AS TO THE ADMISSIBILITY OF
Application No. 26591/95
by Ernst HOFER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 15 September 1992
by Ernst HOFER against Austria and registered on 27 February 1995 under
file No. 26591/95;
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. He lives in Lustenau, and
is represented before the Commission by Mr. W.L. Weh, a lawyer
practising in Bregenz. The facts of the case, as submitted by the
applicant's representative, may be summarised as follows.
The applicant had a parcel of land with a hut (Riedhütte) in the
Lustenauer Ried. A retroactive application for planning consent was
unsuccessful, and the refusal was confirmed by the Administrative Court
in 1986. Proceedings were brought against the applicant by the local
authority, requiring him to put the land in a proper state (that is,
to remove the hut). Those proceedings ended with a decision of the
Administrative Court of 16 March 1987.
On 30 May 1989 the Dornbirn District Authority
(Bezirkshauptmannschaft) warned the applicant that if he did not remove
the hut within three months, it would arrange for the hut to be removed
at the applicant's expense. The applicant was informed by letter of
8 August 1989 (received 14 August 1989) that the works would cost AS
27,600.00, and on 5 September 1989 the authority ordered the works to
be carried out, and the applicant to advance the sum. The works were
carried out in September 1989, and on 2 October 1989 the Vorarlberg
Regional Government (Landesregierung) rejected the applicant's appeal
against the decision of 5 September.
On 1 December 1989 the authority asked the applicant for the AS
27,600.00, which it had already paid. The applicant asked for and was
given a copy of the quotation, and challenged it as grossly excessive.
The authority asked the Feldkirch Buildings Office (Landeshochbauamt)
for a break-down of the figures, which concluded that the overall cost
could well have been AS 28,008.00. On 9 February 1990, the District
Authority, by reference to Sections 11 and 4 of the Administrative
Proceedings (Enforcement) Act (Verwaltungsvollstreckungsgesetz) ordered
the applicant to pay the AS 27,600.00. Section 11 provides that the
enforcement costs are for the debtor, and Section 4 provides that where
a person fails to undertake works which he has been ordered to execute,
the works can be carried out at the expense of the person who has
failed to perform them, provided he has been warned in advance.
The applicant challenged the decision of 2 October 1989,
ultimately before the Constitutional Court (decision of 7 March 1990)
and the Administrative Court, which dismissed the applicant's
administrative complaint on 13 February 1992 (received by the
applicant's representative on 16 March 1992). The Administrative Court
recalled that the Constitutional Court had found that there were no
constitutional issues in the case, and that it was not required to
consider constitutional questions raised by the applicant. It noted
the applicant's complaints - that he had a right to reduce the size of
the hut and then to apply afresh for planning permission - but found
that the complaints were not relevant to the matter under
consideration, which was the question of whether the applicant could
be required to make an advance on the funds to be paid by the authority
under its contract with the demolition firm. The Administrative Court
also considered that even if it were true, as claimed by the applicant,
that the authority had informed the press of certain matters in the
case before informing the applicant, actual bias on the part of the
authority would still have to be established.
The applicant also challenged the order of 9 February 1990.
On 3 January 1994, the Vorarlberg Regional Government dismissed
the applicant's appeal against the order of 9 February 1990, after
having heard witnesses called by the applicant. The Constitutional
Court declined to deal with the applicant's constitutional complaint
on 13 June 1994, and the case was remitted to the Administrative Court.
The Administrative Court dismissed the applicant's administrative
complaint on 23 February 1995 (received by the applicant on
13 July 1995).
The Administrative Court noted that the sole issue to be decided
was the sum which the applicant was required to pay: the fact that he
might have been able to have the works done cheaper if the authority
had not been involved had been considered and rejected by the
Administrative Court in separate proceedings on 21 May 1992.
The Administrative Court noted that the Regional Government had
taken further evidence called for a further expert's report, and
considered the evidence given by the applicant's witnesses on how long
the work had actually taken. It continued that although Article 45 (2)
of the General Administrative Procedure Law (Allgemeines
Verwaltungsverfahrensgesetz) provided for administrative authorities
to consider evidence, that did not mean that the Administrative Court
was unable to review cases as to whether the facts had been adequately
established, and whether the considerations were logical (schlüssig).
It recalled that it was not bound by the authorities' findings of fact
to the extent that they were not borne out by the file in an essential
aspect, or to the extent that procedural matters had been omitted which
could have led to a different conclusion. A decision which was not
clear would be tainted by procedural error. The Court found that the
decision of the Regional Authority was logical, and not unlawful when
it made findings on the basis of the applicant's witnesses' statements.
The Court referred in particular to the discrepancy between the
applicant's claims that the work had all been finished in one day and
the unchallenged evidence that at the end of the first day the
(concrete) base of the hut was still partly present. The Court also
considered that, given the size of the hut and the amount of rubble,
the authority was entitled to come to the conclusion that AS 27,600.00
was not an unreasonable sum for the works.
The Administrative Court declined to hold the hearing the
applicant had requested. It considered that a hearing could not affect
the result of the case, particularly as the applicant's request for the
Administrative Court to take further evidence as to whether the
administrative authorities had properly established the facts - itself
a claim which went beyond the scope of the Administrative Court's
review - was based on alleged inconsistencies within the file.
COMPLAINTS
In respect of the first set of proceedings, that is the
proceedings ending with the Administrative Court's decision of
13 February 1992, the applicant alleges violations of Article 6 of the
Convention and of Article 1 of Protocol No. 1 to the Convention. He
claims that the proceedings determined his right to build on his
property, and therefore determined "civil rights". He claims that in
this determination of his civil rights he was denied access to a proper
court: neither the Constitutional Court nor the Administrative Court
was such a court. The applicant sees a violation of Article 1 of
Protocol No. 1 in the failure properly to weigh up the different
interests.
In respect of the second set of proceedings, that is, the
proceedings ending with the Administrative Court's decision of
23 February 1995, the applicant considers that Article 6 para. 1
applies because the authority unlawfully gave the demolition work to
an unauthorised firm which charged far too much for the work (and used
illegal labour for it), and that the authority is now trying to cover
up its mistakes. He sees a violation of Article 6 in the failure of
the Administrative Court to deal with each and every complaint he made,
and in the Administrative Court's finding that an individual had to
accept the situation as it was if an authority accepted too high a
quotation and required the individual to pay it. The applicant
considers that he should have been given the opportunity to make a
counter offer to the one received by the authority.
The applicant also complains that he was not given an oral
hearing before the only body which might have been a "tribunal" within
the meaning of Article 6 of the Convention.
THE LAW
1. The applicant alleges violation of Article 6 para. 1
(Art. 6-1) of the Convention as regards the first proceedings. Article
6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant,
as follows.
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ..."
The proceedings which ended with the Administrative Court's
decision of 13 February 1992 concerned an appeal against an order to
pay an advance of AS 27,600.00 in respect of a quotation which the
local authority had commissioned with a view to ensuring compliance
with the local planning regulations. The Commission must decide
whether those proceedings determined the applicant's "civil rights [or]
obligations", and if so, whether the requirements of Article 6
(Art. 6) were met.
The Commission notes that the proceedings had nothing whatever
to do with the applicant's use of his land: the planning proceedings
ended as long before as 1987, and they did not therefore determine his
right to build on his land. They also did not concern the question
whether the applicant would ultimately be required to pay, as they only
concerned the question of an advance, and that question was overtaken
by events as the authority paid the firm before the applicant paid the
authority. They further did not concern the amount that the applicant
was required to pay. They therefore had no direct pecuniary aspect
whatever and merely determined whether it was possible, under Austrian
law, for such an advance to be required. The proceedings must
therefore be regarded as no more than an incidental matter which arose
in the course of the execution proceedings against the applicant, and
cannot have determined any civil rights or obligations on their own.
The Commission must, however, consider whether - even though the
proceedings at issue did not determine civil rights in their own right
- the matters complained of could have an adverse effect on the
applicant's right to a court (see Eur. Court HR, Hornsby v. Greece
judgment of 19 March 1997, to be published in Reports 1997, para. 40).
The applicant's specific complaints concern the nature of the
administrative proceedings: he alleges neither the Administrative Court
nor the Constitutional Court was a proper court within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
There is no question in the present case of the applicant's right
to a court in the initial determination of the dispute (that is, the
proceedings which ended with the Administrative Court's decision of
16 March 1987) being affected by the proceedings in which the applicant
claimed that he could not be required to make an advance on costs.
The Commission notes that the Convention organs have held on
several occasions that the scope of review of the Administrative Court
is sufficient to satisfy the requirements of Article 6 (Art. 6) in an
initial determination of civil rights and obligations (Eur. Court HR,
Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A,
Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B
and Fischer v. Austria judgment of 26 April 1995, Series A no. 312),
and sees no reason in the present case to conclude that the proceedings
which ended with the Administrative Court's decision of 13 February
1992 were in any way capable of denying the applicant his right to a
court in the initial determination.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention in respect of the second set of
proceedings, that is the proceedings which ended with the
Administrative Court's decision of 23 February 1995.
The Commission must determine whether these proceedings
determined the applicant's "civil rights [or] obligations" within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and if so,
whether the requirements of that provision were met.
The Commission first notes that these proceedings, unlike the
proceedings referred to above, did have a clear pecuniary aspect for
the applicant in that if he had been successful, the order for the
applicant to reimburse the authority would have been quashed, and
further clarification would have been necessary of the question how
much the applicant should be required to pay.
However, the applicability of Article 6 (Art. 6) of the
Convention does not depend solely on the "pecuniary" nature of a
dispute. There may exist "pecuniary" obligations vis-à-vis the State
or its subordinate authorities which, for the purpose of Article 6
para. 1 (Art. 6-1), are to be considered as belonging exclusively to
the realm of public law and are accordingly not covered by the notion
of "civil rights and obligations". This is the case, inter alia, where
a pecuniary obligation is part of normal civic duties in a democratic
society (see Eur. Court HR, Schouten and Meldrum v. the Netherlands
judgment of 9 December 1994, Series A no. 304, p. 21, para. 50).
The Commission recalls the context of the proceedings. It was
established that the applicant's hut did not have planning permission,
and the applicant had declined, or failed, to remove it. Planning
enforcement matters regularly involve the exercise of discretionary
judgment in the regulation of citizens' conduct (see Eur. Court HR,
Bryan v. the United Kingdom judgment of 22 November 1995, Series A
no. 335-A), and Article 6 (Art. 6) may well apply to the primary
determination of those planning questions (as in the case of Bryan).
The pure planning issues, however, were over. As was the case
with the first set of proceedings referred to above, all that remained
was the enforcement of the earlier requirement to remove the hut. In
connection with enforcement proceedings, the Commission recalls that
Article 6 para. 1 (Art. 6-1) of the Convention will generally not
apply, unless in the enforcement proceedings new legal issues are
raised (No. 13800/88, Dec. 1.7.91, D.R. 71, p. 94, p. 105). The
proceedings which ended with the Administrative Court's decision of 23
February 1995, and which determined the amount the applicant would
actually have to pay, raised no new legal issues: the obligation on the
applicant to remove the hut had long since been established, and to the
extent that there was a dispute about the reasonableness of the bill
for the works, the dispute was between the authority and the firm. The
obligation on the applicant to reimburse the authority was not a new
dispute about the reasonableness of the bill, it was an inevitable
consequence of his failure, over a period of years, to remove the hut.
The proceedings which began on 9 February 1990 did not, therefore,
determine the applicant's civil rights or obligations.
The Commission must, however, again consider whether - even
though the proceedings at issue did not determine civil rights in their
own right - the matters complained of could have an adverse effect on
the applicant's right to a court (see the above-mentioned Hornsby v.
Greece judgment, para. 40).
The applicant's specific complaints concern the proceedings
before the Administrative Court: he alleges, for example, that they did
not deal with each and every complaint he had made, and that he was not
given an oral hearing.
There is no question in the present case of the applicant's right
to a court in the initial determination of the dispute being affected
by any of the subsequent matters. Rather, his complaint here is
ultimately precisely that there was enforcement of the judgment,
against him.
The Commission again notes that the Convention organs have held
on several occasions that the scope of review of the Administrative
Court is sufficient to satisfy the requirements of Article 6 (Art. 6)
in an initial determination of civil rights and obligations (Eur. Court
HR, Zumtobel v. Austria judgment of 21 September 1993, Series A no.
268-A, Ortenberg v. Austria judgment of 25 November 1994, Series A no.
295-B and Fischer v. Austria judgment of 26 April 1995, Series A no.
312), and sees no reason in the present case to conclude that the scope
of review before the Administrative Court was in any way capable of
denying the applicant his right to a court in the initial
determination.
As to the question of the absence of an oral hearing, the
Commission notes that there is no suggestion in the case of Hornsby
that all of the specific guarantees of Article 6 para. 1 (Art. 6-1) of
the Convention should be available both before and after the
determination of the substantive matters: Article 6 (Art. 6) continues
to play a role subsequent to the final substantive determination of a
case because otherwise the effectiveness of the initial guarantees may
be rendered nugatory, but the later proceedings are of concern only to
that extent. The Commission considers that the absence of an oral
hearing before the Administrative Court in the present case had no
impact whatever on the initial determination of the applicant's rights
and obligations.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also alleges a violation of Article 1 of
Protocol No. 1 (P1-1) in connection with the first proceedings.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
In the light of its above finding that the first proceedings,
taken on their own, did not determine civil rights or obligations, the
Commission considers that those proceedings did not affect the
applicant's peaceful enjoyment of his possessions. There is no
indication in the papers before the Commission that the proceedings as
a whole resulted in anything more than a prohibition on using the land
for purposes which were not authorised.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy