Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22781/93

by L. P.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1995, 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

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 24 August 1993 by

L. P. against Austria and registered on 18 October 1993 under file

No. 22781/93;

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 an Austrian citizen born in 1923 and living in

Innsbruck. Before the Commission, she is represented by Mr. B.

Stanger, a lawyer practising in Innsbruck.

The facts, as they have been submitted by the applicant, may be

summarised as follows.

The applicant is the owner of a building in Innsbruck comprising

several apartments leased to tenants. One of the apartments is rented

out to Mr. H., a watch-maker, as his business premises.

On 23 April 1991 the Innsbruck City Council (Stadtmagistrat)

granted Mr. H. a building permit, subjected to several conditions, for

the rearrangement of his business premises.

On 2 October 1991 the Innsbruck District Court, pursuant to

Section 9 and 37 of the Rent Act (Mietrechtsgesetz), granted Mr. H.'s

request to dispense with the applicant's consent to his building

project. The Court found that the envisaged modifications of the

premises, if they were to be carried out pursuant to the conditions set

out in the building permit, did not interfere with the applicant's or

the other tenants' rights. It further held, referring to an expert

opinion, that no objection could be made to the renovation from a

structural point of view, in particular as the dismantling of an

interior wall, had to be undertaken by a licensed company. Since the

project further did not alter the appearance of the building, the Court

considered that the applicant had to consent.

On 17 January 1992 the Innsbruck Regional Court (Landesgericht)

quashed the decision and referred the case back to the District Court.

The Regional Court considered that an architectural expert opinion had

to be procured on the question whether the envisaged modifications had

a negative impact on the appearance of the building.

On 9 July 1992 the Innsbruck District Court confirmed its

previous decision. Having regard to the further advice of the

architectural expert, it added a condition relating to the appearance

of the outside wall of the shop following its renovation, namely that

a colour as close as possible to the one of the facade of the building

be chosen.

On 30 October 1992 the Innsbruck Regional Court dismissed the

applicant's appeal. However, it further ordered Mr. H. to install, at

his own expense, an artificial lighting system in the cellar of the

building. The Court did not grant leave to appeal (ordentlicher

Revisionsrekurs) to the Supreme Court (Oberster Gerichtshof).

On 23 March 1993 the Supreme Court rejected the applicant's

extraordinary appeal (außerordentlicher Revisionsrekurs), as it did not

raise any issue of fundamental legal importance.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 that

the decisions of the Austrian courts disregarded her right to peaceful

enjoyment of her possessions. In this respect, she also invokes

Article 8 of the Convention.

2. Under Article 6 of the Convention the applicant complains that

she was denied access to the Supreme Court, because the Supreme Court

did not decide on the merits of her extraordinary appeal.

THE LAW

1. The applicant complains under Article 1 of Protocol No. 1

(P1-1) that the decisions of the Austrian courts disregarded her right

to peaceful enjoyment of her possessions.

The Commission finds that the Austrian courts' decisions by which

her consent to Mr. H's building project was replaced by a court's order

and she therefore had to tolerate modifications of premises owned by

her by a tenant may constitute an interference with her right to

property. The interference with the applicant's property rights falls

within the ambit of the second paragraph of Article 1 of Protocol No.

1 (P1-1), as the contested court orders did not deprive her of her

property but were made by competent courts in order "to control the use

of property in accordance with the general interest".

The Commission recalls that any limitation on use of property

requires justification in the general interest. Accordingly the

Commission must supervise the lawfulness, purpose and proportionality

of the restrictions. It must determine whether, whilst recognising the

wide margin of appreciation afforded to States in the field of housing

and tenant legislation, a fair balance was struck between the general

interest and the protection of the individual's fundamental rights (cf.

Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982,

Series A no. 52, p. 26, para. 69; No. 11723/85, Dec. 7.5.87, D.R. 52

p. 250, 256).

With regard to the lawfulness of the measure imposed by the

Austrian courts, the Commission observes that the possibility to

dispense with the owner's consent to a tenant's building project is

provided for in the Rents Act and that the applicant does not seriously

dispute that they were lawful and complied with the relevant

legislation.

The Commission further considers that the measures in question

serve a legitimate purpose, as in disputes between owners and tenants

on the use of the rented premises and the adaption of the premises to

the needs of the tenant the law must provide adequate possibilities to

solve such conflicts of interests. The measure complained of is thus,

prima facie, in accordance with the general interest.

Concerning the proportionality of the measure, the Commission

notes that the Austrian courts carefully examined the applicant's

objections against the building project and the tenant's need for a

readaptation of his business premises and, in the interest of the

applicant, imposed certain conditions on the tenant in order to limit

the interference with her rights to a minimum.

The Commission therefore finds that a proper balance has been

struck between the applicant's personal interests and the general

interest. The control of the applicant's property is, therefore, in

accordance with the requirements of Article 1 of Protocol No. 1

(P1-1).

The Commission further considers that there is no indication of

an interference with the applicant's right to respect for her home, as

guaranteed by Article 8 (Art. 8) of the Convention, as the applicant

rented out the premises in question and did not use them herself.

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. Under Article 6 (Art. 6) of the Convention the applicant

complains that she was denied access to the Supreme Court, because the

Supreme Court did not decide on the merits of her extraordinary appeal.

The Commission notes that the applicant's further appeal to the

Supreme Court was rejected as the matter did not raise any issue of

fundamental legal importance.

In this respect, the Commission recalls that a right to appeal

is not as such included among the rights and freedoms guaranteed by the

Convention. Domestic law may subject the acceptance of an appeal to

a decision by the competent court whether it considers that the appeal

raises a legal issue of fundamental importance and whether it has any

chances of success. In such a case it may also be sufficient for this

court simply to refer to the provision authorising this procedure (see

No. 8769/70, Dec. 16.7.81, D.R. 25 p. 241; No. 12471/86, Dec. 2.3.87,

not published).

The Commission therefore finds that under the circumstances of

the present case, there is no appearance of a violation of the

applicant's right of access to court under 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 (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)

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L.P. v. AUSTRIA

L.P. v. AUSTRIA

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