Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22474/93

by Herz-Jesu Kloster Sacré Coeur Riedenburg

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 4 September 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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

Herz Jesu Kloster Sacré Coeur Riedenburg against Austria and registered

on 19 August 1993 under file No. 22474/93;

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

28 February 1995 and the observations in reply submitted by the

applicant on 7 March 1996;

- the Government's further comment on 3 April 1996 and the

applicant's comment on it of 7 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a monastery which runs a private school in

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

lawyer practising in Bregenz. The facts of the present case, as

submitted by the parties, may be summarised as follows.

The particular circumstances of the case

On 26 January 1979 a butcher whose premises adjoined the

applicant's and, who wished to construct and operate a small abattoir

there, applied to the Bregenz District Authority

(Bezirkshauptmannschaft) for a Trading Authority Licence

(gewerbebehördliche Genehmigung - TAL). The application was duly

notified, and on 19 March 1979 the applicant monastery gave notice of

its interest in the proceedings. The applicant monastery gave notice

on 4 April 1979 that in its opinion, the TAL would have to be refused.

On 26 June 1979 the Bregenz District Authority refused to grant

the TAL. The Vorarlberg Provincial Governor (Landeshauptmann) allowed

the butcher's appeal, and granted the TAL on 7 February 1980, subject

to a series of conditions. The applicant and another neighbour (a

church) appealed to the Minister for Trade, who on 7 October 1986,

after a series of expert reports and a public hearing, amended and

added conditions. The applicant made an administrative complaint to

the Administrative Court (Verwaltungsgerichtshof) which, on 10 June

1987, quashed the Minister's decision.

On 2 March 1989 the Provincial Governor granted a fresh TAL to

the butcher. The applicant's appeal to the Minister for Trade was

successful in that certain amendments were made to the conditions

attached to the consent. The Constitutional Court

(Verfassungsgerichtshof) declined to deal with the applicant's

constitutional complaint on 17 June 1992.

The applicant's complaint was transmitted to the Administrative

Court. In its submissions to the Administrative Court, the applicant

alleged a violation of its right to prevent the grant of a TAL (Recht

auf Nichterteilung der Gewerbeanlagengenehmigung), its right to a

proper proceedings and its right (not) to have an unlawful zoning plan

applied. On 24 November 1992 the Administrative Court rejected the

administrative complaint pursuant to Section 34 (1) of the

Administrative Court Act (Verwaltungsgerichtshofgesetz) because the

applicant had raised no grounds upon which to base a challenge to the

licence. In particular, the Administrative Court recalled that the

substantive provision for granting a TAL (Section 77 (1) of the Trade

Regulations - Gewerbeordnung) set up conditions under which a TAL could

be granted, but the second sentence of Section 77 (1), on which the

applicant based its administrative complaint, could not form a ground

of challenge by a neighbour. The substantive rights to which the

applicant referred could therefore not have been violated. The Court

added that the procedural aspects of the case could not be separated

from the substantive aspects.

On 15 November 1992, the butcher told the Bregenz District

Authority that he no longer intended to build the abattoir as so much

time had elapsed. The butcher's application for planning permission,

made in January 1987, has never been pursued.

The applicant's representative received the Administrative

Court's decision on 28 January 1993.

Relevant domestic law

Section 77 (1) of the Trade Regulations (Gewerbeordnung) sets up

the conditions for the grant of a TAL. The first sentence of Section

77 (1) provides that a licence is to be granted if technical

requirements are met. The technical requirements include adequate

provision in respect of the matters listed in Section 74 (2)

(1),(2),(3) and (5) of the Trade Regulations, namely health hazards,

nuisance to neighbours, influencing the running of various types of

institution, and water protection.

The second sentence of Section 77 (1) (since repealed) provided

that a TAL was not to be granted if the construction or operation of

the business in question was otherwise prohibited.

Section 356 (3) of the Trading Rules provides that a neighbour

may join TAL proceedings to complain about the matters in Section

74 (2) (1),(2),(3) or (5), provided he raises his objections at an

early stage of the proceedings.

COMPLAINTS

The applicant monastery alleges violations of Article 6 para. 1

of the Convention in connection with both the length and the fairness

of the proceedings. It considers that Article 6 clearly applies to the

proceedings as it raised questions about the civil rights protection

of neighbours. It is contended that the Administrative Court failed

to deal with the applicant's arguments "point by point", as required

by the European Court of Human Rights in the case of Zumtobel, and that

the Constitutional Court, by declining to deal with the case, failed

to consider it at all. As to the alleged undue length, the applicant

observes that the proceedings lasted 14 years in all, and were not at

all complicated. It points out that if the Administrative Court were

able to take decisions on the merits itself, rather than remitting

cases to the administrative authority, the case would have ended in

1987, when the Administrative Court took its first decision.

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

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

purpose. The applicant replied on 7 March 1996. On 3 April 1996 the

Government added a comment, and on 3 April 1996, and on 7 May 1996

applicant made a further observation.

THE LAW

1. The applicant monastery complains of the length of the

proceedings. It 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 monastery'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 whilst 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 health hazards and emission protection), what it really

objected to was the siting of an abattoir next to a school: and that

was a matter which was not relevant to the TAL proceedings.

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

that the applicant monastery 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 9 April 1979, when the Bregenz District

Authority received the applicant authority's objections to the grant

of a TAL. They ascribe responsibility for part of the length of the

proceedings to the butcher who applied for the TAL, and point to a

certain complexity in the proceedings. They also point out that a

large number of expert reports had to be prepared, and that there were

two rounds of proceedings which gave rise to a total of six

administrative decisions (Bescheide) and three court rulings. They see

the applicant as responsible for some of the length as it pursued a

number of remedies, and failed to apply for another body to determine

the case.

The applicant monastery considers that, given its right to join

the TAL proceedings to protect its property, civil rights were clearly

at issue.

It does not accept that it has failed to exhaust domestic

remedies, as an application for transfer of jurisdiction

(Devolutionsantrag) only applies where the delay has been caused

exclusively by the authority: where an expert has failed to submit a

report, for example, no application for transfer will be successful.

It considers that it is in any event not open to a neighbour to bring

a complaint to the Administrative Court for transfer, as only the

formal party to the proceedings (here, the butcher) is entitled to make

such a complaint, and not a neighbour.

As to the length of the proceedings, the applicant is of the

opinion that the proceedings related simply to the grant of a licence

to run a small abattoir one day a week and there was no reason for them

to last 14 years.

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 monastery was entitled

to join the TAL proceedings as a neighbour, and did so. Although it

was relying on public law considerations in the proceedings, the

applicant's interest was related to its use of the property, and the

right to property is clearly 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 in connection with the

length of the proceedings, the Commission notes that the applicant's

intention in joining the butcher's TAL proceedings was to prevent, if

it could, the grant of the TAL in order to avoid having an abattoir

next to the church school. The mere fact that it may not have been in

the applicant's interest to try to accelerate the proceedings cannot

exempt it from the requirement to exhaust effective domestic remedies

when it complains of the length of those proceedings - but the

Commission is not required to make a finding on exhaustion of domestic

remedies in the present case as the complaint is in any event

inadmissible for the following reasons.

Although the proceedings lasted a long time, there is no

indication of the applicant being prejudiced in any way by that length.

Rather, given the eventual outcome of the proceedings (which the

applicant lost), the longer the proceedings lasted, the better the

applicant's interests were served.

In the event, it transpired that the proceedings lasted so long

that the butcher gave up his plans to build an abattoir and although

he was successful in his application for a TAL, he did not pursue his

application for planning consent for the proposal.

Accordingly, the Commission finds that in the unusual

circumstances of the present case, the applicant may not claim to be

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

Convention by the length of the proceedings.

It follows that this part of the application must be rejected as

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

(Art. 27-2) of the Convention.

2. The applicant monastery 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 only argument made by

the applicant before the Administrative Court was the zoning of the

adjacent plot, and that the Administrative Court dealt with that

argument, explaining why the applicant's subjective rights could not

be affected by the zoning.

The applicant underlines that the Constitutional Court and the

Administrative Court both declined to deal with the case on the ground

that the other was competent. It claims that it was thereby deprived

of a court at all, and that its arguments were certainly not dealt with

"point by point".

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).

In the present case, the applicant monastery joined the

proceedings at an early stage, and was successful in its first

challenge to the grant of a TAL, culminating in the Administrative

Court's decision of 10 June 1987.

In the second round of proceedings, the applicant did not make

the same type of challenge to the grant of a TAL as it had made in the

first round. Rather, it chose to challenge the TAL on the ground that

the business would in any event have been prohibited, under the second

sentence of Section 77 (1) of the Trade Regulations. Such a challenge

was not, however, open to it as it only had standing to bring a

challenge under the Section 74 (2) grounds, and the Administrative

Court duly rejected the administrative complaint.

The position is therefore that the applicant had access to a

court which, in principle, has a sufficient scope of review to comply

with Article 6 para. 1 (Art. 6-1) of the Convention, but it chose to

challenge the administrative decision on grounds which did not exist.

The Commission finds that in rejecting the applicant's

administrative complaint, the Administrative Court did not deny the

applicant the access to court required by Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is also manifestly

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

the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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HERZ-JESU KLOSTER SACRÉ COEUR RIEDENBURG v. AUSTRIA

HERZ-JESU KLOSTER SACRÉ COEUR RIEDENBURG v. AUSTRIA

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