AS TO THE ADMISSIBILITY OF
Application No. 16036/90
by Wolfgang OCHSENREITER
against Austria
The European Commission of Human Rights sitting in private
on 7 April 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 5 January
1990 by Wolfgang Ochsenreiter against Austria and registered on
22 January 1990 under file No. 16036/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the
respondent Government on 26 March 1992 and the observations in
reply submitted by the applicant on 21 July 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant, an Austrian citizen residing in Fursach,
Austria, is the owner of real estate which had previously been
used as a clay pit. Before the Commission he is represented by
Mr. W.L. Weh, a lawyer practising in Bregenz.
A. Particular circumstances of the case
In 1981 the applicant applied to the Bregenz District
Authority (Bezirkshauptmannschaft) for permission under the
Landscape Protection Act (Landschaftsschutzgesetz) to fill up an
abandoned clay pit with waste material, mainly from road
construction projects, as he intended to develop subsequently the
land for industrial sites. In 1983 he withdrew his request.
However, as he had in the meantime already filled up parts of the
clay pit, the District Authority insisted that he applies for
permission. The applicant then renewed his request.
By decision of 13 June 1984 the District Authority granted
him a permit for filling up parts of the pit, while refusing
permission for other parts. The permission related in particular
to those parts of the pit which the applicant had already filled
up. The District Authority considered that the applicant's land
was wetland (Feuchtgebiet) within the meaning of Section 5 of the
Landscape Protection Act and therefore merited protection.
On 2 July 1984 the applicant appealed to the Vorarlberg
Regional Government (Landesregierung). He submitted that he did
not need a permit for filling up his land as it was no wetland
within the meaning of Section 5 of the Landscape Protection Act
and, in any event, his project did not run counter to the
interests of landscape protection.
On 30 October 1985 the applicant's lawyer agreed with the
Regional Government that further enquiries on the situation of
the flora and fauna on the applicant's land during the vegetation
period in spring 1986 were necessary. For that purpose an oral
hearing on the applicant's land in the time between 15 and 30
April 1986 was scheduled.
On 21 April 1986 this oral hearing took place.
On 16 May 1986 the Regional Government dismissed the
applicant's appeal of 2 July 1984. It found that even if the
applicant's real estate did not qualify as wetland he would,
according to Section 3 para. 1 (l) of the Landscape Protection
Act, need a permit for dumping waste on an area larger than 100
m².
On 10 November 1986 the Administrative Court (Verwaltungs-
gerichtshof), upon the applicant's further appeal, quashed the
decision of the Regional Government on account of procedural
mistakes.
Proceedings were then resumed before the Regional
Government. On 29 December 1986 an official expert for landscape
protection, employed by the Regional Government, presented a
written expert opinion, which was served on the applicant on 14
January 1987.
On 28 January 1987 the applicant requested an extension of
the time-limit for commenting on the expert's opinion until 31
March 1987 which was granted by the Regional Government on 4
February 1987.
On 30 March 1987 the applicant submitted his comments.
On 13 May 1987 the Regional Government held an oral hearing
in the presence of the expert, the mayor as representative of the
municipality, the Deputy Landscape Protection Officer
(Landschaftsschutzanwalt-Stellvertreter), the applicant and his
counsel.
On 31 July 1987 the expert was again questioned by the
authority, this time in the absence of the applicant's counsel.
The expert's statements were served on the applicant on 4 August
1987.
On 31 August 1987 the applicant's counsel objected in
writing to the fact that the authority had heard the expert in
his absence.
By decision of 14 September 1987 the Regional Government
again dismissed the applicant's appeal. This time the Regional
Government, referring to Section 3 in connection with Section 10
of the Landscape Protection Act, found that the waste dump
envisaged by the applicant on an area of approximately 2000 m²
was subject to a permit, which could not be granted because the
project ran counter to the interests of landscape protection.
On 17 March 1988 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof), which the latter
rejected on 9 June 1988. Upon the applicant's request the
Constitutional Court referred the case to the Administrative
Court on 26 September 1988.
On 30 October 1988 the applicant supplemented his complaint
to the Administrative Court. He did not ask for an oral hearing.
On 22 May 1989 the Administrative Court dismissed the
applicant's complaint. The Administrative Court held that the
Regional Government had correctly assumed that the applicant's
project to fill up his land with waste material required a permit
under Section 3 para. 1 (l) of the Landscape Protection Act. The
Administrative Court considered further that the refusal of the
permit was in accordance with Section 20 para. 1 of the Regional
Planning Act (Raumplanungsgesetz) and the relevant Area Zoning
Plan (Flächenwidmungsplan), according to which the applicant's
land was marked as "agricultural land" (Landwirtschaftsgebiet).
The applicant's project, however, did not concern agriculture.
The Administrative Court concluded that, under these
circumstances, it need not consider further the applicant's
complaint on the hearing of the expert in the absence of the
applicant's counsel.
B. Relevant domestic law
1. Section 3 para. 1 (l) of the Landscape Protection Act reads
as follows:
"A permit of the authority is required for the erection and
for important changes affecting the interests of landscape
protection of:
(l) Storage places with a surface of more than 400 square
metres and dumps with a surface of more than 100 square
metres."
Section 4 para. 2 of the Landscape Protection Act reads as
follows:
"The authority may allow exemptions from paragraph 1 if it
is secured that such changes would not violate the
interests of landscape protection and, in particular, would
not hinder the view on the lakes, or if they are necessary
for reasons of public safety. The authority may further
allow exemptions if the interests of landscape protection
are outweighed by other public interests. In such a case
the violation of the interests of landscape protection must
be kept to a minimum by imposing conditions."
Section 5 of the Landscape Protection Act reads as follows:
"Filling, draining, ditching and other measures which
endanger the habitat of plants and animals are prohibited
within riparian forests, low moors with the exemption of
marshland, high moors and pools. The provisions of Section
4 paragraph 2 apply mutatis mutandis."
Section 10 paras. 1 and 2 of the Landscape Protection Act
reads as follows:
"(1) A permit may only be granted if it is ensured that the
interests of landscape protection will not be violated.
(2) A permit must not be refused if the reason for its
refusal can be eliminated by imposing conditions. A permit
may be granted notwithstanding a violation of the interests
of landscape protection when they are outweighed by other
public interests. In such a case the violation of the
interests of landscape protection must be kept to a minimum
by imposing conditions."
2. Section 20 paras. 1 and 2 of the Regional Planning Act reads
as follows:
"(1) Decisions which are based on Regional Acts must not be
in contradiction with the Area Zoning Plan, if not provided
otherwise by the respective Act.
(2) Decisions made contrary to paragraph 1 are null and
void."
COMPLAINTS
1. The applicant complains that the decision on his application
for permission to fill up the clay pit was not taken by an
independent and impartial tribunal, as required by Article 6
para. 1 of the Convention. In any event, he did not have a
public hearing before the Administrative Court.
2. Under Article 6 para. 1 he further complains that the
proceedings were conducted in an unfair manner. He submits that
the landscape protection expert consulted lacked independence as
he was an employee of the Regional Government and that this
expert was heard in his absence on 31 July 1987. He also submits
that the Constitutional Court's refusal to deal with his
complaint and to decide on its merits rendered the proceedings
unfair.
3. Finally the applicant complains that the proceedings were
not conducted within a reasonable time, as required by Article
6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 January 1990 and
registered on 22 January 1990.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government and to request them to
submit their written observations on admissibility and merits.
The Government's observations were submitted on 26 March
1993 and a supplement to these observations on 16 April 1993.
On 21 June 1993 the applicant submitted his observations in
reply.
In his observations the applicant, for the first time,
raised the complaints that the Constitutional Court's refusal to
deal with his complaint and not to decide on its merits rendered
the proceedings unfair and that contrary to Article 6 para. 1 of
the Convention no hearing took place before the Administrative
Court.
THE LAW
1.a. The applicant complains that the decision on his application
for permission to fill up the clay pit was not taken by an
independent and impartial tribunal as required by Article 6 para.
1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, as far as
relevant, reads as follows:
"In the determination of his civil rights and
obligations ... everyone is entitled to a fair and
public hearing within a reasonable time by an
independent and impartial tribunal established by law.
..."
The Commission considers that the proceedings in question
concerned the determination of the applicant's civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention and that this provision was thus applicable
(cf. Skärby judgment of 28 June 1990, Series A no. 180-B, p. 36,
paras 27 et seq.; Fredin judgment of 18 February 1991, Series A
no. 192, p. 20, para. 63).
Moreover, in the present case there was a "genuine and
serious" dispute (contestation) between the applicant and the
authorities regarding the question whether the applicant needed
a permit under the Landscape Protection Act for his project and
whether he fulfilled the conditions for obtaining such a permit
and the outcome of this dispute was directly decisive for that
right. Accordingly, the applicant's right to fill up the
abandoned pit on his land in accordance with the applicable laws
and regulations constitutes a civil matter within the meaning of
Article 6 (Art. 6) of the Convention.
The Government submit that the applicant's case was decided
by an impartial and independent tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention as the
Administrative Court met the requirements of a tribunal.
In the applicant's view the Administrative Court did not
fulfil the criteria of such a tribunal. In any event, he did not
have a public hearing before the Administrative Court as required
by Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission considers that while the proceedings before
the District Authority and the Regional Government did not comply
with the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention, it is sufficient for the purpose of this provision
if the decisions taken by the lower instances were subject to
subsequent control by judicial bodies which exercised full
jurisdiction in conformity with this provision (Eur. Court H.R.,
Albert and Le Compte judgment of 10 February 1983, Series A no.
58, p. 16, para. 29).
The Commission notes that further proceedings were conducted
before the Administrative Court.
The Commission recalls that the Administrative Court fulfils
the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention in matters which are not exclusively within the
discretion of administrative authorities and where the
Administrative Court considers the submissions on their merits,
point by point, without declining jurisdiction in replying to
them or ascertaining various facts (Eur. Court H.R., Zumtobel
judgment of 21 September 1993, para. 31 and 32, to be published
in Series a no 266-A).
The Commission further notes that in the present case the
Administrative Court, when deciding on the applicant's second
complaint on 22 May 1989, found that the applicant's project was
subject to a permit which had, in accordance with the relevant
law, to be refused. The Administrative Court did not have to
decline jurisdiction in dealing with the applicant's complaint.
As a result, the Commission considers that the requirements
of a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-
1) of the Convention have been complied with.
b. As regards the applicant's further complaint about the lack
of a hearing before the Administrative Court, the Commission,
even assuming that the applicant complied with the time-limit as
stipulated in Article 26 (Art. 26) of the Convention, notes that
he did not request such a hearing. The Commission, recalling the
practice of the Administrative Court not to hear the parties
unless one of them expressly requests it to do so, finds that the
applicant must be deemed to have waived unequivocally his right
to a hearing (see Zumtobel judgment, loc. cit., para. 34).
c. It follows that the above complaints are manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention that the proceedings were conducted
in an unfair manner.
a. He complains in particular that the landscape protection
expert lacked independence as he was an employee of the Regional
Government and that this expert was heard in his absence on 31
July 1987.
The Government submit that the applicant did avail himself
of the opportunity to comment on the expert's statements. In any
way, the expert's report was of no relevance in the further
proceedings as it was limited to issues under Section 5 of the
Landscape Protection Act, whereas the Administrative Court
dismissed the applicant's complaint under Sections 3 and 10 of
the said Act.
The Commission recalls that in order to determine whether
the aim of Article 6 (Art. 6) - a fair trial - has been
achieved, regard must be had to the entirety of the domestic
proceedings conducted in the case (Eur. Court H.R., Imbroscia
judgment of 24 November 1993, para. 38, to be published in Series
A no. 275).
The Commission notes that on 22 May 1989 the Administrative
Court dismissed the applicant's complaint holding that his
application for a permit under the Landscape Protection Act had
to be refused under Section 20 para. 1 of the Regional Planning
Act as it contradicted the Area Zoning Plan. It did not,
therefore, take the issues under Section 5 of the Landscape
Protection Act into account, to which the expert opinion related.
The Administrative Court concluded that under these circumstances
it need not consider further the applicant's complaint that the
expert had, on one occasion, been heard in the absence of the
applicant's counsel.
b. As regards the applicant's complaint that the Constitutional
Court's refusal to deal with his complaint and to decide on its
merits rendered the proceedings unfair, the Commission observes
that the applicant has raised this complaint for the first time
in his observations in reply of 21 June 1993.
Moreover, the Commission, even assuming that the applicant
complied with the time-limit as stipulated in Article 26 (Art.
26) of the Convention, finds no indication that the proceedings
before the Constitutional Court affected the fairness of the
proceedings in general.
c. Under these circumstances the Commission, looking at the
proceedings as a whole, finds that there is no appearance of a
violation of the applicant's right to a fair hearing.
This part of the application, therefore, is again manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
4. Finally the applicant complains that the proceedings were
not conducted within a reasonable time as required by Article 6
para. 1
(Art. 6-1) of the Convention.
The Government contend that the proceedings were concluded
within a reasonable time. They submit in particular that the
Administrative Court dealt twice with the case and that delays,
if any, were attributable to the applicant.
The applicant refers in particular to delays in the
proceedings before the administrative authorities. Thus between
2 July 1984, when he lodged his appeal, and 21 April 1986, when
an oral hearing took place, the Regional Government made no steps
to further the proceedings.
The Commission finds that this complaint must be examined
on its merits. This part of the application cannot, therefore,
be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits of the
case, the applicant's complaint regarding the length of the
proceedings;
and
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second
Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy