18051/91_19115/91

 AS TO THE ADMISSIBILITY OF Application No. 18051/91 Application No. 19115/91 by Elsa HUG-VONWALD by Elsa and Christian HUG-VONWALD against Switzerland against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 7 April 1994, the following members being present: MM. A. WEITZEL, President S. TRECHSEL C.L. ROZAKIS F. ERMACORA E. BUSUTTIL A.S. GÖZÜBÜYÜK Mrs. J. LIDDY MM. M.P. PELLONPÄÄ B. MARXER B. CONFORTI N. BRATZA I. BÉKÉS E. KONSTANTINOV 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 applications introduced on 8 January 1991 and 18 September 1991 by Elsa and Christian HUG-VONWALD against Switzerland and registered on 8 April 1991 and 21 November 1991 under file Nos. 18051/91 and 19115/91; 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 applicants, may be summarised as follows: The applicant in Application No. 18051/91 (henceforth: the first applicant) is a Swiss citizen born in 1923 residing at Trimmis in Switzerland. She has also filed Application No. 19115/91 where she is joined by the second applicant, her husband, a Swiss citizen born in 1917 who also resides at Trimmis. Before the Commission the applicants are represented by Mr. A. Weber, a lawyer practising in St. Gallen. Application No. 18051/91 This application relates to the first applicant's real property situated next to the Trimmis church. In 1972 a building plan (Ortsplanung) was prepared which, after approval by the Council of State (Regierungsrat) of the Canton of Graubünden entered into force in 1973. As a result the first applicant's property partly came to be situated in an area designated for public buildings (Zone für öffentliche Bauten und Anlagen) and as such subject to certain building restrictions. In 1983 the Trimmis municipality, offering compensation of 60 SFr per m2, requested the first applicant to transfer ownership of her property in order to enlarge the cemetery next to the church. However, no agreement could be reached between the parties. In 1984 the Trimmis Popular Assembly (Gemeindeversammlung) decided to institute expropriation proceedings against the first applicant. In 1986 the Expropriation Commission (Enteignungskommis-sion) determined compensation to the amount of 80 SFr per m2. The first applicant and the Trimmis municipality appealed against this decision to the Administrative Court (Verwaltungsgericht) of the Canton of Graubünden, each alleging an incorrect calculation of compensation. The Court dismissed these appeals on 18 February 1987. The first applicant's administrative law appeal (Verwaltungsge-richtsbeschwerde) was partly upheld by the Federal Court (Bundesge-richt) on 2 March 1988 on the ground that the Administrative Court had overlooked certain factors when determining the amount of compensation. Proceedings were resumed before the Administrative Court which, after examining further evidence, confirmed on 7 December 1988 the compensation which it had previously fixed. The first applicant's administrative law appeal was dismissed by the Federal Court on 29 August 1989, the decision being served on 12 September 1989. The Trimmis municipality offered the first applicant compensation amounting to 306.251,15 SFr. The latter, however, filed an appeal (Einsprache) with the Administrative Court, requesting adjournment of the proceedings until a revised building plan had entered into force, and complaining that the expropriation lacked general public interest. In its decision of 23 January 1990 the Administrative Court found that the appeal could only concern the correctness of the payment (Richtigkeit der Zahlung) of compensation and not the lawfulness of the expropriation. The Court nevertheless partly upheld the appeal as the area to be expropriated had been incorrectly calculated. In her further appeal the first applicant complained that there was no general public interest justifying expropriation. On 10 May 1990 the Federal Court dismissed the appeal, the decision being served on 9 July 1990. The Court found that it could not hear complaints about the lawfulness of the expropriation as the Administrative Court's decision of 23 January 1990 concerned solely the execution (Vollzugs-anordnung) of the earlier judgment of 7 December 1988 which had entered into force. Application No. 19115/91 This application concerns the revision of the Trimmis building plan in 1989. The plan assigned real properties of the applicants to the area for public buildings or to the village core area (Dorfzone). The applicants' appeal against this plan was dismissed by the Council of State of the Canton of Graubünden on 26 March 1990. The applicants filed an administrative law appeal and a public law appeal with the Federal Court in which they complained of the revised Building Plan; under Article 6 of the Convention they contended that the Government was not an independent judicial body. These appeals were dismissed on 18 February 1991 by the Federal Court. In its decision it regarded as unfounded the applicants' complaint in their administrative law appeal that certain buildings had been included in the building zone which previously had been unlawfully built outside the building zone. Insofar as the applicants in their public law appeal raised complaints under the Convention the Federal Court found that they had not complied with the requirements under Section 90 of the Federal Judiciary Act for filing a public law appeal. In respect of further property next to the church the Court found that it had definitely decided this matter in its judgment of 10 May 1990; the applicants were no longer proprietors and had no standing before the Court. Finally, the Court examined the applicants' complaint as to the allocation of building area in the building plan. The Court dismissed the complaint since "measures serving to prevent building zones of an excessive area or to reduce such building zones lie in the public interest" ("liegen Massnahmen im öffentlichen Interesse, die geeignet sind, das Entstehen überdimensionierter Bauzonen zu verhindern oder solche Bauzonen zu verkleinern"). COMPLAINTS In Application No. 18051/91 the first applicant complains under Article 6 of the Convention that there was no public interest warranting expropriation of her property. She also complains that no court approved the building plan of 1972; that the Federal Court did not examine the issue of a public interest justifying expropriation; and that no independent and impartial court examined the expropriation. In Application No. 19115/91 the applicants complain under Article 6 para. 1 of the Convention that the Federal Court in its decision of 18 February 1991 did not examine the issue of public interest as regards the expropriation of the property adjacent to the cemetery; and that there was no public interest warranting this expropriation. Moreover, the Council of State of the Canton of Graubünden was not a court, and no court ever examined the building plan. The applicants complain that the Federal Court incorrectly stated that they were no longer the proprietors of the real property adjacent to the church. THE LAW 1. The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that no court examined the Trimmis building plan or the existence of a public interest justifying expropriation of their real property. The applicants complain that public interest did not warrant expropriation, and that the Federal Court assessed certain facts incorrectly. 2. The Commission finds it convenient to join Applications Nos. 18051/91 and 19115/91 pursuant to Rule 35 of the Commission's Rules of Procedure. 3. Insofar as the applicants complain that public interest did not warrant expropriation of their property and that the Federal Court incorrectly assessed certain facts, the Commission recalls that under Article 19 (Art. 19) of the Convention its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers on this point to its established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 p. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 p. 31, 45). Moreover, insofar as the applicants appear to rely on Article 1 of Protocol No. 1 (P1-1), the Commission notes that Switzerland is not a party to this Protocol. 4. It is true that the applicants invoke Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as relevant, that "in the determination of his civil rights and obligations ... everyone is entitled to a ... hearing by (a) tribunal ...". The Commission finds that this provision is applicable to the proceedings concerning the expropriation of the first applicant's property adjacent to the Trimmis cemetery. The Commission further recalls the Convention organs' case- law according to which disputes over building plans amount to "the determination of (an applicant's) civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see Eur. Court H.R., Mats Jacobsson judgment of 28 June 1990, Series A no. 180-A, p. 12 et seq., paras. 30 et seq.). Article 6 para. 1 (Art. 6-1) of the Convention thus also applies to the proceedings instituted by the applicants upon revision of the Trimmis building plan in 1989. 5. The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that no court examined the Trimmis building plan or whether the expropriation of their property complied with a public interest. a) Insofar as these complaints are directed against the Federal Court's decision of 10 May 1990, that Court was solely concerned with the execution of a judgment which had entered into legal force. The Commission need not determine at what earlier stage of the proceedings the first applicant should properly have raised the complaints now raised before the Commission. It suffices to note that in its decision of 10 May 1990 the Federal Court held that it was no longer competent to deal with complaints concerning the lawfulness of the expropriation. In respect of these complaints, the applications are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. b) The applicants also direct their complaints against the decision of the Federal Court of 18 February 1991 in which it dealt with the revised building plan of 1989. The applicants complain in particular under Article 6 para. 1 (Art. 6-1) of the Convention that only the Council of State and not a court decided on the building plan. However, the Commission recalls the case-law of the Convention organs according to which the Convention calls at least for one of the following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 para. 1 (Art. 6-1), or they do not so comply, but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 16, para. 29). In the present case after the Council of State of the Canton of Graubünden gave its decision on 26 March 1990, the applicants seised the Federal Court by means of an administrative law appeal and a public law appeal. The latter gave its decision on 18 February 1991. In examining whether the Federal Court constituted a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission must confine itself as far as possible to the circumstances of the case before it (see Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 32). In the present case, the applicants complain that the Federal Court refrained from examining whether a public interest warranted expropriation of their property adjacent to the church. The Commission notes that the Federal Court did not refrain from examining these issues on the ground that it declined jurisdiction (see Eur. Court H.R., Zumtobel judgment, loc. cit.). Rather, the Court declared the applicants' complaints under the Convention inadmissible as not complying with the requirements under the Federal Judiciary Act. In addition, in respect of the property adjacent to the church the Court found that it had definitely decided this matter in its previous decision of 10 May 1990; the applicants were no longer proprietors and had no standing before the Court. In any event the Commission notes that elsewhere in its decision of 18 February 1991 the Federal Court in fact regarded itself competent to examine the issue of public interest. Thus, when examining the issue of excessive building zones the Court expressly referred to public interest as warranting measures which served to prevent such building zones or to reduce them. The remainder of the applications is therefore also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously 1. DECIDES TO JOIN APPLICATIONS Nos. 18051/91 AND 19115/91; 2. DECLARES THE APPLICATIONS INADMISSIBLE. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)