Stolz v. Austria



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)