Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16569/90

by E.T.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 8 January 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 10 March 1990 by

E.T. against Austria and registered on 8 May 1990 under file

No. 16569/90;

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 facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The applicant, born in 1919, is an Austrian national and resident

at K..

On 8 May 1983 the applicant and her husband applied to the Mayor

of the K. Municipality (Marktgemeinde) for a building permit in respect

of a house to be built on a farm estate as annuity charged on the farm

upon transfer to their descendant (Ausgedingehaus, Altenteil).

On 30 May 1983 the Municipality conducted a hearing and inspected

the localities. It ordered inter alia that an agricultural expert

opinion be prepared. The expert inspected the localities on

26 September 1983.

On 1 December 1983 the applicant and her husband requested the

K. Municipality to transfer their case to the superior body competent

in building matters on the ground that the Mayor had failed to take a

decision within the time-limit of two months, as required by S. 118

para. 2 of the Lower Austria Building Regulations (Bauordnung) and S.

73 para. 2 of the General Administrative Procedure Act (Allgemeines

Verwaltungsverfahrensgesetz). The K. Municipality dismissed their

request on 24 January 1984.

On 3 May 1984 the agricultural expert delivered his opinion,

which concerned especially the location of the building project, and

the question in how far it was ensured that it could not be separated

from the farm estate. The applicant and her husband commented on the

opinion on 21 August 1984. They submitted in particular that the

distance between the building project and the farm house via a footpath

was shorter than the distance the expert had indicated. They also

stated that they had refused a consolidation of particular plots of

land, proposed by the agricultural expert in order to ensure that the

new building site remained part of the farm estate, on the ground that

it would involve a devaluation of the site.

In the meantime, on 6 July 1984, the Office of the Lower Austria

Provincial Government (Amt der Landesregierung), upon the appeal

(Vorstellung) of the applicant and her husband, had quashed the

decision of 24 January 1984 and sent the matter back to the

Municipality.

On 29 September 1984 the K. Municipality dismissed the

applicant's and her husband's request for a building permit. The

Municipality, having regard to the agricultural expert opinion of 3 May

1984, found that the building project, because of its size and

location, could not be regarded as a house for the needs of the

farmer's family, namely as annuity upon transfer of the farm within the

meaning of the relevant provisions of the Building Regulations and the

Lower Austria Regional Planning Act (Raumordnungsgesetz). Furthermore,

it had not been ensured that the house would remain part of the farm

estate. The written version of the decision dated 12 October 1984.

On 3 May 1985 the Office of the Lower Austria Provincial

Government dismissed the applicant's and her husband's appeal

(Vorstellung) dated 28 October 1984 against the refusal of the building

permit.

On 23 May 1985 the applicant lodged an appeal with the Austrian

Administrative Court (Verwaltungsgerichtshof) against the decision of

3 May 1985.

On 10 October 1989 the Austrian Administrative Court dismissed

the applicant's complaint. The Administrative Court considered in

particular that the applicant had not disputed various findings of the

technical expert in his opinion of 3 May 1984, such as the distance

between the building project and the existing farm and the applicant's

and her husband's refusal to take the necessary steps to ensure that

the building project including the site remained part of the farm

estate.

The judgment was served on 20 November 1989.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings concerning her and her husband's

request for a building permit.

2. She also complains under Article 6 about the refusal of the

building permit and considers that the proceedings concerned were

unfair. She submits in particular that the Austrian Administrative

Court did not duly consider her comments upon the agricultural expert

opinion.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 March and registered on

8 May 1990.

On 14 January 1992 the Commission decided to communicate the

application to the respondent Government as regards the complaint about

the length of the proceedings.

The Government's observations were submitted on 24 June 1992.

The applicant's observations in reply were submitted on 20 September

1992.THE LAW

1. The applicant considers that the proceedings concerning her

request for a building permit exceeded a reasonable time within the

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

para. 1 (Art. 6-1), so far as relevant, provides:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing within a reasonable time

..."

The Government do not contest the admissibility of this

complaint. In particular they consider that the case concerns civil

rights and obligations in the broader sense of Article 6 para. 1

(Art. 6-1). However, having regard to the complexity of the case and

the applicant's conduct, they find that the length of the proceedings

is not in breach of Article 6 para. 1 (Art. 6-1).

The Commission finds that the proceedings concerned the

applicant's individual request for a building permit in respect of a

house on a farm estate after transfer of the farm to her descendants

(Ausgedinge). They thus involved the determination of a civil right.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of the reasonableness of the length of proceedings, namely the

complexity of the case, the applicant's conduct and that of the

competent authorities, and having regard to all the information in its

possession, that a thorough examination of this complaint is required,

both as to the law and the facts.

2. The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention about the alleged unfairness of the proceedings, in

particular those before the Administrative Court. However, there is

no indication that the applicant and her husband could not present

their arguments or that their submissions were not duly taken into

account. In particular, the reasoning of the Administrative Court that

they had failed to dispute certain findings in the agricultural expert

opinion was based on an interpretation of their submissions as a whole,

which does not appear arbitrary. Consequently, there is no appearance

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

Article 6 para. 1 (Art. 6-1). It follows, that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, unanimously, the Commission

DECLARES ADMISSIBLE the applicant's complaint about the length

of the proceedings,

without prejudging the merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

Menu

E.T. v. AUSTRIA

E.T. v. AUSTRIA

LEXI