Wettergren and Wessman v. Portugal



AS TO THE ADMISSIBILITY OF

Application No. 27329/95

by Mats WETTERGREN and Anna-Lena WESSMAN

against Portugal

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 June 1994 by

Mats WETTERGREN and Anna-Lena WESSMAN against Portugal and registered

on 15 May 1995 under file No. 27329/95;

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 applicants are Swedish citizens, born in 1953 and 1959,

respectively, and residing in Stockholm.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

In 1987 the applicants and the Region of Madeira (Região Autónoma

da Madeira), represented by its Regional Government (Governo Regional

da Madeira), reached a cooperation agreement regarding the creation of

a tropical bird garden on this Portuguese island.

By Resolution (Resolução) no. 1607/87 of 1 December 1987 the

Regional Government gave the concession of the area to the applicants

and in October 1988 the bird garden was opened to the public.

However, by Resolution no. 743/91 of 11 July 1991, the Regional

Government revoked Resolution no. 1607/87 and cancelled the agreement.

It was stated that the applicants had not fulfilled some parts of the

agreement, namely payment of the rent and of the agreed percentage on

the entrance fees. Subsequently, the authorities took over the

administration of the bird garden.

On 10 July 1992 the applicants initiated proceedings for damages

against the Regional Government before the Administrative Tribunal

(Tribunal Administrativo de círculo) of Lisbon.

The Regional Government replied on 30 October 1992, maintaining

that the proceedings, according to Portuguese law, should be taken

against the Region of Madeira, the Regional Government being only the

executive organ of the Region.

In their subsequent reply, on 17 November 1992, the applicants

requested that the respondent party be changed to the Region of

Madeira.

The Administrative Tribunal gave its judgment, without a hearing,

on 7 October 1994. It first considered that it was not legally

possible to have the respondent party changed at the particular stage

of proceedings when the applicants had made their request. The

Administrative Tribunal next found, agreeing with the Regional

Government, that the action for damages could only be directed against

the Region of Madeira. The case was thus dismissed without an

examination of the merits.

The applicants appealed against this decision to the Supreme

Administrative Court (Supremo Tribunal Administrativo), where the case

is presently pending.

COMPLAINTS

1 The applicants complain about the length of the proceedings.

They invoke Article 6 para. 1 of the Convention.

2 The applicants further complain, under Article 1 of Protocol

No. 1, that the Madeira authorities have confiscated their possessions

without any compensation.

THE LAW

1 The applicants complain about the length of the proceedings.

They invoke Article 6 para. 1 (Art. 6-1), which provides, as far as

relevant:

"In the determination of his civil rights and obligations ...

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal..."

The Commission considers, however, that it cannot, on the basis

of the file, determine the admissibility of this complaint. It is

therefore necessary to give notice thereof to the respondent Government

in accordance with Rule 48 para. 2 (b) of the Rules of Procedure.

2 The applicants further complain, under Article 1 of Protocol

No. 1 (P1-1), that the Madeira authorities have confiscated their

possessions without any compensation.

The Commission notes however that it is not required to decide

whether or not the facts submitted by the applicants disclose any

appearance of a violation of this provision. It recalls that according

to Article 26 (Art. 26) of the Convention, the Commission "may only

deal with the matter after all domestic remedies have been exhausted,

according to the generally recognised rules of international law".

The Commission observes that the proceedings in which the

applicants claim compensation for the alleged confiscation of their

possessions are still pending before the administrative courts.

Moreover, no other proceedings against the Region of Madeira and

related to this complaint, namely an application for judicial review

of the Regional Government's Resolution no. 743/91 of 11 July 1991,

have been brought by the applicants.

In such circumstances the Commission finds that the condition as

to the exhaustion of domestic remedies is not fulfilled and that this

part of the application must accordingly be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicants' complaint

relating to the length of the proceedings ;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber