THIRD SECTION

PARTIAL 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 12 December 2002 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 7 July 2000,

Having deliberated, decides as follows:

THE FACTS

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

A. The circumstances of the case

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

In 1971 the applicant bought a plot of land, which was 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 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 from his point of view.

On 21 October 1992 the 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 aspect of the village and characteristic landscape ( Orts - und Landschaftsbild ). Moreover, it found that each of these reasons was sufficient 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 lawful as well.

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

On 11 July 1996 the Municipality issued a new area zoning plan under which the applicant’s land was designated as undeveloped land ( Freiland ) on which the owner is not allowed to erect 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 with the Administrative Court. He submitted that the modification of the area zoning plan was unlawful. He requested a hearing and the taking of evidence on the spot.

On 23 February 2001 the Administrative Court dismissed the complaint. It considered that it was not necessary to institute proceedings to examine the area zoning plan with the Constitutional Court 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 for the taking of evidence on the spot, 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 normal 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 complains under Article 6 § 1 of the Convention about the length of the proceedings and that his right to a public hearing by an independent tribunal established by law was violated.

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

THE LAW

1. The applicant complains under Article 6 of the Convention about the absence of a public hearing and that his rights under Article 1 of Protocol No. 1 have been violated. The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of them to the respondent Government.

2. The applicant further complains that the proceedings lasted unreasonably long. He relies on Article 6 § 1 of the Convention, which, so far as relevant, reads as follows:

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

As regards the applicability of Article 6 of the Convention the Court finds that it need not determine this issue because the above complaint is, in any event, inadmissible for the following reasons.

The applicant submits that since 1971 he has been deprived of the possibility to build on his land.

However, the Court observes that, when the applicant bought the plot of land in 1971 it was designated as undeveloped land in the area zoning plan. The Court reiterates that Article 6 of the Convention 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 if, thus, no civil right is in issue (11844/85, Dec. 29.2.88, D.R. 55 p. 205, Enzi v. Austria , (Dec.), no. 29268/95, 8.2.2000).

The Court finds that the first set of proceedings started on 10 January 1992 when the applicant filed the first application for a building permit. These proceedings were terminated on 17 November 1994, when the Administrative Court dismissed the applicant’s complaint.

On 18 February 1997 the applicant filed a new application for a building permit, after the new area zoning plan was issued. These proceedings were terminated on 19 March 2001, when the Administrative Court’s decision dismissing the application was served on him.

The Court finds that the two proceedings must be considered separately. The first proceedings were terminated on 17 November 1994 while the application was only lodged on 7 July 2000. 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.

As regards the second building permit proceedings, the Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see for instance Humen v. Poland [GC], no. 26614/95, 15.10.99, § 60).

The Court observes that the proceedings started on 5 May 1997, when the applicant filed his appeal with the Regional Government, and ended on 19 March 2001, when the Administrative Court took the final decision. Thus, they lasted for three years and ten months.

The Court finds that the proceedings were not particularly complex. As regards the conduct of the parties, it holds that no delays can be attributed to the applicant. As regards the conduct of the authorities the Court notes that the proceedings at issue were dealt with at three levels of jurisdiction. It finds that, on the whole, the Austrian courts dealt expeditiously with the applicant’s case. However, one period from 28 July 1997 to 7 June 1999, when the case was pending before the Constitutional Court, requires further examination.

The Court reiterates that Article 6 § 1 of the Convention imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time (see, for example, Muti v. Italy , judgment of 23 March 1994, Series A no. 281-C, p. 37, § 15). Although this obligation applies also to constitutional courts, it cannot be construed in the same way as for an ordinary court (see Süssmann v. Germany , judgment of 16 September 1996, Reports of Judgments and Decisions   1996-IV, p. 1174, § 56 et seq.). Furthermore while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice (see in this connection, mutatis mutandis , Boddaert v. Belgium , judgment of 12 October 1992, Series A no. 235-D, p. 82, § 39).

In the present case the proceedings before the Constitutional Court lasted for one year and eleven months. Considering the overall length of the proceedings and the subject-matter of the complaint the Court finds that the Constitutional Court was under no duty to deal with the applicant’s case as a matter of particular urgency, contrary to certain types of litigation (see, mutatis mutandis , A and Others v. Denmark , judgment of 8 February 1996, Reports 1996-I, p. 107, § 78).

In the light of these circumstances, the Court finds that the overall duration of the proceedings at issue can still be regarded as  “reasonable”.

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

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the alleged lack of public hearing and the alleged violation of his rights under Article 1 of Protocol No. 1 ;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President