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. 18822/91                       by A.H.                       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 6 September 1991 by A.H. against Austria and registered on 19 September 1991 under file No. 18822/91;         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 applicant, may be summarised as follows.         The applicant is an Austrian citizen, born in 1912. She resides at Linz. Before the Commission she is represented by Dr. Walter Müller, a lawyer practising at Linz.         The case concerns the expropriation proceedings instituted with a view to the enlargement of a road in the commune of Hellmonsödt. The applicant was opposed to this, maintaining that the enlargement was not in the public interest and did not serve any meaningful purpose.         On 8 November 1990 the Office of the Provincial Government of Upper Austria (Amt der Landesregierung) made an order for expropriation involving approximately 80 square metres of the applicant's property, and fixed a compensation totalling 512,856 Austrian schillings. The Office of the Provincial Government stated inter alia that, according to sections 57 and 58 of the 1975 Provincial Road Administration Act (Landes-Straßenverwaltungsgesetz), expropriation of property for the purpose of road enlargement was permissible, provided the necessity for this purpose and for the purpose of the public road traffic had been established. In the circumstances of the present case the Office concluded that, on the basis of the expert opinions obtained and the other material submitted, the expropriation was necessary and that the area in question did not exceed what was actually needed for the enlargement envisaged.         The applicant appealed against the expropriation order to the Constitutional Court (Verfassungsgerichtshof). She claimed that the expropriation proceedings had violated her right to peaceful enjoyment of her possessions. She also alleged that her right of access to a tribunal with full jurisdiction had been violated and that there had been a breach of the principle of equality of arms. She referred inter alia to Article 6 of the Convention and to Article 1 of Protocol No. 1 to the Convention.         On 11 June 1991, the Constitutional Court decided not to entertain the application since, in view of its case-law on Article 6 of the Convention, the application did not have sufficient prospects of success. Moreover, the Court noted that the case did not fall outside the Administrative Court's (Verwaltungsgerichtshof) jurisdiction.         The applicant did not challenge, in any way, the expropriation order of 8 November 1990 in the Administrative Court.   COMPLAINTS         The applicant complains that she did not have access to a tribunal satisfying the requirements of Article 6 of the Convention before which she could challenge the expropriation order made by the administrative authorities on 8 November 1990. In particular she maintains that the Administrative Court does not have full jurisdiction to review the appropriateness of the expropriation, something which, in her opinion, is finally determined by the administrative authority.   THE LAW         The applicant complains that, in the determination of the expropriation issues concerning her property, she did not have access to a tribunal satisfying the requirements of Article 6 (Art. 6) of the Convention.         In so far as relevant this provision reads as follows :         "In the determination of his civil rights and obligations ...,       everyone is entitled to a fair ... hearing ... by (a) tribunal       established by law."         The Commission notes that Article 6 (Art. 6) applies to the proceedings referred to by the applicant, as they concerned a genuine dispute over her property, and thus over a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Accordingly, the applicant was entitled, under this provision, to bring the decision of the Office of the Provincial Government of 8 November 1990 before a tribunal within the meaning of Article 6 (Art. 6) of the Convention.         The Commission recalls from the facts of the present case that the decision of the Office of the Provincial Government could be appealed against on various grounds to the Constitutional Court and to the Administrative Court. These appeals, however, would only be consistent with Article 6 para. 1 (Art. 6-1) of the Convention if conducted before a judicial body which has full jurisdiction.         The applicant brought her case before the Constitutional Court. However, the Commission finds that this court did not, in the circumstances of the present case, satisfy the above requirement. This instance could inquire into the contested proceedings only from the point of view of their conformity with the Constitution which did not make it possible for it to examine all the relevant facts. The Constitutional Court did not, therefore, have the power required under Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 30).         The applicant could furthermore have lodged an appeal with the Administrative Court, something which she chose not to do as such an appeal, in her opinion, would have been meaningless.         The Commission does not agree with the applicant on this point. From the above-mentioned Zumtobel case the Commission recalls that under Article 130 of the Federal Constitution, the Administrative Court has jurisdiction to hear inter alia applications alleging that an administrative decision is unlawful (ibid. para. 18). Furthermore, Article 42 of the Administrative Court Act (Verwaltungsgerichtshof- gesetz) provides that the Administrative Court shall quash a decision inter alia if it is unlawful by reason of its content, or on account of a breach of procedural rules in that the respondent authority has made findings of facts which are contradicted by the case file (ibid. para. 19).         Accordingly, the Commission finds that the Administrative Court is not entirely bound by the facts established by the administrative authority. The scope of review by the Administrative Court must be assessed in the light of the fact that expropriation is not a matter exclusively within the discretion of the administrative authority. Sections 57 and 58 of the Provincial Road Administration Act make the lawfulness of such a measure subject to the condition that it has been established that this measure is necessary for the road enlargement envisaged and for the public road traffic. It is for the Administrative Court to satisfy itself that these provisions have been complied with. In these circumstances, and having regard to the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency and to the nature of the complaint made by the applicant, the review by the Administrative Court cannot from the outset be considered as not fulfilling the requirements of Article 6 para. 1 (Art. 6-1) of the Convention (ibid. para. 32).         Having regard to the above, the Commission finds that the applicant did have access to a court and, in particular in the light of the fact that she did not make use of this possibility under domestic law to bring the expropriation issue before the Administrative Court, the Commission finds that her complaint, i.e. that this court did not have full jurisdiction to examine the case, does not disclose any appearance of a violation of Article 6 (Art. 6) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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)                        (A. WEITZEL)