D'AMICO v. SWITZERLAND



                     AS TO THE ADMISSIBILITY OF

                      Application No. 26452/95

                      by Heidi and Salvatore D'AMICO

                      against Switzerland

     The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

           MM   J.-C. GEUS, President

                S. TRECHSEL

                M.A. NOWICKI

                G. JÖRUNDSSON

                A. GÖZÜBÜYÜK

                J.-C. SOYER

                H. DANELIUS

           Mrs  G.H. THUNE

           MM   F. MARTINEZ

                I. CABRAL BARRETO

                J. MUCHA

                D. SVÁBY

                P. LORENZEN

                E. BIELIUNAS

                E.A. ALKEMA

                A. ARABADJIEV

     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 31 January 1995

by Heidi and Salvatore D'AMICO against Switzerland and registered on

6 February 1995 under file No. 26452/95;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     21 February 1997 and the observations in reply submitted by the

     applicant on 25 April 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The first applicant, a Swiss citizen born in 1947, is a

housewife.  The second applicant, an Italian citizen born in 1951, is

a carpenter.  The applicants, a married couple, reside in St. Gallen

in Switzerland.  Before the Commission they are represented by

Mr Ch. Bernhart, a lawyer practising in St. Gallen.

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

summarised as follows.

     On 8 July 1985 the applicants requested an authorisation for the

reconstruction of their house and for the installation of various

parking places on their real property.

     On 12 November 1985 the St. Gallen Building Administration

(Bauverwaltung) informed the applicants that the Building Police

Commission (Baupolizeikommission) agreed in principle with the

installation of parking places, though certain plans were still

missing.  By letter of 26 November 1995 the Building Police invited the

applicants to submit a request for a building authorisation in respect

of certain parking places which they intended to use.

     In the light thereof, the applicants considered the authorisation

as a mere matter of form and commenced with the installation of the

parking places.

     On 24 January 1986 the Building Police Commission partly granted

the applicants' request of 8 July 1985; however, it refused the

installation of two parking places.

     Against the refusal to install two parking places the applicants

filed an appeal on 17 February 1986.  On 23 September 1986 the

St. Gallen City Council (Stadtrat) dismissed the appeal; annulled the

authorisation granted in the decision of 24 January 1986; and ordered

the applicants to restore the situation in respect of the preparations

which they had already undertaken.  It transpires that during the

ensuing appeal proceedings the applicants continued to use the parking

places which they had installed.

     On 13 October 1986 the applicants filed an appeal with the

Government (Regierungsrat) of the Canton of St. Gallen, requesting

annulment of the decision of 23 September 1986 and the installation of

four parking places.

     On 15 December 1992 the Government of the Canton of St. Gallen

dismissed the appeal.  In its decision, the Government recalled that

the City Council had filed its observations on the appeal on

16 December 1986, and that the Construction Department had on

4 February 1987, together with the applicants, undertaken a visit of

the scene.  The Government furthermore stated that "the final

examination of the appeal was unfortunately delayed, as a whole series

of similar cases had to be examined and many different fundamental

questions arose, in respect of the new provisions" ("Da eine ganze

Reihe ähnlicher Fälle zu beurteilen waren und sich verschiedene

grundsätzliche Fragen zu den neuen Vorschriften stellten, hat sich die

abschliessende Bearbeitung des Rekurses leider verzögert").

     On 14 January 1993 the applicants filed an appeal with the

Administrative Court (Verwaltungsgericht) of the Canton of St. Gallen.

The Court visited the scene together with the applicants.  On 25 June

1993 the Court dismissed the appeal.

     On 2 August 1993 the applicants filed a public law appeal

(staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht).

In their appeal they complained, inter alia, of the length of the

proceedings of hitherto eight years which breached Article 6 para. 1

of the Convention.  The applicants submitted that during eight years

they had, albeit unlawfully, been able to use the parking places, and

that on account of the delay they should not be asked to restore the

previous situation.

     On 15 August 1994 the Federal Court dismissed the applicants'

public law appeal, the judgment being served on 30 August 1994.  In

respect of the applicants' complaint about the length of the

proceedings, it could not in the Court's opinion be said that the

authorities had actually tolerated the unlawful installation of the

parking places during nine years.  The judgment continues:

     "rather, the lengthy duration of the unlawful situation is the

     result of a procedure which has lasted unusually long.  However,

     the applicants suffered no disadvantage.  To the contrary, they

     profited from the lengthy proceedings in that they could use the

     four parking places during this time."

     "Vielmehr ist das lange Andauern des ungesetzlichen Zustands die

     Folge davon, dass das Verfahren ungewöhnlich lange gedauert hat.

     Den Beschwerdeführern ist daraus jedoch kein Nachteil erwachsen.

     Sie haben im Gegenteil von der langen Verfahrensdauer profitiert,

     da sie während dieser Zeit die vier Parkplätze benutzen konnten."

COMPLAINTS

     Under Article 6 para. 1 of the Convention the applicants complain

that in the proceedings before the St. Gallen City Council they were

not duly heard.

     Also under Article 6 para. 1 of the Convention the applicants

complain of the undue length of the proceedings, lasting from 8 July

1985 until 30 August 1994.  They submit that the matter was very

important for them, as the second applicant has a carpentry business

and needs sufficient parking places in front of his house for his

clients.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 31 January 1995 and registered

on 6 February 1995.

     On 27 November 1996 the Commission decided to communicate the

applicants' complaint under Article 6 para. 1 of the Convention

concerning the length of the proceedings to the respondent Government.

     The Government's written observations were submitted on

21 February 1997.  The applicants replied on 25 April 1997.

THE LAW

1.   Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicants complain that in the proceedings before the St. Gallen City

Council they were not duly heard.

     Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

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

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

     time by (a) ... tribunal ..."

     However, the Commission notes that the applicant is complaining

of proceedings before an administrative body, namely the St. Gallen

City Council, whereas the guarantees of Article 6 para. 1 (Art. 6-1)

of the Convention in principle only apply to proceedings before a

"tribunal".

      This provision is, therefore, not applicable.  As a result, this

part of the application is incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicants also complain of the undue length of the proceedings,

lasting from 8 July 1985 until 30 August 1994.  They submit that the

matter was very important for them, as the second applicant has a

carpentry business and needs sufficient parking places in front of his

house for his clients.

     The Government consider the case to be inadmissible as being

manifestly ill-founded.  It is submitted that the period to be examined

commenced on 17 February 1986, i.e. when the applicants filed an appeal

with the St. Gallen City Council.  Reference is thereby made to the

Convention organs' case-law, inter alia the König case (see Eur. Court

HR, König v. Germany judgment of 28 June 1978, Series A no. 27, p. 33,

para. 98).  The proceedings ended on 15 August 1994, the date of the

judgment of the Federal Court.

     The Government consider that the proceedings did not present any

particular difficulties.  As regards the conduct of the authorities,

the Government point out that the proceedings before the St. Gallen

City Council lasted seven months and nine days whereas the proceedings

before the Government of the Canton of St. Gallen lasted six years, two

months and 22 days.  The proceedings before the Administrative Court

lasted five months and 16 days, and the proceedings before the Federal

Court one year and 13 days.  The Government conclude that the only

period requiring further examination is that of the proceedings before

the Government of the Canton of St. Gallen.

     The Government consider that the length of the proceedings before

the Government of the Canton of St. Gallen can be explained largely

with the then market boom in constructions, requiring various new laws

which in turn led to a flood of appeals to the Government.   The

Government organised the appeals in such a manner that priority was

given to those cases concerning more than one applicant or where public

interests were involved.  While the applicants' appeal was pending the

authorities duly acknowledged the length of the proceedings by not

interfering when the applicants continued to use the parking places.

     In the Government's opinion, the applicants used all remedies at

their disposal and deliberately employed the strategy of an

accomplished situation (fait accompli).   Moreover, the complaint about

the undue length of the proceedings was invoked for reasons alien to

Article 6 (Art. 6) of the Convention.  Thus, the case concerned the

minimal matter of an authorisation to install two parking places.  In

view of their illegal use of the parking places, breaching good faith,

an earlier decision would not have been of advantage to the applicants.

It would be shocking now to place the applicants on the same level as

other persons who in such cases complied with the legal requirements.

The authorisation requested was not purely a matter of form, as

considered by the applicants.  They undertook no steps to hasten the

proceedings.

     The applicants refrained from filing further observations.

     The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint is

required.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits of the case,

     the applicants' complaint as to the length of the proceedings;

     DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                             J.-C. GEUS

      Secretary                                 President

to the Second Chamber                      of the Second Chamber

 

Full & Egal Universal Law Academy