Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19442/92

by E. B.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 6 November 1991

by E.B. against Germany and registered on 27 January 1992 under file

No. 19442/92;

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 1928 and living in

Gifhorn. He is represented by Mr. J. Usinger, a lawyer practising in

Hannover.

It follows from the applicant's statements and the documents

submitted that, as the owner of a shopping centre, he unsuccessfully

tried to obtain an authorisation to use part of his property in front

of the shopping centre as a car park. He complains about the decisions

in this matter.

In March 1981 the applicant had been granted a construction

permit for the shopping centre. However, his request to arrange a car

park for fifteen cars was rejected. The applicant having formulated

objections he was eventually granted authorisation for eight parking

places. As the applicant had in the meantime enlarged the shopping

centre, contrary to the construction permit, it had become impossible

for him to provide for eight parking places as there was only space

left for three instead of eight cars.

The applicant was requested to demolish those parts of the

shopping centre which had been constructed contrary to the construction

permit. Eventually agreement was reached between the applicant and the

competent authorities according to which the unauthorised construction

was approved on condition that the applicant renounce the three parking

lots. Consequently a new construction permit was granted on

5 April 1983 which provided for a trapezium-shaped zone for the purpose

of loading and unloading at the place where the applicant had intended

having an additional car park supplementing the car park of the

shopping centre. The construction permit of 5 April 1983 imposed the

obligation on the applicant to see to it that the southern part of the

shopping centre at the street side could not be used for parking

purposes except for loading and unloading.

However, the applicant arranged this site in a manner as if it

were a car park. Consequently he was ordered on 19 December 1983 to

stop the illegal use ("die rechtswidrige Nutzung zu unterlassen") i.e.

to render parking of cars impossible by erecting a kind of fence with

stakes connected by a chain. On 30 September 1985 the District

Government in Braunschweig rejected the applicant's appeal.

Meanwhile an action with a view to having the construction permit

amended was rejected by the Administrative Court (Verwaltungsgericht)

in Braunschweig on 31 January 1985. The court stated that having

inspected the site it also considered that its use for parking purposes

would endanger the security and fluidity of public traffic, therefore

the construction permit of 5 April 1983 was not objectionable and the

order of 19 December 1983 was in conformity with of the Regional

Construction Decree (NBauO).

An appeal against this judgment was rejected by the

Administrative Court of Appeal (Oberverwaltungsgericht) of Lower Saxony

and Schleswig-Holstein in Lüneburg on 26 January 1987.

On 2 July 1987 the Federal Administrative Court

(Bundesverwaltungsgericht) rejected the applicant's complaint about the

denial of a leave to appeal on points of law.

Further proceedings against the decision of the District

Government in Braunschweig of 30 September 1985 were likewise to no

avail. In a judgment of 10 March 1988 the Administrative Court in

Braunschweig, reference is made to the prior proceedings and the final

judgment of 2 July 1987 and stated that in consequence the authorities

had acted lawfully by ordering that a fence should be erected rendering

the parking of cars impossible. Such a measure was not

disproportionate. The Court stated inter alia that the use was illegal

both as regards substantive and procedural law ("die Nutzung ist

formell und materiell illegal").

An appeal was dismissed on 26 September 1989 by the

Administrative Court of Appeal of Lower Saxony and Schleswig-Holstein

in Lüneburg.

The Federal Administrative Court refused to grant leave to appeal

on points of law on 20 February 1991. A constitutional complaint

lodged thereupon by the applicant was rejected by a group of three

judges of the Federal Constitutional Court (Bundesverfassungsgericht)

on 28 May 1991 (served on 7 June 1991) as offering no prospects of

success. The applicant was imposed a fee of DM 800. It is stated in

the decision that the question of whether or not the security and

fluidity of traffic would be affected by a car park was a matter of

interpretation of substantive and not constitutional law and could

therefore not be considered by the Constitutional Court.

Furthermore the court stated that even if under substantive law

the Administrative Court should have informed the applicant that it did

not intend to obtain an expert opinion on the question of whether or

not the car park would affect security and fluidity of traffic, it had

not violated any constitutional right by not doing so as there was no

obligation of the courts to inform the parties about their legal views.

Finally, the applicant's complaint about the alleged partiality

of a judge of the Federal Administrative Court was rejected as being

ill-founded.

COMPLAINTS

The applicant complains of the order of 19 December 1983 and the

court decisions confirming it. Referring to private expert opinions

the applicant submits that the use of the space in question for parking

purposes would, under present conditions, not affect security and

fluidity of traffic so he therefore considers that the denial of

authorisation for a car park amounts to a violation of his right to

peaceful enjoyment of possessions as guaranteed by Article 1 of

Protocol No. 1.

THE LAW

The applicant considers that his right to the peaceful enjoyment

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

the Convention has been violated by the refusal of the authorities to

allow the use of part of his property as a car park

("Nutzungsbeschränkung"). Article 1 of Protocol No. 1 (P1-1) provides:

"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 present case does not disclose any deprivation of the

applicant's property, within the meaning of the second sentence of the

first paragraph of Article 1 of Protocol No. 1 (P1-1). The

interference with property rights disclosed by this application falls

solely within the ambit of the second paragraph of Article 1 of

Protocol No. 1 (P1-1), the contested decisions in the case being taken

to enforce planning and construction legislation deemed necessary, by

the competent authorities, "to control the use of property in

accordance with the general interest".

The Commission's task under the second paragraph of Article 1 of

Protocol No. 1 (P1-1) is to supervise the lawfulness, purpose and

proportionality of the restrictions in question (see, for example,

No. 10378/83, Dec. 7.12.83, D.R. 35, p. 235). The question of

proportionality, which is an inherent aspect of the whole Convention,

requires the Commission to determine whether, whilst recognising the

wide margin of appreciation afforded to States in the planning and

construction field, a fair balance was struck between the general

interest of the community and the protection of the individual's

fundamental rights (cf. mutatis mutandis Eur. Court H.R., Sporrong and

Lönnroth judgment of 23 September 1982, Series A no. 52, para. 69, and

Comm. Report 8.10.80 in the same case, para. 105, Eur. Court H.R.,

Series B no. 46, p. 48).

The lawfulness of the measure in question is not contested.

As regards the purpose of the measure and the underlying

legislation, the Commission acknowledges that it is necessary and

desirable in order to maintain security and fluidity of street traffic

and is thus, prima facie, in accordance with the general interest.

Concerning the proportionality of the measure taken against the

applicant, which required him to cease using part of his premises for

parking purposes, the Commission takes account of the following factual

considerations:

The applicant was originally granted authorisation for eight

parking places. As he enlarged his shopping centre, contrary to the

construction permit, there was no space left for the eight parking

places. Eventually the unauthorised construction was approved by the

authorities with the provision, however, that the southern part of the

shopping centre should not be used for parking purposes except for

loading and unloading.

Nevertheless, the applicant arranged the site in question in the

form of a car park, the use of which the authorities considered to

endanger the security and fluidity of public traffic.

The Administrative Court, having inspected the site, shared this

opinion and therefore held the order of 19 December 1983 to be lawful.

This decision was confirmed upon appeal.

The applicant submits that, according to a private expert opinion

the use of the site in question for parking purposes would under

present conditions not affect the security and fluidity of public

traffic. However, it is for the domestic courts to decide this question

of a purely factual character and it cannot be found in the

circumstances of the present case that, despite the alleged contrary

opinion of a private expert the domestic authorities and courts

arbitrarily exceeded their margin of appreciation holding that a car

park at the site in question would negatively affect the security and

fluidity of public traffic.

In view of the foregoing the Commission 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, which

prevents him using part of his premises as a car park is, therefore,

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

(P1-1).

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 1 (Art. 27-1) 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) (A. WEITZEL)

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