Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31181/96

by Hans-Günther SCHMID

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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 13 November 1995

by Hans-Günther SCHMID against Germany and registered on 25 April 1996

under file No. 31181/96;

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, born in 1940, is a German national and resident

at Leonberg. He is a lawyer by profession.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In December 1990 the applicant bought from Ms. E., living in

Stuttgart, a real estate at Leonberg-Warmbronn. He moved to the house

on 1 July 1991 and applied to the Warmbronn local authorities for

registration of his main residence at Warmbronn.

On 6 September 1991 the Leonberg Municipality issued a notice

against the applicant ordering him to cease the use of the weekend

house in question for permanent residence purposes and to give up the

house as his principal domicile before 31 December 1991. The

Municipality found that the real estate owned by the applicant was

situated in the former area "Altenhalde/Neubruch" which had been

reserved for weekend houses. A building permit had been granted for

the house in question in 1959, limited to use as weekend house.

Accordingly the house may only be occupied for limited periods, such

as the weekends or for holiday purposes. Any change of use of the

estate would have required a permission pursuant to the relevant

provisions of the regional building regulations, which could not

however be granted as the change of use envisaged by the applicant

contravened public interests. As the area in question was classified

as an area for weekend houses, residential premises would not be

compatible with the landscape and the function of this area as a public

recreation area. Moreover, there was a risk of urban sprawl, because

further requests for use of weekend houses in that area as residential

premises would have to be granted on grounds of equity.

On 16 December 1991 the Stuttgart Regional Government

(Regierungspräsidium) dismissed the applicant's administrative appeal

(Widerspruch).

On 24 August 1993 the Stuttgart Administrative Court dismissed

the applicant's action challenging the lawfulness of the above

decisions. The Court found that the construction in question had been

permitted for use as weekend house. In this respect, the Court also

noted that the contract between the applicant and Ms. E. referred to

the premises as a weekend house. The use of a weekend house for

permanent residential purposes was subject to planning permission which

had not and could not be granted for the house in question, pursuant

to the relevant provisions of the Federal Building Act (Baugesetzbuch).

In particular, in the Regional Zoning Plan (Flächennutzungsplan), the

area was zoned for weekend houses. Moreover, the applicant's permanent

residence and his envisaged professional activities there would

adversely affect the landscape and recreational use of the area

concerned. It was therefore legitimate that the competent authorities

took the measures necessary to prevent any further sprawling expansion

of the urban area. As regards the applicant's argument that other

houses in that area were used as residential premises, the Court

recalled that, even assuming that the competent authorities tolerated

a few unlawful buildings, the refusal of permission in a further,

similar case did not amount to an error in the exercise of the

authorities' discretion (Ermessensfehlgebrauch) as there was no right

to a repetition of unlawful administrative measures. The Court

examined in detail the other cases relied upon by the applicant and

considered that they were either not comparable to the applicant's case

or that the authorities had started proceedings against the owner of

the estates.

On 9 February 1995 the Baden-Württemberg Administrative Court of

Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal

(Berufung). The Court of Appeal confirmed that the applicant's use of

the estate for permanent residential and professional purposes was

unlawful and could not be permitted under the relevant legal provisions

of the Building Act. In this respect, the Court of Appeal shared the

lower instances concern about an uncontrolled urban development.

Moreover, given that there were altogether 129 weekend houses in the

area, the two permitted residential premises and the few weekend houses

which purportedly, according to the applicant, were unlawfully used for

residential purposes, could not serve as justification for the

applicant's use of his weekend house as a permanent principal domicile.

On 20 June 1995 the Federal Administrative Court

(Bundesverwaltungsgericht) dismissed the applicant's request for leave

to appeal on points of law (Beschwerde gegen die Nichtzulassung der

Revision).

On 11 August 1995 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to entertain the applicant's

constitutional complaint (Verfassungsbeschwerde).

COMPLAINTS

The applicant complains about the restrictions on his occupancy

of his house imposed by the Leonberg Municipality, as confirmed by the

German Courts. He invokes Article 8 of the Convention and Article 1

of Protocol No. 1 to the Convention.

THE LAW

1. The applicant complains about the German decisions ordering him

to cease using his estate for permanent residential purposes. He

considers that these decisions amount to a violation of his right to

respect for his home, as guaranteed by Article 8 (Art. 8) of the

Convention.

This provision, as far as relevant, provides as follows:

"1. Everyone has the right to respect for ... his home ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

In the present case, the applicant moved to the estate in order

to establish there his permanent principal domicile. The Commission

finds that the house in question, though the applicant had lived there

only about two months at the time when the Municipality issued the

order in question against him, must be considered as his "home". The

procedure pursued by the Municipality to prohibit the applicant from

using the house for other than weekend purposes therefore constitutes

an interference with the applicant's right to respect for his home.

Such interference is in breach of Article 8 (Art. 8), unless it

is "in accordance with the law" and "necessary in a democratic society"

for one or more of the reasons listed in paragraph 2 of Article 8

(Art. 8-2).

As regards the question whether the prohibition order was lawful,

the Commission notes that the building permission granted in 1959

extended to a weekend house. At no time had his predecessors or the

applicant himself obtained a permission to use the estate for permanent

residential and professional purposes. This use was accordingly

unauthorised. The Municipality, in issuing the prohibition order

against him, was acting in implementation of the relevant planning and

building legislation. The applicant's appeals to the German

Administrative Courts remained unsuccessful and his constitutional

complaint with the Federal Constitutional Court was to no avail. In

these circumstances, the Commission finds that the prohibition order

was "in accordance with the law".

The Commission also finds that the interference pursued a

legitimate aim, namely, the protection of the rights of others through

the operation of planning controls which is recognised as necessary in

a democratic society throughout the member States of the Council of

Europe. In this respect, the Commission recalls that the existence and

operation of planning controls which delimit areas where domestic

development may be extended, is a legitimate measure to protect the

amenity value of rural areas and thereby to protect the rights of

others (No. 11185/84, Dec. 11.3.85, D.R. 42, p. 275).

It remains to be examined whether the interference was "necessary

in a democratic society" for this legitimate aim.

The Commission recalls that the Contracting States have a certain

margin of appreciation in assessing the need for an interference, but

it goes hand in hand with European supervision. The exceptions

provided for in paragraph 2 of Article 8 (Art. 8-2) are to be

interpreted narrowly, and the need for them in a given case must be

convincingly established (cf. Eur. Court HR, Funke, Crémieux and

Miailhe v. France judgments of 25 February 1993, Series A no. 256-A,

p. 24, para. 55, no. 256-B, p. 62, para. 38, and no. 256-C, p. 89,

para. 36, respectively).

In the present case, the applicant bought the house in question,

which was, as stated in the contract of sale, a weekend house only. In

addition, the applicant, a lawyer, could have inquired with the

competent local authorities into the lawful use of the estate in

question. Moreover, there is nothing to show that the local

authorities, as confirmed by the courts, had been motivated by other

than proper planning considerations when considering that the applicant

could not be permitted to use the estate for permanent residential

purposes. In examining his case, the administrative authorities and

the courts had due regard to the arguments advanced by the applicant,

in particular his reference to the existence of two residential

premises and to the fact that some other weekend houses were

purportedly used for permanent residential purposes.

In light of these circumstances and in particular the fact that

the use of the land for permanent residential purposes was illegal from

the beginning, the Commission finds that the measures taken can

reasonably be considered as "necessary in a democratic society".

The Commission therefore finds that the interference in question

is justified under paragraph 2 of Article 8 (Art. 8-2) of the

Convention. Consequently, there is no appearance of a breach of the

applicant's right to respect for his home.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 1 of Protocol No. 1

(P1-1) about the above decisions ordering him to cease using his estate

for permanent residential purposes.

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission finds that the decisions complained of amount to

a control of use of property within the meaning of the second paragraph

of Article 1 of Protocol No. 1 (P1-1). The Commission considers that

this control of use of the land is necessary in accordance with the

general interest of safeguarding rural areas from unsuitable

development. The Commission refers in this respect to its reasons

given above in the context of Article 8 (Art. 8) of the Convention, the

requirements of which are more stringent than those of Article 1 of

Protocol No. 1 (P1-1).

The Commission finds that an examination under Article 1 of

Protocol No. 1 (P1-1) of this aspect of the applicant's complaints does

not disclose any appearance of a violation of this provision.

It follows this part of the application is likewise manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant has also complained that he was discriminated

against in that other proprietors were permitted to use their weekend

houses for permanent residential purposes. He did not invoke any

provision of the Convention in this respect.

The Commission has examined this complaint under Article 14

(Art. 14) of the Convention which provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission recalls that Article 14 (Art. 14) is designed to

ensure that individuals, placed in similar situations, are not

discriminated against in the enjoyment of the rights and freedoms set

forth in other provisions of the Convention. A measure which, although

in itself in conformity with the requirements of the Article of the

Convention or the Protocols enshrining a given right or freedom, is of

a discriminatory nature incompatible with Article 14 (Art. 14)

therefore violates those two Articles taken in conjunction. It is as

though Article 14 (Art. 14) formed an integral part of each of the

provisions laying down rights and freedoms (cf. Eur. Court HR, Marckx

v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 15-16,

para. 32). Accordingly, and since Article 8 (Art. 8) of the Convention

and Article 1 of Protocol No. 1 (P1-1) are relevant to the present

case, it is necessary also to take into account Article 14

(Art. 14+8, 14+P1-1) in conjunction with these two provisions.

In the circumstances of the present case, the Commission, having

regard to the detailed reasoning given by the Stuttgart Administrative

Court and the Baden-Württemberg Administrative Court of Appeal, finds

that the applicant has failed to show that the situation in the cases

of some other house owners was comparable to his own.

The Commission therefore finds no indication of discrimination

contrary to Article 14 (Art. 14) of the Convention.

It follows that, in this respect, the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

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

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SCHMID v. GERMANY

SCHMID v. GERMANY

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