AS TO THE ADMISSIBILITY OF
Application No. 19745/92
by E. & H. G.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 application introduced on 23 December 1991
by E. & H. G. against Austria and registered on 20 September 1992 under
file No. 19745/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
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
22 April 1994 and the observations in reply submitted by the
applicants on 30 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, a married couple, are Austrian citizens living
in Schrems. The first applicant was born in 1923 and the second
applicant in 1924. They are represented by Mr. E. Proksch, a lawyer
practising in Vienna.
It follows from their statements and the documents submitted that
on 28 July 1975, the applicants requested a building permit authorising
the construction of a four-storey office and apartment building.
On 5 August 1975, a neighbour, Mr. B., raised objections claiming
that the intended construction would take too much light away from his
house on the opposite side of the street.
On 18 March 1976, an agreement was reached between the mayor
representing the construction authority and the two neighbours. It was
inter alia agreed that the upper storey of the intended building would
be constructed less high in order not to overshadow B's building ("Das
oberste Geschoß ist entsprechend dem Lichteinfallswinkel
zurückzusetzen").
On 13 April 1976, a building permit was granted taking account
of their agreement. An architectural plan representing the newly
designed upper storey with an inclined facade was included in the
building permit.
On 27 July 1977, the mayor ordered in accordance with Section 109
para. 4 of the Construction Decree (Bauordnung) that part 3 of the
upper storey be narrowed in order to be conform with the building
permit.
The applicants' appeal (Berufung) against the order (Bescheid)
of 27 July 1977 was dismissed by the Community Council on 13 September
1977.
The applicants then brought the matter before the Regional
Government.
On 31 January 1978, neighbour B. made a request for the
demolition of that part of the upper storey which was not in conformity
with the Construction Decree.
On 14 August 1978, the Regional Government set aside the decision
of the Community Council of 13 September 1977 and sent the matter back
to be reconsidered. This decision was based on an official expert
opinion submitted on 12 April 1978. The technical expert expressed the
view that he could not establish a violation of Section 47 of the
Construction Decree with regard to the inclination of the upper storey.
Neighbour B. appealed to the Administrative Court
(Verwaltungsgerichtshof).
On 23 June 1981, the Administrative Court quashed the Regional
Government's decision for unlawfulness (inhaltliche Rechtswidrigikeit)
and sent the matter back for a new decision.
On 9 March 1982, the Regional Government referred the matter to
the Community Council.
On 17 July 1982, the Community Council set aside the mayor's
order of 27 July 1977 and sent the matter back for further
investigations.
The mayor having taken no action, the Community Council conducted
an investigation, heard witnesses and the parties, obtained documentary
evidence etc. and ordered on 4 October 1983, in accordance with Section
109 para. 4 of the Construction Decree, that the third part of the
upper storey had to be narrowed by way of inclination of the facade.
The applicants again brought the matter before the Regional
Government.
On 1 August 1984, the Regional Government set aside the order of
4 October 1983 considering that the applicants' building had been
constructed conform to the agreement reached in March 1976. Neighbour
B. appealed to the Administrative Court.
On 10 December 1985, the Administrative Court set aside the
Regional Government's decision of 1 August 1984. Referring to
Section 63 para. 1 of the Administrative Court Act (VwGG) the Court
pointed out that so far no decision had been taken on the neighbour's
request of 31 January 1978 to remove the alleged unauthorised part of
the applicants' building (Demolierungsantrag). It added that in the
course of the proceedings which the construction authority had to carry
out in accordance with Section 112 of the Construction Decree it would
be necessary to establish the extent of the prior building permit (Im
Rahmen des nach Paragraph 112 BO durchzuführenden Verfahrens hätten die
Baubehörden den Inhalt der seinerzeit erteilten Baubewilligung zu
erforschen).
Recognising that the construction authorities were not formally
bound in these proceedings by its decision, the Court further stated
that it nevertheless wished to reiterate its opinion that Section 47
of the Construction Decree did not directly apply because this
provision only contained regulations which aimed at ensuring
appropriate light and aeration conditions in respect of planned
constructions while it did not provide for subjective rights for
property owners complaining about a neighbouring construction.
Nevertheless the construction authorities would in the context of
examining the extent of the prior building permit also have to find
out, having regard to available witness evidence and planning
documents, whether in the agreement of 18 March 1976 the term
"Lichteinfallswinkel" (light's angle of incidence) had been used in the
same sense as in Section 47 of the Construction Decree.
On 6 March 1986, the Regional Government sent the matter back to
the Community Council.
On 9 April 1986, B. complained to the Community Council that his
request of 31 January 1978 for the demolition of the upper storey of
the applicants' building had not yet been decided.
On 11 December 1986, B. complained to the Administrative Court
about the inactivity of the Community Council.
On 16 December 1986 the Administrative Court opened preliminary
proceedings (Vorverfahren) in accordance with Section 35 para. 3 of the
Administrative Court Act and requested the Community Council to decide
the matter within three months or to justify its inactivity.
On 17 March 1987 the mayor informed the court that in view of the
complex character and the often contradictory decisions so far given
in the matter, the Community Council had not seen fit to give a
decision.
By order of 20 July 1988 the Administrative Court requested the
Community Council to answer certain questions and to submit certain
documents and plans showing the situation of the two neighbouring
constructions in question.
On 21 November 1988 the applicants submitted an expert opinion
and argued that their construction conformed to existing building
regulations.
On 12 February 1991 the Administrative Court communicated to the
neighbour B. and the applicants the observations of the Community
Council dated 5 September 1988 and the plans submitted by them.
On 4 March 1991 neighbour B. filed his observations. The
applicants submitted further observations on 30 April 1991 and again
offered evidence.
On 14 May 1991, the Administrative Court decided without a
hearing that part 3 of the upper storey likewise had to be put back
(zurücksetzen) within six months in order to conform to the agreement
of 18 March 1976. The Court found that on the basis of the documentary
evidence obtained and contrary to the opinion expressed previously by
an expert of the building authority, the applicants' construction
exceeded the maximum admissible height. It was true that according to
the agreement of 18 March 1978 the neighbour B. had not raised
objections against the excessive height, but to this extent the
agreement was unlawful. On the other hand the agreement had been taken
into account in the building plans and according to these plans the
whole of the upper storey was to be smaller than the lower storeys.
This corresponded, in the opinion of the court, to the meaning of the
agreement and was not contradicted by the fact that in a note (Vermerk)
of 13 July 1977 an official expert attested that the construction as
represented in a plan of December 1976 was unobjectionable (kein
Einwand). This note was, so the court stated, not binding as it could
not replace the necessary authorisation of the construction authorities
(baubehördliche Bewilligung). The court concluded that the upper
storey had been constructed without there being an agreement (... im
obersten Geschoß [ist] die Bauführung konsenslos erfolgt ...). It
added that in the proceedings made under Section 112 of the
Construction Decree, it did not have to examine the question of whether
or not obtaining a subsequent building permit was possible (Wie weit
für diese Bauausführung die nachträgliche Erteilung einer
Baubewilligung möglich wäre, war im Rahmen des Auftragsverfahrens nach
§ 112 Bauordnung, ... nicht zu prüfen).
The judgment of 14 May 1991 was communicated on 10 July 1991.
The applicants then made a request for a retrial alleging that
when examining the court files on 2 August 1991 their counsel
discovered that a building plan which had been decisive for the
Administrative Court's decision of 14 May 1991 had apparently been
forged. They also based their request on the fact that this decision
was given without a prior oral hearing.
On 10 December 1991 the Administrative Court rejected the request
as being inadmissible. In so far as the applicants alleged that their
counsel had not discovered the existence of a forged building plan
before 2 August 1991, the Court found that it followed from the file
that the applicants had taken cognisance of the plan in question in
1977 and also on later occasions and consequently their request for a
retrial was in this respect lodged out of time.
In so far as the applicants complained that there had been no
oral hearing, the Administrative Court stated that the parties had been
given the opportunity to submit their case (... daß im vollen Umfang
Parteiengehör gewahrt worden ist) and that the applicants had not, in
their submissions of 30 April 1991, requested an oral hearing.
In August 1992 the applicants made a request for a supplementary
building permit. It was rejected by the local mayor on 11 May 1993.
On the same day the construction authorities requested the applicants
to put back also part 4 of the upper storey.
The applicants appealed against both decisions.
The decision to put back part 4 was set aside by the Community
Council on 30 September 1993 which at the same time confirmed the
mayor's decision on the ground of res judicata.
An appeal by the applicants to the Regional Government was still
pending in 1994 and no information about its result has been submitted
by the parties.
COMPLAINTS
The applicants complain that Article 6 para. 1 of the Convention
was violated in their case and that their case was not heard in a fair
manner and in a public oral hearing before the Administrative Court
which examined in first and last instance the objections which their
neighbour B. had formulated in respect of their construction. The
applicants point out that Section 112 para. 2 of the Construction
Decree of Lower Austria (NÖ Bauordnung) provides cogently that
decisions relating to construction or demolition permits and related
orders have to be taken on the basis of an oral hearing
(Bauverhandlung) on the spot (Lokalaugenschein) and, if necessary, with
the assistance of experts. The Administrative Court however did not
even inform the parties of its intention to decide on the basis of the
given state of the files without an oral hearing although in its
earlier decision of 10 December 1985 it had expressed the opinion that
the authorities should consider available evidence in order to
determine the meaning of the agreement they had concluded in March 1976
with neighbour B. and the mayor of the community. They further point
out that the proceedings before the Administrative Court were not
brought by them but their neighbour B. They, the applicants, merely
played a participating role (Beteiligte) in the proceedings and were
only once requested to submit observations. They did so on 21 November
1988 when they requested that the parties should be questioned
(Einvernahme der mitbeteiligten Parteien), that an expert opinion be
obtained, that an architect be heard as an expert witness and that an
on-the-spot investigation be carried out. They further submit that the
complaint of the neighbour B. was not communicated to them by the
Administrative Court before 1991 after their counsel had succeeded, for
the first time, in inspecting the files on 17 April 1991. Subsequently
they submitted a reply on 30 April 1991 and again requested to hear an
expert, an expert witness and the parties (Parteieneinvernahme). They
consider that these requests implied a request to hold an oral hearing.
They also point out that the Regional Government decided twice in their
favour while eventually the mayor refused to take any decision in view
of the contradictory opinions expressed in the matter by the various
instances dealing with it. In all these circumstances, so the
applicants conclude, they were denied a fair and public oral hearing.
In their submissions dated 15 June 1993 and in their reply to the
respondent Government's observations, they also complain of the length
of the proceedings.
The applicants allege violations of Article 6 of the Convention
and Article 1 para. 1 of the First Protocol.
RELEVANT DOMESTIC LAW
As regards the proceedings before the Administrative Court,
Section 35 paras. 1 and 3 of the Administrative Court Act (VwGG)
provide for a preliminary investigation under the following conditions;
[Translation]
"Section 35 (1) Where it is clear from the contents of the
complaint that the breach of law alleged by the applicant is
unsubstantiated, the complaint shall be dismissed without further
proceedings in a private hearing.
...
Section 35 (3) In all other cases in which the complaint is
substantiated, preliminary investigations have to be carried
out."
[German]
"§ 35. (1) Beschwerden, deren Inhalt erkennen läßt, daß die vom
Beschwerdeführer behauptete Rechtsverletzung nicht vorliegt, sind
ohne weiteres Verfahren in nichtöffentlicher Sitzung als
unbegründet abzuweisen.
...
(3) In allen übrigen Fällen, in denen sich die Beschwerde
zur weiteren Behandlung als geeignet erweist, ist das
Vorverfahren einzuleiten."
Section 39 para. 1 of the Administrative Court Act provides that
the Administrative Court is to hold a hearing after the preliminary
investigation of the case where a complainant has requested a hearing
within the time-limit. Section 39 para. 2 Nos. 4 and 6, which was
added to the Act in 1982, provide however;
[Translation]
"Notwithstanding a party's application, the Administrative Court may
decide not to hold a hearing when
...
4. The administrative act appealed from is in the light of the
Administrative Court's constant case law to be set aside as being
unlawful.
...
6. It is apparent to the Court from the written pleadings of the
parties to the proceedings before the Administrative Court and
from the files relating to the prior proceedings that an oral
hearing is not likely to contribute to clarifying the case."
[German]
"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages nach
Abs. 1 Z. 1 von einer Verhandlung absehen, wenn
...
4. der angefochtene Bescheid nach der ständigen Rechtsprechung
der Verwaltungsgerichtshofes wegen Rechtswidrigkeit seines
Inhalts aufzuheben ist.
...
6. die Schriftsätze der Parteien des verwaltungsgerichtlichen
Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten
des Verwaltungsverfahrens erkennen lassen, daß die mündliche
Erörterung eine weitere Klärung der Rechtssache nicht erwarten
läßt."
As regards the avoidance and the repair of defects (Vermeidung
und Behebung von Baugebrechen), Section 112 of the Construction Decree
provides;
[Translation]
"§ 11
(1) The owner of a construction has to see to it that it is in
conformity with the construction permit. He has to remedy
defects that can affect ... the exterior shaping ...
(2) If the owner does not comply with his obligation under para.
1, the construction authority has, after having carried out an
oral hearing connected with a visit on the spot, to set a time-
limit for the repair. The taking of expert evidence cannot be
renounced ..."
[German]
"§ 11
"(1) Der Eigentümer eines Bauwerks hat dafür zu sorgen, daß
dieses in einem der Baubewilligung entsprechenden Zustand
erhalten wird. Er hat Baugebrechen, durch welche ... die äußere
Gestaltung ... beeinträchtigt werden können, zu beheben.
(2) Kommt der Eigentümer eines Bauwerks seiner Verpflichtung
nach Abs. 1 nicht nach, hat die Baubehörde nach Durchführung
einer mündlichen Verhandlung, die mit einem Augenschein an Ort
und Stelle zu verbinden ist, unter Gewährung einer angemessenen
Frist die Behebung des Baugebrechens zu verfügen. Von der
Aufnahme des Beweises durch Sachverständige kann nicht abgesehen
werden ..."
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 December 1991 and registered
on 20 September 1992.
On 11 January 1994 the Commission decided to request the parties
to submit their written observations on the admissibility and merits
of the application.
The respondent Government submitted their observations after an
extension of the time-limit on 22 April 1994 and the applicants
submitted their observations on 30 May 1994.
THE LAW
1. The applicants consider that Article 6 para. 1 (Art. 6-1) of the
Convention and Article 1 of Protocol No 1 (P1-1) were violated in their
case in that they were denied a fair and public hearing and a decision
within a reasonable time. They point out that in its decision of 10
December 1985, the Administrative Court gave to understand that it
considered the taking of evidence to be necessary. Contrary to that
opinion and despite the fact that no hearing had taken place before the
construction authorities which had refused to deal with the matter, the
Administrative Court then surprised them with its decision of 14 May
1991 where it found without an oral hearing that their construction was
not in conformity with the agreement of 18 March 1976. They refer to
Section 112 of the Construction Decree which provides for an oral
hearing in such cases.
2. The respondent Government consider that the applicants were given
a fair trial by the Administrative Court. They submit that in its
decision of 10 December 1985 the Administrative Court only expressed
a non-binding opinion as to how the authorities should proceed in the
matter. This did not prevent the Court from eventually deciding
otherwise without prior warning to the parties, all the more so as the
administrative authorities had, by their inactivity, forfeited their
right to decide the matter. The Government further considers that the
applicants could and should have applied for an oral hearing in
accordance with Section 39 para. 1 of the Administrative Court Act
(VwGG).
3. Having regard to the nature of the applicants' complaints the
Commission considers that they should be dealt with exclusively under
Article 6 (Art. 6) of the Convention and do not raise any separate
issues under Article 1 of Protocol No 1 (P1-1).
Article 6, para. 1 (Art. 6-1) of the Convention states that "in
the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law". The Commission is of the opinion that
the proceedings here in question involve the determination of civil
rights within the sense of this provision (see Eur. Court H.R., Mats
Jacobsen judgment of 28 June 1990, Series A no. 180-B, p.14, para. 34).
However, the Commission recalls, with regard to the finding of the
Administrative Court on 14 May 1991 of which the applicants complain,
that in accordance with 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 facts 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 constant jurisprudence (see e.g. decisions on the
admissibility of applications No 458/59, Yearbook 3, pp. 222, 236 and
No. 1140/61, Collection of Decisions 8, pp. 57,62; No 8315/79, Dec.
15.7.81,
D.R. 25, 203 [205]).
a. It is true that the applicants have alleged that their case was
not heard in a fair manner and that they were taken by surprise in that
the Administrative Court had in its earlier decision of 10 December
1985 expressed the opinion that the authorities should take into
consideration available evidence while later, in its final decision of
14 May 1991, it decided against them without considering the evidence
offered by them.
However, as a general rule, it is for the national courts to
assess the evidence before them as well as the relevance of the
evidence which a party seeks to adduce. The Commission can only
determine whether the domestic proceedings, considered as a whole, were
fair as required by Art. 6 para. 1 of the Convention (see Eur. Court
H.R., Barberà, Messequé and Jabardo, judgment of 6 December 1988,
Series A no 146, p. 31, para 68). The Commission cannot, in the
circumstances of the present case and in particular having regard to
the applicants' allegations find that the applicants were prevented
from arguing their case in an effective manner that the Administrative
Court arbitrarily disregarded vital evidence or relevant arguments
proposed or advanced by the applicants.
b. Insofar as the applicants complain that the Administrative Court
decided the matter without an oral hearing the Commission notes that
the Austrian Administrative Court can, in accordance with Section 35(1)
of the Administrative Court Act, reject de plano, without a public
hearing, complaints it considers to be manifestly ill-founded.
In fact it follows from cases previously dealt with by the
Commission that it is the practice of the Austrian Administrative Court
not to hear the parties unless one of them expressly requests it to do
so. Therefore the European Court of Human Rights constantly finds that
whenever a complainant failed to make such a request he/she must be
deemed to have waived unequivocally his/her right to a hearing (see Eur
Court H.R., Zumtobel judgment of 21 September 1993, Series A no 268,
p. 14, para. 34, cf. also Eur. Court H.R., Fischer judgment of 26 April
1995, Series A no. 312, p. 20, para. 44). This rule also applies in
the present case as no request for an oral hearing was made.
Furthermore the dispute at issue did not give rise to questions of
public interest and thereby making a hearing necessary.
c. The applicant finally complains of the length of the domestic
proceedings.
However this particular complaint was not mentioned in the
application form dated 3 March 1992 but was raised in substance in
their submissions dated 15 June 1993 while the proceedings in question
were terminated by the Administrative Court's decision of 14 May 1991.
It follows that to this extent the six month's time limit provided for
in Article 26 (Art. 26) of the Convention has not been respected.
d. In conclusion, the applicants complaints have to be rejected
partly (points a and b) as being manifestly ill-founded (Art. 27 para.
2 (Art. 27-2) and partly (point c) as having been lodged out of time
(Art. 26, 27).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy