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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 16036/90

Wolfgang Ochsenreiter

against

Austria

REPORT OF THE COMMISSION

(adopted on 11 January 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 13) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 14 - 25). . . . . . . . . . . . . . . . . . . . . . . 3

A. Complaint declared admissible

(para. 14) . . . . . . . . . . . . . . . . . . . . . . . 3

B. Point at issue

(para. 15) . . . . . . . . . . . . . . . . . . . . . . . 3

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

(paras. 16 - 25) . . . . . . . . . . . . . . . . . . . . 3

CONCLUSION

(para. 26) . . . . . . . . . . . . . . . . . . . . . . . 4

APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . . . . 5

I. INTRODUCTION

1. The present Report concerns Application No. 16036/90 by Wolfgang

Ochsenreiter against Austria, introduced on 5 January 1990 against

Austria and registered on 22 January 1990.

The applicant is an Austrian citizen residing in Fursach,

Austria. He is represented before the Commission by Mr. W.L. Weh, a

lawyer practising in Bregenz.

The respondent Government are represented by their Agent,

Ambassador F. Cede, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

2. The application was communicated to the Government on

14 October 1992. Following an exchange of written observations, the

complaint relating to the length of proceedings (Article 6 para. 1 of

the Convention) was declared admissible and the remainder of the

application inadmissible by the Commission (Second Chamber) on

7 April 1994. The decision on admissibility is appended to this

Report. The Government have submitted observations on the merits of

the case on 30 May 1994.

3. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 11 January 1995 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Austria.

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. The applicant is the owner of real estate which had previously

been used as a clay pit. In 1981 he applied to the Bregenz District

Authority (Bezirkshauptmannschaft) for permission under the Landscape

Protection Act (Landschaftsschutzgesetz) to fill up the abandoned pit,

but withdrew his request in 1983. As he had in the meantime filled up

parts of the clay pit, the District Authority insisted that he should

apply for permission. He then renewed his request on 15 November 1983

and amended it on 22 March 1984.

7. On 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 wet-land within the meaning of the

Landscape Protection Act and therefore merited protection.

8. On 2 July 1984 the applicant appealed to the Vorarlberg Regional

Government (Landesregierung).

9. Subsequently, he filed a complaint with the Administrative Court

(Verwaltungsgerichtshof) complaining about the Regional Government's

inactivity in dealing with his appeal of 2 July 1984. On 15 April 1985

the Administrative Court discontinued proceedings as the applicant had

failed to comply fully with the Administrative Court's order of

15 March 1985 to submit additional information.

10. On 30 October 1985 the applicant agreed with the Regional

Government that further enquiries on the situation of the flora and

fauna on his land during the vegetation period in spring 1986 were

necessary. For that purpose an oral hearing on his land was scheduled,

which took place on 21 April 1986. On 16 May 1986 the Regional

Government dismissed the applicant's appeal.

11. On 10 November 1986 the Administrative Court, upon a complaint

lodged by the applicant, quashed the Regional Government's decision on

account of procedural mistakes.

12. Proceedings were then resumed before the Regional Government.

On 29 December 1986 an expert for landscape protection 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,

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 which the expert was heard.

On 31 July 1987 the expert was questioned again by the authority and

his statements were served on the applicant on 4 August 1987. On

31 August 1987 the applicant made further submissions. On

14 September 1987 the Regional Government again dismissed his appeal.

13. On 17 March 1988 the applicant lodged a complaint with the

Constitutional Court, 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. On

22 May 1989 the Administrative Court dismissed the complaint.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

14. The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

15. The only point at issue is whether the length of the proceedings

complained of violated the "reasonable time" requirement referred to

in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

16. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows :

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

17. The Commission recalls that, in its decision on the admissibility

of the application, it found that there was a dispute concerning the

applicant's civil rights and obligations and that Article 6 para. 1

(Art. 6-1) of the Convention was therefore applicable to the

proceedings in the present case.

18. These proceedings started on 2 July 1984, when the applicant

appealed to the Regional Government, and ended with the Administrative

Court's decision of 22 May 1989 (see Eur. Court H.R., König judgment

of 28 June 1978, Series A No. 27, p. 33, para. 98; Josef Müller AG,

Comm. Report 14.10.91, para. 70, unpublished). The proceedings thus

lasted for about 4 years, 10 months and 3 weeks.

19. The Commission recalls that the reasonableness of proceedings

must be assessed in the light of the particular circumstances of the

case and with the help of the following criteria: the complexity of the

case, the conduct of the parties and the conduct of the authorities

dealing with the case (see Eur. Court H.R., Vernillo judgment of

20 February 1991, Series A no. 198, p. 12, para. 30).

20. The applicant refers in particular to delays in the proceedings

before the administrative authorities. Thus between 31 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.

21. 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.

22. The Commission notes that the proceedings at issue involved the

taking of expert evidence. However, on the whole, the case was not

particularly complex.

23. As regards the applicant's conduct, the Commission notes that on

15 April 1985 the Administrative Court discontinued proceedings on his

complaint about the Regional Government's inactivity in dealing with

his appeal as he had failed to comply with procedural requirements and

that on 28 January 1987 he requested the extension of a time-limit.

The Commission considers therefore that the applicant's conduct

contributed to the length of the proceedings, but is not in itself

sufficient to explain their length.

24. As regards the conduct of the Austrian authorities the Commission

notes that a delay occurred in the first set of the appeal proceedings

before the Regional Government on the applicant's appeal of July 1984,

which lasted for 22 months. The Commission accepts that enquiries on

the situation of the flora and fauna on the applicant's land could only

be carried out during the vegetation period. However, there is nothing

to show why the necessary investigations could not have been carried

out in spring 1985 but had to be postponed until spring 1986. The

Commission considers that this delay has not been sufficiently

explained by the Government.

25. In the light of the criteria established by 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

26. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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OCHSENREITER v. AUSTRIA

OCHSENREITER v. AUSTRIA

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