AS TO THE ADMISSIBILITY OF
Application No. 20952/92
by Wilhelm GSTÖTTNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 14 September 1992
by Wilhelm GSTÖTTNER against Austria and registered on 16 November 1992
under file No. 20952/92;
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 applicant is an Austrian citizen born in 1949 and living in
Linz. He is represented by Mr. P. Wagner, a lawyer practising in Linz.
It follows from the applicant's statements and the documents
submitted that the he is the owner of a multi-story apartment block in
Linz.
By an order dated 29 May 1991 of the Magistrate of the City of
Linz, the applicant and his wife, who is apparently the joint owner,
were requested to dismantle a structural change they had effected in
the form of an elevation of 60cm. of the roof framework.
The additional construction had been carried out by the applicant
without the necessary prior planning permission.
The authorities considered that there was no reason to give the
applicant the possibility, in accordance with Section 61 (1) of the
Upper Austrian Construction Order (Bauordnung) of 1976, to make a
retroactive request for planning permission as such a request would not
have offered any prospect of success in view of the fact that a similar
request had previously been made by one of the applicant's tenants,
Mrs. S.L., and had been rejected by final decision.
The applicant's appeal was rejected by the City Senate on
26 September 1991. The Senate also considered that the negative
decision given in respect of Mrs. S.L.'s request was also binding with
regard to the applicant, who had been a party to the prior proceedings.
A further appeal was rejected by the Upper Austrian Regional
Government (Landesregierung) on 27 January 1992. The Government did
not agree with the opinion of the lower instance that the prior
decision relating to Mrs. S.L.'s request was automatically binding for
the applicant. It nevertheless took into consideration that the
applicant had been invited, in accordance with Section 47 (1) of the
Construction Order, to participate as a party and had been communicated
the first and second instance decision rejecting Mrs. S.L.'s request.
Therefore the prior decision was binding for the applicant as both the
legal and factual situations were identical.
The applicant then brought an action with the Administrative
Court (Verwaltungsgerichthof). It was rejected on 16 June 1992. It
is pointed out in the decision that according to Section 61 (1) of the
Construction Order an owner who has effected construction work without
prior authorisation may either be ordered immediately to remove the
construction or be given the possibility to request retroactive
planning permission. This possibility was however, not to be envisaged
if and when the legal situation was such that the subsequent request
offered no prospects of success. The Administrative Court likewise
shared the opinion of the authorities that in view of the legal and
factual similarity of the situation, the rejection of Mrs. S.L.'s
request had the effect of res judicata vis-à-vis the applicant.
Insofar as the applicant denied that the facts were identical the
court points out that expert opinions and photos confirmed the factual
assessments made by the authorities.
COMPLAINTS
The applicant alleges that although he participated as a party
in the proceedings relating to Mrs. S.L.'s request he did not agree
with that request and therefore its refusal did in no way violate his
rights. Consequently he was not in a position to formulate an appeal
in Mrs. S.L.'s proceedings. He argues that he was denied a fair
hearing because the authorities considered his matter to be precluded
by the binding decision given with regard to Mrs. S.L.'s request.
THE LAW
The applicant submits that in the proceedings relating to his
objections against the order to dismantle certain construction work
without planning permission he was denied a fair hearing because the
authorities as well as the Administrative Court considered that a final
decision given with regard to an analogous request made by one of his
tenants had the effect of res judicata.
However, the Commission notes that the Administrative Court also
took into consideration the applicant's allegation that the factual
situation in his case was different from that underlying Mrs. S.L.'s
request. In this respect the Administrative Court pointed out that
there existed expert evidence to show that the assessment of the facts
made by the planning authorities was correct.
The applicant has not shown that this finding is unwarranted or
incompatible with evidence submitted in the domestic proceedings by
himself and, therefore, arbitrary. The Commission also notes that the
applicant was a party to the procedures relating to the request of
Mrs. S.L..
It cannot in these circumstances be found that the applicant was
denied a fair hearing and consequently there is no appearance of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that the application has to be rejected in accordance
with Article 27 para. 2 (Art. 27-2) of the Convention as being
manifestly ill-founded.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy