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GSTÖTTNER v. AUSTRIA

Doc ref: 20952/92 • ECHR ID: 001-1867

Document date: June 29, 1994

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Cited paragraphs: 0
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GSTÖTTNER v. AUSTRIA

Doc ref: 20952/92 • ECHR ID: 001-1867

Document date: June 29, 1994

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20952/92

by Wilhelm GSTÖTTNER

against Austria

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 14 September 1992

by Wilhelm GSTÖTTNER against Austria and registered on 16 November 1992

under file No. 20952/92;

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 an Austrian citizen born in 1949 and living in

Linz. He is represented by Mr. P. Wagner, a lawyer practising in Linz.

It follows from the applicant's statements and the documents

submitted that the he is the owner of a multi-story apartment block in

Linz.

By an order dated 29 May 1991 of the Magistrate of the City of

Linz, the applicant and his wife, who is apparently the joint owner,

were requested to dismantle a structural change they had effected in

the form of an elevation of 60cm. of the roof framework.

The additional construction had been carried out by the applicant

without the necessary prior planning permission.

The authorities considered that there was no reason to give the

applicant the possibility, in accordance with Section 61 (1) of the

Upper Austrian Construction Order (Bauordnung) of 1976, to make a

retroactive request for planning permission as such a request would not

have offered any prospect of success in view of the fact that a similar

request had previously been made by one of the applicant's tenants,

Mrs. S.L., and had been rejected by final decision.

The applicant's appeal was rejected by the City Senate on

26 September 1991. The Senate also considered that the negative

decision given in respect of Mrs. S.L.'s request was also binding with

regard to the applicant, who had been a party to the prior proceedings.

A further appeal was rejected by the Upper Austrian Regional

Government (Landesregierung) on 27 January 1992. The Government did

not agree with the opinion of the lower instance that the prior

decision relating to Mrs. S.L.'s request was automatically binding for

the applicant. It nevertheless took into consideration that the

applicant had been invited, in accordance with Section 47 (1) of the

Construction Order, to participate as a party and had been communicated

the first and second instance decision rejecting Mrs. S.L.'s request.

Therefore the prior decision was binding for the applicant as both the

legal and factual situations were identical.

The applicant then brought an action with the Administrative

Court (Verwaltungsgerichthof). It was rejected on 16 June 1992. It

is pointed out in the decision that according to Section 61 (1) of the

Construction Order an owner who has effected construction work without

prior authorisation may either be ordered immediately to remove the

construction or be given the possibility to request retroactive

planning permission. This possibility was however, not to be envisaged

if and when the legal situation was such that the subsequent request

offered no prospects of success. The Administrative Court likewise

shared the opinion of the authorities that in view of the legal and

factual similarity of the situation, the rejection of Mrs. S.L.'s

request had the effect of res judicata vis-à-vis the applicant.

Insofar as the applicant denied that the facts were identical the

court points out that expert opinions and photos confirmed the factual

assessments made by the authorities.

COMPLAINTS

The applicant alleges that although he participated as a party

in the proceedings relating to Mrs. S.L.'s request he did not agree

with that request and therefore its refusal did in no way violate his

rights. Consequently he was not in a position to formulate an appeal

in Mrs. S.L.'s proceedings. He argues that he was denied a fair

hearing because the authorities considered his matter to be precluded

by the binding decision given with regard to Mrs. S.L.'s request.

THE LAW

The applicant submits that in the proceedings relating to his

objections against the order to dismantle certain construction work

without planning permission he was denied a fair hearing because the

authorities as well as the Administrative Court considered that a final

decision given with regard to an analogous request made by one of his

tenants had the effect of res judicata.

However, the Commission notes that the Administrative Court also

took into consideration the applicant's allegation that the factual

situation in his case was different from that underlying Mrs. S.L.'s

request. In this respect the Administrative Court pointed out that

there existed expert evidence to show that the assessment of the facts

made by the planning authorities was correct.

The applicant has not shown that this finding is unwarranted or

incompatible with evidence submitted in the domestic proceedings by

himself and, therefore, arbitrary. The Commission also notes that the

applicant was a party to the procedures relating to the request of

Mrs. S.L..

It cannot in these circumstances be found that the applicant was

denied a fair hearing and consequently there is no appearance of a

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

It follows that the application has to be rejected in accordance

with Article 27 para. 2 (Art. 27-2) of the Convention as being

manifestly ill-founded.

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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