AS TO THE ADMISSIBILITY OF

                      Application No. 28502/95

                      by R. C.

                      against Austria

     The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 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 25 July 1995 by

R. C. against Austria and registered on 11 September 1995 under file

No. 28502/95;

     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, born in 1945, is an Austrian national and resident

at Mattsee.  He is a dentist by profession.  In the proceedings before

the Commission, he is represented by Mr. R. Galler, a lawyer practising

in Salzburg.

A.   Particular circumstances of the case

     The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

     On 24 April 1987 the Mattsee Municipality (Marktgemeinde),

represented by its Mayor, issued an enforcement notice against the

applicant and his wife requiring them to demolish, before 31 May 1987,

a week-end house on real estate owned by them.

     In its decision, the Municipality, having regard to the

inspection of the house on 10 March 1987 and the applicant's objections

to the enforcement notice on the occasion of the inspection and in his

submissions of 19 August 1986 and 26 March 1987, as well as the results

of its investigations, found that the house in question had been

constructed without a building permit.  Such a building which did not

comply with the Area Zoning Plan (Flächenwidmungsplan) had to be

demolished in accordance with S. 16 para. 3 of the Salzburg Building

(Control) Regulations (Baupolizeigesetz 1973).

     The Municipality noted in particular that in 1952 Mr. D., the

leaseholder of the real estate in question, at that time owned by Mr.

B., had constructed the house concerned without the necessary building

permit.  At that time the area of the estate in question was qualified

in the Area Zoning Plan  as "green land" ("Grünland"), and this

qualification had not changed since.  The real estate was situated in

a nature reserve.  On 15 December 1952 the Salzburg Provincial

Government (Amt der Landesregierung) had granted Mr. D. an exemption

from the prohibition on building in a nature reserve.  In proceedings

in 1959 regarding a wall next to the house concerned, the then mayor

of Mattsee had stated that the area was qualified as "green land" with

the consequence that construction was prohibited; that no building

permit had been granted regarding the house; that an enforcement notice

requiring the demolition of the house had been issued and that the file

had been transferred to the Salzburg Regional Government in 1953,

without any further decision having been taken.

     The Municipality considered that the exemption from the

prohibition on building in a nature reserve could not replace the

building permit.  Moreover, the applicant's arguments that the house

concerned had a number and that real estate tax had been paid could not

prove the existence of a building permit.

     On 2 June 1987 the Municipal Council (Gemeindevertretung) of the

Mattsee Municipality dismissed the applicant's appeal (Berufung).

     On 26 June 1991 the Salzburg Provincial Government dismissed the

applicant's administrative complaint (Vorstellung) against the

enforcement notice.

     As regards the relevant facts, the Government noted the contents

of the impugned decisions as well as the applicant's submissions.

Moreover, it observed that the factual findings were based on

circumstantial evidence as the administrative files which had been

submitted by the Mattsee Municipality in 1953 could no longer be

traced.  The Government noted that the financial authorities had fixed

a value for tax purposes (Einheitswert) in respect of the house

concerned.  Moreover, in April 1953 the then mayor of the Mattsee

Municipality had convened a meeting (Bauverhandlung) on the subject of

Mr. D.'s request for a building permit for the house concerned,

following the exemption granted by the Provincial Government in

December 1952.  According to his letter of 14 August 1953 the then

mayor of Mattsee had forwarded the complete files regarding the house,

including Mr. D.'s request for a building permit, the decision of

December 1952 and an enforcement notice issued by the Mattsee

Municipality.  No further action had been taken upon receipt of these

documents.  According to a letter of 5 September 1957, the Provincial

Government had sent the files back to the Mattsee Municipality but the

said documents could later not be found.

     The Provincial Government regarded as decisive Mr. D.'s request

of 24 October 1952 for the exemption from the prohibition on

construction in a nature reserve.  In this request, Mr. D. had stated

that the envisaged building was destined to replace an old boat-house,

and also gave indications regarding the colour, the roof and the

terrace, but not as to the size of the house.  According to documents

of 1959 relating to the construction of a wall on the estate concerned,

the conditions of the exemption in question, in particular as to the

roof of the building, were not met.  The building and its annex had at

that time a base measuring 3.54m x 2m and 1.3m x 1.7m, respectively.

Moreover, the then mayor had stated that no building permit had been

issued for the house, but rather an enforcement notice requiring its

demolition.  According to the recorded statement of Mr. D., he had not

known about the relevant legislation when constructing the house and

had only been informed six months after the termination of works that

he had not complied with the building regulations.  The house and the

annexing "covered area" ("überdachter Freiplatz") had meanwhile a base

measuring 3.5m x 5.3m and 2m x 4m, respectively.

     In these circumstances, the Provincial Government considered that

the house as it existed in 1987 was not identical with the earlier

building on the estate and that the conditions of the exemption of

December 1952 had not been or were no longer met.  The house concerned

did not have, therefore, any building permission and as it was situated

in a area zoned as "green land", the Mattsee Municipality had correctly

issued the enforcement notice, pursuant to S. 16 para. 3 of the

Building (Control) Regulations.

     On 20 October 1994 the Austrian Administrative Court

(Verwaltungsgerichtshof) dismissed the applicant's complaint.

     In its judgment, the Administrative Court noted in detail the

contents of the administrative decisions, as well as the applicant's

submissions that S. 16 para. 3 of the Building (Control) Regulations

and the administrative discretion in the matter had not been correctly

applied, that the relevant facts had not been completely established,

that the reasoning in the impugned decisions was unlawful and that

procedural rules had been violated.

     The Administrative Court's judgment further contained the

following reasons:

     "...

     1.    In the applicant's case, S. 16 para. 3 of the Salzburg

     Building (Control) Regulations [...], as amended [...] is

     applicable.

     ...

     Furthermore, S. 19 [...] of the Salzburg Town and Country

     Planning Act (Raumordnungsgesetz) of 1977 [...], as amended

     [...], has to be applied.

     2.1.  The applicant first alleges that the impugned decision

     cannot be implemented for factual reasons: the decision refers

     to parcel No. 476/5 ... [owned by Ms. B.], but there is no house

     on parcel No. 476/5.  It is true that initially in 1952 a

     building permit for a bathing hut or a week-end house, was

     requested with regard to parcel No. 476/5.  However, ... [in

     1982] parcel No. 476/5 was divided ... [and part] was

     incorporated into parcel No. 476/1, ... There is a bathing hut

     on parcel No. 476/1, owned by the applicant and his wife. ...

     2.2.  If the applicant's reasoning were correct, his complaint

     would have to be declared inadmissible ... for lack of any

     indication of a violation of his rights.

           However, his reasoning is not correct.  An enforcement

     notice under S. 16 para. 3 of the Salzburg Building (Control)

     Regulations had to be issued against the "owner" of the

     "building".  The applicant does not deny that the enforcement

     notice applies to a building which is clearly specified by a

     house number, namely Mattsee 218, and that he himself is the

     owner of this building.  The fact that an outdated definition of

     the real estate was used is irrelevant; taking into account that,

     as the applicant admits, there is no building on parcel

     No. 476/5, and also the historical events, there are no doubts

     as to its identity.  In this situation, there is no risk of

     confusion and the mistake has to be regarded as a clerical error

     which can be corrected ..., and has to be read in its "correct"

     meaning ...

     3.1. The applicant also claims that the decision is unlawful on

     the ground that, according to the investigations conducted by the

     Mattsee Municipality, there has already been an application for

     a building permit, and an exemption from prohibition on

     construction in a nature reserve exists.  ... The inquiries by

     the Mattsee Municipality show ... that [Mr.] D. applied for a

     building permit.  According to the legal provisions in force at

     the relevant time, the exemption from the prohibition on

     construction in a nature reserve constituted a condition for the

     building permit.  On the edge of the Obertrumersee and also of

     the nearby Mattsee, there are numerous partly similar or even

     bigger bathing huts or week-end houses.  Building permits for

     most of these bathing huts have been granted at about the same

     time.  As the exemption from the prohibition on construction in

     a nature reserve was granted, there could not possibly have  been

     any reason not to grant the building permit.  According to the

     files, the building file concerned was forwarded by the Mattsee

     Municipality to the Salzburg Provincial Government. No

     enforcement notice was ever executed.  For 39 years the Mattsee

     Municipality levied the so-called land tax B.  Furthermore, the

     seasonal taxes (Saisontaxen) were levied; and the house

     number 218 was assigned. ... The applicant cannot be placed at

     a disadvantage on account of the fact that this building permit

     can no longer be found ... When the applicant bought the estate

     together with his wife, he assumed that a valid building permit

     existed.  The files do not contain any indication that the

     building permit was withdrawn.  ...

     3.2.  The applicant's complaints are unfounded. In its

     observations, the respondent authority correctly argues that the

     conclusive elements - which are not in dispute - in the files of

     the Archives of the Provincial Government as well as of the

     Mattsee Municipality are sufficient to conclude, in all

     probability, that so far no building permit has been granted for

     the applicant's building.  Taking into account the Administrative

     Court's limited powers to review the assessment of evidence ...,

     there are no objections in law to the opinion of the respondent

     authority that this circumstance can be deduced from the letter

     of the Mattsee Municipality of 14 August 1953. This letter not

     only mentions the exemption ... of 15 December 1952 and the

     request by the predecessor in title for a building permit, but

     also an enforcement notice issued by the Mattsee Municipality.

     The applicant's submissions are mere assumptions.  Even assuming

     that ... building permits for numerous partly similar or even

     bigger bathing huts or week-end houses on the edge of the

     Obertrumersee and also of the nearby Mattsee were granted at

     about the same time, this cannot prove that a building permit was

     granted in the applicant's case. The same considerations apply

     to the applicant's allegation that the land tax B and seasonal

     taxes were levied: the levying of such taxes does not depend on

     the existence of a building permit and such tax assessments

     cannot replace a building permit.  The same applies to the

     assignment of the house number 218.

           The assumption that no building permit was granted is

     further justified on the ground that the applicant, as successor

     in title to the previous owner, is not in a position to produce

     a copy of any building permit, as a building permit is only

     issued when a copy of such decision has been served upon the

     party having requested it. A person having been granted a

     building permit is thus generally in a position to prove the

     existence of such a permit irrespective of whether the

     administrative files contain any proof that a building permit has

     been granted.  In the applicant's case, it flies in the face of

     common sense to conclude ... from the absence in the

     administrative files or elsewhere of any trace of a building

     permit that a building permit exists, in particular where there

     is an enforcement notice.  There is, therefore, nothing to

     suggest that the absence of the respective file of the Mattsee

     Municipality was detrimental to him.

           In sum, having regard to all documents, there can be no

     objection to the conclusion of the respondent authority that

     there was no building permit regarding the applicant's house. The

     applicant's good faith when he bought the house cannot replace

     the building permit.

     4.1. The applicant also challenges the reasoning of the impugned

     decision according to which the actual construction of the house

     on parcel 476/5 does not correspond to the dimensions of the

     previously existing house ... or to the conditions of the

     exemption from prohibition on construction in a nature reserve.

     This reasoning is incorrect as it cannot be verified whether or

     not ... changes were imposed by the authority or requested by his

     predecessor. ... The negligible discrepancy between the house and

     the exemption granted in 1952 cannot result in regarding the

     actual house as not permitted.  Furthermore, the first instance

     decision refers to an enforcement notice issued by the Mattsee

     Municipality and to the fact that the Municipality forwarded the

     file concerned to the Salzburg Provincial Government on 14 August

     1953.  It can be concluded from the reasoning of the

     Municipality's decision that no decision has been taken yet.  ...

     Taking into account the principle "ne bis in idem", the

     institution of new proceedings or the taking of a first instance

     decision in further proceedings, respectively, are unlawful as

     long as the 1953 proceedings have not terminated.  ...

     4.2. The above questions raised by the applicant need not be

     resolved, on the ground - which the respondent authority already

     explained in the impugned decision in a conclusive and reasonable

     manner - that anyway the relevant circumstances have changed.

     Comparing the size of the week-end house which was probably

     affected by the enforcement notice issued by the Mattsee

     Municipality in 1953 and can be proved on the basis of material

     in the archives, i.e. indications of the then expert G., and the

     size of the week-end house to which the enforcement notice issued

     by the Mayor on 24 April 1987 relates, it follows that the two

     constructions are not identical; the lateral length of the layout

     had changed from "2m" to "5.3m", thus more than doubling its

     length, and the "annex" ("1.30m x 1.70m x 2m") was clearly not

     the same as the "covered area" ("2m x 4m").  The applicant has

     not denied such changes; however, contrary to his view, these

     changes cannot be regarded as negligible.

           His arguments regarding possible conditions are irrelevant

     on the ground that they only concern the question of whether a

     building permit existed and not the question of the difference

     in size of the respective buildings of 1952 and 1987.

           The Administrative Court has no legal objections to the

     view of the respondent authority that the two houses are not

     identical.  Following the change of the relevant circumstances,

     the possible binding force of an earlier enforcement notice in

     the instant case does not prevent it from issuing a new

     enforcement notice.

     5.1. According to the applicant, S. 16 para. 3 of the Building

     (Control) Regulations requires the authority concerned to order

     the person responsible or the owner concerned to file, within an

     appropriate period, a subsequent request for a building permit

     ... He claims that all the conditions ... were duly met in his

     case ...

     5.2. The applicant's arguments are not correct. S. 16 para. 3

     clearly provides that, in case of non-compliance with the area

     zoning plan, only an order to demolish the building is issued.

     A so-called alternative order can only be issued if there is no

     contradiction to the area zoning plan.  In the instant case, it

     is indisputable that the land with the building in question is,

     according to the area zoning plan, green land. Pursuant to S. 19

     ... of the Salzburg Town and Country Planning Act 1977, a

     building permit such as requested by the applicant or his

     predecessor, respectively, could not be granted. The

     administrative files and the applicant's submissions do not

     contain any indication that the building permit for the

     applicant's house could be granted in compliance with the area

     zoning plan. In any event, the applicant's attention must be

     drawn to the fact that S. 16 para. 3 of the Salzburg Building

     (Control) Regulations does not leave any discretion to the

     building authority. ... in case of non-compliance of the building

     with the area zoning plan - it has to require the demolition.

     In this context the question of a possible disturbance of the

     landscape is irrelevant, as this question does not have to be

     examined in the proceedings under S. 16 para. 3 of the Salzburg

     Building (Control) Regulations.

           The impugned decision cannot, therefore, be objected to

     from this point of view, either.

     ..."

B.   Relevant domestic law

a.   Building (Control) Regulations

     S. 16 para. 3 of the Salzburg Building (Control) Regulations

(Baupolizeigesetz) of 1973, as amended, provides, so far as relevant,

as follows:

     "Where a building has been constructed without the necessary

     building permit or where the building permit has subsequently

     been quashed, the competent building authorities have to order

     the person responsible (Veranlasser) or the owner concerned to

     file, within an appropriate period, a (subsequent) request for

     a permit or to demolish the building in question.  If the

     building does not comply with the area zoning plan or the

     building plan (Bebauungsplan), only an order to demolish the

     building can be issued."

     According to S. 19 para. 1 of the Salzburg Town and Country

Planning Act (Raumordnungsgesetz) of 1977, as amended, any measures

affecting the area and necessitating a permit or similar by the

municipalities may, as from the entry into force of the zoning area

plan only be granted if they comply with the zoning area plan.

b.   Administrative Court

     By virtue of Article 130 of the Federal Constitution, the

Administrative Court has jurisdiction to hear, inter alia, applications

alleging that an administrative decision is unlawful.

     S. 41 (1) of the Administrative Court Act (Verwaltungs-

gerichtshofgesetz) reads as follows:

     "In so far as the Administrative Court does not find any

     unlawfulness deriving from the respondent authority's lack of

     jurisdiction or from breaches of procedural rules (S. 42 (2),

     paragraphs 2 and 3) ..., it must examine the contested decision

     on the basis of the facts found by the respondent authority and

     with reference to the complaints put forward ...

     If it considers that reasons which have not yet been notified to

     one of the parties might be decisive for ruling on [one of these

     complaints] ..., it must hear the parties on this point and

     adjourn the proceedings if necessary."

     S. 42 (1) states that, save as otherwise provided, decisions of

the Administrative Court shall either dismiss a complaint as

ill-founded or quash the contested decision.

     By virtue of S. 42 (2),

     "The Administrative Court shall quash the impugned decision if

     it is unlawful

      1.  by reason of its content, [or]

      2.  because the respondent authority lacked jurisdiction, [or]

      3.  on account of a breach of procedural rules, in that

     (a) the respondent authority has made findings of fact which are,

     in an important respect, contradicted by the case file, or

     (b) the facts require further investigation on an important

     point, or

     (c) procedural rules have been disregarded, compliance with which

     could have led to a different decision by the respondent

     authority."

     Under S. 63 (1) of the Administrative Court Act, if the court

quashes the challenged decision, "the administrative authorities are

under a duty ... to take immediate steps, using the legal means

available to them, to bring about in the specific case the legal

situation which corresponds to the Administrative Court's view of the

law (Rechtsanschauung)".

COMPLAINTS

     The applicant complains under Article 6 of the Convention that

he had not been able to have the question of the enforcement notice

requiring the demolition of his secondary residence determined by a

"tribunal" which complied with this provision.  He considers in

particular that the Administrative Court, having regard to its limited

powers of review and the matters at issue in the instant case, could

not be regarded as such a "tribunal".

THE LAW

     The applicant complains that his case was not heard by a tribunal

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

     Article 6 para. 1 (Art. 6-1), so far as relevant, provides:

     "In the determination of his civil rights and obligations ...,

     everyone is entitled to a fair and public hearing ... by [a] ...

     tribunal ..."

     The proceedings regarding the enforcement notice issued against

the applicant, requiring him to demolish a house on real estate owned

by him, related in particular to the question of whether a building

permit existed for the said house.  The Commission considers that these

proceedings involved a determination of his "civil rights".  Article 6

para. 1 (Art. 6-1) is accordingly applicable to the facts of the

present case (cf. Eur. Court H.R., Bryan judgment of 22 November 1995,

para. 31, Series A no. 335-A).

     The Commission recalls that under Article 6 para. 1 (Art. 6-1)

of the Convention it is necessary that, in the determination of "civil

rights and obligations", decisions taken by administrative authorities

which do not themselves satisfy the requirements of that Article be

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

jurisdiction" (cf. Eur. Court H.R., Albert and Le Compte judgment of

10 February 1983, Series A no. 58, p. 16, para. 29, Ortenberg judgment

of 25 November 1994, Series A no. 295-B, pp. 49-50, para. 31; Fischer

judgment of 26 April 1995, Series A no. 312, p. 17, para. 28; Bryan

judgment, loc. cit., para. 40).  In assessing the sufficiency of the

review, it is necessary to have regard to matters such as the subject-

matter of the decision appealed against, the manner in which that

decision was arrived at, and the content of the dispute, including the

desired and actual grounds of appeal (Bryan judgment, loc. cit.,

para. 47).

     In the present case the proceedings related to the enforcement

notice issued against the applicant under the relevant provision of the

Salzburg Building (Control) Regulations, as confirmed by the Salzburg

Provincial Government.  This decision was not "exclusively within the

discretion of the administrative authorities",  (cf. Zumtobel judgment,

loc. cit., p. 13, para. 13; Ortenberg judgment, loc. cit., para. 33;

Fischer judgment, loc. cit.).  Thus, it was for the Administrative

Court to satisfy itself whether the relevant provision had been

complied with which, according to the findings of the Administrative

Court itself, did not leave any discretion to the competent authority

as to whether an enforcement order is issued.

      As to the Administrative Court's powers to examine factual

issues, the Commission finds that the Administrative Court's extensive

reasoning in its judgment shows that the Court considered all the

applicant's submissions on their merits, point by point, without ever

having to decline jurisdiction in replying to them or in ascertaining

the relevant facts (cf. also Eur. Court H.R., Zumtobel judgment of

21 September 1993, Series A no. 268-A, pp. 13-14, paras. 31-32;

Ortenberg judgment, loc. cit., p. 50, paras. 33-34; Fischer judgment,

loc. cit., p. 18, para. 34)..

     In these circumstances, the Commission finds that, having regard

to the nature of the applicant's complaints as well as to the scope of

review necessitated by such complaints, the Administrative Court's

review of the decision being challenged fulfilled the requirements of

Article 6 para. 1 (Art. 6-1).

     It follows that 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.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)