Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19745/92

by E. & H. G.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 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 23 December 1991

by E. & H. G. against Austria and registered on 20 September 1992 under

file No. 19745/93;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

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

22 April 1994 and the observations in reply submitted by the

applicants on 30 May 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, a married couple, are Austrian citizens living

in Schrems. The first applicant was born in 1923 and the second

applicant in 1924. They are represented by Mr. E. Proksch, a lawyer

practising in Vienna.

It follows from their statements and the documents submitted that

on 28 July 1975, the applicants requested a building permit authorising

the construction of a four-storey office and apartment building.

On 5 August 1975, a neighbour, Mr. B., raised objections claiming

that the intended construction would take too much light away from his

house on the opposite side of the street.

On 18 March 1976, an agreement was reached between the mayor

representing the construction authority and the two neighbours. It was

inter alia agreed that the upper storey of the intended building would

be constructed less high in order not to overshadow B's building ("Das

oberste Geschoß ist entsprechend dem Lichteinfallswinkel

zurückzusetzen").

On 13 April 1976, a building permit was granted taking account

of their agreement. An architectural plan representing the newly

designed upper storey with an inclined facade was included in the

building permit.

On 27 July 1977, the mayor ordered in accordance with Section 109

para. 4 of the Construction Decree (Bauordnung) that part 3 of the

upper storey be narrowed in order to be conform with the building

permit.

The applicants' appeal (Berufung) against the order (Bescheid)

of 27 July 1977 was dismissed by the Community Council on 13 September

1977. The applicants then brought the matter before the Regional

Government.

On 31 January 1978, neighbour B. made a request for the

demolition of that part of the upper storey which was not in conformity

with the Construction Decree.

On 14 August 1978, the Regional Government set aside the decision

of the Community Council of 13 September 1977 and sent the matter back

to be reconsidered. This decision was based on an official expert

opinion submitted on 12 April 1978. The technical expert expressed the

view that he could not establish a violation of Section 47 of the

Construction Decree with regard to the inclination of the upper storey.

Neighbour B. appealed to the Administrative Court

(Verwaltungsgerichtshof).

On 23 June 1981, the Administrative Court quashed the Regional

Government's decision for unlawfulness (inhaltliche Rechtswidrigikeit)

and sent the matter back for a new decision.

On 9 March 1982, the Regional Government referred the matter to

the Community Council.

On 17 July 1982, the Community Council set aside the mayor's

order of 27 July 1977 and sent the matter back for further

investigations.

The mayor having taken no action, the Community Council conducted

an investigation, heard witnesses and the parties, obtained documentary

evidence etc. and ordered on 4 October 1983, in accordance with Section

109 para. 4 of the Construction Decree, that the third part of the

upper storey had to be narrowed by way of inclination of the facade.

The applicants again brought the matter before the Regional

Government.

On 1 August 1984, the Regional Government set aside the order of

4 October 1983 considering that the applicants' building had been

constructed conform to the agreement reached in March 1976. Neighbour

B. appealed to the Administrative Court.

On 10 December 1985, the Administrative Court set aside the

Regional Government's decision of 1 August 1984. Referring to

Section 63 para. 1 of the Administrative Court Act (VwGG) the Court

pointed out that so far no decision had been taken on the neighbour's

request of 31 January 1978 to remove the alleged unauthorised part of

the applicants' building (Demolierungsantrag). It added that in the

course of the proceedings which the construction authority had to carry

out in accordance with Section 112 of the Construction Decree it would

be necessary to establish the extent of the prior building permit (Im

Rahmen des nach Paragraph 112 BO durchzuführenden Verfahrens hätten die

Baubehörden den Inhalt der seinerzeit erteilten Baubewilligung zu

erforschen).

Recognising that the construction authorities were not formally

bound in these proceedings by its decision, the Court further stated

that it nevertheless wished to reiterate its opinion that Section 47

of the Construction Decree did not directly apply because this

provision only contained regulations which aimed at ensuring

appropriate light and aeration conditions in respect of planned

constructions while it did not provide for subjective rights for

property owners complaining about a neighbouring construction.

Nevertheless the construction authorities would in the context of

examining the extent of the prior building permit also have to find

out, having regard to available witness evidence and planning

documents, whether in the agreement of 18 March 1976 the term

"Lichteinfallswinkel" (light's angle of incidence) had been used in the

same sense as in Section 47 of the Construction Decree.

On 6 March 1986, the Regional Government sent the matter back to

the Community Council.

On 9 April 1986, B. complained to the Community Council that his

request of 31 January 1978 for the demolition of the upper storey of

the applicants' building had not yet been decided.

On 11 December 1986, B. complained to the Administrative Court

about the inactivity of the Community Council.

On 16 December 1986 the Administrative Court opened preliminary

proceedings (Vorverfahren) in accordance with Section 35 para. 3 of the

Administrative Court Act and requested the Community Council to decide

the matter within three months or to justify its inactivity.

On 17 March 1987 the mayor informed the court that in view of the

complex character and the often contradictory decisions so far given

in the matter, the Community Council had not seen fit to give a

decision.

By order of 20 July 1988 the Administrative Court requested the

Community Council to answer certain questions and to submit certain

documents and plans showing the situation of the two neighbouring

constructions in question.

On 21 November 1988 the applicants submitted an expert opinion

and argued that their construction conformed to existing building

regulations.

On 12 February 1991 the Administrative Court communicated to the

neighbour B. and the applicants the observations of the Community

Council dated 5 September 1988 and the plans submitted by them.

On 4 March 1991 neighbour B. filed his observations. The

applicants submitted further observations on 30 April 1991 and again

offered evidence.

On 14 May 1991, the Administrative Court decided without a

hearing that part 3 of the upper storey likewise had to be put back

(zurücksetzen) within six months in order to conform to the agreement

of 18 March 1976. The Court found that on the basis of the documentary

evidence obtained and contrary to the opinion expressed previously by

an expert of the building authority, the applicants' construction

exceeded the maximum admissible height. It was true that according to

the agreement of 18 March 1978 the neighbour B. had not raised

objections against the excessive height, but to this extent the

agreement was unlawful. On the other hand the agreement had been taken

into account in the building plans and according to these plans the

whole of the upper storey was to be smaller than the lower storeys.

This corresponded, in the opinion of the court, to the meaning of the

agreement and was not contradicted by the fact that in a note (Vermerk)

of 13 July 1977 an official expert attested that the construction as

represented in a plan of December 1976 was unobjectionable (kein

Einwand). This note was, so the court stated, not binding as it could

not replace the necessary authorisation of the construction authorities

(baubehördliche Bewilligung). The court concluded that the upper

storey had been constructed without there being an agreement (... im

obersten Geschoß [ist] die Bauführung konsenslos erfolgt ...). It

added that in the proceedings made under Section 112 of the

Construction Decree, it did not have to examine the question of whether

or not obtaining a subsequent building permit was possible (Wie weit

für diese Bauausführung die nachträgliche Erteilung einer

Baubewilligung möglich wäre, war im Rahmen des Auftragsverfahrens nach

§ 112 Bauordnung, ... nicht zu prüfen).

The judgment of 14 May 1991 was communicated on 10 July 1991.

The applicants then made a request for a retrial alleging that

when examining the court files on 2 August 1991 their counsel

discovered that a building plan which had been decisive for the

Administrative Court's decision of 14 May 1991 had apparently been

forged. They also based their request on the fact that this decision

was given without a prior oral hearing.

On 10 December 1991 the Administrative Court rejected the request

as being inadmissible. In so far as the applicants alleged that their

counsel had not discovered the existence of a forged building plan

before 2 August 1991, the Court found that it followed from the file

that the applicants had taken cognisance of the plan in question in

1977 and also on later occasions and consequently their request for a

retrial was in this respect lodged out of time.

In so far as the applicants complained that there had been no

oral hearing, the Administrative Court stated that the parties had been

given the opportunity to submit their case (... daß im vollen Umfang

Parteiengehör gewahrt worden ist) and that the applicants had not, in

their submissions of 30 April 1991, requested an oral hearing.

In August 1992 the applicants made a request for a supplementary

building permit. It was rejected by the local mayor on 11 May 1993.

On the same day the construction authorities requested the applicants

to put back also part 4 of the upper storey.

The applicants appealed against both decisions.

The decision to put back part 4 was set aside by the Community

Council on 30 September 1993 which at the same time confirmed the

mayor's decision on the ground of res judicata.

An appeal by the applicants to the Regional Government was still

pending in 1994 and no information about its result has been submitted

by the parties.

COMPLAINTS

The applicants complain that Article 6 para. 1 of the Convention

was violated in their case and that their case was not heard in a fair

manner and in a public oral hearing before the Administrative Court

which examined in first and last instance the objections which their

neighbour B. had formulated in respect of their construction. The

applicants point out that Section 112 para. 2 of the Construction

Decree of Lower Austria (NÖ Bauordnung) provides cogently that

decisions relating to construction or demolition permits and related

orders have to be taken on the basis of an oral hearing

(Bauverhandlung) on the spot (Lokalaugenschein) and, if necessary, with

the assistance of experts. The Administrative Court however did not

even inform the parties of its intention to decide on the basis of the

given state of the files without an oral hearing although in its

earlier decision of 10 December 1985 it had expressed the opinion that

the authorities should consider available evidence in order to

determine the meaning of the agreement they had concluded in March 1976

with neighbour B. and the mayor of the community. They further point

out that the proceedings before the Administrative Court were not

brought by them but their neighbour B. They, the applicants, merely

played a participating role (Beteiligte) in the proceedings and were

only once requested to submit observations. They did so on 21 November

1988 when they requested that the parties should be questioned

(Einvernahme der mitbeteiligten Parteien), that an expert opinion be

obtained, that an architect be heard as an expert witness and that an

on-the-spot investigation be carried out. They further submit that the

complaint of the neighbour B. was not communicated to them by the

Administrative Court before 1991 after their counsel had succeeded, for

the first time, in inspecting the files on 17 April 1991. Subsequently

they submitted a reply on 30 April 1991 and again requested to hear an

expert, an expert witness and the parties (Parteieneinvernahme). They

consider that these requests implied a request to hold an oral hearing.

They also point out that the Regional Government decided twice in their

favour while eventually the mayor refused to take any decision in view

of the contradictory opinions expressed in the matter by the various

instances dealing with it. In all these circumstances, so the

applicants conclude, they were denied a fair and public oral hearing.

In their submissions dated 15 June 1993 and in their reply to the

respondent Government's observations, they also complain of the length

of the proceedings.

The applicants allege violations of Article 6 of the Convention

and Article 1 para. 1 of the First Protocol.

RELEVANT DOMESTIC LAW

As regards the proceedings before the Administrative Court,

Section 35 paras. 1 and 3 of the Administrative Court Act (VwGG)

provide for a preliminary investigation under the following conditions;

[Translation]

"Section 35 (1) Where it is clear from the contents of the

complaint that the breach of law alleged by the applicant is

unsubstantiated, the complaint shall be dismissed without further

proceedings in a private hearing.

...

Section 35 (3) In all other cases in which the complaint is

substantiated, preliminary investigations have to be carried

out."

[German]

"§ 35. (1) Beschwerden, deren Inhalt erkennen läßt, daß die vom

Beschwerdeführer behauptete Rechtsverletzung nicht vorliegt, sind

ohne weiteres Verfahren in nichtöffentlicher Sitzung als

unbegründet abzuweisen.

...

(3) In allen übrigen Fällen, in denen sich die Beschwerde

zur weiteren Behandlung als geeignet erweist, ist das

Vorverfahren einzuleiten."

Section 39 para. 1 of the Administrative Court Act provides that

the Administrative Court is to hold a hearing after the preliminary

investigation of the case where a complainant has requested a hearing

within the time-limit. Section 39 para. 2 Nos. 4 and 6, which was

added to the Act in 1982, provide however;

[Translation]

"Notwithstanding a party's application, the Administrative Court may

decide not to hold a hearing when

...

4. The administrative act appealed from is in the light of the

Administrative Court's constant case law to be set aside as being

unlawful.

...

6. It is apparent to the Court from the written pleadings of the

parties to the proceedings before the Administrative Court and

from the files relating to the prior proceedings that an oral

hearing is not likely to contribute to clarifying the case."

[German]

"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages nach

Abs. 1 Z. 1 von einer Verhandlung absehen, wenn

...

4. der angefochtene Bescheid nach der ständigen Rechtsprechung

der Verwaltungsgerichtshofes wegen Rechtswidrigkeit seines

Inhalts aufzuheben ist.

...

6. die Schriftsätze der Parteien des verwaltungsgerichtlichen

Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten

des Verwaltungsverfahrens erkennen lassen, daß die mündliche

Erörterung eine weitere Klärung der Rechtssache nicht erwarten

läßt."

As regards the avoidance and the repair of defects (Vermeidung

und Behebung von Baugebrechen), Section 112 of the Construction Decree

provides;

[Translation]

"§ 11

(1) The owner of a construction has to see to it that it is in

conformity with the construction permit. He has to remedy

defects that can affect ... the exterior shaping ...

(2) If the owner does not comply with his obligation under para.

1, the construction authority has, after having carried out an

oral hearing connected with a visit on the spot, to set a time-

limit for the repair. The taking of expert evidence cannot be

renounced ..."

[German]

"§ 11

"(1) Der Eigentümer eines Bauwerks hat dafür zu sorgen, daß

dieses in einem der Baubewilligung entsprechenden Zustand

erhalten wird. Er hat Baugebrechen, durch welche ... die äußere

Gestaltung ... beeinträchtigt werden können, zu beheben.

(2) Kommt der Eigentümer eines Bauwerks seiner Verpflichtung

nach Abs. 1 nicht nach, hat die Baubehörde nach Durchführung

einer mündlichen Verhandlung, die mit einem Augenschein an Ort

und Stelle zu verbinden ist, unter Gewährung einer angemessenen

Frist die Behebung des Baugebrechens zu verfügen. Von der

Aufnahme des Beweises durch Sachverständige kann nicht abgesehen

werden ..."

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 December 1991 and registered

on 20 September 1992.

On 11 January 1994 the Commission decided to request the parties

to submit their written observations on the admissibility and merits

of the application.

The respondent Government submitted their observations after an

extension of the time-limit on 22 April 1994 and the applicants

submitted their observations on 30 May 1994.

THE LAW

1. The applicants consider that Article 6 para. 1 (Art. 6-1) of the

Convention and Article 1 of Protocol No 1 (P1-1) were violated in their

case in that they were denied a fair and public hearing and a decision

within a reasonable time. They point out that in its decision of 10

December 1985, the Administrative Court gave to understand that it

considered the taking of evidence to be necessary. Contrary to that

opinion and despite the fact that no hearing had taken place before the

construction authorities which had refused to deal with the matter, the

Administrative Court then surprised them with its decision of 14 May

1991 where it found without an oral hearing that their construction was

not in conformity with the agreement of 18 March 1976. They refer to

Section 112 of the Construction Decree which provides for an oral

hearing in such cases.

2. The respondent Government consider that the applicants were given

a fair trial by the Administrative Court. They submit that in its

decision of 10 December 1985 the Administrative Court only expressed

a non-binding opinion as to how the authorities should proceed in the

matter. This did not prevent the Court from eventually deciding

otherwise without prior warning to the parties, all the more so as the

administrative authorities had, by their inactivity, forfeited their

right to decide the matter. The Government further considers that the

applicants could and should have applied for an oral hearing in

accordance with Section 39 para. 1 of the Administrative Court Act

(VwGG).

3. Having regard to the nature of the applicants' complaints the

Commission considers that they should be dealt with exclusively under

Article 6 (Art. 6) of the Convention and do not raise any separate

issues under Article 1 of Protocol No 1 (P1-1).

Article 6, para. 1 (Art. 6-1) of the Convention states that "in

the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law". The Commission is of the opinion that

the proceedings here in question involve the determination of civil

rights within the sense of this provision (see Eur. Court H.R., Mats

Jacobsen judgment of 28 June 1990, Series A no. 180-B, p.14, para. 34).

However, the Commission recalls, with regard to the finding of the

Administrative Court on 14 May 1991 of which the applicants complain,

that in accordance with Article 19 (Art. 19) of the Convention, its

only task is to ensure the observance of the obligations undertaken by

the Parties to the Convention. In particular, it is not competent to

deal with an application alleging that errors of law or facts have been

committed by domestic courts, except where it considers that such

errors might have involved a possible violation of any of the rights

and freedoms set out in the Convention. The Commission refers, on this

point, to its constant jurisprudence (see e.g. decisions on the

admissibility of applications No 458/59, Yearbook 3, pp. 222, 236 and

No. 1140/61, Collection of Decisions 8, pp. 57,62; No 8315/79, Dec.

15.7.81,

D.R. 25, 203 [205]).

a. It is true that the applicants have alleged that their case was

not heard in a fair manner and that they were taken by surprise in that

the Administrative Court had in its earlier decision of 10 December

1985 expressed the opinion that the authorities should take into

consideration available evidence while later, in its final decision of

14 May 1991, it decided against them without considering the evidence

offered by them.

However, as a general rule, it is for the national courts to

assess the evidence before them as well as the relevance of the

evidence which a party seeks to adduce. The Commission can only

determine whether the domestic proceedings, considered as a whole, were

fair as required by Art. 6 para. 1 of the Convention (see Eur. Court

H.R., Barberà, Messequé and Jabardo, judgment of 6 December 1988,

Series A no 146, p. 31, para 68). The Commission cannot, in the

circumstances of the present case and in particular having regard to

the applicants' allegations find that the applicants were prevented

from arguing their case in an effective manner that the Administrative

Court arbitrarily disregarded vital evidence or relevant arguments

proposed or advanced by the applicants.

b. Insofar as the applicants complain that the Administrative Court

decided the matter without an oral hearing the Commission notes that

the Austrian Administrative Court can, in accordance with Section 35(1)

of the Administrative Court Act, reject de plano, without a public

hearing, complaints it considers to be manifestly ill-founded.

In fact it follows from cases previously dealt with by the

Commission that it is the practice of the Austrian Administrative Court

not to hear the parties unless one of them expressly requests it to do

so. Therefore the European Court of Human Rights constantly finds that

whenever a complainant failed to make such a request he/she must be

deemed to have waived unequivocally his/her right to a hearing (see Eur

Court H.R., Zumtobel judgment of 21 September 1993, Series A no 268,

p. 14, para. 34, cf. also Eur. Court H.R., Fischer judgment of 26 April

1995, Series A no. 312, p. 20, para. 44). This rule also applies in

the present case as no request for an oral hearing was made.

Furthermore the dispute at issue did not give rise to questions of

public interest and thereby making a hearing necessary.

c. The applicant finally complains of the length of the domestic

proceedings.

However this particular complaint was not mentioned in the

application form dated 3 March 1992 but was raised in substance in

their submissions dated 15 June 1993 while the proceedings in question

were terminated by the Administrative Court's decision of 14 May 1991.

It follows that to this extent the six month's time limit provided for

in Article 26 (Art. 26) of the Convention has not been respected.

d. In conclusion, the applicants complaints have to be rejected

partly (points a and b) as being manifestly ill-founded (Art. 27 para.

2 (Art. 27-2) and partly (point c) as having been lodged out of time

(Art. 26, 27).

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)

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E.& H.G. v. AUSTRIA

E.& H.G. v. AUSTRIA

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