THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63413/00 by Anton HAIDER against Austria

The European Court of Human Rights (Third Section), sitting on 29 January 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 7 July 2000,

Having regard to the partial decision of 12 December 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anton Haider , is an Austrian national, who lives in Hörbranz (Austria). He is represented before the Court by Mr W. L. Weh , a lawyer practising in Bregenz (Austria).

A. The circumstances of the case

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

In 1971 the applicant bought a plot of land, designated in the area zoning plan as agricultural land, in Möggers , Vorarlberg . He had the intention to build a hotel on that land.

In 1975 the Möggers Municipality adopted an area zoning plan ( Flächenwidmungsplan ) in which the applicant’s land was designated as building plot ( Bauland ).

On 10 January 1992 the applicant filed a request for a building permit for a hotel with 65 beds and a restaurant.

On 17 March 1992 the mayor of Möggers held a hearing. A land use planning expert commented on the project by stating that the applicant’s plot of land was situated in a completely unspoilt area between two built-up areas of Möggers and that in his view a project of this size was not desirable.

On 21 October 1992 the Möggers Municipality issued a building prohibition for the area in which the applicant’s land was situated.

On 29 October 1992 the mayor held another hearing.

On 1 April 1993 the District Authority dismissed the applicant’s request for a building permit on the ground that the project would have been contrary to the objectives of the building prohibition, that the water supply and sewage disposal were not ensured for the land and that the project, if realised, would alter the characteristics of the village and the landscape ( Orts- und Landschaftsbild ). Moreover, it found that each of these reasons was sufficient in itself to dismiss the applicant’s request.

On 15 April 1993 the applicant filed an appeal. He complained that the District Authority’s reasoning was insufficient and inconclusive.

On 20 July 1993 the Vorarlberg Regional Government dismissed the applicant’s appeal. It based this decision merely on the finding that his request was contrary to the building prohibition.

The applicant filed a complaint with the Constitutional Court as well as with the Administrative Court, claiming that the building prohibition was unlawful.

On 14 June 1994 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success.

On 17 November 1994 the Administrative Court dismissed the complaint. It found that the building prohibition was lawful and that, therefore, the dismissal of the applicant’s application for a planning permission was equally lawful.

Subsequently, the Möggers Municipality opened proceedings for the modification of the area zoning plan.

On 11 July 1996 the Municipal Council issued a new area zoning plan under which the applicant’s land was designated as undeveloped land ( Freiland ) on which the owner was not allowed to construct buildings.

On 18 February 1997 the applicant filed a new application for a planning permission for his project in order to challenge the modification of the area zoning plan.

On 16 April 1997 the District Authority dismissed the applicant’s application on the ground that it conflicted with the area zoning plan.

On 3 June 1997 the Regional Government dismissed the applicant’s appeal of 5 May 1997 and confirmed the decision.

On 28 July 1997 the applicant lodged a complaint with the Constitutional Court. He submitted that the modification of the area zoning plan had been unlawful and that the planning permission, therefore, should have been granted. He also complained that his right to property had been violated.

On 7 June 1999 the Constitutional Court refused to deal with the complaint for lack of prospects of success. Consequently, the Constitutional Court referred the case to the Administrative Court.

On 15 September 1999 the applicant supplemented his complaint pending before the Administrative Court. He submitted that the modification of the area zoning plan was unlawful. He requested a hearing and to carry out an inspection of the location.

On 23 February 2001 the Administrative Court dismissed the complaint. It considered that it was unnecessary to institute proceedings with the Constitutional Court to examine the area zoning plan, as that court had already refused to deal with the case for lack of prospects of success. It found that there was no doubt that the modification of the area zoning plan was lawful. It dismissed the requests for a hearing and an inspection of the location, as the case merely concerned questions of law. This decision was served on 19 March 2001.

B. Relevant domestic law

1. The review of administrative decisions and decrees

In Austrian administrative law one distinguishes decrees ( Verordnung ) and (individual) decisions ( Bescheid ). Decisions of administrative authorities are addressed to individuals and can be challenged by way of appeal ( Berufung ) under Section 67 of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ). Final administrative decisions may be challenged by way of complaints with the Constitutional Court under Article 144 of the Constitution and complaints with the Administrative Court under Article 130 of the Constitution.

In contrast, decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court. If it is possible to institute administrative proceedings in which the allegedly unlawful decree applies, the question of its lawfulness can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution, or by a request made by the Administrative Court, an Independent Administrative Panel or an ordinary court under Article 139 of the Constitution. In exceptional circumstances a person who is affected by a decree may seize the Constitutional Court with an independent request for review of the lawfulness of a decree, namely, if the decree has direct consequences on the situation of the person without it being necessary that an administrative decision be taken.

The Constitutional Court examines whether there has been any infringement of an applicant’s right under the Constitution and whether any decree unauthorised by statute law or any unconstitutional statute or international treaty unlawful under Austrian law has been applied (Article 144 of the Federal Constitution).

2. Vorarlberg Land Planning Act

In Vorarlberg land planning use is governed by the Vorarlberg Land Planning Act ( Raumplanungsgesetz ). Area zoning plans and any amendments thereto are regarded as decrees. The proceedings in which they are issued are not ordinary administrative proceedings and the persons affected are not parties to them.

The competent local authorities ( Gemeinden ) must take into consideration principles of sustainable land planning use as well as planning proceedings of neighbouring local authorities and other public law corporations (Sections 2 and 3 of the Land Planning Act).

If the area zoning plan is the basis for the granting or withholding of building permits, the persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation.

3. Hearings before the Administrative Court

According to Section 39 § 1 of the Administrative Court Act, that court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6), which was added to the Act in 1982, provides however that, notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing if it is apparent from the written pleadings of the parties and the files relating to the previous proceedings, that an oral hearing is not likely to contribute to the clarification of the case.

4. Hearings before the Constitutional Court

Article 144 § 2 of the Federal Constitution reads as follows:

"The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that his right to a public hearing by an independent tribunal established by law was violated.

He further complained that the modification of the area zoning plan violated his rights under Article 1 of Protocol No. 1.

THE LAW

1 . The applicant complained under Article 6 of the Convention about the lack of a public by an independent tribunal established by law.

Article 6 § 1, so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

a. The Government submitted that Article 6 did not apply to proceedings for a building permit if building was not allowed under the zoning plan in force.

The applicant contested the Government’s view and submitted that the right to build on his plot of land, which was at stake in the proceedings at issue, had to be considered as civil right and that, therefore, Article 6 was applicable.

The Court reiterates that Article 6 applies to proceedings concerning the grant of a building permit (see the Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28), exemptions from building prohibitions (see the Skärby v. Sweden judgment of 28 June 1990, Series A no. 180-B, p. 36, §§ 27 et seq.) or an order to demolish an unlawfully erected building (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 14, § 31). However, Article 6 is not applicable to proceedings for the amendment of a zoning plan if the person concerned has no right under domestic law to such an amendment and, thus, no civil right is in issue ( Enzi v. Austria (dec.), no. 29268/95, 8 February 2000). Moreover, Article 6 does not apply to proceedings concerning a demolition order addressed to the owner of an adjacent parcel of land (see Krickl v. Austria , application no. 21752/93, Commission decision of 21 May 1997, Decisions and Reports 89, p. 5) and to proceedings for a building permit if building is not allowed under the zoning plan in force ( Enzi v. Austria (dec.), cited above).

In the present case the land, at the time the applicant had bought it, was designated as undeveloped land on which the owner was not allowed to erect buildings. Later on, in 1975, its designation was changed to a particular kind of building land. In 1996 the area zoning plan was again modified and the land was once again designated as undeveloped land. Thus, the applicant was no longer allowed to build on his land after this amendment of the area zoning plan.

As the applicant challenged this latest amendment and as his hitherto existing right to erect buildings on his land was at stake, the Court finds that the proceedings at issue involved the determination of a civil right. Thus, Article 6 of the Convention is applicable to the building permit proceedings ( Berger and Hüttaler v. Austria , no. 21022/92 and 21023/92, Commission decision of 7 April 1994).

For these reasons, the Court dismisses the Government’s preliminary objection.

b. As regards compliance with Article 6 § 1, the Government submitted that the Constitutional Court did not decide on the merits but declined to deal with the case for lack of prospects of success. These proceedings could be compared to leave to appeal proceedings and did not involve the determination of a civil right. In order to clarify the question of the admissibility of the applicant’s complaint, a public hearing by the Constitutional Court was not necessary. Moreover, it contended that the applicant had unequivocally waived his right to a public hearing, as he had not requested a hearing in his complaint to the Constitutional Court.

As to the proceedings before the Administrative Court, the Government submitted that before that court the lawfulness of the area zoning plan was not an issue, the court only having to consider the lawfulness of the refusal of the building permit. This question of law could be determined without a hearing.

The applicant contended that there were two stages in proceedings before the Constitutional Court and that he would have requested a hearing in the second stage of the proceedings.

He also submitted that the Administrative Court was bound to apply the area zoning plan and to bring the case before the Constitutional Court, if it had had doubts as to the lawfulness of a decree. The applicant had filed substantial submissions in this respect, and in order to assess these submissions it would have been necessary to hold a hearing.

The Court observes at the outset that Austria’s reservation to Article 6, concerning a restriction of the right to public court hearings, is invalid as it does not satisfy the requirement of Article 57 § 2 of the Convention ( Eisenstecken v. Austria , no. 29477/95, 3 October 2000, §§ 29, 30).

Further, the Court observes that, in view of the specific nature of the applicant’s complaint, namely the lawfulness of the area zoning plan, the Constitutional Court was the only body competent to determine this aspect of the dispute between the applicant and the administrative authorities. Thus, a hearing before the Administrative Court would not have served any useful purpose, as that court had no jurisdiction concerning the lawfulness of the area zoning plan and could only suggest to the Constitutional Court to review the lawfulness of the decree. However, the Constitutional Court had already declined to deal with the applicant’s complaint.

The Court has, therefore, to consider whether the lack of a public hearing in the proceedings before the Constitutional Court violated the applicant’s rights under Article 6 of the Convention. In this context, the Court reiterates that Article 6 § 1 of the Convention provides that, in the determination of civil rights and obligations, “everyone is entitled to a fair and public hearing”. The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, a fair hearing, the guarantee of which is one of the foundations of a democratic society (see the Sutter v. Switzerland judgment of 22 February 1984, Series A no. 74, § 26)

The applicant was therefore in principle entitled to an oral hearing before the Constitutional Court, as none of the exceptions laid down in the second sentence of Article 6 § 1 applied ( Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 20, § 64).

However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be made explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , judgment, loc. cit, § 66; and Schuler- Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).

It is the practice of the Austrian Constitutional Court not to hear the parties unless one of them expressly requests it to do so. In such a situation the applicant could have been expected to ask for a hearing if he had found it important that one be held. As the applicant did not make such a request, he must be deemed to have unequivocally waived his right to a public hearing ( Pauger v. Austria , judgment of 28 May 1997, Reports 1997-III, §§ 60-63). Furthermore, it does not appear that the litigation involved any questions of public interest warranting a public hearing.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2 . The applicant also complained that the modification of the area zoning plan amounted to a de facto expropriation. He relies on Article 1 of Protocol 1 which reads as follows:

“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.”

In the Government’s view, Article 1 Protocol No. 1 was not applicable in the present case. Under the relevant domestic law the applicant could not have taken for granted that the designation of his plot of land remained for ever unchanged and must have been aware that the area zoning plan could be amended at any time if the requirements of the Vorarlberg Land Planning Act were met. There existed no right that the area zoning plan remained unchanged.

Even assuming the Article 1 of Protocol No. 1 applied, the measures at issue, which concerned the control of the use of property, were in conformity with that provision. Thus, the general interest clearly required land development planning and such measures were in the general interest according to paragraph 2 of Article 1. Having regard to the state’s wide margin of appreciation in planning matters, the restriction applied was proportionate. The re-designation of the applicant’s plot of land was primarily based on expert opinions which had stated that the construction of a hotel on the plot of land at issue and the region in general no longer appeared preferable from a land planning point of view.

Further, the plot of land at issue was designated as undeveloped land when it was acquired by the applicant, and he had paid a corresponding price. He had had the possibility to file an application for a building permit for approximately 17 years, but did not do so before 1992. It appeared reasonable that during such a lengthy period the objectives in the field of land planning could change and that, consequently, the designation of the plot of land was modified accordingly.

The applicant submitted that Article 1 of Protocol 1 applied, as the amendment of the area zoning plan interfered with his right to the peaceful enjoyment of his possession.

He submitted that the modification of the area zoning plan was a disproportionate and arbitrary measure, as the authorities had failed to balance the general interests against his own. He contested that the land planning objectives had changed and it was only his plot of land which was affected by the modification of the area zoning plan. He had not filed a request for a building permit earlier on, because the Municipality had failed to construct a proper sewage system to which his plot of land could have been connected earlier on.

The Court recalls that Article 1 of Protocol No. 1 comprises three distinct rules. The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of peaceful enjoyment of property. The second rule, contained in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, stated in the second paragraph, recognises that Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not "distinct" in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principles enunciated in the first rule ( Allan Jacobsson v. Sweden judgment of 23 October 1989, Series A no. 163, § 53; Jokela v. Finland , no. 28856/95, 21 May 2002, § 44).

The Court finds that the measure at issue did not amount to a deprivation of property within the meaning of paragraph 1 of Article 1 but constituted an interference with his right to the peaceful enjoyment of his possessions (see Berger and Hüttaler v. Austria , no. 21022/92 and 21023/92, Commission decision of 7 April 1994; U.C. v. Austria no. 28569/95, Commission decision of 10 April 1997).

The Court recalls, further, that the second paragraph of Article 1 of Protocol No. 1 allows Contracting States to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose, which means that there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Sporrong and Lönnroth judgment of 23 September 1982, Series  A no. 52, p. 24, § 64; Allan Jacobsson v. Sweden judgment of 25 October 1989, Series A no. 163, p. 16, § 54). As regards the choice of the detailed legal rules implementing a measure for the control of the use of property, the domestic legislature must have a wide margin of appreciation. As regards the purpose of the measures, the Court must respect the domestic legislature’s judgment as to what is in the general interest, unless that judgment was manifestly without reasonable foundation (cf. the Mellacher and Others v. Austria judgment of 19 December 1989, Series A no. 169, p. 26, § 45).

In the present case the Court notes that the modification of the area zoning plan was based on the relevant domestic legal provisions of the Vorarlberg Land Planning Act. Furthermore, it was clearly in pursuance of a general interest, namely the rational use of land resources.

As to the proportionality of the measure, the Court observes that the applicant had failed to substantiate if and to what extent the challenged amendment of the area zoning plan had actually reduced the value of his land. Moreover, the applicant had bought the plot of land when it was designated as undeveloped land and according to the uncontested submissions of the Government he only paid the corresponding price. Thus the Court finds that the amendment of the area zoning plan did not impose an excessive burden on the applicant.

Having regard also to the authorities’ wide margin of appreciation when implementing their land-planning policy (see the Sporrong and Lönnroth judgment, cited above, p. 26, § 69), the Court finds no appearance of a violation of Article 1 of Protocol No. 1 to the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Mark Villger Georg Ress              Deputy Registrar President