Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights
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)