AS TO THE ADMISSIBILITY OF
Application No. 16569/90
by E.T.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 8 January 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 10 March 1990 by
E.T. against Austria and registered on 8 May 1990 under file
No. 16569/90;
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 they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1919, is an Austrian national and resident
at K..
On 8 May 1983 the applicant and her husband applied to the Mayor
of the K. Municipality (Marktgemeinde) for a building permit in respect
of a house to be built on a farm estate as annuity charged on the farm
upon transfer to their descendant (Ausgedingehaus, Altenteil).
On 30 May 1983 the Municipality conducted a hearing and inspected
the localities. It ordered inter alia that an agricultural expert
opinion be prepared. The expert inspected the localities on
26 September 1983.
On 1 December 1983 the applicant and her husband requested the
K. Municipality to transfer their case to the superior body competent
in building matters on the ground that the Mayor had failed to take a
decision within the time-limit of two months, as required by S. 118
para. 2 of the Lower Austria Building Regulations (Bauordnung) and S.
73 para. 2 of the General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrensgesetz). The K. Municipality dismissed their
request on 24 January 1984.
On 3 May 1984 the agricultural expert delivered his opinion,
which concerned especially the location of the building project, and
the question in how far it was ensured that it could not be separated
from the farm estate. The applicant and her husband commented on the
opinion on 21 August 1984. They submitted in particular that the
distance between the building project and the farm house via a footpath
was shorter than the distance the expert had indicated. They also
stated that they had refused a consolidation of particular plots of
land, proposed by the agricultural expert in order to ensure that the
new building site remained part of the farm estate, on the ground that
it would involve a devaluation of the site.
In the meantime, on 6 July 1984, the Office of the Lower Austria
Provincial Government (Amt der Landesregierung), upon the appeal
(Vorstellung) of the applicant and her husband, had quashed the
decision of 24 January 1984 and sent the matter back to the
Municipality.
On 29 September 1984 the K. Municipality dismissed the
applicant's and her husband's request for a building permit. The
Municipality, having regard to the agricultural expert opinion of 3 May
1984, found that the building project, because of its size and
location, could not be regarded as a house for the needs of the
farmer's family, namely as annuity upon transfer of the farm within the
meaning of the relevant provisions of the Building Regulations and the
Lower Austria Regional Planning Act (Raumordnungsgesetz). Furthermore,
it had not been ensured that the house would remain part of the farm
estate. The written version of the decision dated 12 October 1984.
On 3 May 1985 the Office of the Lower Austria Provincial
Government dismissed the applicant's and her husband's appeal
(Vorstellung) dated 28 October 1984 against the refusal of the building
permit.
On 23 May 1985 the applicant lodged an appeal with the Austrian
Administrative Court (Verwaltungsgerichtshof) against the decision of
3 May 1985.
On 10 October 1989 the Austrian Administrative Court dismissed
the applicant's complaint. The Administrative Court considered in
particular that the applicant had not disputed various findings of the
technical expert in his opinion of 3 May 1984, such as the distance
between the building project and the existing farm and the applicant's
and her husband's refusal to take the necessary steps to ensure that
the building project including the site remained part of the farm
estate.
The judgment was served on 20 November 1989.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
about the length of the proceedings concerning her and her husband's
request for a building permit.
2. She also complains under Article 6 about the refusal of the
building permit and considers that the proceedings concerned were
unfair. She submits in particular that the Austrian Administrative
Court did not duly consider her comments upon the agricultural expert
opinion.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 March and registered on
8 May 1990.
On 14 January 1992 the Commission decided to communicate the
application to the respondent Government as regards the complaint about
the length of the proceedings.
The Government's observations were submitted on 24 June 1992.
The applicant's observations in reply were submitted on 20 September
1992.
THE LAW
1. The applicant considers that the proceedings concerning her
request for a building permit exceeded a reasonable time within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Article 6
para. 1 (Art. 6-1), so far as relevant, provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
..."
The Government do not contest the admissibility of this
complaint. In particular they consider that the case concerns civil
rights and obligations in the broader sense of Article 6 para. 1
(Art. 6-1). However, having regard to the complexity of the case and
the applicant's conduct, they find that the length of the proceedings
is not in breach of Article 6 para. 1 (Art. 6-1).
The Commission finds that the proceedings concerned the
applicant's individual request for a building permit in respect of a
house on a farm estate after transfer of the farm to her descendants
(Ausgedinge). They thus involved the determination of a civil right.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of the reasonableness of the length of proceedings, namely the
complexity of the case, the applicant's conduct and that of the
competent authorities, and having regard to all the information in its
possession, that a thorough examination of this complaint is required,
both as to the law and the facts.
2. The applicant also complains under Article 6 para. 1 (Art. 6-1)
of the Convention about the alleged unfairness of the proceedings, in
particular those before the Administrative Court. However, there is
no indication that the applicant and her husband could not present
their arguments or that their submissions were not duly taken into
account. In particular, the reasoning of the Administrative Court that
they had failed to dispute certain findings in the agricultural expert
opinion was based on an interpretation of their submissions as a whole,
which does not appear arbitrary. Consequently, there is no appearance
of a violation of the applicant's right to a fair hearing under
Article 6 para. 1 (Art. 6-1). It follows, that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, unanimously, the Commission
DECLARES ADMISSIBLE the applicant's complaint about the length
of the proceedings,
without prejudging the merits of the case;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy