THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32098/96 by Helmut LUDESCHER against Austria

The European Court of Human Rights (Third Section) , sitting on 16 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , judges , [Note1]

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 August 1995 and registered on 2 July 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 7 September 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 is an Austria national, living in Weiler (Austria). He is represented before the Court by Mr W.L. Weh , a lawyer practising in Bregenz (Austria).

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

On 28 December 1989 the Mayor of Röthis dismissed the applicant’s request of 28 August 1989 for a building permit in respect of a shed to be constructed on two plots of land marked as a free zone in the development plan. The Röthis Local Council ( Gemeindevertretung ) rejected the applicant’s appeal on 11 July 1990.

On 9 November 1990 the Feldkirch District Administrative Authority ( Bezirkshauptmannschaft ) dismissed the applicant’s further appeal. It found that no building was permissible in a free zone.

On 11 July 1991 the Constitutional Court ( Verfassungsgerichtshof ) declined to entertain the applicant’s complaint against the refu sal of the building permit and referred the case to the Administrative Court ( Verwaltungsgerichtshof ).

On 4 October 1991 the Administrative Court requested the applicant to amend his submissions, which the applicant did on 4 November 1991.

On 15 December 1994 the Administrative Court rejected the applicant’s complaint. It found that the complaint related in essence to the alleged unlawfulness of the development plan underlying the refusal of the building permit, an issue outside the Administrative Court’s competence.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention of the length of proceedings concerning the building permit.

THE LAW

The applicant complains under Article 6 § 1 of the Convention of the length of proceedings concerning the building permit. He relies on Article 6 § 1 of the Convention which, insofar 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...”

The applicant maintains that the proceedings, in particular before the Administrative Court, lasted unreasonably long. The Government concede that the proceedings before the Administrative Court lasted for a substantial period but argue that at that time the Administrative Court was confronted with a sudden and unexpected increase of its case-load.

The Court finds that before considering whether the length of the proceedings at issue was reasonable it has to examine whether Article 6 § 1 applied to the proceedings at issue.

In this respect the Court recalls that the applicability of Article 6 depends on whether there was a dispute over "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law and, if so, whether this "right" was of a "civil" character within the meaning of Article 6 § 1 ( Oerlemans v. the Netherlands judgment of 27 November 1991, Series A no. 219, pp. 20-21, §§ 45-49).

Furthermore the Court has found that although Article 6 applies, in general, to proceedings concerning the grant of a building permit ( Ortenberg v. Austria judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28), it does not apply to proceedings for a building permit if such a permit is clearly not allowed under the zoning plan in force ( Enzi v. Austria , no. 29268/95, Section 3 decision 8.2.2000, with further references).

In the present case, the applicant applied for a building permit although it related to two plots of land falling within the free zone of the development plan. The authorities dismissed this request and the subsequent appeals on the ground that there was no right to build in such a zone. Since the relevant provisions did not grant a right to build in a free zone, the Court cannot find that the proceedings at issue involved a determination of the applicant’s civil rights within the meaning of Article 6 § 1 of the Convention.

It follows that the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)