AS TO THE ADMISSIBILITY OF

                      Application No. 26591/95

                      by Ernst HOFER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 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 15 September 1992

by Ernst HOFER against Austria and registered on 27 February 1995 under

file No. 26591/95;

     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 citizen.  He lives in Lustenau, and

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

practising in Bregenz.  The facts of the case, as submitted by the

applicant's representative, may be summarised as follows.

     The applicant had a parcel of land with a hut (Riedhütte) in the

Lustenauer Ried.  A retroactive application for planning consent was

unsuccessful, and the refusal was confirmed by the Administrative Court

in 1986.  Proceedings were brought against the applicant by the local

authority, requiring him to put the land in a proper state (that is,

to remove the hut).  Those proceedings ended with a decision of the

Administrative Court of 16 March 1987.

     On 30 May 1989 the Dornbirn District Authority

(Bezirkshauptmannschaft) warned the applicant that if he did not remove

the hut within three months, it would arrange for the hut to be removed

at the applicant's expense.  The applicant was informed by letter of

8 August 1989 (received 14 August 1989) that the works would cost AS

27,600.00, and on 5 September 1989 the authority ordered the works to

be carried out, and the applicant to advance the sum.  The works were

carried out in September 1989, and on 2 October 1989 the Vorarlberg

Regional Government (Landesregierung) rejected  the applicant's appeal

against the decision of 5 September.

     On 1 December 1989 the authority asked the applicant for the AS

27,600.00, which it had already paid.  The applicant asked for and was

given a copy of the quotation, and challenged it as grossly excessive.

The authority asked the Feldkirch Buildings Office (Landeshochbauamt)

for a break-down of the figures, which concluded that the overall cost

could well have been AS 28,008.00.  On 9 February 1990, the District

Authority, by reference to Sections 11 and 4 of the Administrative

Proceedings (Enforcement) Act (Verwaltungsvollstreckungsgesetz) ordered

the applicant to pay the AS 27,600.00.  Section 11 provides that the

enforcement costs are for the debtor, and Section 4 provides that where

a person fails to undertake works which he has been ordered to execute,

the works can be carried out at the expense of the person who has

failed to perform them, provided he has been warned in advance.

     The applicant challenged the decision of 2 October 1989,

ultimately before the Constitutional Court (decision of 7 March 1990)

and the Administrative Court, which dismissed the applicant's

administrative complaint on 13 February 1992 (received by the

applicant's representative on 16 March 1992).  The Administrative Court

recalled that the Constitutional Court had found that there were no

constitutional issues in the case, and that it was not required to

consider constitutional questions raised by the applicant.  It noted

the applicant's complaints - that he had a right to reduce the size of

the hut and then to apply afresh for planning permission - but found

that the complaints were not relevant to the matter under

consideration, which was the question of whether the applicant could

be required to make an advance on the funds to be paid by the authority

under its contract with the demolition firm.  The Administrative Court

also considered that even if it were true, as claimed by the applicant,

that the authority had informed the press of certain matters in the

case before informing the applicant, actual bias on the part of the

authority would still have to be established.

     The applicant also challenged the order of 9 February 1990.

     On 3 January 1994, the Vorarlberg Regional Government dismissed

the applicant's appeal against the order of 9 February 1990, after

having heard witnesses called by the applicant.  The Constitutional

Court declined to deal with the applicant's constitutional complaint

on 13 June 1994, and the case was remitted to the Administrative Court.

     The Administrative Court dismissed the applicant's administrative

complaint on 23 February 1995 (received by the applicant on

13 July 1995).

     The Administrative Court noted that the sole issue to be decided

was the sum which the applicant was required to pay: the fact that he

might have been able to have the works done cheaper if the authority

had not been involved had been considered and rejected by the

Administrative Court in separate proceedings on 21 May 1992.

     The Administrative Court noted that the Regional Government had

taken further evidence called for a further expert's report, and

considered the evidence given by the applicant's witnesses on how long

the work had actually taken.  It continued that although Article 45 (2)

of the General Administrative Procedure Law (Allgemeines

Verwaltungsverfahrensgesetz) provided for administrative authorities

to consider evidence, that did not mean that the Administrative Court

was unable to review cases as to whether the facts had been adequately

established, and whether the considerations were logical (schlüssig).

It recalled that it was not bound by the authorities' findings of fact

to the extent that they were not borne out by the file in an essential

aspect, or to the extent that procedural matters had been omitted which

could have led to a different conclusion.  A decision which was not

clear would be tainted by procedural error.  The Court found that the

decision of the Regional Authority was logical, and not unlawful when

it made findings on the basis of the applicant's witnesses' statements.

The Court referred in particular to the discrepancy between the

applicant's claims that the work had all been finished in one day and

the unchallenged evidence that at the end of the first day the

(concrete) base of the hut was still partly present.  The Court also

considered that, given the size of the hut and the amount of rubble,

the authority was entitled to come to the conclusion that AS 27,600.00

was not an unreasonable sum for the works.

     The Administrative Court declined to hold the hearing the

applicant had requested.  It considered that a hearing could not affect

the result of the case, particularly as the applicant's request for the

Administrative Court to take further evidence as to whether the

administrative authorities had properly established the facts - itself

a claim which went beyond the scope of the Administrative Court's

review - was based on alleged inconsistencies within the file.

COMPLAINTS

     In respect of the first set of proceedings, that is the

proceedings ending with the Administrative Court's decision of

13 February 1992, the applicant alleges violations of Article 6 of the

Convention and of Article 1 of Protocol No. 1 to the Convention.  He

claims that the proceedings determined his right to build on his

property, and therefore determined "civil rights".  He claims that in

this determination of his civil rights he was denied access to a proper

court: neither the Constitutional Court nor the Administrative Court

was such a court.  The applicant sees a violation of Article 1 of

Protocol No. 1 in the failure properly to weigh up the different

interests.

     In respect of the second set of proceedings, that is, the

proceedings ending with the Administrative Court's decision of

23 February 1995, the applicant considers that Article 6 para. 1

applies because the authority unlawfully gave the demolition work to

an unauthorised firm which charged far too much for the work (and used

illegal labour for it), and that the authority is now trying to cover

up its mistakes.  He sees a violation of Article 6 in the failure of

the Administrative Court to deal with each and every complaint he made,

and in the Administrative Court's finding that an individual had to

accept the situation as it was if an authority accepted too high a

quotation and required the individual to pay it.  The applicant

considers that he should have been given the opportunity to make a

counter offer to the one received by the authority.

     The applicant also complains that he was not given an oral

hearing before the only body which might have been a "tribunal" within

the meaning of Article 6 of the Convention.

THE LAW

1.   The applicant alleges violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the first proceedings.  Article

6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant,

as follows.

     "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. ..."

     The proceedings which ended with the Administrative Court's

decision of 13 February 1992 concerned an appeal against an order to

pay an advance of AS 27,600.00 in respect of a quotation which the

local authority had commissioned with a view to ensuring compliance

with the local planning regulations.  The Commission must decide

whether those proceedings determined the applicant's "civil rights [or]

obligations", and if so, whether the requirements of Article 6

(Art. 6) were met.

     The Commission notes that the proceedings had nothing whatever

to do with the applicant's use of his land: the planning proceedings

ended as long before as 1987, and they did not therefore determine his

right to build on his land.  They also did not concern the question

whether the applicant would ultimately be required to pay, as they only

concerned the question of an advance, and that question was overtaken

by events as the authority paid the firm before the applicant paid the

authority.  They further did not concern the amount that the applicant

was required to pay.  They therefore had no direct pecuniary aspect

whatever and merely determined whether it was possible, under Austrian

law, for such an advance to be required.  The proceedings must

therefore be regarded as no more than an incidental matter which arose

in the course of the execution proceedings against the applicant, and

cannot have determined any civil rights or obligations on their own.

     The Commission must, however, consider whether - even though the

proceedings at issue did not determine civil rights in their own right

- the matters complained of could have an adverse effect on the

applicant's right to a court (see Eur. Court HR, Hornsby v. Greece

judgment of 19 March 1997, to be published in Reports 1997, para. 40).

     The applicant's specific complaints concern the nature of the

administrative proceedings: he alleges neither the Administrative Court

nor the Constitutional Court was a proper court within the meaning of

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

     There is no question in the present case of the applicant's right

to a court in the initial determination of the dispute (that is, the

proceedings which ended with the Administrative Court's decision of

16 March 1987) being affected by the proceedings in which the applicant

claimed that he could not be required to make an advance on costs.

     The Commission notes that the Convention organs have held on

several occasions that the scope of review of the Administrative Court

is sufficient to satisfy the requirements of Article 6 (Art. 6) in an

initial determination of civil rights and obligations (Eur. Court HR,

Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A,

Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B

and Fischer v. Austria judgment of 26 April 1995, Series A no. 312),

and sees no reason in the present case to conclude that the proceedings

which ended with the Administrative Court's decision of 13 February

1992 were in any way capable of denying the applicant his right to a

court in the initial determination.

     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 also alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in respect of the second set of

proceedings, that is the proceedings which ended with the

Administrative Court's decision of 23 February 1995.

     The Commission must determine whether these proceedings

determined the applicant's "civil rights [or] obligations" within the

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

whether the requirements of that provision were met.

     The Commission first notes that these proceedings, unlike the

proceedings referred to above, did have a clear pecuniary aspect for

the applicant in that if he had been successful, the order for the

applicant to reimburse the authority would have been quashed, and

further clarification would have been necessary of the question how

much the applicant should be required to pay.

     However, the applicability of Article 6 (Art. 6) of the

Convention does not depend solely on the "pecuniary" nature of a

dispute.  There may exist "pecuniary" obligations vis-à-vis the State

or its subordinate authorities which, for the purpose of Article 6

para. 1 (Art. 6-1), are to be considered as belonging exclusively to

the realm of public law and are accordingly not covered by the notion

of "civil rights and obligations".  This is the case, inter alia, where

a pecuniary obligation is part of normal civic duties in a democratic

society (see Eur. Court HR, Schouten and Meldrum v. the Netherlands

judgment of 9 December 1994, Series A no. 304, p. 21, para. 50).

     The Commission recalls the context of the proceedings.  It was

established that the applicant's hut did not have planning permission,

and the applicant had declined, or failed, to remove it.  Planning

enforcement matters regularly involve the exercise of discretionary

judgment in the regulation of citizens' conduct (see Eur. Court HR,

Bryan v. the United Kingdom judgment of 22 November 1995, Series A

no. 335-A), and Article 6 (Art. 6) may well apply to the primary

determination of those planning questions (as in the case of Bryan).

     The pure planning issues, however, were over.  As was the case

with the first set of proceedings referred to above, all that remained

was the enforcement of the earlier requirement to remove the hut.  In

connection with enforcement proceedings, the Commission recalls that

Article 6 para. 1 (Art. 6-1) of the Convention will generally not

apply, unless in the enforcement proceedings new legal issues are

raised (No. 13800/88, Dec. 1.7.91, D.R. 71, p. 94, p. 105).  The

proceedings which ended with the Administrative Court's decision of 23

February 1995, and which determined the amount the applicant would

actually have to pay, raised no new legal issues: the obligation on the

applicant to remove the hut had long since been established, and to the

extent that there was a dispute about the reasonableness of the bill

for the works, the dispute was between the authority and the firm.  The

obligation on the applicant to reimburse the authority was not a new

dispute about the reasonableness of the bill, it was an inevitable

consequence of his failure, over a period of years, to remove the hut.

The proceedings which began on 9 February 1990 did not, therefore,

determine the applicant's civil rights or obligations.

     The Commission must, however, again consider whether - even

though the proceedings at issue did not determine civil rights in their

own right - the matters complained of could have an adverse effect on

the applicant's right to a court (see the above-mentioned Hornsby v.

Greece judgment, para. 40).

     The applicant's specific complaints concern the proceedings

before the Administrative Court: he alleges, for example, that they did

not deal with each and every complaint he had made, and that he was not

given an oral hearing.

     There is no question in the present case of the applicant's right

to a court in the initial determination of the dispute being affected

by any of the subsequent matters.  Rather, his complaint here is

ultimately precisely that there was enforcement of the judgment,

against him.

     The Commission again notes that the Convention organs have held

on several occasions that the scope of review of the Administrative

Court is sufficient to satisfy the requirements of Article 6 (Art. 6)

in an initial determination of civil rights and obligations (Eur. Court

HR, Zumtobel v. Austria judgment of 21 September 1993, Series A no.

268-A, Ortenberg v. Austria judgment of 25 November 1994, Series A no.

295-B and Fischer v. Austria judgment of 26 April 1995, Series A no.

312), and sees no reason in the present case to conclude that the scope

of review before the Administrative Court was in any way capable of

denying the applicant his right to a court in the initial

determination.

     As to the question of the absence of an oral hearing, the

Commission notes that there is no suggestion in the case of Hornsby

that all of the specific guarantees of Article 6 para. 1 (Art. 6-1) of

the Convention should be available both before and after the

determination of the substantive matters: Article 6 (Art. 6) continues

to play a role subsequent to the final substantive determination of a

case because otherwise the effectiveness of the initial guarantees may

be rendered nugatory, but the later proceedings are of concern only to

that extent.  The Commission considers that the absence of an oral

hearing before the Administrative Court in the present case had no

impact whatever on the initial determination of the applicant's rights

and obligations.

     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.

3.   The applicant also alleges a violation of Article 1 of

Protocol No. 1 (P1-1) in connection with the first proceedings.

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."

     In the light of its above finding that the first proceedings,

taken on their own, did not determine civil rights or obligations, the

Commission considers that those proceedings did not affect the

applicant's peaceful enjoyment of his possessions. There is no

indication in the papers before the Commission that the proceedings as

a whole resulted in anything more than a prohibition on using the land

for purposes which were not authorised.

     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.

     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