Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26704/95

by Ilse PFEUFFER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 28 June 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. S. DOLLE, Acting 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 21 October 1994

by Ilse PFEUFFER against Germany and registered on 14 March 1995 under

file No. 26704/95;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1942, and residing in

Ebenhausen (Germany).

The applicant and her husband are co-proprietors of a plot of

land situated in Ebenhausen. In 1964 they erected a house on this land.

In 1975 they enlarged the building. On 6 October 1975 the

administrative authorities (Landratsamt) in Bad Kissingen ordered the

applicant's husband to apply for a permit for the necessary filling up

of the land surrounding the house.

Upon the appeal lodged by the applicant's husband, the Würzburg

Administrative Court (Verwaltungsgericht) quashed this decision. The

administrative authorities appealed against this judgment.

On 22 April 1985 the administrative authorities (Landratsamt) of

Bad Kissingen and the applicant's husband reached an agreement before

the Administrative Court of Appeal (Bayerischer Verwaltungs-

gerichtshof). Under the terms of this agreement the administrative

authorities were obliged to submit a plan for the levelling of the land

and the applicant's husband undertook to submit the corresponding

permit.

On 25 April 1985 the applicant's husband revoked the agreement.

By a judgment of 10 February 1986 the Administrative Court of

Appeal decided that the proceedings had been terminated by the above-

mentioned agreement of 22 April 1985.

By a decision of 29 March 1993 Würzburg Administrative Court

(Verwaltungsgericht) ordered the applicant's husband, in accordance

with the agreement of 22 April 1985, to apply for a permit for the

filling up of the land. In accordance with Sections 11 and 13 of the

Law on the execution of administrative decisions (Verwaltungs-

vollstreckungsgesetz - VwVG) The Court imposed a coercive fine of 200

DM on the applicant's husband in case he failed to present the required

permit within a month.

The appeal lodged by the applicant's husband against this

decision was rejected by the Administrative Court of Appeal on

7 July 1993.

The applicant's husband then lodged a constitutional appeal which

was rejected by a panel of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) on 10 September 1993.

These proceedings were the subject of Application No. 24O75/94

brought by the applicant's husband and declared inadmissible by the

Commission on 1 December 1994.

By a decision of 26 April 1995 the Administrative Court of Appeal

stayed the execution of its decision of 29 March 1993 having regard to

the proceedings brought by the applicant before the European Commission

of Human Rights and ordered the applicant's husband to inform the

Administrative Court of the state of these proceedings.

COMPLAINTS

1. The applicant complains that the conduct of the administrative

authorities in the proceedings against her husband caused her severe

physical and moral suffering contrary to Article 3 of the Convention.

2. The applicant next complains that in the proceedings before the

administrative courts she has never been heard, although, as a co-

proprietor of the land, these proceedings affect also her own rights.

She alleges a violation of Article 6 of the Convention.

3. The applicant further complains under Article 7 of the Convention

that the way the administrative authorities and courts conducted this

case constitutes a penalty with regard to her although proceedings have

never been instituted against her.

4. She complains also that the decisions issued against her husband

violate her property rights as guaranteed by Article 1 of Protocol

No. 1.

5. The applicant finally complains under Article 5 of Protocol No. 7

that she was refused the right to enjoy the equality of rights and

responsibilities of a private law character between spouses, since she

has never been heard in the proceedings at issue. She finally complains

that for the same reason she was discriminated against on grounds of

sex contrary to Article 14 of the Convention.

THE LAW

1. The applicant complains that she has been subjected to inhuman

and degrading treatment contrary to Article 3 (Art. 3) of the

Convention in the context of the administrative proceedings instituted

against her husband.

The Commission recalls the case-law of the Court in accordance

with which ill-treatment must attain a minimum level of severity before

a breach of Article 3 (Art. 3) can be established (cf. Eur. Court H.R.,

Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25,

p. 65, para. 162). Even assuming that the applicant has exhausted

domestic remedies, the Commission considers that there is no evidence

that the above threshold has been reached in the circumstances of the

present case.

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 next alleges a violation of her right to a fair

hearing as guaranteed by Article 6 (Art. 6) of the Convention, mainly

on the ground that she was not heard in the proceedings against her

husband.

The Commission recalls that it has already examined the

complaints concerning the fairness of the administrative proceedings

in Application No. 24075/94 brought by the applicant's husband and has

found that these complaints were manifestly ill-founded. With regard

to the applicant's present complaint, the Commission notes that the

applicant was not a party to the proceedings concerned and has never

requested to take part in these proceedings. In these circumstances the

Commission considers that the applicant's complaint does not give rise

to any issue under Article 6 (Art. 6) 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.

3. The applicant also complains that the decisions of the

administrative authorities and courts constitute a penalty with regard

to her in breach of Article 7 (Art. 7) of the Convention.

Article 7 (Art. 7) of the Convention provides as relevant:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed..."

However, the Commission considers that in the present case no

procedure determining the applicant's guilt and no imposition of a

penalty within the meaning of this provision took place. Accordingly,

Article 7 (Art. 7) is not applicable.

It follows that this complaint must be rejected as being

incompatible ratione materiae with the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

4. The applicant further complains that the execution of the

agreement of 22 April 1985 affects her right to the peaceful enjoyment

of her possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1).

This provision (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of

his possessions except in the public interest and subject

to the conditions provided for by law and by the general

principles of international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it

deems necessary to control the use of property in

accordance with the general interest or to secure the

payment of taxes or other contributions or penalties."

The Commission considers that the obligation imposed on the

applicant's husband to submit a building permit comes in principle

within the scope of paragraph 2 of this provision (P1-2), being a

measure to enforce laws which the State "deems necessary to control the

use of property in accordance with the general interest".

The Commission notes that the planning and construction

legislation provides for the preservation of the landscape and the

settlement structure. This is an aim which is clearly in the general

interest, and accordingly the applicable legislation can be justified

under Article 1 para. 2 of the Protocol (P1-2).

Furthermore no unlawfulness was established by the competent

domestic authorities. The Commission notes in particular that the

Administrative Court of Appeal rejected the complaints of the

applicant's husband on 7 July 1993 and a constitutional appeal was

rejected by a panel of three judges of the Federal Constitutional Court

on 10 September 1993. Even assuming that the applicant herself has

complied with the condition as to the exhaustion of domestic remedies,

the Commission finds no reason to doubt that the obligation to submit

a building permit was lawful.

In these circumstances, the Commission considers that, bearing

in mind the wide margin of appreciation afforded to Contracting States

in the field of building and planning regulations, the control of the

use can be considered to be justified within the meaning of the second

paragraph of Article 1 of Protocol No. 1 (P1-1) to 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.

5. The applicant finally invokes Article 5 of Protocol No. 7 (P7-5)

according to which spouses shall enjoy equality of rights and

responsibilities of a private law character between them. She complains

also that, contrary to Article 14 (Art. 14) of the Convention, she is

a victim of discrimination on ground of sex because she has never been

heard in the proceedings before the administrative authorities and

courts although, as a co-proprietor of the land, she is directly

affected by these proceedings.

However, the Commission finds that in accordance with the

domestic law the authorities were entitled to chose one of the

co-proprietors as the addressee of their decisions. It notes that after

the decision of 6 October 1975 the applicant, as a co-proprietor, would

have had the opportunity to join the proceedings. There is no

indication that the administrative authorities and courts based their

decisions on arbitrary considerations or treated this case differently

from other comparable cases.

It follows that this part of the application is also 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.

Acting Secretary President

to the First Chamber of the First Chamber

(S. DOLLE) (C.L. ROZAKIS)

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PFEUFFER v. GERMANY

PFEUFFER v. GERMANY

LEXI