AS TO THE ADMISSIBILITY OF
Application No. 22475/93
by Ilse KRISTAVCNIK-REUTTERER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
B. MARXER
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
Ilse KRISTAVCNIK-REUTTERER against Austria and registered on 19 August
1993 under file No. 22475/93;
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
27 February 1995 and the observations in reply submitted by the
applicant on 24 May 1995;
- the Commission's decision of 4 September 1996 to adjourn the
case;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national. She lives in Bludenz 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
parties, may be summarised as follows.
On 10 April 1985 a neighbour of the applicant, who is a joiner,
applied for a Trading Authority Licence (gewerbebehördliche Genehmigung
- TAL) for the demolition of his existing workshop and the construction
of a new workshop. On 4 June 1985 he added an application for
amendments to the heating system. The Bludenz District Authority
(Bezirkshauptmannschaft) visited the site on 6 August 1985 and the
applicant and other neighbours submitted a petition. On 16 October
1985 the applicant, in her own name and in that of a local committee
(Bürgerintitiative), requested the District Authority to bring criminal
proceedings against the joiner, and to take a formal decision that the
heating system needed a TAL. On 25 November 1985 the District
Authority took a decision (Feststellungsbescheid) that a TAL was not
needed for the heating system. The decision was forwarded to the
applicant's representative "for information", and not on the ground
that she was a party to the proceedings. The applicant's appeal to the
Vorarlberg Provincial Governor (Landeshauptmann) was rejected on
3 February 1986 on the ground that she did not have locus standi to
challenge the decision of 25 November 1985. The applicant's appeal to
the Minister for Trade was also unsuccessful, the Minister's decision
being dated 30 May 1986. The Minister also found that the heating
system did, however, require a TAL, and he quashed the decision of
25 November 1985. The joiner's appeal against the Minister's decision
of 30 May 1986 was dismissed by the Administrative Court on 25 November
1986.
In 1987 there was a series of measurements and exchange of
expert's comments, with a hearing on 21 July 1987. The applicant
requested a new hearing in August 1987, and in December 1987 the
District Authority asked the applicant to submit her final
observations. The TAL was granted, subject to a number of conditions,
on 27 June 1988. The applicant, together with her parents, appealed.
On 24 August 1989, after an exchange of observations on the
appeal and discussion as to the validity of the parents'
representation, the applicant's appeal was dismissed by the Vorarlberg
Provincial Governor. The parents' appeal was rejected on the ground
that they had not been validly represented. The appeal against this
decision to the Minister for Trade was dismissed on 19 July 1991, again
after a number of sets of observations had been exchanged, and after
the taking of evidence from various witnesses. On 17 September 1991
the applicant made a constitutional complaint in which she alleged
violations of her rights under Articles 2 and 8 of the Convention, and
of the right to fair proceedings.
The Constitutional Court (Verfassungsgerichtshof) declined to
deal with the complaint on 25 February 1992. It referred to its own
case-law in connection with Articles 6 and 8 of the Convention, and
noted that Article 2 was obviously not at issue. It found that the
complaint had no adequate prospect of success, and that the matter was
not excluded from the jurisdiction of the Administrative Court
(Verwaltungsgerichtshof). The Constitutional Court transferred the
case to the Administrative Court on 28 April 1992.
In her supplementary complaint, the applicant alleged - in
addition to the matters in her constitutional complaint - violation of
the right to an impartial authority; the right to protection against
emissions; of her neighbour's rights under Regulation 74 et seq. of the
Trade Regulations (Gewerbeordnung); the right to prohibition of
dangerous plant in the danger area and the right of her parents to be
accepted as parties. The Administrative Court dismissed the
administrative complaint on 24 November 1992. It noted that the
Constitutional Court had determined the constitutional complaint and
so it was not able to deal with the points raised under Articles 2, 6
and 8 of the Convention as such. It also found that the conclusion of
the Minister for Trade that the applicant's parents were not properly
parties to the proceedings was not untenable.
In connection with the applicant's substantive complaints, the
Administrative Court noted inter alia that Regulation 74 of the Trade
Regulations 1973 gives the status of party to neighbours who have made
objections to a proposal at the latest at the site hearing
(Augenscheinverhandlung). The Administrative Court noted the
conclusions of the official medical expert that there was nothing in
a medical report, which the applicant's mother had had prepared, to
affect the authority's conclusion that the proposed works should be
granted a licence, and found no need to establish any further facts.
Newspaper reports concerning other installations could not affect the
lawfulness of the decision in the present case.
In connection with the applicant's complaint that the joiner's
plans for a new workshop were incompatible the zoning plan, and/or that
the Administrative Court should remit the question of the
constitutionality of the plan to the Constitutional Court, the
Administrative Court replied that pursuant to Section 356 (3) of the
Trade Regulations, neighbours had subjective, public-law rights to
complain about the matters falling within the first sentence of
Section 77 (1) of the Trade Regulations, but not the second sentence.
The second sentence refers to prohibitions on the works proposed, and
so the applicant's "neighbour" rights did not extend as far as the
matters included in that second sentence.
The applicant's representative received the Administrative
Court's decision on 28 January 1993.
COMPLAINTS
The applicant alleges violation of Article 6 of the Convention.
She considers that the proceedings by which she attempted to prevent
the grant of a TAL to her neighbour determined her civil rights, and
that she should accordingly have had the benefit of a court which was
able to determine the facts itself. She points out that the
Constitutional Court declined to deal with her constitutional
complaints at all, and that the Administrative Court then found that
it could not enter into these matters as they were for the
Constitutional Court. The Constitutional Court does not make any
findings of fact at all, and indeed decisions by which the
Constitutional Court declines to deal with an application do not figure
in any official collections of decisions.
The applicant also complains of the length of the proceedings,
contending that eight years is far too long for these straightforward
proceedings, and that they would not have lasted so long if the
authority had not come to the ridiculous conclusion that a silo for
storage of potentially explosive waste did not need a TAL.
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
27 February 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 24 May 1995.
THE LAW
1. The applicant complains of the length of the proceedings. She
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'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 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 the possibility of unpleasant smells, fire or
explosion), and that those are public law matters, rather than "civil"
matters within the meaning of the Convention.
Even if Article 6 (Art. 6) were to apply, the Government consider
that the applicant 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 6 August 1985, that is, the day on which the
applicant's objections were first brought to the notice of the Bludenz
District Authority. The Government consider that the proceedings were
complex in that there were more than two parties, and some of the time
the proceedings took is attributable to appeals by parties other than
the applicant (for example the joiner's appeal to the Administrative
Court). They also point out that much time was needed in the appeal
proceedings to establish whether the applicant's parents had in fact
validly appointed their representative. The Government underline that
six decisions were taken by the administrative authorities and four
decisions were taken by the Administrative and Constitutional Courts
in three rounds of proceedings. They consider that an overall period
of seven years and three months was not, in these circumstances,
unreasonably long.
The applicant considers that, given her right to join the TAL
proceedings to protect her property, civil rights were clearly at
issue.
She does not accept that she has failed to exhaust domestic
remedies. She considers that an application for transfer of
jurisdiction (Devolutionsantrag) is not an effective remedy because the
higher administrative authorities are "hopelessly generous" when
considering such complaints. In connection with a complaint to the
Administrative Court for transfer (Säumnisbeschwerde), she argues that
such a complaint does not in effect accelerate the proceedings as the
first thing the Administrative Court does is to order the authority to
decide within three months, by which time the proceedings have already
been delayed by at least one year. If the authority denies that it has
failed to deal with the matter in time, the Administrative Court has
to decide on the question of delay - which again takes on average six
months. If, some 18 months after the period began to run, the
Administrative Court does then consider the case itself, an applicant
finds himself before a court which is woefully ill-equipped to deal
with to deal with disputes, and which has to rely to a large extent on
the experts of the authorities. Finally, if the Administrative Court
decides the case itself, an applicant is deprived of access to the
Constitutional Court, which excludes such an application for transfer
where an applicant wishes to raise constitutional rights, such as
illegality of a zoning plan.
The applicant considers that the proceedings began on 10 April
1985, that is, the date when she was invited to the hearing by the
District Authority. She regards it as obvious that a joinery of the
size proposed should not be between dwelling houses, and the
authorities' problem lay in the fact that they were trying to grant a
TAL on political grounds, even though the real result was obvious. She
considers that the proceedings lasted about five times as long as they
should have.
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 was entitled to join the
TAL proceedings as a neighbour, and did so. Although she was relying
on public law considerations in the proceedings, her interest was
related to her use of the property, and the right to property is
undoubtedly 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, the Commission recalls
that it has, in the past, considered that a complaint to the
Administrative Court (Säumnisbeschwerde) may, in certain circumstances,
constitute an effective remedy within the meaning of Article 26
(Art. 26) of the Convention (No. 19343/92, Dec. 6.9.95). The
Commission is not, however, required to make any findings of principle
as to the effectiveness of the remedy in the present case, as the
complaint is in any event manifestly ill founded for the following
reasons.
The Commission notes that the proceedings began in April or
August 1985, and ended, as far as the applicant was concerned, on
28 January 1993. They thus lasted a total of, at most, seven years and
nine months.
The case was not of itself particularly complex - the joiner
wanted a TAL from the authority and the applicant (and others) wanted
to stop him - but elements of complexity were introduced, not least by
the questions relating to the position of the applicant's parents in
the proceedings.
As to the applicant's conduct, the Commission notes that the
Government do not claim that the applicant delayed the proceedings
beyond bringing about the grant, on two occasions, of an extension of
time-limits for commenting on expert opinions, but it remains the case
that she did not attempt to accelerate them in any way, as she could
be expected to do if she was concerned to achieve a speedy termination
of the proceedings.
Finally, the Commission notes that there were no substantial
periods of inactivity in the proceedings: the administrative
authorities dealt initially with the challenge to the decision of
25 November 1985, and once that decision had been quashed by the
Minister on 30 May 1986 (and the joiner's challenge to that decision
dismissed by the Administrative Court), a further series of experts'
reports was produced, and challenged, before the TAL was granted on
27 June 1988. Thereafter, there followed further exchanges of
observations and experts' reports, and hearings before the authority,
before the Regional Governor's decision of 24 August 1989. The appeal
proceedings before the Ministry again involved the taking of statements
from parties and experts with documents being served on the other
parties, until the Ministry decided on 19 July 1991, the decision being
served on 6 August 1991. Thereafter, in the space of less than
16 months from the applicant's constitutional complaint, the
Constitutional Court gave its decision on the merits of the
constitutional complaint and remitted the case to the Administrative
Court, and the Administrative Court dismissed the administrative
complaint.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time" (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 the length of the
proceedings cannot be said to have exceeded the "reasonable time"
requirement of Article 6 para. 1 (Art. 6-1) of the Convention.
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 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 Administrative Court
dealt with each complaint made by the applicant at pages 21 to 26 of
its judgment, and examined in particular whether the conditions of
Section 74 (2) of the Trading Regulations had been met.
The applicant points to two areas in which she claims the
Administrative Court did not behave like a tribunal. First, she claims
that mere reference to the findings of the local experts in the matter
of emissions, and the dangers of fire and explosion was inadequate.
She adds that she knew what the experts thought, but wanted to have
findings from a court. The other area of complaint is the refusal of
the Administrative Court to deal with her complaints about the zoning
plan.
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).
The administrative authorities in the present case considered all
aspects of the case, but did not provide the guarantees of Article 6
para. 1 (Art. 6-1) of the Convention (see, by analogy, Eur. Court H.R.,
Zumtobel judgment of 21 September 1993, Series A no. 268, p. 13, para.
29). The Administrative Court had the requisite attributes of
independence and impartiality, and the question is whether its scope
of review satisfied the Convention requirement of "full jurisdiction".
The Administrative Court dealt with all but one of the
applicant's complaints to it. It did not, it is true, take decisions
on the basis of facts established in full first instance proceedings
before it, but the very nature of "review" by a court precludes this.
The test set up by the European Court of Human Rights requires not that
the body with the guarantees of Article 6 (Art. 6) itself decides every
single issue, but that it reviews the decisions of the lower
authorities. This is precisely what happened in the present case in
respect of all but one of the applicant's complaints.
There was one complaint on which the Administrative Court
declined to give a substantive reasoning. That was the complaint
relating to the zoning plan for the area. The Administrative Court
found that the applicant's "neighbour" rights did not extend as far as
the matters included in the second sentence Section 77 (1) of the Trade
Regulations, and so did not deal with the question.
The refusal by the Administrative Court to look into this matter
was not a declining of jurisdiction to look at facts, but a statement
that it could not look at matters outwith the scope of the applicant's
substantive rights. Accordingly, the refusal to consider questions
concerning the zoning plan was not a question of a limitation on the
scope of review, but a statement of the extent of the applicant's
substantive law rights.
The Commission finds that the scope of review by the
Administrative Court was sufficient to comply with the requirements of
Article 6 para. 1 (Art. 6-1) of the Convention.
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