CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)