Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16036/90

by Wolfgang OCHSENREITER

against Austria

The European Commission of Human Rights sitting in private

on 7 April 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 5 January

1990 by Wolfgang Ochsenreiter against Austria and registered on

22 January 1990 under file No. 16036/90;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the

respondent Government on 26 March 1992 and the observations in

reply submitted by the applicant on 21 July 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, an Austrian citizen residing in Fursach,

Austria, is the owner of real estate which had previously been

used as a clay pit. Before the Commission he is represented by

Mr. W.L. Weh, a lawyer practising in Bregenz.

A. Particular circumstances of the case

In 1981 the applicant applied to the Bregenz District

Authority (Bezirkshauptmannschaft) for permission under the

Landscape Protection Act (Landschaftsschutzgesetz) to fill up an

abandoned clay pit with waste material, mainly from road

construction projects, as he intended to develop subsequently the

land for industrial sites. In 1983 he withdrew his request.

However, as he had in the meantime already filled up parts of the

clay pit, the District Authority insisted that he applies for

permission. The applicant then renewed his request.

By decision of 13 June 1984 the District Authority granted

him a permit for filling up parts of the pit, while refusing

permission for other parts. The permission related in particular

to those parts of the pit which the applicant had already filled

up. The District Authority considered that the applicant's land

was wetland (Feuchtgebiet) within the meaning of Section 5 of the

Landscape Protection Act and therefore merited protection.

On 2 July 1984 the applicant appealed to the Vorarlberg

Regional Government (Landesregierung). He submitted that he did

not need a permit for filling up his land as it was no wetland

within the meaning of Section 5 of the Landscape Protection Act

and, in any event, his project did not run counter to the

interests of landscape protection.

On 30 October 1985 the applicant's lawyer agreed with the

Regional Government that further enquiries on the situation of

the flora and fauna on the applicant's land during the vegetation

period in spring 1986 were necessary. For that purpose an oral

hearing on the applicant's land in the time between 15 and 30

April 1986 was scheduled.

On 21 April 1986 this oral hearing took place.

On 16 May 1986 the Regional Government dismissed the

applicant's appeal of 2 July 1984. It found that even if the

applicant's real estate did not qualify as wetland he would,

according to Section 3 para. 1 (l) of the Landscape Protection

Act, need a permit for dumping waste on an area larger than 100

m².

On 10 November 1986 the Administrative Court (Verwaltungs-

gerichtshof), upon the applicant's further appeal, quashed the

decision of the Regional Government on account of procedural

mistakes.

Proceedings were then resumed before the Regional

Government. On 29 December 1986 an official expert for landscape

protection, employed by the Regional Government, presented a

written expert opinion, which was served on the applicant on 14

January 1987.

On 28 January 1987 the applicant requested an extension of

the time-limit for commenting on the expert's opinion until 31

March 1987 which was granted by the Regional Government on 4

February 1987.

On 30 March 1987 the applicant submitted his comments.

On 13 May 1987 the Regional Government held an oral hearing

in the presence of the expert, the mayor as representative of the

municipality, the Deputy Landscape Protection Officer

(Landschaftsschutzanwalt-Stellvertreter), the applicant and his

counsel.

On 31 July 1987 the expert was again questioned by the

authority, this time in the absence of the applicant's counsel.

The expert's statements were served on the applicant on 4 August

1987. On 31 August 1987 the applicant's counsel objected in

writing to the fact that the authority had heard the expert in

his absence.

By decision of 14 September 1987 the Regional Government

again dismissed the applicant's appeal. This time the Regional

Government, referring to Section 3 in connection with Section 10

of the Landscape Protection Act, found that the waste dump

envisaged by the applicant on an area of approximately 2000 m²

was subject to a permit, which could not be granted because the

project ran counter to the interests of landscape protection.

On 17 March 1988 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof), which the latter

rejected on 9 June 1988. Upon the applicant's request the

Constitutional Court referred the case to the Administrative

Court on 26 September 1988.

On 30 October 1988 the applicant supplemented his complaint

to the Administrative Court. He did not ask for an oral hearing.

On 22 May 1989 the Administrative Court dismissed the

applicant's complaint. The Administrative Court held that the

Regional Government had correctly assumed that the applicant's

project to fill up his land with waste material required a permit

under Section 3 para. 1 (l) of the Landscape Protection Act. The

Administrative Court considered further that the refusal of the

permit was in accordance with Section 20 para. 1 of the Regional

Planning Act (Raumplanungsgesetz) and the relevant Area Zoning

Plan (Flächenwidmungsplan), according to which the applicant's

land was marked as "agricultural land" (Landwirtschaftsgebiet).

The applicant's project, however, did not concern agriculture.

The Administrative Court concluded that, under these

circumstances, it need not consider further the applicant's

complaint on the hearing of the expert in the absence of the

applicant's counsel.

B. Relevant domestic law

1. Section 3 para. 1 (l) of the Landscape Protection Act reads

as follows:

"A permit of the authority is required for the erection and

for important changes affecting the interests of landscape

protection of:

(l) Storage places with a surface of more than 400 square

metres and dumps with a surface of more than 100 square

metres."

Section 4 para. 2 of the Landscape Protection Act reads as

follows:

"The authority may allow exemptions from paragraph 1 if it

is secured that such changes would not violate the

interests of landscape protection and, in particular, would

not hinder the view on the lakes, or if they are necessary

for reasons of public safety. The authority may further

allow exemptions if the interests of landscape protection

are outweighed by other public interests. In such a case

the violation of the interests of landscape protection must

be kept to a minimum by imposing conditions."

Section 5 of the Landscape Protection Act reads as follows:

"Filling, draining, ditching and other measures which

endanger the habitat of plants and animals are prohibited

within riparian forests, low moors with the exemption of

marshland, high moors and pools. The provisions of Section

4 paragraph 2 apply mutatis mutandis."

Section 10 paras. 1 and 2 of the Landscape Protection Act

reads as follows:

"(1) A permit may only be granted if it is ensured that the

interests of landscape protection will not be violated.

(2) A permit must not be refused if the reason for its

refusal can be eliminated by imposing conditions. A permit

may be granted notwithstanding a violation of the interests

of landscape protection when they are outweighed by other

public interests. In such a case the violation of the

interests of landscape protection must be kept to a minimum

by imposing conditions."

2. Section 20 paras. 1 and 2 of the Regional Planning Act reads

as follows:

"(1) Decisions which are based on Regional Acts must not be

in contradiction with the Area Zoning Plan, if not provided

otherwise by the respective Act.

(2) Decisions made contrary to paragraph 1 are null and

void."

COMPLAINTS

1. The applicant complains that the decision on his application

for permission to fill up the clay pit was not taken by an

independent and impartial tribunal, as required by Article 6

para. 1 of the Convention. In any event, he did not have a

public hearing before the Administrative Court.

2. Under Article 6 para. 1 he further complains that the

proceedings were conducted in an unfair manner. He submits that

the landscape protection expert consulted lacked independence as

he was an employee of the Regional Government and that this

expert was heard in his absence on 31 July 1987. He also submits

that the Constitutional Court's refusal to deal with his

complaint and to decide on its merits rendered the proceedings

unfair.

3. Finally the applicant complains that the proceedings were

not conducted within a reasonable time, as required by Article

6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 January 1990 and

registered on 22 January 1990.

On 14 October 1992 the Commission decided to communicate the

application to the respondent Government and to request them to

submit their written observations on admissibility and merits.

The Government's observations were submitted on 26 March

1993 and a supplement to these observations on 16 April 1993.

On 21 June 1993 the applicant submitted his observations in

reply.

In his observations the applicant, for the first time,

raised the complaints that the Constitutional Court's refusal to

deal with his complaint and not to decide on its merits rendered

the proceedings unfair and that contrary to Article 6 para. 1 of

the Convention no hearing took place before the Administrative

Court.

THE LAW

1.a. The applicant complains that the decision on his application

for permission to fill up the clay pit was not taken by an

independent and impartial tribunal as required by Article 6 para.

1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, reads as follows:

"In the determination of his civil rights and

obligations ... everyone is entitled to a fair and

public hearing within a reasonable time by an

independent and impartial tribunal established by law.

..."

The Commission considers that the proceedings in question

concerned the determination of the applicant's civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention and that this provision was thus applicable

(cf. Skärby judgment of 28 June 1990, Series A no. 180-B, p. 36,

paras 27 et seq.; Fredin judgment of 18 February 1991, Series A

no. 192, p. 20, para. 63).

Moreover, in the present case there was a "genuine and

serious" dispute (contestation) between the applicant and the

authorities regarding the question whether the applicant needed

a permit under the Landscape Protection Act for his project and

whether he fulfilled the conditions for obtaining such a permit

and the outcome of this dispute was directly decisive for that

right. Accordingly, the applicant's right to fill up the

abandoned pit on his land in accordance with the applicable laws

and regulations constitutes a civil matter within the meaning of

Article 6 (Art. 6) of the Convention.

The Government submit that the applicant's case was decided

by an impartial and independent tribunal within the meaning of

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

Administrative Court met the requirements of a tribunal.

In the applicant's view the Administrative Court did not

fulfil the criteria of such a tribunal. In any event, he did not

have a public hearing before the Administrative Court as required

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

The Commission considers that while the proceedings before

the District Authority and the Regional Government did not comply

with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention, it is sufficient for the purpose of this provision

if the decisions taken by the lower instances were subject to

subsequent control by judicial bodies which exercised full

jurisdiction in conformity with this provision (Eur. Court H.R.,

Albert and Le Compte judgment of 10 February 1983, Series A no.

58, p. 16, para. 29).

The Commission notes that further proceedings were conducted

before the Administrative Court.

The Commission recalls that the Administrative Court fulfils

the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention in matters which are not exclusively within the

discretion of administrative authorities and where the

Administrative Court considers the submissions on their merits,

point by point, without declining jurisdiction in replying to

them or ascertaining various facts (Eur. Court H.R., Zumtobel

judgment of 21 September 1993, para. 31 and 32, to be published

in Series a no 266-A).

The Commission further notes that in the present case the

Administrative Court, when deciding on the applicant's second

complaint on 22 May 1989, found that the applicant's project was

subject to a permit which had, in accordance with the relevant

law, to be refused. The Administrative Court did not have to

decline jurisdiction in dealing with the applicant's complaint.

As a result, the Commission considers that the requirements

of a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-

1) of the Convention have been complied with.

b. As regards the applicant's further complaint about the lack

of a hearing before the Administrative Court, the Commission,

even assuming that the applicant complied with the time-limit as

stipulated in Article 26 (Art. 26) of the Convention, notes that

he did not request such a hearing. The Commission, recalling the

practice of the Administrative Court not to hear the parties

unless one of them expressly requests it to do so, finds that the

applicant must be deemed to have waived unequivocally his right

to a hearing (see Zumtobel judgment, loc. cit., para. 34).

c. It follows that the above complaints are manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention that the proceedings were conducted

in an unfair manner.

a. He complains in particular that the landscape protection

expert lacked independence as he was an employee of the Regional

Government and that this expert was heard in his absence on 31

July 1987.

The Government submit that the applicant did avail himself

of the opportunity to comment on the expert's statements. In any

way, the expert's report was of no relevance in the further

proceedings as it was limited to issues under Section 5 of the

Landscape Protection Act, whereas the Administrative Court

dismissed the applicant's complaint under Sections 3 and 10 of

the said Act.

The Commission recalls that in order to determine whether

the aim of Article 6 (Art. 6) - a fair trial - has been

achieved, regard must be had to the entirety of the domestic

proceedings conducted in the case (Eur. Court H.R., Imbroscia

judgment of 24 November 1993, para. 38, to be published in Series

A no. 275).

The Commission notes that on 22 May 1989 the Administrative

Court dismissed the applicant's complaint holding that his

application for a permit under the Landscape Protection Act had

to be refused under Section 20 para. 1 of the Regional Planning

Act as it contradicted the Area Zoning Plan. It did not,

therefore, take the issues under Section 5 of the Landscape

Protection Act into account, to which the expert opinion related.

The Administrative Court concluded that under these circumstances

it need not consider further the applicant's complaint that the

expert had, on one occasion, been heard in the absence of the

applicant's counsel.

b. As regards the applicant's complaint that the Constitutional

Court's refusal to deal with his complaint and to decide on its

merits rendered the proceedings unfair, the Commission observes

that the applicant has raised this complaint for the first time

in his observations in reply of 21 June 1993.

Moreover, the Commission, even assuming that the applicant

complied with the time-limit as stipulated in Article 26 (Art.

26) of the Convention, finds no indication that the proceedings

before the Constitutional Court affected the fairness of the

proceedings in general.

c. Under these circumstances the Commission, looking at the

proceedings as a whole, finds that there is no appearance of a

violation of the applicant's right to a fair hearing.

This part of the application, therefore, is again manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

4. Finally the applicant complains that the proceedings were

not conducted within a reasonable time as required by Article 6

para. 1

(Art. 6-1) of the Convention.

The Government contend that the proceedings were concluded

within a reasonable time. They submit in particular that the

Administrative Court dealt twice with the case and that delays,

if any, were attributable to the applicant.

The applicant refers in particular to delays in the

proceedings before the administrative authorities. Thus between

2 July 1984, when he lodged his appeal, and 21 April 1986, when

an oral hearing took place, the Regional Government made no steps

to further the proceedings.

The Commission finds that this complaint must be examined

on its merits. This part of the application cannot, therefore,

be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission unanimously

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicant's complaint regarding the length of the

proceedings;

and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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OCHSENREITER v. AUSTRIA

OCHSENREITER v. AUSTRIA

LEXI