CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.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. 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)