Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 12884/87

O.

against

Austria

REPORT OF THE COMMISSION

(adopted on 14 May 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 10). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 11 - 15) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 22). . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 16 - 20) . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 21 - 22) . . . . . . . . . . . . . . . . . . . . 6

III. OPINION OF THE COMMISSION

(paras. 23 - 48). . . . . . . . . . . . . . . . . . . . . . . 9

A. Complaints declared admissible

(para. 23) . . . . . . . . . . . . . . . . . . . . . . . 9

B. Points at issue

(para. 24) . . . . . . . . . . . . . . . . . . . . . . . 9

C. As to the applicability of Article 6

para. 1 of the Convention

(paras. 25 - 35) . . . . . . . . . . . . . . . . . . . . 9

D. As to compliance with Article 6

para. 1 of the Convention

(paras. 36 - 45) . . . . . . . . . . . . . . . . . . . .11

1. Scope of the review by the

Administrative Court

(paras. 36 - 41) . . . . . . . . . . . . . . . . . .11

2. Fairness of the proceedings

(paras. 42 - 45) . . . . . . . . . . . . . . . . . .13

E. Recapitulation

(paras. 46 - 47) . . . . . . . . . . . . . . . . . . . .14

Concurring opinion of Mr. H.G. Schermers,

Mrs. J. Liddy, MM. J-C. Geus and B. Marxer. . . . . . . . . . . . .15

Concurring opinion of Sir Basil Hall. . . . . . . . . . . . . . . .17

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18

APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . .19

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1913. She lives

in Linz and was initially represented by Mr. R. Proksch, a lawyer in

Vienna. Since the application has been declared admissible, she has

been represented by Mr. H. Blum, a lawyer in Linz.

3. The Government were represented initially by their agent,

Ambassador H. Türk, Head of the International Law Department at the

Federal Ministry of Foreign Affairs, and latterly by his successor,

Ambassador F. Cede.

4. The application concerns court proceedings in which the

applicant attempted, without success, to challenge planning permission

granted to her neighbours for the construction of houses on land

adjoining the applicant's property. The applicant invokes

Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 10 September 1986 and

registered on 8 April 1987.

6. After considering the case on 12 July 1989 and 2 July 1990, on

11 July 1991 the Commission decided to request observations of the

parties in connection with the applicability of Article 6 to the

proceedings at issue, and whether the scope of the Administrative

Court's jurisdiction was sufficient to comply with that provision. The

Commission also asked whether the proceedings were "fair".

7. The Government submitted their observations on 6 December 1991

and the applicant was set a time-limit of 2 February 1992 for

submitting observations in reply. On 7 February 1992 the applicant's

representative requested an extension of the time-limit for submitting

observations. The request was refused on 20 February 1992.

8. On 29 June 1992 the Commission declared admissible the

application to the extent that it related to the proceedings before the

Administrative and Constitutional Courts, and inadmissible as to the

remainder.

9. On 17 July 1992 the applicant's initial representative submitted

observations on the admissibility and merits of the application. On

28 August 1992 her present representative, Mr. Blum, submitted further

comments.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

A. WEITZEL

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C. L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M. P. PELLONPÄÄ

B. MARXER

G.B. REFFI

12. The text of this Report was adopted on 14 May 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. Land adjoining the applicant's property in Leonding (Upper

Austria) was re-designated as building land by the Leonding municipal

council in an area zoning plan (Flächenwidmungsplan) of

12 September 1980. On 30 January 1981 a building plan (Bebauungsplan)

permitted the construction of terraced houses on the land. Individual

planning consents were granted in respect of three houses. The

applicant challenged these consents before the local authorities, the

final decisions of the authorities being decisions of the Upper

Austrian Provincial Government of 27 May 1982 (parcel 725/7),

8 July 1982 (parcel 725/6), 3 September 1982 (parcel 725/5),

14 October 1982 (parcel 725/4) and 22 October 1982 (parcel 725/3). She

then made two constitutional complaints to the Constitutional Court

(Verfassungsgerichtshof, parcels 725/6 and 725/7) and three

administrative complaints to the Administrative Court

(Verwaltungsgerichtshof, parcels 725/3, 725/4 and 725/5).

17. In her constitutional complaints, the applicant alleged that the

planning consents relating to two of the plots (numbers 725/6 and

725/7) interfered with her constitutional rights and that they applied

unlawful norms (gesetzwidrige Verordnungen). On 2 October 1985 the

Constitutional Court interrupted its proceedings as it had doubts as

to the compatibility of the area zoning plan and the building plan with

the Upper Austrian Regional Planning Act (Oberösterreichisches

Raumordnungsgesetz). The Administrative Court requested the

Constitutional Court to include the parcels of land under consideration

by it (numbers 725/3, 725/4 and 725/5) in the norm control proceedings

(Verordnungsprüfungsverfahren).

18. On 19 March 1986 the Constitutitional Court found both the area

zoning plan and the building plan to be lawful. On the same date it

also rejected the applicant's individual complaints and referred them

to the Administrative Court.

19. On 30 September 1986 the Administrative Court rejected the

applicant's complaint relating to parcel 725/5. It found, inter alia,

as follows:

[Original]

"Da dem Nachbar auf die Einhaltung der ... Bestimmung [Art. 23

Abs. 2 der OÖ Bauordnung 1976] ein subjektiv-öffentliches, im

Baubewilligungsverfahren grundsätzlich zu berücksichtigendes

Recht zusteht ..., war im gegebenen Zusammenhang zu prüfen, ob

der auf dem zu errichtenden Zufahrtsweg entlang der Grenze der

Liegenschaft der Beschwerdeführerin zu erwartende, durch den

geplanten Bau verursachte zusätzliche Verkehr mit Kraftfahrzeugen

eine erhebliche Belästigung der Beschwerdeführerin herbeiführen

wird...

Den der Lärmfrage gewidmeten Ausführungen in den schon erwähnten

Äusserungen der Unterabteilung Immissionsschutz des Amtes der OÖ

Landesregierung (vom 23 Mai 1982) ist zu entnehmen, daß der

Fahrweg aus der Garage bis zur Einbindung in die Zaubertal-Straße

im vorliegenden Fall 48 m lang sei ... und unter der Annahme, daß

dieser Fahrweg mit einer durchschnittlichen Geschwindigkeit von

5 km/h zurückgelegt werde, die Zeit, welche von der Ausfahrt aus

der Garage bis zur Einbindung in das öffentliche Gut verstreiche,

rund 35 Sekunden betrage...

... Angesichts des Umstandes, daß die Beschwerdeführerin den

dargestellten Erwägungen des Sachverständigen während des

Verfahrens nicht durch konkrete Angaben entgegengetreten ist,

kann der Gerichtshof dem Unterbleiben der von der

Beschwerdeführerin geforderten Messung des Grundgeräuschpegels

sowie dem relevierten Mangel der Äußerung des medizinischen

Sachverständigen keine im Sinne des Art. 42 Abs. 2 Z. 3 lit. b

und c VwGG wesentliche und damit zur Aufhebung des angefochtenen

Bescheids führende Bedeutung beimessen, zumal die

Beschwerdeführerin auch gar nicht dargetan hat, warum die

Baubehörden anderfalls zu dem Ergebnis gekommen wären, daß der

erwähnte zusätzliche - unwidersprochen äußerst geringfügige -

Verkehr mit Kraftfahrzeugen zu einer erheblichen Belästigung der

Beschwerdeführerin auf ihrer Liegenschaft führen werde. ...

Auf die in der Beschwerde vorgebrachte Behauptung, die

Annahme eines durchschnittlichen Verkehrsaufkommens auf der

Zaubertal-Straße mit 40 Kraftfahrzeugen pro Tag sei wesentlich

erhöht, kann der Gerichtshof auf Grund des sich aus Art. 41

Abs. 1 VwGG ergebenden Neuerungsverbotes nicht eingehen.

...

Die Beschwerdeführerin hat weder in der Vorstellung gegen diesen

Bescheid noch in der Beschwerde konkret dargetan, inwiefern ihren

gegenständlichen Einwendungen Berechtigung zukomme, weshalb die

vorligende Verfahrensrüge schon mangels Erkennbarkeit der

Wesentlichkeit der relevierten Verletzung von

Verfahrensvorschriften im Sinne des Art. 42 Abs. 2 Z. 3 VwGG

nicht zur Aufhebung des angefochtenen Bescheides führen kann.

...

Die vorliegende Beschwerde erweist sich daher insgesamt als

unbegründet, weshalb sie gemäß Art. 42 Abs. 1 VwGG abzuweisen

war."

[Translation]

"As the neighbour has a public law, subjective right to

compliance with the ... provision [Section 23 (2) Upper Austrian

Building Regulations Act 1976], which right must, in principle,

be considered in the planning proceedings, ... the Court was

required in the present case to consider whether the additional

traffic caused by the proposed development on the proposed access

drive along the boundary of the applicant's property will give

rise to considerable nuisance for the applicant ...

From the statements concerning noise in the comments ... of the

Immission Protection Sub-division of the Office of the Upper

Austrian Provincial Authority (of 23 May 1982) it can be seen

that the drive runs 48 m from the garage to the junction with the

Zaubertal Road ... and that, assuming an average speed of 5 km/h,

it takes 35 seconds to get from the garage to the junction with

the public road ...

... In the light of the circumstance that the applicant has not

contested the above conclusions of the expert with reference to

concrete facts, the Court cannot find any failing of importance

within the meaning of Section 42 (2) (3) (b) or (c) of the

Administrative Court Act, which would lead to the challenged

decision being quashed, either in the failure to take a reading

of the background noise level, or in the alleged failure of the

medical expert to express an opinion. The Court notes that the

applicant has not stated how, if the planning authorities had

ordered these matters, it would have come to the conclusion that

the additional - uncontestedly very minor - vehicular traffic

would lead to considerable nuisance for the applicant on her

property...

The Court is not entitled to consider the applicant's

contention that the assumption that an average of some 40 vehicle

movements per day was considerably exaggerated, by virtue of the

rule prohibiting new matters before the Administrative Court

contained in Section 41 (1) of the Administrative Court Act.

...

Neither in her complaint against the decision challenged, nor in

her (administrative) complaint has the applicant stated in

concrete terms in what way her complaints are justified, and

therefore, in the absence of indications of the importance of the

alleged violation of procedural rules as provided for by

Section 42 (2)(3) of the Administrative Court Act, the present

procedural complaint cannot lead to the challenged decision being

quashed.

...

Accordingly, the present complaint is ill-founded as a whole, and

is to be rejected pursuant to Section 42 (1) of the

Administrative Court Act."

The complaints relating to parcels 725/3 and 725/4 were rejected

on 14 October 1986. The reasoning repeated that of 30 September 1986.

20. On 28 October 1986 the Administrative Court rejected the

applicant's complaints which had been remitted to it by the

Constitutional Court concerning parcels numbers 725/6 and 725/7. Its

reasoning in each judgment followed closely that in the judgment of

14 October, save that the Court recited the Constitutional Court's

decisions and finally dismissed the complaints under Section 35 (1) of

the Administrative Court Act, which provides for dismissal, without

further proceedings, of cases in which it is apparent that the alleged

violation of the law did not take place (Beschwerden, deren Inhalt

erkennen läßt, daß die ... behauptete Rechtsverletzung nicht vorliegt,

sind ohne weiteres Verfahren ... als unbegründet abzuweisen).

B. Relevant domestic law

21. Section 41 of the Administrative Court Act provides, in so far

as relevant:

[German]

"(1) Der Verwaltungsgerichtshof hat, soweit er nicht

Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder

wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42

Abs. 2 Z. 2 und 3) ..., den angefochtenen Bescheid auf Grund des

von der belangten Behörde angenommenen Sachverhaltes im Rahmen

der geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist

er der Ansicht, dass für die Entscheidung über die

Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte

... Gründe massgebend sein könnten, die einer Partei bisher nicht

bekanntgegeben wurden, so hat er die Parteien darüber zu hören

und, wenn nötig, eine Vertagung zu verfügen."

[Translation]

"(1) In so far as the Administrative Court does not find

unlawfulness on account of a lack of jurisdiction of the

authority against which the appeal is directed or on account of

a violation of procedural provisions (Section 42 para. 2 (2) and

(3)) ..., the Court must examine the contested decision on the

basis of the facts as accepted by the authority against which the

appeal is directed within the framework of the alleged complaint

... If it is of the opinion that reasons would be relevant for

the decision on the unlawfulness of the contested decision ...

which were so far not known to a party, it must hear the parties

thereupon and, if necessary, adjourn the proceedings."

Section 42 (2) of the Administrative Court Act provides, in so

far as relevant:

[German]

"(2) Der angefochtene Bescheid ist aufzuheben

1. wegen Rechtswidrigkeit seines Inhaltes,

2. wegen Rechtswidrigkeit infolge Unzuständigkeit

der belangten Behörde,

3. wegen Rechtswidrigkeit infolge Verletzung von

Verfahrensvorschriften, und zwar weil

a) der Sachverhalt von der belangten Behörde

in einem wesentlichen Punkt aktenwidrig

angenommen wurde oder

b) der Sachverhalt in einem wesentlichen

Punkt einer Ergänzung bedarf oder

c) Verfahrensvorschriften ausser acht gelassen

wurden, bei deren Einhaltung die belangte

Behörde zu einem anderen Bescheid hätte

kommen können."

[Translation]

"(2) The contested decision must be quashed

1. on account of the unlawfulness of its content,

2. on account of unlawfulness due to the lack of

jurisdiction of the authority against which the

appeal is directed,

3. on account of unlawfulness due to a violation of

procedural provisions in particular because

a) the authority against which the appeal is

directed has determined the facts on an

important point contrary to the case-file, or

b) the facts require to be supplemented on an important

point, or

c) procedural provisions have been disregarded

which, if taken into consideration by the authority

against which the appeal is directed, could have led

to a different decision of the authority."

22. Section 23 of the Upper Austrian Building Regulations Act (Ober-

österreichische Bauordnung) provides as follows:

[German]

"(1) Bauliche Anlagen müssen in allen ihren Teilen nach den

Erfahrungen der technischen Wissenschaften so geplant und

errichtet werden, daß sie den normalerweise an bauliche

Anlagen der betreffenden Art zu stellenden Anforderungen

der Sicherheit, der Festigkeit, des Brand-, Wärme- und

Schallschutzes, der Gesundheit und der Hygiene, des

Umweltschutzes und der Zivilisation entsprechen und das

Orts- und Landschaftsbild nicht gestört wird...

(2) Im besonderen müssen bauliche Anlagen in allen ihren Teilen

so geplant und errichtet werden, daß schädliche

Umwelteinwirkungen möglichst vermieden werden. Schädliche

Umwelteinwirkungen sind solche, die geeignet sind, ... erhebliche

Belästigungen für die Allgemeinheit und im besonderen für die

Benützer der Bauten und die Nachbarschaft herbeizuführen, wie

durch ... Lärm ..."

[Translation]

"(1) All parts of the building development must be planned and

constructed in all aspects so as to correspond to the state of

the technical sciences such that the development meets the normal

requirements of such buildings as regards safety, rigidity, fire

protection, insulation (sound and warmth), health, hygiene,

environmental protection and civilisation, and not to disturb the

visual amenity of town and country ..."

(2) In particular, all parts of building development must be so

planned and constructed as to avoid, as far as possible, harmful

environmental effects. Harmful environmental effects are those

which are likely to give rise to ... considerable nuisance for

the generality and, in particular, for users of the buildings and

the neighbourhood, such as ... noise ..."

Section 46 provides:

[German]

"(2) Nachbarn können gegen die Erteilung der Baubewilligung

mit der Begründung Einwendungen erheben, daß sie durch das

Bauvorhaben in subjektiven Rechten verletzt werden, die

entweder in der Privatrechtsordnung (privatrechtliche

Einwendungen) oder im öffentlichen Recht (öffentlich-

rechtliche Einwendungen) begründet sind.

(3) Öffentlich-rechtliche Einwendungen der Nachbarn sind im

Baubewilligungsverfahren nur zu berücksichtigen, wenn sie

sich auf solche Bestimmungen des Baurechtes oder eines

Flächenwidmungsplanes oder Bebauungsplanes stützen, die

nicht nur dem öffentlichen Interesse sondern auch dem

Interesse der Nachbarschaft dienen. Hierzu gehören

insbesondere alle Bestimmungen über die Bauweise, die

Ausnutzbarkeit des Bauplatzes, die Lage des Bauvorhabens,

die Abstände von den Nachbargrenzen und Nachbargebäuden,

die Gebäudehöhe, die Belichtung und Belüftung sowie jene

Bestimmungen, die gesundheitlichen Belangen oder dem Schutz

der Nachbarschaft gegen Immissionen dienen."

[Translation]

"(2) Neighbours may make objections to the grant of

planning permission on the ground that their subjective

rights have been affected. Such subjective rights may be

based on private law (private law objections) or public law

(public law objections).

(3) Public law objections of neighbours shall only be

taken into consideration in proceedings for the grant of

planning permission if they are based on provisions of the

building regulations, the area-zoning plan or the building

plan which serve not merely the general public interest but

also the interests of the neighbourhood. These include, in

particular, all provisions concerning the type of building,

the use of the building land, the situation of the proposed

development, distances from adjoining boundaries and

buildings on adjoining properties, height of buildings,

light and air and provisions which are concerned with

health matters or protection of the neighbourhood against

emission."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

23. The Commission has declared admissible the applicant's complaints

concerning the proceedings before the Administrative and Constitutional

courts.

B. Points at issue

24. The issues to be determined are:

- whether there has been a violation of the applicant's right to

have her case determined by a tribunal within the meaning of

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

- whether there has been a violation of the applicant's right to

a fair trial within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

C. As to the applicability of Article 6 para. 1 (Art. 6-1)

of the Convention

25. Article 6 para. 1 (Art. 6-1), insofar as relevant, provides

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal

established by law."

26. In the above court proceedings the applicant attempted to prevent

construction on land adjoining her property by claiming - before the

Constitutional Court - that the planning consents relating to two of

the houses interfered with her constitutional rights and that they

applied unlawful norms. The Constitutional Court, after norm control

proceedings to review the area zoning plan and the building plan at

issue, rejected the applicant's constitutional complaints. Before the

Administrative Court she made public law objections that her subjective

rights had been affected. In particular, she alleged that the noise

which would affect her property as a result of traffic movements along

the proposed private drive (which ran immediately next to the

applicant's property) would constitute a "considerable nuisance".

27. The applicant submits that Article 6 para. 1 (Art. 6-1) of the

Convention applies.

28. The Government submit that Article 6 para. 1 (Art. 6-1) of the

Convention is not applicable to these proceedings. The sole link

between the proceedings and any property rights of the applicant was

the public law interest which she was able to put forward in the

proceedings.

29. The Commission recalls that the Constitutional Court is

exclusively called upon to review the constitutionality of the

decisions of the administrative authorities concerned. Its procedure

does not as such involve a determination of civil rights within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and it

therefore falls outside the scope of this provision (cf. Ettl and

others, Comm. Rep. 3.7.85, Eur. Court H.R., Series A no. 117, p. 24

with further reference to Eur. Court H.R., Sramek judgment of

26 October 1984, Series A no. 84, p. 17, para. 35). This position is

not affected by the Commission's findings in the case of Ruiz-Mateos

v. Spain (No. 12592/87, Comm. Rep. 14.1.92, pending before the European

Court of Human Rights), in which the Commission found that Article 6

(Art. 6) of the Convention applied to proceedings before the Spanish

Constitutional Court because those specific proceedings and proceedings

before the civil courts were inextricably interwoven.

30. As to the proceedings before the Administrative Court, the

Commission recalls that it is sufficient for the applicability of

Article 6 para. 1 (Art. 6-1) that proceedings are "pecuniary" in nature

and that the action is founded on an alleged infringement of rights

which were likewise pecuniary rights (cf. Eur. Court H.R., Editions

Périscope judgment of 26 March 1992, Series A no. 234-B, p. 66,

para. 40) or that the outcome is "decisive for private rights and

obligations" (cf. Eur. Court H.R., H. v. France judgment of

24 October 1989, Series A no. 162-A, p. 20, para. 47 with further

references).

31. The Commission must therefore determine whether the proceedings

in the present case, which gave the applicant the opportunity to

challenge the planning consent granted to her neighbours for the

construction of terraced houses on land adjoining the applicant's, were

directly or indirectly "pecuniary", or decisive for such private rights

and obligations. It notes, first, that there is no dispute in the

present case as to the right at issue, namely the right under

Section 46 of the Upper Austrian Building Regulations Act for

neighbours to object to planning permission on the ground that their

subjective rights have been affected.

32. The applicant thus had a right to make such objections under

Austrian law, and that right was clearly determined by the proceedings

in the present case.

33. The question remains whether the right so determined was "civil"

within the meaning of Article 6 (Art. 6) of the Convention, bearing in

mind that the question of the classification of rights cannot be

determined solely be reference to domestic law (cf. Eur. Court H.R.,

Feldbrugge judgment of 29 May 1986, Series A no. 99, p. 12, para. 26).

The Commission recalls that the Upper Austrian Building Regulations Act

distinguishes between subjective rights which are based on private law

and those which are based on public law. The applicant based her

complaint on public law objections, that is, that Section 23 (2) of the

Upper Austrian Building Regulations Act had not been complied with.

However, the applicant's intention in making her complaint was to

prevent development on the land adjoining her house, as she considered

that the development would adversely affect both her enjoyment of the

property and its market value.

34. Bearing in mind the close link between the proceedings which the

applicant brought and the impact the result of those proceedings would

have on her property, the Commission finds that the right at issue

before the Administrative Court in the present case was "civil" in

character.

35. The Commission therefore finds that Article 6 para. 1 (Art. 6-1)

of the Convention was applicable to the proceedings by which the

applicant challenged her neighbours' planning consents.

D. As to compliance with Article 6 para. 1 (Art. 6-1)

of the Convention

1. The scope of the review by the Administrative Court

36. The Commission must next examine the scope of the review afforded

by the Austrian judicial authorities in this determination of civil

rights in order to establish whether the applicant had access to a

"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

37. The applicant considers that the Austrian Administrative and

Constitutional Courts do not have the comprehensive jurisdicition to

determine questions of fact and law, which is required by Article 6

(Art. 6) of the Convention. She points out that before the

Constitutional Court the parties submit their arguments, the

Constitutional Court receives the files from the administrative

authorities, and the Court then decides. The Court does not take

proofs, but merely undertakes a cursory review (Grobprüfung) of whether

the formal requirements for, for example, an area zoning plan have been

complied with. The Administrative Court is not permitted to consider

the legality of an area zoning plan or a building plan at all, but is

limited to referring the case to the Constitutional Court if questions

of legality arise. She adds, by reference to the Obermeier judgment

(Eur. Court H.R., judgment of 28 June 1990, Series A no. 179) that in

respect of its limited consideration of a case, the Administrative

Court does not constitute a "court" because it is not able to take

cognisance of factual matters.

38. The Government contend that the applicant had access to two

courts, namely the Constitutional Court and the Administrative Court.

With regard to the scope of the Administrative Court's review reference

is made to Section 42 (2) 3 (a) - (c) of the Administrative Court Act

according to which the Court can undertake a far-reaching review of the

facts in a concrete case. In the present case the Administrative Court

undertook this examination with reference to the relevant provisions

of the Upper Austrian Building Regulations Act.

39. The Commission has had occasion recently to consider questions

concerning the scope of review by the Administrative Court in the case

of Zumtobel v. Austria (No. 12235/86, Comm. Rep.30.6.92, now pending

before the European Court of Human Rights). In that case, the

Commission found as follows:

"68. There remains the Administrative Court which decided on

the applicants' complaints about the expropriation. These

complaints related inter alia to the adequacy of the envisaged

stretch of road within the meaning of Section 44 of the

Provincial Road Act and thus raised issues of both facts and law.

69. The Commission recalls that in the case of Ettl and Others

it found, having regard in particular to Section 41 of the

Administrative Court Act, that the abstract possibility of a

limited review of the facts which the Administrative Court

enjoyed was not sufficient to establish its full jurisdiction

concerning the determination of the civil rights at issue (see

Comm. Report, loc. cit., p. 24, para. 85). In the Obermeier case

the Court found that, if the relevant legislation contained no

precise provisions for the decision to be taken by the

administrative authorities, and the Administrative Court could

only examine whether the authorities had used their discretion

in a manner compatible with the law, such a limited review was

not an effective judicial review under Article 6 para. 1

(Art. 6-1) of the Convention (see Eur. Court H.R., judgment of

28 June 1990, Series A no. 179, p. 23 para. 70).

70. The Commission recalls that Section 42 para. 2 subpara. 3

of the Administrative Court Act, relied on by the Government in

the present case, played no part in the case of Ettl and Others

v. Austria. In the present case this provision enabled the

Administrative Court to quash the contested decision as being

unlawful due to procedural defects, if the Court found that the

administrative authority had determined the facts on an important

point contrary to the case-file; or that the facts required to

be supplemented on an important point; or that procedural

provisions had been disregarded which, if taken into

consideration, would have led to a different decision (cf.

para. 47 above).

71. Thus, the Administrative Court was able to review the facts

of the case in that it could examine inter alia whether they had

been incorrectly or incompletely established by the Provincial

Government. While the purpose of this review was to determine

any procedural defects leading to the unlawfulness of the

decision, Section 42 para. 2 subpara. 3 of the Administrative

Court Act did not restrict the Administrative Court in its power

to review the facts. In particular, this provision sets no

limits in respect of the assessment and supplementation of the

facts.

72. It is true that the Administrative Court in its decision of

22 September 1989 referred to Section 41 of the Administrative

Court Act (see above, para. 32). Section 41 provides that the

Court is bound by the facts as accepted by the authority;

however, this provision expressly reserves Section 42 para. 2

subpara. 3 of the Administrative Court Act (see above, para. 46).

It follows that Section 41 does not restrict the Administrative

Court's powers under Section 42.

73. Moreover, in its decision the Administrative Court

explained its powers of review, in particular that it could 'take

evidence for examining the question whether a procedural defect

is essential or whether the incriminated authority might have

arrived at a different decision by avoiding the alleged

procedural defect; the Administrative Court may resort to these

measures also in order to control the assessment of evidence'

(see above, para. 36). The Commission sees no indication here

that the Administrative Court regarded itself as being restricted

in its review of the facts.

74. The Commission furthermore observes that the Administrative

Court could have quashed the contested decision of the Provincial

Government as being unlawful, if after its examination of the

facts it had found that they were incorrect or incomplete. The

Provincial Government would have been bound by the Administrative

Court's decision (see above, para. 49). Thus, the Administrative

Court could have imposed its own views as to the assessment of

the facts on the administrative authority concerned.

75. The Commission recalls that it suffices under Article 6

para. 1 (Art. 6-1) of the Convention if the decision of an

administrative authority, which itself does not comply with the

requirements of this provision, is subject to subsequent control

by a judicial body that has full jurisdiction (see Eur. Court

H.R., Albert and Le Compte judgment of 10 February 1982, Series A

no. 58, loc. cit.). In the present case, the decision of the

Provincial Government concerning the expropriation of the

applicants' real property was subject to such control by the

Administrative Court which had full jurisdiction, as required by

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

76. The applicants' case was therefore heard by a tribunal

within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention."

40. Applying those findings to the facts of the present case, the

Commission notes that the Administrative Court, in its decision of

30 September 1986 relating to parcel 725/5 (para. 19 above), dealt at

some depth with factual matters relating to the complaint. In

particular it considered in detail the likely effect traffic along the

proposed drive would have on the applicant's property before finding

that there was no indication that considerable nuisance would ensue for

the applicant if the drive was built, so that it could not be said that

she had made out a failing of importance within the meaning of

Section 42 (2) 3 (b) or (c) of the Administrative Court Act. In the

present case, too, the Court could have quashed the decision of the

administrative authority which had previously decided the case (the

decision of the Upper Austrian Provincial Government of

3 September 1982 in the case of parcel 725/5) The Court's decisions

relating to parcels 725/3 and 725/4 (of 14 October 1986), and 725/6 and

725/7 (of 28 October 1986) mirrored the decision of 30 September 1986.

41. The Commission concludes, by 15 votes to one, that there has been

no violation of the applicant's right to have her case determined by

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

2. The fairness of the proceedings

42. The applicant complains that the Consitutional Court decided the

issues before it wrongly, in particular in that it failed, in its

decision of 19 March 1986, to uphold the doubts it had entertained on

2 October 1985 as to the area zoning plan and the building plan. She

also complains that the Constitutional Court's reasoning is inadequate,

and that it did not deal sufficiently with her arguments.

43. The Government consider that the applicant has failed to

establish in what way she alleges that the proceedings before the

Administrative or Constitutional Court were "unfair" within the meaning

of the Convention.

44. The Commission recalls that it has found above that the

proceedings before Administrative Court satisfy the requirements of

Article 6 (Art. 6) of the Convention as to access to court. The

applicant's specific complaints concerning the fairness of the

proceedings, however, all relate to the proceedings before the

Constitutional Court, which the Commission has above found not to

determine civil rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (para. 29 above). The Commission may not

therefore consider these procedural complaints.

45. The Commission concludes, unanimously, there has been no

violation of the applicant's right to a fair trial within the meaning

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

E. Recapitulation

46. The Commission concludes, by 15 votes to one, that there has been

no violation of the applicant's right to have her case determined by

a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 41).

47. The Commission concludes, unanimously, there has been no

violation of the applicant's right to a fair trial within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention (para. 45).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

CONCURRING OPINION OF MR. H.G. SCHERMERS, MRS. J. LIDDY,

MM. J-C. GEUS and B. MARXER

We agree that there has been no violation of Article 6 in the

present case, but for different reasons from the majority.

In all the cases involving determinations of property rights

determined by the European Court of Human Rights, the applicant's

property has always been directly affected by the administrative act

at issue. Thus in Mats Jacobsson (judgment of 28 June 1990, Series A

no. 180) the applicant's own land was affected by the changes to the

building plan; in Ettl (judgment of 23 April 1987, Series A no. 117)

the applicants' land was compulsorily exchanged, and in Fredin

(judgment of 18 February 1991, Series no. 192) the applicants wanted

to extract gravel on their own land. In the cases concerning pecuniary

matters, the position was similar: there was no doubt as to whether the

applicant was affected by the administrative act at issue in Benthem

(judgment of 23 October 1985, Series A no. 97), Editions Périscope

(judgment of 26 March 1992, Series A no. 234-B) or Tre Traktörer

(judgment of 7 July 1989, Series A no. 159).

The present case is different. The right the applicant had

before the Administrative Court was the right to ensure that the

proceedings between her neighbours and the administrative authorities -

relating to the grant of planning consent - were properly conducted.

Of course, nobody is suggesting that the right was exercised purely for

the public good, and indeed the legislation (Section 46 of the Upper

Austrian Building Regulations Act) lays down conditions for making

these "subjective, public law objections", namely that the objections

serve not just the general public interest, but the "interests of the

neighbourhood". Thus the applicant clearly hoped to derive some

benefit from the proceedings - to prevent development next to her

house. We cannot see, however, that that is sufficient to make the

"right" which was determined a civil one. It is rather as if someone

has a right to see that criminal proceedings are brought by the police

against his neighbours if unruly and unseemly events take place next

door. He may derive a considerable benefit from the criminal

proceedings taking place, and indeed the value of his property may be

enhanced, but that cannot, in our view lead to the conclusion that the

proceedings between him and the police determine civil rights. We are

supported in these considerations by the Commission's decision in the

case of Rayner v. the United Kingdom (Dec. 16.7.86, D.R. 47 p.5). In

that case, the Commission accepted that "nuisance of considerable

importance" may give rise to the operation of Article 1 of

Protocol No. 1 but that Mr. Rayner had not established such nuisance.

In the present case, the Administrative Court found that the applicant

had not made out her case that she would be subjected to "considerable

nuisance" if the proposed development were permitted. The complaint

under Article 1 of Protocol No. 1 was rejected in the present case for

formal reasons, but if it had not been, we venture to suggest that the

Rayner line would have been followed.

Accordingly we conclude that, although the applicant had a right

to put her objections to the administrative authorities and then to the

Administrative Court via (in some of the cases) the Constitutional

Court, that right was not "civil" within the meaning of Article 6 of

the Convention.

We do not therefore need to consider whether the scope of review

by the Administrative Court satisfies the requirements of Article 6 in

this case.

(Or. English)

CONCURRING OPINION OF SIR BASIL HALL

I do not share the opinion of the majority of the Commission that

Article 6 para. 1 of the Convention applies in this case. The

proceedings to which the complaint relates took the form of a challenge

to the Leonding Municipal Council's decisions to give planning

permission for five houses to be built. Proceedings of that kind

cannot in my view be regarded as determining any civil right of the

applicant. The ground for her objection was a risk of increased

traffic passing her house. No "right" of the applicant appears to have

been in issue in the proceedings.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

10.09.86 Introduction of the application

08.04.87 Registration of the application

Examination of Admissibility

12.07.89 Commission's consideration of the case

2.07.90 Commission's consideration of the case

11.07.91 Commission's decision to invite the

parties to submit observations on the

admissibility and merits of the

application

06.12.91 Government's observations

29.06.92 Commission decision on admissibility

17.07.92 Applicant's observations in reply

Examination of the merits

8.07.92 Commission's consideration of the state of

the proceedings

28.08.92 Applicant's observations on the merits

9.10.92 Government's proposal to adjourn the

proceedings

5.12.92 Commission's decision not to adjourn

3.04.93 Consideration of the state of proceedings

12.05.93 Commission's deliberations on the merits,

final vote

14.05.93 Adoption of the Report

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O. v. AUSTRIA

O. v. AUSTRIA

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