THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54536/00 by Christiana EMSENHUBER against Austria

The European Court of Human Rights (Third Section), sitting on 11 September 2003 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 V. Berger , Section Registrar ,

Having regard to the above application lodged on 14 December 1999,

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, Christiana Emsenhuber, is an Austrian national, who was born in 1954 and lives in Herzogenburg (Austria) . She is represented before the Court by Mr Urbanek, a lawyer practising in St. Pölten (Austria).

A. The circumstances of the case

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

The applicant is the owner of a house in Weißenkirchen (Austria). In 1985 the applicant’s neighbour, A. K., applied for a building permit for a new barn. On 16 August 1985 the Mayor ( Bürgermeister ) of Weißenkirchen granted the building permit. In the following following years A. K. built the barn.

On 26 June 1991, after a hearing, the Mayor granted both a retroactive permit for certain modifications of A. K’s project and the permit to use the building ( Benützungsbewilligung ).

On 9 June 1992 the applicant, who had not been summoned to this hearing, appealed against the permit to use the building and submitted that the new building did not comply with the building permit. In particular she submitted that, because the barn was too close to her land, more rainwater and snow than before was deposited on her land which had adversely affected the soil and her house.

On 31 January 1994 the Municipal Council ( Gemeinderat ) dismissed the applicant’s appeal. The applicant filed a further appeal ( Vorstellung ) against this decision.

On 15 May 1995 the District Authority quashed the decision for procedural reasons.

On 17 June 1996 the Municipal Council again dismissed the applicant’s appeal. It found that the applicant had no locus standi in the proceedings concerning the permit to use the building.

On 7 October 1996 the Lower Austria Regional Government ( Landesregierung ) allowed the applicant’s further appeal, quashed the decision and remitted the case to the Municipal Council. It found that the applicant had locus standi as the proceedings were also related to a modification of the building permit. Furthermore, it found that the neighbour’s building did not comply with the building permit and that the permit to use the building was therefore unlawful. Finally, it stated that A.K. had to apply for a new building permit as regards the parts of the barn which had not been built in conformity with the building permit granted.

On 7 November 1996 the Municipal Council, implementing the Regional Government’s decision, allowed the applicant’s appeal of 9 June 1992.

On 29 March 1997 A. K. applied for a new building permit. The applicant lodged objections against this project.

On 18 November 1997 the Mayor held a hearing.

On 19 December 1997 the Mayor granted the building permit. On 5 January 1998 the applicant appealed against this decision. She submitted that the building permit was unlawful and that the legal adviser, who had assisted the Mayor during the hearing, had been biased.

On 2 July 1998 the Municipal Council dismissed the applicant’s appeal. It found that there was no indication that the legal adviser had been biased.

On 17 July 1998 the applicant filed a further appeal.

On 10 February 1999 the Regional Government allowed the applicants further appeal, quashed the decision and remitted the case to the Municipal Council. It found that the Lower Austrian Building Act 1996 ( Bauordnung ) would be applicable to A. K.’s application for a building permit and not the previous version of the building act. Moreover, it found that A.K.’s application was insufficient and, therefore, the building permit unlawful. On that basis the Municipal Council had to dismiss A.K.’s application. If A.K. would not properly apply for a building permit, proceedings for a demolition order had to be considered. Moreover, it stated that it was not necessary to deal with the complaint about the unfairness of the proceedings as the Municipal Council’s decision should be quashed following this decision.

On 24 March 1999 the applicant lodged a complaint with the Administrative Court against this decision. She complained, inter alia, that the Regional Government had wrongly interpreted the transitional provision of the Lower Austrian Building Act 1996. Since the proceedings had already been pending when this Act came into force, the former Building Act should have been applicable. This complaint had no suspensive effect.

On 11 November 1999 the Municipal Council, implementing the Regional Governments decision of 10 February 1999, quashed the Mayor’s decision of 19 December 1997.

The applicant filed a further appeal against this decision, as she considered that the Municipal Council had misinterpreted the decision of the Regional Government.

On 5 May 2000 the Regional Government allowed the applicant’s appeal, quashed the decision of 11 November 1999 and remitted the case to the Municipal Council. It found that the latter had to take a decision on the merits and was not allowed to remit the case to the Mayor. Further it repeated its finding that the Lower Austrian Building Act 1996 was applicable in the proceedings at issue. The applicant filed a complaint with the Administrative Court against this decision.

On 20 April 2001 the Administrative Court dismissed the applicant’s complaints against the Regional Government’s decisions of 10 February 1999 and 5 May 2000.

On 5 November 2001 A.K. withdraw the application of 29 March 1997 for the building permit and informed the Municipal authorities that he would file a new application for a retroactive building permit for the barn.

The Government submits that A.K. has, at an unspecified date, filed a new request for a building permit. The applicant submits that she was not aware of such proceedings.

B. Relevant domestic law

Article 132 of the Federal Constitution, in its relevant part, reads as follows:

“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.”

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of the proceedings. Further, she complained that there was still no building permit for A.K.’s building which caused immission on her property, that no new building permit proceedings were opened and, moreover, that the Municipal authorities did not open demolition order proceedings as ordered by the Regional Government’s decision of 10 February 1999.

Further she complained under Article 6 of the Convention that the proceedings were unfair because the legal adviser of the mayor was biased.

THE LAW

1. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” principle, provided in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submitted that the applicant failed to exhaust domestic remedies as she did not file an application with the Administrative Court against the administrative authorities’ failure to decide ( Säumnisbeschwerde ). The Government contended that no unreasonable delays had occurred and that the length of the proceedings was rather due to the complexity and of the proceedings and the conduct of the applicant. They pointed out that the proceedings could not have been of particular importance for the applicant as the deviation of A. K.’s barn from the building permit initially granted had been marginal. Moreover, the applicant would have been able to prevent any prejudice caused to her by the neighbour’s construction by instituting civil proceedings against her neighbour under Section 364 of the Civil Code (compensation for damage caused by a neighbouring building).

The applicant contended that the building permit proceedings lasted unreasonably long. She submits that she had taken all available steps to accelerate the proceedings and that the proceedings were not at all complex.

The Court firstly reiterates that that proceedings for the granting of a building permit to a particular person also involve the determination of a civil right of the neighbour who opposes a building permit. The Court considered that in such proceedings pecuniary interests of the opposing neighbour could be at stake and therefore found the civil right limb of Article 6 § 1 to be applicable (see Ortenberg v. Austria, judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28).

As to the period to be taken into consideration, the Court observes that there were different sets of proceedings. Although their subject-matter was similar, the two sets of proceedings were not only technically separate but also concerned two separate building permit applications of the applicant’s neighbour. The Court, therefore, considers that the applicants’ complaints concerning the length of the two sets of proceedings should be examined separately.

a) The first building permit proceedings concerned the modification of A. K.’s project. The period to be taken into consideration started only on 9 June 1992, when the applicant filed her complaint against the Mayor’s decision of 26 June 1991 , as it was only then that a “dispute” within the meaning of Article 6 § 1 arose (see for instance G.H. v. Austria (dec.), no. 31266/96, § 18, 3 October 2000). These proceedings terminated on 7 November 1996, when the Municipal Council allowed the applicant’s appeal, while the application was only lodged on 14 December 1999. In this respect the Court reiterates that it "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".

It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) The second building permit proceedings started on 29 March 1997, when A. K filed a fresh application for a building permit. The period to be taken into consideration began on 5 January 1998, when the applicant appealed against the Mayor’s decision. These proceedings ended on 5 November 2001 when A.K withdrew his application. Thus, they lasted approximately three years and ten months.

The only period which warrants further examination lasted from 5 May 2000, when the Regional Government remitted the case to the Municipal Council until 5 November 2001.

In this respect the Court reiterates that an application under Article 132 of the Federal Constitution against the administration’s failure to decide ( Säumnisbeschwerde ) constitutes , in principle, an effective remedy which has to be used in respect of complaints about the length of administrative proceedings ( Basic v. Austria , no. 29800/96, §§ 39-40, ECHR 2001-I). This remedy was at the applicant’s disposal after the Municipal Council failed to decide within the statutory six months-period. However, she made no use of it.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complained that there was still no permit for the neighbour’s building and that the Municipality did not open demolition order proceedings although A.K.’s barn caused immission on her property. She relied on Article 6 of the Convention.

The Court reiterates that that the right of access to court also includes the right to be sufficiently protected against the refusal of state authorities to comply with a court judgment ( Hornsby v. Greece , judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, § 40 - 41).

The Court, therefore, has to examine whether the failure to open demolition order proceedings is in accordance with the principles set out by the European Court of Human Rights in the above Hornsby case.

The Court observes that the applicant was successful in the proceedings for the granting of a building permit to her neighbour, and such a permit had therefore been refused. It cannot find, however, that this should automatically give the applicant a right to have the building destroyed. Demolition would only be one possibility to give effect to the decision rendered in the building permit proceedings. Further it reiterates that the relevant Austrian law does not provide for an individual right of a neighbour to have demolition proceedings instituted ( Krickl v. Austria , no. 21752/93, Commission decision of 21 May 1997, Decisions and Reports 89, p. 5). Another possibility would be pecuniary compensation to the applicant for the alleged damage caused by the unlawfully erected building. Thus, the applicant could have introduced civil proceedings against her neighbour for compensation if she had actually sustained prejudice because of the illicit construction and/or official liability proceedings against the Municipality arguing that it had failed to open demolition proceedings. The applicant, however, did not choose these avenues.

Taking these circumstances into account, the Court cannot find that there is any appearance of a violation of the applicant’s rights under Article 6 § 1 of the Convention in this respect.

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

3. The applicant complains that the Mayor’s legal advisor had been biased.

However, in accordance with Article 35 § 1 of the Convention the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. In the present case, the applicant did not raise this issue in her complaints with the Administrative Court.

It follows that the remainder of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President