AS TO THE ADMISSIBILITY OF

                      Application No. 22475/93

                      by Ilse KRISTAVCNIK-REUTTERER

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 27 July 1993 by

Ilse KRISTAVCNIK-REUTTERER against Austria and registered on 19 August

1993 under file No. 22475/93;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     27 February 1995 and the observations in reply submitted by the

     applicant on 24 May 1995;

-    the Commission's decision of 4 September 1996 to adjourn the

     case;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is an Austrian national.  She lives in Bludenz 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

parties, may be summarised as follows.

     On 10 April 1985 a neighbour of the applicant, who is a joiner,

applied for a Trading Authority Licence (gewerbebehördliche Genehmigung

- TAL) for the demolition of his existing workshop and the construction

of a new workshop.  On 4 June 1985 he added an application for

amendments to the heating system.  The Bludenz District Authority

(Bezirkshauptmannschaft) visited the site on 6 August 1985 and the

applicant and other neighbours submitted a petition.  On 16 October

1985 the applicant, in her own name and in that of a local committee

(Bürgerintitiative), requested the District Authority to bring criminal

proceedings against the joiner, and to take a formal decision that the

heating system needed a TAL.  On 25 November 1985 the District

Authority took a decision (Feststellungsbescheid) that a TAL was not

needed for the heating system.  The decision was forwarded to the

applicant's representative "for information", and not on the ground

that she was a party to the proceedings.  The applicant's appeal to the

Vorarlberg Provincial Governor (Landeshauptmann) was rejected on

3 February 1986 on the ground that she did not have locus standi to

challenge the decision of 25 November 1985.  The applicant's appeal to

the Minister for Trade was also unsuccessful, the Minister's decision

being dated 30 May 1986.  The Minister also found that the heating

system did, however, require a TAL, and he quashed the decision of

25 November 1985.  The joiner's appeal against the Minister's decision

of 30 May 1986 was dismissed by the Administrative Court on 25 November

1986.     In 1987 there was a series of measurements and exchange of

expert's comments, with a hearing on 21 July 1987.  The applicant

requested a new hearing in August 1987, and in December 1987 the

District Authority asked the applicant to submit her final

observations.  The TAL was granted, subject to a number of conditions,

on 27 June 1988.  The applicant, together with her parents, appealed.

     On 24 August 1989, after an exchange of observations on the

appeal and discussion as to the validity of the parents'

representation, the applicant's appeal was dismissed by the Vorarlberg

Provincial Governor.  The parents' appeal was rejected on the ground

that they had not been validly represented.  The appeal against this

decision to the Minister for Trade was dismissed on 19 July 1991, again

after a number of sets of observations had been exchanged, and after

the taking of evidence from various witnesses.  On 17 September 1991

the applicant made a constitutional complaint in which she alleged

violations of her rights under Articles 2 and 8 of the Convention, and

of the right to fair proceedings.

     The Constitutional Court (Verfassungsgerichtshof) declined to

deal with the complaint on 25 February 1992.  It referred to its own

case-law in connection with Articles 6 and 8 of the Convention, and

noted that Article 2 was obviously not at issue.  It found that the

complaint had no adequate prospect of success, and that the matter was

not excluded from the jurisdiction of the Administrative Court

(Verwaltungsgerichtshof).  The Constitutional Court transferred the

case to the Administrative Court on 28 April 1992.

     In her supplementary complaint, the applicant alleged - in

addition to the matters in her constitutional complaint - violation of

the right to an impartial authority; the right to protection against

emissions; of her neighbour's rights under Regulation 74 et seq. of the

Trade Regulations (Gewerbeordnung); the right to prohibition of

dangerous plant in the danger area and the right of her parents to be

accepted as parties.  The Administrative Court dismissed the

administrative complaint on 24 November 1992.  It noted that the

Constitutional Court had determined the constitutional complaint and

so it was not able to deal with the points raised under Articles 2, 6

and 8 of the Convention as such.  It also found that the conclusion of

the Minister for Trade that the applicant's parents were not properly

parties to the proceedings was not untenable.

     In connection with the applicant's substantive complaints, the

Administrative Court noted inter alia that Regulation 74 of the Trade

Regulations 1973 gives the status of party to neighbours who have made

objections to a proposal at the latest at the site hearing

(Augenscheinverhandlung).  The Administrative Court noted the

conclusions of the official medical expert that there was nothing in

a medical report, which the applicant's mother had had prepared, to

affect the authority's conclusion that the proposed works should be

granted a licence, and found no need to establish any further facts.

Newspaper reports concerning other installations could not affect the

lawfulness of the decision in the present case.

     In connection with the applicant's complaint that the joiner's

plans for a new workshop were incompatible the zoning plan, and/or that

the Administrative Court should remit the question of the

constitutionality of the plan to the Constitutional Court, the

Administrative Court replied that pursuant to Section 356 (3) of the

Trade Regulations, neighbours had subjective, public-law rights to

complain about the matters falling within the first sentence of

Section 77 (1) of the Trade Regulations, but not the second sentence.

The second sentence refers to prohibitions on the works proposed, and

so the applicant's "neighbour" rights did not extend as far as the

matters included in that second sentence.

     The applicant's representative received the Administrative

Court's decision on 28 January 1993.

COMPLAINTS

     The applicant alleges violation of Article 6 of the Convention.

She considers that the proceedings by which she attempted to prevent

the grant of a TAL to her neighbour determined her civil rights, and

that she should accordingly have had the benefit of a court which was

able to determine the facts itself.  She points out that the

Constitutional Court declined to deal with her constitutional

complaints at all, and that the Administrative Court then found that

it could not enter into these matters as they were for the

Constitutional Court.  The Constitutional Court does not make any

findings of fact at all, and indeed decisions by which the

Constitutional Court declines to deal with an application do not figure

in any official collections of decisions.

     The applicant also complains of the length of the proceedings,

contending that eight years is far too long for these straightforward

proceedings, and that they would not have lasted so long if the

authority had not come to the ridiculous conclusion that a silo for

storage of potentially explosive waste did not need a TAL.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 27 July 1993 and registered on

19 August 1993.

     On 12 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

     The Government's written observations were submitted on

27 February 1995, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 24 May 1995.

THE LAW

1.   The applicant complains of the length of the proceedings.  She

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

which guarantees the right to determination of civil rights and

obligations in a reasonable time.

     The Government consider that the proceedings did not determine

any of the applicant's civil rights, with the result that Article 6

(Art. 6) does not apply to the proceedings.  They underline that a

neighbour only has status to become involved in a third party's

application for a TAL when he can show that he is likely to be affected

by the grant of a TAL.  Such a neighbour is then entitled to invoke

public-law rights for his personal protection, but the rights remain

public-law rights (subjektiv-öffentliche Rechte).  The rights are

certain of the matters with which an applicant for a TAL must comply.

In the Government's opinion, the rights which are determined are the

rights of the person who applied for the TAL, not of the neighbour.

The Government also point out that the public-law rights which the

applicant was able to claim in the TAL proceedings were matters

relating to the grant of the TAL (principally environmental health

matters such as the possibility of unpleasant smells, fire or

explosion), and that those are public law matters, rather than "civil"

matters within the meaning of the Convention.

     Even if Article 6 (Art. 6) were to apply, the Government consider

that the applicant could have brought an application for the superior

authority to decide the case if any decisions were not taken within the

prescribed 6 months period: an application for a transfer of

jurisdiction (Devolutionsantrag) to the superior administrative

authority if there was one, or an application for the Administrative

Court to deal with the case (Säumnisbeschwerde) if there was no

superior administrative authority.  They consider that the complaint

as to the length of the proceedings is therefore inadmissible for non-

exhaustion of domestic remedies.

     As to the length of the proceedings, the Government consider that

the proceedings began on 6 August 1985, that is, the day on which the

applicant's objections were first brought to the notice of the Bludenz

District Authority.  The Government consider that the proceedings were

complex in that there were more than two parties, and some of the time

the proceedings took is attributable to appeals by parties other than

the applicant (for example the joiner's appeal to the Administrative

Court).  They also point out that much time was needed in the appeal

proceedings to establish whether the applicant's parents had in fact

validly appointed their representative.  The Government underline that

six decisions were taken by the administrative authorities and four

decisions were taken by the Administrative and Constitutional Courts

in three rounds of proceedings.  They consider that an overall period

of seven years and three months was not, in these circumstances,

unreasonably long.

     The applicant considers that, given her right to join the TAL

proceedings to protect her property, civil rights were clearly at

issue.

     She does not accept that she has failed to exhaust domestic

remedies. She considers that an application for transfer of

jurisdiction (Devolutionsantrag) is not an effective remedy because the

higher administrative authorities are "hopelessly generous" when

considering such complaints.  In connection with a complaint to the

Administrative Court for transfer (Säumnisbeschwerde), she argues that

such a complaint does not in effect accelerate the proceedings as the

first thing the Administrative Court does is to order the authority to

decide within three months, by which time the proceedings have already

been delayed by at least one year.  If the authority denies that it has

failed to deal with the matter in time, the Administrative Court has

to decide on the question of delay - which again takes on average six

months.  If, some 18 months after the period began to run, the

Administrative Court does then consider the case itself, an applicant

finds himself before a court which is woefully ill-equipped to deal

with to deal with disputes, and which has to rely to a large extent on

the experts of the authorities.  Finally, if the Administrative Court

decides the case itself, an applicant is deprived of access to the

Constitutional Court, which excludes such an application for transfer

where an applicant wishes to raise constitutional rights, such as

illegality of a zoning plan.

     The applicant considers that the proceedings began on 10 April

1985, that is, the date when she was invited to the hearing by the

District Authority.  She regards it as obvious that a joinery of the

size proposed should not be between dwelling houses, and the

authorities' problem lay in the fact that they were trying to grant a

TAL on political grounds, even though the real result was obvious.  She

considers that the proceedings lasted about five times as long as they

should have.

     The Commission recalls that in the case of Ortenberg, the

European Court of Human Rights considered that Article 6 para. 1

(Art. 6-1) of the Convention was applicable in proceedings which a

neighbour brought to vindicate public-law objections to a building

project (Eur. Court H.R., Ortenberg judgement of 25 November 1994,

Series A no. 295, p. 48, para. 28; see also Eur. Court H.R., Zander

judgment of 25 November 1993, Series A no. 279-B, pp. 38 - 40, paras.

22 - 27).  In the present case, the applicant was entitled to join the

TAL proceedings as a neighbour, and did so.  Although she was relying

on public law considerations in the proceedings, her interest was

related to her use of the property, and the right to property is

undoubtedly a "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (see, for example, the above-mentioned

Zander judgment, p. 40, para. 27).

     Accordingly, Article 6 para. 1 (Art. 6-1) applies in the present

case.

     As to the exhaustion of domestic remedies, the Commission recalls

that it has, in the past, considered that a complaint to the

Administrative Court (Säumnisbeschwerde) may, in certain circumstances,

constitute an effective remedy within the meaning of Article 26

(Art. 26) of the Convention (No. 19343/92, Dec. 6.9.95).  The

Commission is not, however, required to make any findings of principle

as to the effectiveness of the remedy in the present case, as the

complaint is in any event manifestly ill founded for the following

reasons.

     The Commission notes that the proceedings began in April or

August 1985, and ended, as far as the applicant was concerned, on

28 January 1993.  They thus lasted a total of, at most, seven years and

nine months.

     The case was not of itself particularly complex - the joiner

wanted a TAL from the authority and the applicant (and others) wanted

to stop him - but elements of complexity were introduced, not least by

the questions relating to the position of the applicant's parents in

the proceedings.

     As to the applicant's conduct, the Commission notes that the

Government do not claim that the applicant delayed the proceedings

beyond bringing about the grant, on two occasions, of an extension of

time-limits for commenting on expert opinions, but it remains the case

that she did not attempt to accelerate them in any way, as she could

be expected to do if she was concerned to achieve a speedy termination

of the proceedings.

     Finally, the Commission notes that there were no substantial

periods of inactivity in the proceedings: the administrative

authorities dealt initially with the challenge to the decision of

25 November 1985, and once that decision had been quashed by the

Minister on 30 May 1986 (and the joiner's challenge to that decision

dismissed by the Administrative Court), a further series of experts'

reports was produced, and challenged, before the TAL was granted on

27 June 1988.  Thereafter, there followed further exchanges of

observations and experts' reports, and hearings before the authority,

before the Regional Governor's decision of 24 August 1989.   The appeal

proceedings before the Ministry again involved the taking of statements

from parties and experts with documents being served on the other

parties, until the Ministry decided on 19 July 1991, the decision being

served on 6 August 1991.  Thereafter, in the space of less than

16 months from the applicant's constitutional complaint, the

Constitutional Court gave its decision on the merits of the

constitutional complaint and remitted the case to the Administrative

Court, and the Administrative Court dismissed the administrative

complaint.

     The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the competent authorities), and having regard to

all the information in its possession, that the length of the

proceedings cannot be said to have exceeded the "reasonable time"

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

     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 connection with the scope of review by

the Constitutional and Administrative Courts of the decisions of the

administrative authorities.

     The Government consider that the scope of review by the

Administrative Court of the applicant's complaint in the present case

was sufficient to meet the criteria set up by the European Court in the

case of Zumtobel (Eur. Court H.R., Zumtobel judgment of 21 September

1993, Series A no. 268-A).  They note that the Administrative Court

dealt with each complaint made by the applicant at pages 21 to 26 of

its judgment, and examined in particular whether the conditions of

Section 74 (2) of the Trading Regulations had been met.

     The applicant points to two areas in which she claims the

Administrative Court did not behave like a tribunal.  First, she claims

that mere reference to the findings of the local experts in the matter

of emissions, and the dangers of fire and explosion was inadequate.

She adds that she knew what the experts thought, but wanted to have

findings from a court.  The other area of complaint is the refusal of

the Administrative Court to deal with her complaints about the zoning

plan.

     The Commission recalls that even where an adjudicatory body

determining disputes over "civil rights and obligations" does not

comply with Article 6 para. 1 (Art. 6-1) in some respect, "no violation

of the Convention can be found if the proceedings before that body are

'subject to subsequent control by a judicial body that has full

jurisdiction and does provide the guarantees of Article 6 para. 1

(Art. 6-1)'" (Eur. Court H.R., Bryan judgment of 22 November 1995,

Series A no. 335-A, para.40, with further references).

     The administrative authorities in the present case considered all

aspects of the case, but did not provide the guarantees of Article 6

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

Zumtobel judgment of 21 September 1993, Series A no. 268, p. 13, para.

29).  The Administrative Court had the requisite attributes of

independence and impartiality, and the question is whether its scope

of review satisfied the Convention requirement of "full jurisdiction".

     The Administrative Court dealt with all but one of the

applicant's complaints to it. It did not, it is true, take decisions

on the basis of facts established in full first instance proceedings

before it, but the very nature of "review" by a court precludes this.

The test set up by the European Court of Human Rights requires not that

the body with the guarantees of Article 6 (Art. 6) itself decides every

single issue, but that it reviews the decisions of the lower

authorities.  This is precisely what happened in the present case in

respect of all but one of the applicant's complaints.

     There was one complaint on which the Administrative Court

declined to give a substantive reasoning.  That was the complaint

relating to the zoning plan for the area. The Administrative Court

found that the applicant's "neighbour" rights did not extend as far as

the matters included in the second sentence Section 77 (1) of the Trade

Regulations, and so did not deal with the question.

     The refusal by the Administrative Court to look into this matter

was not a declining of jurisdiction to look at facts, but a statement

that it could not look at matters outwith the scope of the applicant's

substantive rights.  Accordingly, the refusal to consider questions

concerning the zoning plan was not a question of a limitation on the

scope of review, but a statement of the extent of the applicant's

substantive law rights.

     The Commission finds that the scope of review by the

Administrative Court was sufficient to comply with the requirements of

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

     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