J.M. v. SWITZERLAND

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41202/98

by J.M.

against Switzerland

The European Court of Human Rights (Second Section), sitting on 12 April 2001 as a Chamber composed of

Mr C.L. Rozakis, President,

Mr A.B. Baka,

Mr L. Wildhaber,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr M. Fischbach,

Mr A. Kovler, judges,

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 2 April 1998 and registered on 14 May 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1924, is a businessman residing in Zürich in Switzerland.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1957 and 1959 the applicant acquired three adjacent real properties, used for farming purposes, in Niederhasli in the vicinity of the Zürich airport.

In 1966 the real properties were attributed to the residential zone, though in 1984 they were assigned to the commercial zone.

Meanwhile in 1983 the area of these properties was designated as pertaining to the Security Zone I of the airport of Zürich, and on the applicant’s properties the construction height of buildings was limited to between 21 and 38 meters.

In 1983 the applicant applied to the President of the Federal Assessment Commission (Eidgenössische Schätzungskommission), requesting the institution of compensation proceedings on account of material expropriation. The request was refused by the Commission in 1984, and upon appeal by the Federal Court (Bundesgericht) in 1986.

On 7 March 1986 the applicant filed a new request for compensation which was declared inadmissible by the Commission in 1987, though following the designation of new noise protection zones the Commission decided to resume proceedings in 1988. Against these two decisions the applicant filed administrative law appeals which were dismissed by the Federal Court in 1989.

Meanwhile the applicant instituted proceedings with the Niederhasli municipality, requesting compensation for the change in zone of his real properties. The case was transmitted to the Federal Assessment Commission, then to the Dielsdorf District Council, and then to the Government of the Canton of Zürich which in 1990 ordered the Niederhasli municipality to institute compensation proceedings. Against this last decision the applicant filed an appeal with the Administrative Court of the Canton of Zürich which in 1992 found that it was up to the Cantonal Assessment Commission rather than the Niederhasli municipality to conduct the compensation proceedings. These proceedings were then instituted before the Cantonal Assessment Commission though on 30 June 1995 the Federal Assessment Commission decided to suspend the proceedings until the Federal Court had given its judgment.

Meanwhile, the Federal Assessment Commission dismissed on 26 October 1990 the applicant’s request for compensation of 7 March 1986, inter alia, as there were still adequate possibilities for the applicant to use his properties.

Against this decision the applicant filed on 6 February 1991 an administrative law appeal (Verwaltungsgerichtsbeschwede) with the Federal Court, requesting compensation for the depreciation of his real properties on account of the extension and the operations of Zürich airport. He also challenged all Federal Court judges as they had previously sat in other proceedings concerning the applicant.

By decision of 5 June 1991 the Federal Court dismissed the applicant’s challenge.

The Federal Court then brought the applicant’s administrative appeal to the attention of the Government of the Canton of Zürich which in its observations requested the court to dismiss the appeal. The Federal Assessment Commission refrained from filing observations.

On 14 August 1993 a delegation of the Federal Court visited the applicant’s real properties. Upon this occasion he was informed that cases concerning noise protection zones of Geneva airport raised similar problems as the applicant’s case and had to be dealt with together.

On 14 March 1995 the applicant went bankrupt. The proceedings before the Federal Court were suspended and the bankruptcy office of the Küsnacht municipality was requested to inform the court whether the bankruptcy estate, or individual creditors, wished to continue the proceedings. Following an extension of the time-limit, the Küsnacht bankruptcy office filed its reply on 29 January 1997 whereupon the Federal Court resumed proceedings. On 11 March 1997 the applicant informed the court that he wished to continue the proceedings.

On 4 June 1997, upon the Federal Court’s request, the Federal Agency for Examining Materials and Research (Eidgenössische Materialprüfungs- und Forschungsanstalt) submitted a report on the noise nuisance for the applicant’s properties. By letter dated 11 June 1997 the applicant expressed his disagreement with the report, whereas the Government of the Canton of Zürich accepted the report on 26 June 1997.

On 17 September 1997 the Federal Court conducted a hearing at which the applicant took the floor, complaining, inter alia, of the duration of the proceedings. The court then deliberated in public, whereby the Rapporteur (Referent) explained the legal considerations of his report and proposed to dismiss the applicant’s appeal. In the further discussion it transpired that the other four judges shared the Rapporteur’s opinion. The presiding judge then read out the operative part of the judgment.

The judgment, numbering 30 pages, was served on the applicant on 9 October 1997. The Federal Court concluded that the situation of the applicant’s real properties did not warrant compensation.

COMPLAINTS

Sachverhalt

1. The applicant complains under Article 1 of Protocol No. 1 of a breach of his property right in that he has not been able to dispose of his real properties for 40 years. In this respect he also raises complaints under Article 14 of the Convention.

2. The applicant also complains that this duration of proceedings lasting 40 years can no longer be considered reasonable within the meaning of Article 6 § 1 of the Convention. Under this provision the applicant also complains of the outcome of the proceedings before the Federal Court.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention of the unreasonable length of the proceedings.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government.

Erwägungen

2.

The applicant further complains under Article 6 § 1 of the Convention of the outcome of the proceedings before the Federal Court. However, the Court recalls that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45; Garcia Ruiz v. Spain, no. 30544/96, § 28, ECHR 1991-I, pp. 98‑99). The Court notes that the Federal Court carefully examined the applicant’s complaint. There is no indication that the applicant could not sufficiently put forward his point of view, or that the proceedings were unfairly conducted in any other way. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

3.

Insofar as the applicant complains under Article 1 of Protocol No. 1 and Article 14 of the Convention that he was not able to dispose of his property rights, the Court notes that Switzerland has not ratified Protocol No. 1. It follows that the remainder of the application is inadmissible as being incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint about the unreasonable length of the proceedings;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis

Registrar President