AS TO THE ADMISSIBILITY OF
Application No. 21752/93
by Edwin KRICKL
against Austria
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, 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 24 February 1993
by Edwin KRICKL against Austria and registered on 27 April 1993 under
file No. 21752/93;
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
20 March 1995 and the observations in reply submitted by the
applicant on 24 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1920 and residing
in Linz. In the proceedings before the Commission he is represented
by Mr. K. Steiner, a lawyer practising in Linz.
The facts, as they have been submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
The applicant is the owner of land in Bad Ischl (Upper Austria),
comprising two parcels of building land, registered in the Ahorn land
register (Grundbuch) as Nos. 310/99 and 310/100. The latter parcel is
situated adjacent to parcel No. 310/101 owned by the applicant's
neighbour R.B.
On 22 October 1973 the Mayor of Bad Ischl granted R.B. a building
permit for a house on his land in which the minimum distance from the
border of the parcel was fixed at 4 metres. This condition was in
accordance with the building plan (Bebauungsplan) of 1985 for that
area.
When starting the construction works for his house R.B. did not
comply with the above condition and the house was built at a distance
of two metres from the neighbouring parcel owned by the applicant. On
6 August 1976, following a complaint by the applicant, the Mayor
ordered the interruption of the construction works. On 5 July 1978 the
Mayor ordered R.B. to apply for a retrospective building permit or to
remove the construction.
On 22 November 1978 the Municipal Council (Gemeinderat) of Bad
Ischl amended the building plan. The amendment consisted, inter alia,
in the division of the two parcels of land owned by the applicant in
three parcels of building land, a narrow road between the applicant's
land and the land of R.B., and the fixing of a minimum distance of 0,5
metres for buildings to be erected on R.B.'s land. After having been
approved by the Regional Government, the amended building plan entered
into force on 25 April 1979.
On 20 November 1985 the Mayor granted a retroactive building
permit to R.B. On 6 February 1987 the Municipal Council (Gemeinderat)
dismissed the applicant's appeal against the building permit and on
2 June 1987 the Upper Austrian Regional Government (Landesregierung)
dismissed the applicant's further appeal.
Subsequently the applicant filed a complaint against the Regional
Government's decision with the Constitutional Court
(Verfassungsgerichtshof). He submitted that the decision had been
based on an unlawful decree, namely the building plan of
22 November 1978.
On 30 September 1989 the Constitutional Court found the amendment
of the building plan of Bad Ischl, as far as parcel No. 310/101 owned
by R.B. was concerned, to be incompatible with the Upper Austrian
Regional Planning Act (Raumordnungsgesetz). On 5 December 1989 the
Constitutional Court therefore upheld the applicant's individual
complaint against the final decision of the regional authorities
regarding the lawfulness of R.B.'s building permit. Proceedings were
then resumed before the local and regional authorities.
On 22 June 1990 the Bad Ischl Municipality Council quashed the
Mayor's decision of 20 November 1985 granting R.B. a building permit.
By letter of 14 January 1991 the Mayor of Bad Ischl informed the
applicant that, on 5 October 1990, R.B. had been ordered to demolish
his house within eight years.
On 1 February 1991 the applicant, claiming to be a party to the
proceedings regarding the demolition order, lodged an appeal against
the Mayor's demolition order of 5 October 1990, challenging, inter
alia, the length of the period which his neighbour had been granted for
the compliance with this order.
On 27 February 1991 the Municipal Council rejected the appeal as
being inadmissible. Referring to the constant case-law of the
Administrative Court (Verwaltungsgerichtshof) on this matter it found
that the applicant had no locus standi in the proceedings at issue
because neighbours were not a party to proceedings for a demolition
order.
By letter of 3 June 1991 the Upper Austrian Regional Government
informed the Mayor that the applicant had lodged a further appeal
(Vorstellung) against the demolition order of 5 October 1990. It
stated that under the law in force the applicant clearly had no locus
standi in proceedings for a demolition order. However, the Regional
Government had doubts whether the length of the time-limit granted to
R.B. in the demolition order was in compliance with Section 87 para. 2
of the Constitutional Court Act. If the Regional Government on further
consideration of the matter would arrive at the conclusion that the
decision was unlawful it would consider quashing the demolition in the
exercise of its supervisory function (Aufsichtsrecht).
On 30 December 1991 the Upper Austrian Regional Government
dismissed the applicant's further appeal. It found that the decision
given in the proceedings regarding the demolition order did not
infringe the applicant's rights as he had no locus standi in these
proceedings.
On 19 February 1992 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). He complained about the
refusal of the authorities to accept him as a party to the proceedings
regarding the demolition order and relied in this respect on Article 6
of the Convention. He further complained that the excessive time-limit
granted for the compliance with the demolition order violated his
property rights because he could not sell his land at an appropriate
price as long as the neighbour's building had not been demolished.
On 24 June 1992 the Constitutional Court declined to entertain
the applicant's complaint for lack of prospect of success and referred
the case to the Administrative Court.
On 10 November 1992 the Administrative Court dismissed the
applicant's complaint. It referred to its constant case-law regarding
the relevant provisions of the Upper Austrian Building Regulations
(Oberösterreichische Bauordnung) according to which neighbours were not
to be considered as a party to proceedings for a demolition order.
Subsequently, the applicant filed a complaint (Beschwerde) with
the Ombudsman's Office (Volksanwaltschaft) relating to the above
events.
On 13 January 1994 the Ombudsman's Office issued a recommendation
(Empfehlung) concerning the applicant's complaint. It considered that
the fixing of a time-limit of eight years for complying with the
demolition order and the failure of the Regional Government to quash
the demolition order in the exercise of its supervisory function
constituted an undesirable state of affairs in public administration
(Mißstand im Bereich der öffentlichen Verwaltung). It recommended to
the Regional Government to exercise its supervisory powers. The
Ombudsman's Office found that neither the Constitutional Court nor the
Administrative Court in their respective proceedings could have
examined whether the time-limit had been appropriate. Nevertheless,
the Regional Government should have quashed the demolition order ex
officio in the exercise of its supervisory powers and the building
authorities should have fixed a shorter time-limit.
On 11 April 1995 the Ombudsman's Office informed the applicant
that the Regional Government saw no possibility to follow the
Ombudsman's Office's recommendation.
B. Relevant domestic law
Section 61 of the Upper Austrian Building Regulations
(Bauordnung), in the version applicable in the present case, reads as
follows:
[Translation]
"In case the building authority establishes that a building
requiring a building permit is being or has been erected without
such a permit, it shall make an order requesting the owner of the
construction to either retroactively request a permit within a
reasonable period of time to be determined by the authority, or
else to demolish the construction, again within a reasonable
period of time to be determined by the authority. The
possibility to apply retrospectively for a building permit shall
not be granted if under the law in force a building permit cannot
be granted."
[German]
"Stellt die Baubehörde fest, daß eine bewilligungspflichtige
bauliche Anlage ohne Baubewilligung ausgeführt wird oder bereits
ausgeführt wurde, so hat sie dem Eigentümer mit Bescheid
aufzutragen, entweder nachträglich innerhalb einer angemessen
festzusetzenden Frist um die Baubewilligung anzusuchen oder die
bauliche Anlage innerhalb einer weiters festzusetzenden Frist zu
beseitigen. Die Möglichkeit, nachträglich um die Baubewilligung
anzusuchen, ist dann nicht einzuräumen, wenn nach der
maßgeblichen Rechtslage eine Baubewilligung nicht erteilt werden
kann."
Section 87 para. 2 of the Constitutional Court Act of 1953
provides as follows:
[Translation]
"If the Constitutional Court allows a complaint, the
administrative authorities are under the obligation to
re-establish in the case at issue with the use of all the powers
granted to them by law and without delay a legal situation
corresponding to the legal opinion expressed by the
Constitutional Court."
[German]
"Wenn der Verfassungsgerichtshof einer Beschwerde stattgegeben
hat, sind die Verwaltungsbehörden verpflichtet, in dem
betreffenden Fall mit den ihnen zu Gebote stehenden rechtlichen
Mitteln unverzüglich den der Rechtsanschauung des
Verfassungsgerichtshofes entsprechenden Rechtszustand
herzustellen."
Section 8 of the General Administrative Procedure Act
(Allgemeines Verwaltungsverfahrensgesetz) reads as follows:
[Translation]
"Persons who make use of the service of a public authority or who
are subject to acts by a public authority are participants to
proceedings. However, insofar as they take part in the
proceedings on the basis of a right granted to them or an
interest protected by the law they are parties."
[German]
"Personen, die eine Tätigkeit einer Behörde in Anspruch nehmen
oder auf die sich die Tätigkeit einer Behörde bezieht, sind
Beteiligte und, insoweit sie an der Sache vermöge eines
Rechtsanspruches oder eines rechtlichen Interesses beteiligt
sind, Parteien."
According to the constant case-law of the Constitutional Court
and the Administrative Court Section 8 of the General Administrative
Procedure Act only grants procedural rights in administrative
proceedings but does not grant substantive rights. Whether or not a
person has, in administrative proceedings, the position of a party
depends on whether he or she can rely on provisions of administrative
law which grant a subjective right (see Antoniolli-Koja, Allgemeines
Verwaltungsrecht, Second Edition, Vienna 1986, p. 274 with reference
to VwSlg. [Collection of Decisions of the Administrative Court]
5258A/1960, 5722A/1962, 6115A/1963, 7488A/1969, 7662A/1969, 7810A/1970,
8498A/1973; VfSlg. [Collection of Decisions of the Constitutional
Court] 1650/1948, 4227/1962, 5358/1966, 6257/1970; Walter-Mayer,
Grundriß des österreichischen Verwaltungsverfahrensrechts, sixth
edition 1995, p. 48 with reference to Administrative Court
9 November 1982, 82/15/0112; 30 September 1992, 89/03/0224 and
VfSlg. 11.934).
As regards the issuing of orders in building law proceedings, in
particular concerning the permit to use a building after a building
permit has been issued and the building has been erected
(Benützungsbewilligung) or demolition orders, the Administrative Court,
having regard to the specific Building Regulations, has constantly held
that the neighbour is no party to such proceedings (see Administrative
Court 23 September 1968, 1251/68; 29 February 1972, 120/72;
20 November 1972, 1410/72; 18 September 1973, 1365/73;
26 February 1974, 98/74; 12 February 1981, VwSlg. 10368/A;
15 September 1983, 83/06/0146; 29 January 1985, 83/05/0189;
12 February 1985, 85/05/0012; 28 April 1992, 91/05/0204; Dolp, Die
Verwaltungsgerichtsbarkeit, second edition 1987; p. 224 ff.).
COMPLAINTS
The applicant complains under Article 6 of the Convention that
he did not have a fair hearing in the proceedings for the demolition
order, because the Austrian authorities and courts had refused to
decide on the merits of his appeals and complaints and to accept him
as a party to the proceedings on the demolition order.
The applicant complains under Article 1 of Protocol No. 1 that
his right to respect for his property has been infringed. He submits
that it was arbitrary to grant an unreasonably long time-limit of eight
years for compliance with the demolition order. The building on his
neighbour's land had been erected unlawfully and as long as the
building is not removed it is impossible to sell the applicant's
property at an adequate price. He also invokes Article 14 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 February 1993 and registered
on 27 April 1993.
On 12 October 1994 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
20 March 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 24 April 1995.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention that he did not have a fair hearing in the proceedings on
the demolition order.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, provides 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 Government submit that the proceedings concerning the
demolition of a house built on an adjacent parcel of land were purely
a matter of public law and had no direct bearing on any of the
applicant's civil rights. According to the constant case-law of the
Administrative Court neighbours have no valid claim as regards the
demolition of an illicitly erected building and therefore cannot be a
party to administrative proceedings in the course of which a decision
on a demolition order is taken by the building authority. Such a right
can neither be derived from Section 61 of the Upper Austria Building
Regulations nor from Section 87 para. 2 of the Constitutional Court
Act. The applicant therefore has no civil right within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention as regards the
demolition order as this provision does not grant new rights which had
not been recognised previously by domestic law.
In any event, by quashing the building permit on 22 June 1990 and
by issuing a demolition order on 5 October 1990 the competent building
authorities have speedily complied with the Constitutional Court's
decision of 5 December 1989 by which the building permit granted to the
neighbour had been quashed.
This is disputed by the applicant. In his view he did have a
subjective right under domestic law to request the demolition of his
neighbour's building. If the Administrative Court, which denied him
locus standi in the proceedings for the demolition order, would have
interpreted correctly Section 8 of the General Administrative Procedure
Act it should have granted him locus standi. Furthermore, the
administrative authorities had not complied with the Constitutional
Court's decision of 5 December 1989 because they had failed to order
the immediate demolition of his neighbour's building.
The applicant submits that the case-law of the Administrative
Court according to which neighbours had no locus standi in proceedings
for a demolition order was problematic as it led to a situation where
a neighbour who had succeeded in having the building permit granted to
his neighbour quashed was nevertheless deprived of the possibility to
have this decision appropriately enforced. Since under the building
regulations he was entitled to claim that his neighbour respect the
minimum distance from his land, he must have had the possibility to
have this right enforced. From these considerations it was apparent
that he should have been accepted by the authorities as a party to the
proceedings regarding the demolition order.
The Commission recalls that Article 6 para. 1 (Art. 6-1) extends
only to "contestations" (disputes) over (civil) "rights and
obligations" which can be said, at least on arguable grounds, to be
recognised under domestic law (Eur. Court HR, Oerlemans v. the
Netherlands judgment of 27 November 1991, Series A no. 219, pp. 20-21,
paras. 45-49). Article 6 para. 1 (Art. 6-1) is not aimed at creating
new substantive rights, without a legal basis in the Contracting State,
but at providing procedural protection of rights already recognised in
domestic law (Eur. Court HR, W. v. United Kingdom judgment of 8 July
1987, Series A no. 121-A, p. 32, para. 73; Kraska v. Switzerland
judgment of 19 April 1993, Series A no. 254-B, p. 48, para. 24; Zander
v. Sweden judgment of 25 November 1993, Series A no. 279, p. 39, para.
24).
The Commission observes that Austrian law, in particular the
Building Regulation at issue, did not provide for locus standi of a
neighbour in proceedings regarding a demolition order. Also Section 8
of the General Administrative Procedure Act, like Article 6 (Art. 6)
of the Convention itself, only transforms substantive rights in
procedural rights, but does not guarantee itself a particular
substantive right. In this respect the Commission refers to the
constant case-law of the Administrative Court and the findings of the
Austrian courts and authorities in the present proceedings, which found
that according to the Upper Austrian Building Regulations a neighbour
is not entitled to make objections to any decisions taken in the course
of proceedings regarding a demolition order.
In these circumstances the Commission finds that in the
proceedings regarding the demolition order the applicant could not rely
on a right recognised under domestic law and that Article 6 para. 1
(Art. 6-1) was consequently not applicable to these proceedings.
The applicant submits, however, that although he had succeeded
in having his neighbour's building permit quashed he nevertheless was
deprived of the possibility to have this decision appropriately
enforced.
The Commission finds that these submissions raise a further issue
to be examined under Article 6 para. 1 (Art. 6-1) of the Convention.
In this respect it recalls that in the Hornsby case the European Court
of Human Rights found that the right of access to court also includes
the right to be sufficiently protected against the refusal of state
authorities to comply with a court judgment (Eur. Court HR, Hornsby v.
Greece judgment of 19 march 1997, paras. 40-41, to be published in
Reports 1997-I). The relevant passage of the judgment reads as follows:
"40. The Court reiterates that, according to its established
case-law, Article 6 § 1 (Art. 6-1) secures to everyone the right
to have any claim relating to his civil rights and obligations
brought before a court or tribunal; in this way it embodies the
`right to a court', of which the right of access, that is the
right to institute proceedings before courts in civil matters,
constitutes one aspect (see the Philis v. Greece (no. 1) judgment
of 27 August 1991, Series A no. 209, p. 20, para. 59). However,
that right would be illusory if a Contracting State's domestic
legal system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party. It would be
inconceivable that Article 6 (Art. 6) should describe in detail
procedural guarantees afforded to litigants - proceedings that
are fair, public and expeditious - without protecting the
implementation of judicial decisions; to construe Article 6
(Art. 6 as being concerned exclusively with access to a court and
the conduct of proceedings would be likely to lead to situations
incompatible with the principle of the rule of law which the
Contracting States undertook to respect when they ratified the
Convention (see, mutatis mutandis, the Golder v. the United
Kingdom judgment of 7 May 1974, Series A no. 18, pp. 16-18,
paras. 34-36). Execution of a judgment given by any court must
therefore be regarded as an integral part of the `trial' for the
purposes of Article 6 (Art. 6); moreover, the Court has already
accepted this principle in cases concerning the length of
proceedings (see, most recently, the Di Pede v. Italy and Zappia
v. Italy judgments of 26 September 1996, to be published in
Reports 1996-I).
41. The above principles are of even greater importance in the
context of administrative proceedings concerning a dispute whose
outcome is decisive for a litigant's civil rights. By lodging
an application for judicial review with the State's highest
administrative court the litigant seeks not only annulment of the
impugned decision but also and above all the removal of its
effects. The effective protection of a party to such proceedings
and the restoration of legality presuppose an obligation on the
administrative authorities' part to comply with a judgment of
that court. The Court observes in this connection that the
administrative authorities form one element of a State subject
to the rule of law and their interests accordingly coincide with
the need for the proper administration of justice. Where
administrative authorities refuse or fail to comply, or even
delay doing so, the guarantees under Article 6 (Art. 6) enjoyed
by a litigant during the judicial phase of the proceedings are
rendered devoid of purpose."
The Commission observes that in the Ortenberg case the Court
recognised that proceedings for the granting of a building permit to
a particular person also involve the determination of a civil right of
the neighbour who opposes a building permit. The Court found that in
such proceedings pecuniary interests of the opposing neighbour could
be at stake and therefore found the civil right limb of Article 6
para. 1 (Art. 6-1) to be applicable (Eur. Court HR, Ortenberg v.
Austria judgment of 25 November 1994, Series A no. 295-B, p. 48-49,
paras. 28). Moreover, under Austrian law, as can also be seen from the
present case, the right of a neighbour to be a party to proceedings
regarding a building permit is explicitly recognised.
The Commission therefore has to examine whether the order
addressed to the applicant's neighbour to demolish his house within a
period of eight years is in accordance with the principles set out by
the European Court of Human Rights in the above Hornsby case.
The Commission finds, however, that there are significant
differences between the situation of the present applicant and Mr and
Mrs Hornsby, the applicants in the case referred to above. While the
granting of a license for running a language school to Mr and Mrs
Hornsby, which was the subject matter of the dispute in the above case,
may be considered as the only appropriate response to a decision by
which the refusal of such a licence had been quashed, this is not true
for the demolition of the neighbour's building in the present case.
The applicant was successful in the proceedings for the granting
of a building permit to his neighbour, and such a permit had therefore
been refused. The Commission cannot find, however, that this should
automatically give the applicant a right to have the building
immediately destroyed. Demolition would only be one possibility to
give effect to the decision rendered in the building permit
proceedings. Another possibility would be pecuniary compensation to
the applicant for the alleged damage caused by the unlawfully erected
building. Thus, the applicant could have introduced civil proceedings
against his neighbour for compensation if he had actually sustained
prejudice because of the illicit construction and/or official liability
proceedings against the Municipality arguing that the lengthy time-
limit granted for the compliance with the demolition order was
unlawful, that he could not otherwise challenge this decision, and that
this decision had caused him prejudice. The applicant, however, did
not choose these avenues but insisted on the immediate demolition of
his neighbour's building and he did so although he must have been aware
that in view of Austrian law as in force he could not have obtained any
decision in his favour in the proceedings regarding the demolition
order.
Furthermore, the authorities, after the Constitutional Court has
given its decision on 5 December 1989, have reacted without delay as
they quashed the building permit and ordered the demolition of the
building.
Taking these circumstances into account, the Commission cannot
find that there is any appearance of a violation of the applicant's
rights under Article 6 para. 1 (Art. 6-1) of the Convention in the
proceedings regarding the building permit or the demolition order.
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 complains under Article 1 of Protocol No. 1 (P1-1)
that the lengthy time-limit granted to his neighbour for compliance
with the demolition order violated his right to respect for his
property rights. He submits that it was arbitrary to grant an
unreasonably long time-limit of eight years for compliance with the
demolition order. The building on his neighbour's land had been
erected unlawfully and as long as the building is not removed it is
impossible to sell his property at an adequate price. He also invokes
Article 14 (Art. 14) of the Convention.
The Commission finds that this complaint falls to be considered
under Article 1 of Protocol No. 1 (P1-1), which reads 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."
The Government submit that the proceedings at issue neither
deprived the applicant of his property rights nor contained any
restriction on the use of his land. The amended building plan which
allowed for a more densely structured built-up area would have led to
an increase in the value of the applicant's property, as similarly
structured development areas are generally selling at a much higher
rate. It was however this very amendment of the building plan which
was later quashed by the Constitutional Court at the applicant's
request. In any event, the applicant's allegation that he was unable
to sell his property at a reasonable price has not been further
substantiated in any way.
This is disputed by the applicant. He submits that it must be
considered as obvious that the market value of his land was diminished
because the neighbour's building was erected in violation of the
minimum distance. Because of the diminished market value of his land
he could not freely dispose of it. There was no question of an
increase of the value of his property as no owner wished that the
neighbour lived too close to himself.
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
comprises three distinct rules. The first rule, set out in the first
sentence of the first paragraph, is of a general nature and enunciates
the principle of peaceful enjoyment of property. The second rule,
contained in the second sentence of the same paragraph, covers
deprivation of possessions and makes it subject to certain conditions.
The third rule, stated in the second paragraph, recognises that
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest. The three
rules are not "distinct" in the sense of being unconnected: the second
and third rules are concerned with particular instances of interference
with the right to peaceful enjoyment of property and should therefore
be construed in the light of the general principles enunciated in the
first rule (e.g. Eur. Court HR, Allan Jacobsson v. Sweden judgment of
23 October 1989, Series A no. 163, para. 53).
The Commission observes that the applicant was not prevented by
law from disposing of his land as he wished to do as he could build on
it or sell it. The Commission therefore finds that the situation
complained of did not amount to a deprivation of the applicant's
possessions within the meaning of the second sentence of the first
paragraph of Article 1 (Art. 1-1-2). Nor did it constitute a control
of the use of the applicant's property which would have to be examined
under the second paragraph of Article 1 (Art. 1-2).
It remains to ascertain whether the situation complained of
amounts to an interference with the rights guaranteed to the applicant
in the first sentence of the first paragraph of Article 1 (Art. 1-1-1).
The applicant argues that his right to dispose of his land was
in fact limited because of the authorities' failure to have the
building on his neighbour's land demolished. In this respect the
Commission observes that the neighbour had the right to build on his
land and that the unlawfulness of the neighbour's building lay in the
fact that the building he had erected was situated two metres too close
to the applicant's land. The Commission finds however, that the
applicant has not sufficiently substantiated that this fact led to a
loss of value of his land or that he could not be compensated for such
loss if any.
Moreover, if the applicant's only interest was to achieve a
higher price for his land it does not appear unreasonable that the
value of his land could have been increased by having it divided in
more parcels, as provided for in the amendment of the building plan,
since this may have led to more parcels which were building land.
Accordingly, there is no appearance of a violation of the
applicant's right to peaceful enjoyment of his possessions as
guaranteed by Article 1 of Protocol No. 1 (P1-1).
It follows that also 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.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy