AS TO THE ADMISSIBILITY OF
Application No. 26794/95
by Gottfried SCHERTLER
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 23 December 1992
by Gottfried SCHERTLER against Austria and registered on 21 March 1995
under file No. 26794/95;
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 national, residing in Schwarzach.
In the proceedings before the Commission he is represented by
Mr. W. Weh, a lawyer practising in Bregenz.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is the owner of two parcels of land in Dornbirn.
These parcels have Nos. 11010 and 11013/2 in the Dornbirn land register
and are designated as free space (Freifläche-Freihaltegebiet) in the
area zoning plan (Flächenwidmungsplan).
On 19 June 1990 the applicant, represented by counsel, applied
to the Dornbirn municipality for a partition of his land (Grundstücks-
teilung). He also requested that the designation of his land should be
changed to building land (Bauland). He attached a map which had been
prepared by a civil engineer, according to which a street was to be
built to develop the land at issue. North of it three parcels to be
used for commercial purposes were to be created, while south of it
seven parcels for the construction of houses were to be established.
On 8 January 1991 the Dornbirn Town Council (Stadtrat) refused
the applicant's request for a partition of his land on the ground that
it was contrary to the area zoning plan, as it was aimed at creating
parcels for building purposes. However, land designated as free space
had to be kept free of development.
On 6 March 1991 the Dornbirn Town Representation (Stadt-
vertretung) dismissed the applicant's appeal. It referred to S. 34 of
the Vorarlberg Planning Act (Raumplanungsgesetz), according to which
permission for the partition of land had to be refused, inter alia, if
it was contrary to the relevant area zoning plan. It confirmed the Town
Council's view that the applicant's proposal for the partition of
parcels No. 11010 and 11013/2 aimed at developing them and was,
therefore, contrary to the area zoning plan. The Town Representation
found that the applicant's submissions mainly contained a proposal to
change the designation of his land. In the present proceedings,
however, the authorities had to apply the area zoning plan as it was
currently in force.
On 10 May 1991 the Dornbirn District Administrative Authority
(Bezirksverwaltungsbehörde) dismissed the applicant's further appeal.
On 27 June 1991 the applicant lodged an appeal with the
Constitutional Court (Verfassungsgerichtshof). He claimed that his
right to property and his right to a fair trial had been violated. He
submitted in particular that the proceedings relating to his request
for partition of his land concerned his civil rights and argued that
S. 34 para. 2 (a) of the Vorarlberg Planning Act was unconstitutional
because it referred to the existing area zoning plan. He complained
that there was no right to a decision as regards his request to have
the designation of his land changed. Moreover, the applicant claimed
that the present designation of his land as provided for in the area
zoning plan was unlawful. He claimed in particular that the area on
either side of his land had been developed in the last years. There
were also plans to construct a road on his land and, according to him,
the true reason for delaying the introduction of proceedings to amend
the area zoning plan was to keep the price down in case of a future
expropriation.
On 25 November 1991 the Constitutional Court refused to deal with
the applicant's complaint for lack of sufficient prospects of success.
As regards the applicant's complaint about the alleged unlawfulness of
the area zoning plan, the court referred to its constant case-law
concerning the discretion of the planning authorities. It noted that
the applicant's submissions were limited to arguments according to
which another designation of his land would be more expedient. However,
he had not pointed out any provision of the Vorarlberg Planning Act
which would be violated by the present designation. Subsequently, upon
the applicant's request, the Constitutional Court referred the case to
the Administrative Court (Verwaltungsgerichtshof).
On 24 March 1992 the applicant supplemented his complaint to the
Administrative Court. He maintained that the area zoning plan was
unlawful. In this respect he referred to his submissions to the
Constitutional Court and repeated that there was no objective reason
for the present designation of his land. Moreover, he complained that
the area zoning plan should not be regarded as a decree (Verordnung),
i.e. a rule of general applicability, but as an individual decision
(Bescheid). Thus, it would be possible to challenge it before the
Administrative Court as being unlawful.
On 21 May 1992 the Administrative Court rejected the applicant's
appeal on the ground that it was not competent to deal with it. It
found that an area zoning plan was a rule of general applicability and
that its competence was limited to reviewing the lawfulness of
individual decisions.
The decision was served on the applicant on 29 June 1992.
COMPLAINTS
1. The applicant complains that his request for partition of his
land was not determined by a tribunal within the meaning of Article 6
para. 1 of the Convention. He claims that the contested proceedings
concerned his civil rights and that there was a dispute as regards the
question whether his request was contrary to the area zoning plan.
2. The applicant complains under Article 1 of Protocol No. 1 that
the refusal of his request for a partition of his land violated his
right to property. He submits in particular that the designation of his
land as free space is arbitrary and only serves to keep the
compensation low in case of a future expropriation for the purpose of
constructing a road.
THE LAW
1. The applicant complains that his request for partition of his
land was not determined by a tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention, which so far as relevant, reads
as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
In determining whether the applicant's rights under Article 6
para. 1 (Art. 6-1) of the Convention have been violated in the
proceedings complained of, the Commission must first consider whether
these proceedings involved a determination of the applicant's civil
rights within the meaning of this provision.
The applicability of Article 6 (Art. 6) depends on whether there
was a dispute over a "right" which can be said, at least on arguable
grounds, to be recognised under domestic law, and, if so, whether this
"right" was of a "civil" character within the meaning of Article 6
para. 1 (Art. 6-1). In particular, the dispute must be genuine and
serious, it may relate not only to the actual existence of a right but
also to its scope and manner of its exercise and, finally, the results
of the proceedings concerning the dispute at issue must be directly
decisive for such a right (see Eur. Court H.R., Allan Jacobsson
judgment of 25 October 1989, Series A no. 163, p. 19, paras. 66-67).
The Commission recalls that a dispute about an owner's use of
land for purposes other than those listed in the relevant rules does
not determine the owner's civil rights, but concerns the application
of public law regulations to the permitted use of land
(cf. No. 10471/83, Dec. 9.12.85, D.R. 45 p. 113; No. 26085/95,
Dec. 28.2.96 unpublished). The Commission has also held that a decision
rejecting a request for amendment of an existing building plan does not
involve a determination of civil rights (cf. No. 11844/85,
Dec. 29.2.88, D.R. 55 p. 205).
From the above case-law it follows that civil rights within the
meaning of Article 6 (Art. 6) of the Convention were involved where the
applicants had had, or could arguably be said to have had, rights
recognised under domestic law which were revoked or denied by the
decisions of the administrative authorities (cf. No. 26085/95,
Dec. 28.2.96 unpublished).
In the present case the authorities refused the applicant's
request for a partition of his land on the ground that it was aimed at
creating parcels for building purposes and was, therefore, contrary to
the applicable area zoning plan, according to which it was designated
as free-space. The Commission notes that the applicant did not contest
these findings. In fact he himself had joined a request to change the
designation of his land to building land to his request for
partitioning it. In the proceedings before the Constitutional Court he
only claimed that the regional planning law was unconstitutional in
that it referred to the existing area zoning plan. Moreover, he
complained that there was no right to a decision to have a change of
an existing area zoning plan. The Constitutional Court noted that he
had not advanced any argument to support his allegation of
unconstitutionality and that his submissions were limited to
complaining that another designation of his land would be more
expedient.
In these circumstances, the Commission finds that there was no
genuine and serious dispute over a right of the applicant. He had no
right to have his land partitioned contrary to the existing area zoning
plan nor did he have a right to have the area zoning plan amended to
change the designation of his land.
The Commission, therefore, considers that the proceedings at
issue did not involve a determination of the applicant's civil rights
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention 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 refusal of his request for a partition of his land
violated his right to property. He submits in particular that the
designation of his land as free space is arbitrary and only serves to
keep the compensation low in case of a future expropriation for the
purpose of constructing a road.
Before stating an opinion as to whether this part of the
application reveals any appearance of a violation of the applicant's
right to property, the Commission must determine whether it is barred
by the ground of inadmissibility set forth in Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention, which provides as follows:
"1. The Commission shall not deal with any petition submitted
under Article 25 (Art. 25) which:
...
b. is substantially the same as a matter which has already
been examined by the Commission or has already been submitted to
another procedure of international investigation or settlement
and if it contains no relevant new information."
The Commission notes that the applicant has already brought an
application relating to the same two parcels of land, namely Nos. 11010
and 11013/2 in the Dornbirn land register. It was registered under
No. 26575/95 and has been declared inadmissible on 26 June 1996. In
that application the applicant also complained, albeit with regard to
the refusal of a building permit, that his right to property had been
violated. He submitted the same argument concerning the alleged
arbitrariness of the designation of his land as free-space as in the
present application.
The Commission, therefore, considers the applicant's complaint
is substantially the same as the complaint the Commission has already
examined in Application No. 26575/95.
It follows that this part of the application falls within the
scope of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention and
must accordingly be rejected pursuant to this provision.
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