ministry asked both the Regional Government
and the applicant to submit observations.
On 28 September 1988 and 30 September 1988 observations were
submitted on the part of the authorities.
The applicant submitted observations on 3 November 1988.
On 10 January 1989 the Regional Government informed the Ministry
that proceedings relating to the approval of the tankport project under
the Water Rights Act (wasserrechtliche Überprüfung) were still pending.
These proceedings were not terminated before 22 April 1994.
COMPLAINTS
The applicant complains that the Ministry likewise did not decide
on her case. She therefore considers that the proceedings in question
exceeded a reasonable time, contrary to Article 6 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 December 1991 and registered
on 15 January 1992.
On 29 June 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
23 November 1994, after an extension of the time-limit fixed for that
purpose. The applicant replied on 1 February 1995.
THE LAW
The applicant complains about the length of administrative
proceedings relating to a claim for the return of expropriated
property.
Article 6 (Art. 6) of the Convention secures to everyone the
right to have a dispute relating to civil rights or obligations
determined within a reasonable time.
The respondent Government argue that Article 6 (Art. 6) is
inapplicable because the proceedings in question do not concern a civil
right. They further consider that the applicant failed to bring a
complaint before the Administrative Court about the inactivity of the
Ministry. They point out that in accordance with Article 440 (1) of
the Austrian Constitution (B-VG) the applicant could have suggested to
the Administrative Court to refer the matter to the Constitutional
Court. Finally they submit that even if Article 6 (Art. 6) were
applicable and domestic remedies exhausted the matter had not been
delayed by the authorities.
The Commission finds that it is not required to decide whether
Article 6 (Art. 6) is applicable and whether or not the facts alleged
by the applicant disclose any appearance of a violation of this
provision as, under Article 26 (Art. 26) of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case the applicant has failed to bring an
administrative court action complaining of the inactivity of the
competent authorities (Säumnisbeschwerde) in accordance with Article
132 of the Constitution and in conjunction with Section 27 of the
Administrative Court Proceedings Act (Verwaltungsgerichtsgesetz). The
applicant argues that such action would not be an effective remedy
because the Administrative Court does not recognise, contrary to the
Constitutional Court, a right to re-transfer of expropriated
possessions in case the aim of the expropriation is not realised.
However, the present complaint only concerns the inactivity of the
Austrian authorities and the delay resulting therefrom of the
proceedings which the applicant instituted. In respect of this delay
the complaint appears to be an adequate remedy. Furthermore the
Commission notes that in accordance with Article 140 (1) of the
Austrian Constitution (B-VG), the applicant could have asked the
Administrative Court to refer the matter to the Constitutional Court.
In these circumstances the applicant cannot be considered to have
exhausted the remedies available to her under Austrian law with regard
to her complaint that no decision has so far been given with regard to
her alleged claim for the re-transfer of prior possessions which have
been expropriated by the Austrian authorities.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and her application must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy