EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26452/95

Heidi and Salvatore D’Amico

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 8 September 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-7) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 8-21) 3

III. OPINION OF THE COMMISSION

(paras. 22-39) 5

A. Complaint declared admissible

(para. 22) 5

B. Point at issue

(para. 23) 5

C. As regards Article 6 para. 1 of the Convention

(paras. 24-38) 5

CONCLUSION

(para. 39) 6

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 7

I. INTRODUCTION

1. The present Report concerns application No. 26452/95 introduced on 31 January 1995  against Switzerland and registered on 6 February 1995.

2. The first applicant is a Swiss citizen born in 1947.  The second applicant, her husband, is an Italian citizen born in 1951.  They are resident in St Gall in Switzerland.  They were represented before the Commission by Mr C. Bernhart and Mr B. Eugster , lawyers practising in St Gall.

3. The respondent Government were represented by their Agent, Mr P. Boillat , Head of the International Affairs Division of the Federal Office of Justice.

4. The application was communicated to the Government on 6 December 1996.  Following an exchange of written observations, the complaint relating to the length of civil proceedings (Article 6 para. 1 of the Convention) was declared admissible on 16 April 1998.  The decision on admissibility is appended to this Report.  Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

5. Having noted that there is no basis upon which a friendly settlement within the meaning of former Article 28 para. 1 (b) of the Convention (1) can be secured, the Commission, after deliberating, adopted this Report on 8 September 1999 in pursuance of former Article 31 of the Convention, the following members being present:

MM E. BUSUTTIL, Acting President

S. TRECHSEL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

A. PERENIČ

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

6. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Switzerland.

7. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

-----------------------------

(1) The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998 .

II. ESTABLISHMENT OF THE FACTS

8. On 8 July 1985 the applicants requested permission to create nine parking spaces on their property.

9. On 12 November 1985 the St Gall Building Authority ( Bauverwaltung ) informed the applicants that the Building Inspectorate Board ( Baupolizeikommission ) consented in principle to the creation of parking spaces, though certain plans were still missing.

10. On 26 November 1985 the Building Inspectorate Board invited the applicants to submit a request for building permission in respect of certain parking spaces which they intended to use.  In the light of that invitation, the applicants considered the authorisation a mere matter of form and began work on the parking spaces.

11. On 24 January 1986 the Building Inspectorate Board granted the applicants' request of 8 July 1985 in part; it refused permission for two parking spaces however.

12. On 17 February 1986 the applicants lodged an appeal against that decision.

13. On 23 September 1986 the St Gall Town Council ( Stadtrat ) dismissed the appeal, annulled the permission granted on 24 January 1986 and ordered the applicants to restore the previous position in respect of the preparations which they had already undertaken.

14. On 13 October 1986 the applicants lodged an appeal with the Government ( Regierungsrat ) of the Canton of St Gall, requesting annulment of the decision of 23 September 1986 and permission to create four parking spaces.

15. On 15 December 1992 the Government of the Canton of St Gall dismissed the appeal.  In its decision the Government pointed out that the Town Council had filed its observations on the appeal on 16 December 1986 and that the Construction Department had, together with the applicants, inspected the site on 4 February 1987.  The Government furthermore stated: “The final examination of the appeal was unfortunately delayed, as a whole series of similar cases had to be examined and many different fundamental questions arose in respect of the new provisions” (“ Da eine ganze Reihe ähnlicher Fälle zu beurteilen waren und sich verschiedene grundsätzliche Fragen zu den neuen Vorschriften stellten , hat sich die abschliessende Bearbeitung des Rekurses leider verzögert ”).

16. On 14 January 1993 the applicants lodged an appeal with the Administrative Court ( Verwaltungsgericht ) of the Canton of St Gall.

17. On 25 June 1993 the Administrative Court dismissed the appeal.

18. On 2 August 1993 the applicants lodged a public-law appeal ( staatsrechtliche Beschwerde ) with the Federal Court ( Bundesgericht ). They complained, inter alia , of the length of the proceedings and submitted that, having been able to use the parking spaces for eight years, albeit unlawfully, they should not be asked to restore the previous position.

19. On 15 August 1994 the Federal Court dismissed the applicants’ public-law appeal.

20. In respect of the applicants' complaint about the length of the proceedings, it could not in the Court's opinion be said that the authorities had actually tolerated the unlawful creation of the parking spaces for nine years.  The judgment continued:

“Rather, the lengthy duration of the unlawful situation is the result of a procedure which has lasted for an unusually long time.  However, the applicants suffered no detriment.  On the contrary, they profited from the lengthy proceedings in that they could use the four parking spaces during this time.”

“ Vielmehr ist das lange Andauern des ungesetzlichen Zustands die Folge davon , dass das Verfahren ungewöhnlich lange gedauert hat.  Den Beschwerdeführern ist daraus jedoch kein Nachteil erwachsen . Sie haben im Gegenteil von der langen Verfahrensdauer profitiert , da sie während dieser Zeit die vier Parkplätze benutzen konnten .”

21. The judgment of the Federal Court was served on the applicants on 30 August 1994.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

22. The Commission has declared admissible the applicants’ complaint that their case was not heard within a reasonable time.

B. Point at issue

23. The only point at issue is whether the length of the proceedings complained of exceeded the “reasonable time” referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

24. Article 6 para. 1 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations …, everyone is entitled to a ... hearing within a reasonable time ...”

25. The proceedings in question concerned permission to create parking spaces on the applicants’ property.  The proceedings accordingly constituted a dispute over “civil rights and obligations” and fall within the scope of Article 6 para. 1 of the Convention.

26. The applicants submit that the proceedings started on 8 July 1985, when they requested permission to create parking spaces, and ended on 30 August 1994, when the Federal Court’s judgment was served on them.  They maintain that the matter was very important to them, as the second applicant had a carpentry business and needed sufficient parking spaces for his customers.

27. The Government consider that the period to be examined commenced on 17 February 1986, when the applicants lodged an appeal with the St Gall Town Council, and ended on 15 August 1994, when the Federal Court delivered its judgment.

28. In the Government’s opinion, the proceedings did not present any particular difficulties.

29. As regards the conduct of the authorities, the Government point out that the proceedings lasted seven months and nine days before the St Gall Town Council; six years, two months and twenty-two days before the Government of the Canton of St Gall; five months and sixteen days before the Administrative Court of the Canton of St Gall; and one year and thirteen days before the Federal Court.  The Government conclude that the only period requiring further examination is that of the proceedings before the Government of the Canton of St Gall.

30. The Government consider that the length of the proceedings before the Government of the Canton of St Gall can be explained largely by the market boom in constructions at the time, which led to a flood of appeals.  The Government of the Canton of St Gall organised the appeals in such a manner that priority was given to cases concerning more than one applicant and cases in which public interests were involved.  While the applicants’ appeal was pending, the authorities took into consideration the length of the proceedings by not interfering when the applicants continued to use the parking spaces.

31. The Government accept that no delay can be attributed to the applicants during the proceedings before the Government of the Canton of St Gall.  However, the Government note that the applicants undertook no steps to hasten the proceedings; on the contrary, they deliberately employed the strategy of a fait accompli and complained about the undue length of the proceedings for reasons unconnected with Article 6 of the Convention.

32. Concerning what was at stake in the proceedings, the Government observe that the case concerned the minimal matter of permission to create two parking spaces and that in view of their illegal use of the parking spaces, in breach of good faith, an earlier decision would not have been advantageous to the applicants.

33. The Commission considers that the period to be taken into consideration began on 17 February 1986, when the applicants lodged an appeal against the decision of the Building Inspectorate Board which partly refused their request (Eur. Court HR, König v. Germany judgment of 28 June 1978, Series A no. 27, p. 33, para. 98) and ended on 30 August 1994, when the Federal Court’s judgment was served on the applicants.  The proceedings therefore lasted eight years, six months and thirteen days.

34. The Commission reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (Eur. Court HR, Vernillo v. France judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).

35. The Commission considers that the case was not complex and that no delay was caused by the applicants.  Furthermore, the Government have not shown that the applicants had effective judicial means to ensure due progress of the proceedings before the Government of the Canton of St Gall.

36. As to the conduct of the authorities, the Commission notes that no satisfactory explanation has been given for the delays before the Government of the Canton of St Gall.  A reference merely to the excessive workload is not sufficient to justify a period of inactivity of approximately six years.

37. The Commission reaffirms that it is for Contracting States to organise their judicial systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time (Eur. Court HR, Vocaturo v. Italy judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).

38. Consequently, in the light of the criteria established in the case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

CONCLUSION

39. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

M.-T. SCHOEPFER E. BUSUTTIL

Secretary           Acting President

to the Commission         of the Commission