AS TO THE ADMISSIBILITY OF
Application No. 22474/93
by Herz-Jesu Kloster Sacré Coeur Riedenburg
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 27 July 1993 by
Herz Jesu Kloster Sacré Coeur Riedenburg against Austria and registered
on 19 August 1993 under file No. 22474/93;
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
28 February 1995 and the observations in reply submitted by the
applicant on 7 March 1996;
- the Government's further comment on 3 April 1996 and the
applicant's comment on it of 7 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a monastery which runs a private school in
Bregenz. It is represented before the Commission by Mr. W.L. Weh, a
lawyer practising in Bregenz. The facts of the present case, as
submitted by the parties, may be summarised as follows.
The particular circumstances of the case
On 26 January 1979 a butcher whose premises adjoined the
applicant's and, who wished to construct and operate a small abattoir
there, applied to the Bregenz District Authority
(Bezirkshauptmannschaft) for a Trading Authority Licence
(gewerbebehördliche Genehmigung - TAL). The application was duly
notified, and on 19 March 1979 the applicant monastery gave notice of
its interest in the proceedings. The applicant monastery gave notice
on 4 April 1979 that in its opinion, the TAL would have to be refused.
On 26 June 1979 the Bregenz District Authority refused to grant
the TAL. The Vorarlberg Provincial Governor (Landeshauptmann) allowed
the butcher's appeal, and granted the TAL on 7 February 1980, subject
to a series of conditions. The applicant and another neighbour (a
church) appealed to the Minister for Trade, who on 7 October 1986,
after a series of expert reports and a public hearing, amended and
added conditions. The applicant made an administrative complaint to
the Administrative Court (Verwaltungsgerichtshof) which, on 10 June
1987, quashed the Minister's decision.
On 2 March 1989 the Provincial Governor granted a fresh TAL to
the butcher. The applicant's appeal to the Minister for Trade was
successful in that certain amendments were made to the conditions
attached to the consent. The Constitutional Court
(Verfassungsgerichtshof) declined to deal with the applicant's
constitutional complaint on 17 June 1992.
The applicant's complaint was transmitted to the Administrative
Court. In its submissions to the Administrative Court, the applicant
alleged a violation of its right to prevent the grant of a TAL (Recht
auf Nichterteilung der Gewerbeanlagengenehmigung), its right to a
proper proceedings and its right (not) to have an unlawful zoning plan
applied. On 24 November 1992 the Administrative Court rejected the
administrative complaint pursuant to Section 34 (1) of the
Administrative Court Act (Verwaltungsgerichtshofgesetz) because the
applicant had raised no grounds upon which to base a challenge to the
licence. In particular, the Administrative Court recalled that the
substantive provision for granting a TAL (Section 77 (1) of the Trade
Regulations - Gewerbeordnung) set up conditions under which a TAL could
be granted, but the second sentence of Section 77 (1), on which the
applicant based its administrative complaint, could not form a ground
of challenge by a neighbour. The substantive rights to which the
applicant referred could therefore not have been violated. The Court
added that the procedural aspects of the case could not be separated
from the substantive aspects.
On 15 November 1992, the butcher told the Bregenz District
Authority that he no longer intended to build the abattoir as so much
time had elapsed. The butcher's application for planning permission,
made in January 1987, has never been pursued.
The applicant's representative received the Administrative
Court's decision on 28 January 1993.
Relevant domestic law
Section 77 (1) of the Trade Regulations (Gewerbeordnung) sets up
the conditions for the grant of a TAL. The first sentence of Section
77 (1) provides that a licence is to be granted if technical
requirements are met. The technical requirements include adequate
provision in respect of the matters listed in Section 74 (2)
(1),(2),(3) and (5) of the Trade Regulations, namely health hazards,
nuisance to neighbours, influencing the running of various types of
institution, and water protection.
The second sentence of Section 77 (1) (since repealed) provided
that a TAL was not to be granted if the construction or operation of
the business in question was otherwise prohibited.
Section 356 (3) of the Trading Rules provides that a neighbour
may join TAL proceedings to complain about the matters in Section
74 (2) (1),(2),(3) or (5), provided he raises his objections at an
early stage of the proceedings.
COMPLAINTS
The applicant monastery alleges violations of Article 6 para. 1
of the Convention in connection with both the length and the fairness
of the proceedings. It considers that Article 6 clearly applies to the
proceedings as it raised questions about the civil rights protection
of neighbours. It is contended that the Administrative Court failed
to deal with the applicant's arguments "point by point", as required
by the European Court of Human Rights in the case of Zumtobel, and that
the Constitutional Court, by declining to deal with the case, failed
to consider it at all. As to the alleged undue length, the applicant
observes that the proceedings lasted 14 years in all, and were not at
all complicated. It points out that if the Administrative Court were
able to take decisions on the merits itself, rather than remitting
cases to the administrative authority, the case would have ended in
1987, when the Administrative Court took its first decision.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 July 1993 and registered on
19 August 1993.
On 12 October 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
28 February 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 7 March 1996. On 3 April 1996 the
Government added a comment, and on 3 April 1996, and on 7 May 1996
applicant made a further observation.
THE LAW
1. The applicant monastery complains of the length of the
proceedings. It alleges a violation of Article 6 para. 1 (Art. 6-1)
of the Convention, which guarantees the right to determination of civil
rights and obligations in a reasonable time.
The Government consider that the proceedings did not determine
any of the applicant monastery's civil rights, with the result that
Article 6 (Art. 6) does not apply to the proceedings. They underline
that a neighbour only has status to become involved in a third party's
application for a TAL when he can show that he is likely to be affected
by the grant of a TAL. Such a neighbour is then entitled to invoke
public-law rights for his personal protection, but the rights remain
public-law rights (subjektiv-öffentliche Rechte). The rights are
certain of the matters with which an applicant for a TAL must comply.
In the Government's opinion, the rights which are determined are the
rights of the person who applied for the TAL, not of the neighbour.
The Government also point out that whilst the public-law rights which
the applicant was able to claim in the TAL proceedings were matters
relating to the grant of the TAL (principally environmental health
matters such as health hazards and emission protection), what it really
objected to was the siting of an abattoir next to a school: and that
was a matter which was not relevant to the TAL proceedings.
Even if Article 6 (Art. 6) were to apply, the Government consider
that the applicant monastery could have brought an application for the
superior authority to decide the case if any decisions were not taken
within the prescribed 6 months period: an application for a transfer
of jurisdiction (Devolutionsantrag) to the superior administrative
authority if there was one, or an application for the Administrative
Court to deal with the case (Säumnisbeschwerde) if there was no
superior administrative authority. They consider that the complaint
as to the length of the proceedings is therefore inadmissible for non-
exhaustion of domestic remedies.
As to the length of the proceedings, the Government consider that
the proceedings began on 9 April 1979, when the Bregenz District
Authority received the applicant authority's objections to the grant
of a TAL. They ascribe responsibility for part of the length of the
proceedings to the butcher who applied for the TAL, and point to a
certain complexity in the proceedings. They also point out that a
large number of expert reports had to be prepared, and that there were
two rounds of proceedings which gave rise to a total of six
administrative decisions (Bescheide) and three court rulings. They see
the applicant as responsible for some of the length as it pursued a
number of remedies, and failed to apply for another body to determine
the case.
The applicant monastery considers that, given its right to join
the TAL proceedings to protect its property, civil rights were clearly
at issue.
It does not accept that it has failed to exhaust domestic
remedies, as an application for transfer of jurisdiction
(Devolutionsantrag) only applies where the delay has been caused
exclusively by the authority: where an expert has failed to submit a
report, for example, no application for transfer will be successful.
It considers that it is in any event not open to a neighbour to bring
a complaint to the Administrative Court for transfer, as only the
formal party to the proceedings (here, the butcher) is entitled to make
such a complaint, and not a neighbour.
As to the length of the proceedings, the applicant is of the
opinion that the proceedings related simply to the grant of a licence
to run a small abattoir one day a week and there was no reason for them
to last 14 years.
The Commission recalls that in the case of Ortenberg, the
European Court of Human Rights considered that Article 6 para. 1
(Art. 6-1) of the Convention was applicable in proceedings which a
neighbour brought to vindicate public-law objections to a building
project (Eur. Court H.R., Ortenberg judgement of 25 November 1994,
Series A no. 295, p. 48, para. 28; see also Eur. Court H.R., Zander
judgment of 25 November 1993, Series A no. 279-B, pp. 38 - 40, paras.
22 - 27). In the present case, the applicant monastery was entitled
to join the TAL proceedings as a neighbour, and did so. Although it
was relying on public law considerations in the proceedings, the
applicant's interest was related to its use of the property, and the
right to property is clearly a "civil right" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see, for example, the
above-mentioned Zander judgment, p. 40, para. 27).
Accordingly, Article 6 para. 1 (Art. 6-1) applies in the present
case.
As to the exhaustion of domestic remedies in connection with the
length of the proceedings, the Commission notes that the applicant's
intention in joining the butcher's TAL proceedings was to prevent, if
it could, the grant of the TAL in order to avoid having an abattoir
next to the church school. The mere fact that it may not have been in
the applicant's interest to try to accelerate the proceedings cannot
exempt it from the requirement to exhaust effective domestic remedies
when it complains of the length of those proceedings - but the
Commission is not required to make a finding on exhaustion of domestic
remedies in the present case as the complaint is in any event
inadmissible for the following reasons.
Although the proceedings lasted a long time, there is no
indication of the applicant being prejudiced in any way by that length.
Rather, given the eventual outcome of the proceedings (which the
applicant lost), the longer the proceedings lasted, the better the
applicant's interests were served.
In the event, it transpired that the proceedings lasted so long
that the butcher gave up his plans to build an abattoir and although
he was successful in his application for a TAL, he did not pursue his
application for planning consent for the proposal.
Accordingly, the Commission finds that in the unusual
circumstances of the present case, the applicant may not claim to be
a victim of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention by the length of the proceedings.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant monastery also alleges a violation of Article 6
para. 1 (Art. 6-1) of the Convention in connection with the scope of
review by the Constitutional and Administrative Courts of the decisions
of the administrative authorities.
The Government consider that the scope of review by the
Administrative Court of the applicant's complaint in the present case
was sufficient to meet the criteria set up by the European Court in the
case of Zumtobel (Eur. Court H.R., Zumtobel judgment of 21 September
1993, Series A no. 268-A). They note that the only argument made by
the applicant before the Administrative Court was the zoning of the
adjacent plot, and that the Administrative Court dealt with that
argument, explaining why the applicant's subjective rights could not
be affected by the zoning.
The applicant underlines that the Constitutional Court and the
Administrative Court both declined to deal with the case on the ground
that the other was competent. It claims that it was thereby deprived
of a court at all, and that its arguments were certainly not dealt with
"point by point".
The Commission recalls that even where an adjudicatory body
determining disputes over "civil rights and obligations" does not
comply with Article 6 para. 1 (Art. 6-1) in some respect, "no violation
of the Convention can be found if the proceedings before that body are
'subject to subsequent control by a judicial body that has full
jurisdiction and does provide the guarantees of Article 6 para. 1
(Art. 6-1)'" (Eur. Court H.R., Bryan judgment of 22 November 1995,
Series A no. 335-A, para. 40, with further references).
In the present case, the applicant monastery joined the
proceedings at an early stage, and was successful in its first
challenge to the grant of a TAL, culminating in the Administrative
Court's decision of 10 June 1987.
In the second round of proceedings, the applicant did not make
the same type of challenge to the grant of a TAL as it had made in the
first round. Rather, it chose to challenge the TAL on the ground that
the business would in any event have been prohibited, under the second
sentence of Section 77 (1) of the Trade Regulations. Such a challenge
was not, however, open to it as it only had standing to bring a
challenge under the Section 74 (2) grounds, and the Administrative
Court duly rejected the administrative complaint.
The position is therefore that the applicant had access to a
court which, in principle, has a sufficient scope of review to comply
with Article 6 para. 1 (Art. 6-1) of the Convention, but it chose to
challenge the administrative decision on grounds which did not exist.
The Commission finds that in rejecting the applicant's
administrative complaint, the Administrative Court did not deny the
applicant the access to court required by Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 2(Art. 27-2) of
the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy