THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32096/96 by Gerhart TILL, Charlotte TILL, Manuela WALDBURGER

and Martina WALDBURGER against Austria

The European Court of Human Rights (Third Section) , sitting on 29 August 2000 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 ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 12 November 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 deliberated, decides as follows:

THE FACTS

The applicants are Austrian national , born in 1936, 1939, 1985 and 1991 respectively, and live in Villach . The first applicant is the owner of a house in Villach ; the other applicants are his wife and grandchildren.

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

             The applicants are neighbours to a dry cleaning business operated by R.Z. In 1977 an industrial plant permit for a dry cleaning machine was issued. Perchloride is used for the treatment of the clothes. This is a toxic substance, the handling of which requires particular caution.              It appears that in October 1991 an incident happened in which percloride was released and contaminated the first applicant’s land.

1. Administrative proceedings

             On 31 October 1991 the first applicant informed the Villach Municipal Office ( Magistrat ) that he and his family suffered from health problems which were most probably related to the toxic contamination caused by the dry cleaning business on the neighbouring land, and requested the authority to take appropriate measures.

Thereupon in November 1991 the Municipal Office examined the premises and measured the perchloride concentration in the dry cleaner’s and the applicant's house. On 2 December 1991 a hearing was held, and on 4 and 5 December 1991 a specialised company took samples of the soil around and under the applicants’ house.

On 6 February 1992 the Municipal Office held a further hearing, ordered R.Z. not to use her machines any longer and also ordered the decontamination of the soil. On 27 February 1992 a decontamination installation was put in place.

In June 1992 R.Z. replaced the existing cleaning machine by a new one and informed the Municipal Office accordingly.              On 31 October 1992 the first applicant complained about the smell from the business. Thereupon new measurements were carried out. According to these measurements the perchloride contamination had decreased.

The first applicant repeatedly requested that the industrial plant permit for the dry cleaning business be annulled. In February 1993, June 1994 and July 1995 the Municipal Office and the Regional Governor ( Landeshauptmann ), respectively, dismissed the first applicant’s request. Appeal proceedings were unsuccessful.

Meanwhile, in February 1994, the first applicant had filed an appeal against the original planning permission concerning the dry cleaner’s premises which had been issued in 1970. The first applicant considered that his predecessor had not been heard before permission had been granted and that he was therefore entitled to file an appeal. In May 1994 the Municipal Office, acting as the appeal authority, quashed the 1970 permit and remitted the case to the Mayor ( Bürgermeister ). On 27 September 1994 an oral hearing in the presence of the applicant and several experts took place, and on 23 November 1994 planning permission was again granted. The first applicant’s further appeals to the Municipal Office and the Carinthian Regional Government ( Landesregierung ) were dismissed in January and February 1995. Thereupon the applicant filed a complaint with the Administrative Court ( Verwaltungsgerichtshof ) which the latter dismissed on 9 November 1999.

In the meantime, in April 1995, the Municipal Office informed the first applicant that, in their view, all necessary measures for the protection of the applicants' health had been taken as measurements carried out between 2 and 20 March 1995 had shown a low concentration of perchloride in the soil.

Apparently on 30 January 1996 the dry cleaning machine was removed from the business premises.

2. Criminal proceedings

On 14 November 1994, in connection with the various administrative proceedings, the first applicant laid a criminal information against an official expert for allegedly giving a false opinion before the administrative authorities ( falsche Zeugenaussage ) and for abuse of authority ( Amtsmißbrauch ). On 16 May 1995 the Public Prosecutor’s Office decided to discontinue the investigation of these matters.

3. Civil proceedings

a. Proceeding for the recognition of a claim for damages ( Feststellung des Schadenersatzanspruchs )

On 21 May 1992 the first applicant filed an action with the Villach District Court ( Bezirksgericht ) against R.Z., the owner of the dry cleaning business, and against E.S. and K.S., the owners of the land on which the business was situated. In his action the first applicant requested a declaratory judgment ( Feststellungsurteil ) recognising his claim for damages caused by the toxic contamination of his land.

On 17 June 1992 the defendants filed written pleadings and on 22 June 1992 a hearing was held. On 23 June 1992 the defendants filed further written pleadings. On 16 September 1992 another hearing was held. On the same day the District Court, in a partial judgment ( Teilurteil ), declared the action inadmissible insofar as it concerned E.S. and K.S. On 21 October 1992 the first applicant appealed against this decision and on 13 November 1992 the defendants filed a counter-statement ( Berufungsbeantwortung ).

On 14 January 1993 the Klagenfurt Regional Court ( Landesgericht ) granted the appeal. Thereupon the defendants, on 26 February 1993, filed a further appeal ( Revisionsrekurs ) with the Supreme Court ( Oberster Gerichtshof ). On 17 March 1993 the first applicant commented on the defendants’ appeal. In July 1994 the Supreme Court dismissed the defendants’ appeal.

On 2 September 1994 the District Court held a hearing. On 20 June and 16 August 1995 the defendants filed written pleadings. Meanwhile, on 10 July 1995, the court had appointed an expert. On 4 January 1996 the District Court revoked the appointment of the expert as he had not delivered his opinion within the time-limit set by the court for this purpose. On 15 May and 26 June 1996 further hearings were held. Meanwhile, on 24 and 31 May 1996, the defendants filed further pleadings.

On 19 July 1996 another expert was appointed who delivered his opinion on 4 April 1997. On 28 April and 15 May 1997 the first applicant and the defendants respectively filed comments on the expert opinion.

Following the first applicant’s request of 9 July 1997 and the defendants’ request of 30 July 1997, the next hearing was held on 18 September 1997.

On 3 February 1998 the District Court granted the first applicant’s motion.

On 17 and 26 February 1998 the defendants appealed against the judgment. On 16 March 1998 the first applicant filed a counter-statement. On 16 April 1998 the Regional Court dismissed the defendants’ appeal.

On 24 August 1998 the Supreme Court dismissed the defendants’ further appeal.

b. Claim for the payment of damages ( Klage auf Leistung des Schadenersatzes )

On 13 June 1996 the first applicant filed an action with the Klagenfurt Regional Court against R.Z., E.S. and K.S. and, as a fourth defendant, the municipality of Villach for the payment of damages.

On 3, 9 and 18 July 1996 and on 2 and 4 September 1996, the parties filed several pleadings. On 11 September 1996 a hearing was held. On 12 and 23 September 1996 and on 9 October 1996 the first applicant and the defendants filed further pleadings.

On 7 July 1997 the Regional Court decided to interrupt the proceedings pending the outcome of the aforementioned proceedings before the Villach District Court. On 30 July 1997 R.Z. filed an appeal against this decision which was, however, dismissed by the Graz Court of Appeal ( Oberlandesgericht ). On 11 September 1998 the first applicant requested the resumption of the proceedings. On 22 December 1998 the Regional Court scheduled a hearing for 8 February 1999.

On 10 June 1999 the first applicant concluded a settlement with R.Z. and the proceedings against her became dormant ( Ruhen des Verfahrens ). As regards the first and second defendants, the first applicant reduced his claim to the procedural costs and, as regards the fourth defendant, he reduced his claim to a declaratory decision ( Feststellungsbegehren ).

On 8 September 1999 the Regional Court decided the first applicant’s claims. As regards his claim for costs against E.S. and K.S., it found that each party had to bear its own costs. As regards the fourth defendant, the court dismissed the action as it had become time barred.

On 13 October 1999 the first applicant appealed and on 10 and 11 November 1999 the remaining defendants filed their observations.

The appeal proceedings are still pending.

COMPLAINTS

The applicants, relying on Article 8 of the Convention, complain that the toxic substances emitted by the dry cleaning business contaminated the first applicant’s land and violated their right to respect for their private and family life and their home. They complain under Article 6 § 1 of the Convention that the decisions taken in the industrial plant proceedings and the planning permission proceedings were wrong and unfair. They also complain that the failure of the public prosecutor to institute criminal proceedings violated their rights under Article 6 § 1. Finally, the applicants complain under Article 6 § 1 that the civil proceedings instituted by the first applicant were not terminated within a reasonable time.

THE LAW

1 . The applicants state that after the incident with toxic substances emanating from the dry cleaning business next door, they have requested the authorities to take the necessary measures and introduced various administrative proceedings to this end. They complain, however, the result of these proceedings was insufficient as the decisions taken by the authorities were wrong and the proceedings leading thereto unfair. They rely on Articles 8 and 6 § 1 of the Convention, the relevant parts of which read as follows:

Article 8

“1. Everyone has the right to respect for his private and family life, his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 6 § 1

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

However, the Court is not required to decide whether or not the facts submitted by the applicants disclose any appearance of a violation of these Convention provisions as the applicants failed to file complaints with the Constitutional Court ( Verfassungsgerichtshof ) against the decisions given in the industrial plant permission proceedings and the planning permission proceedings.

Therefore, the applicants have not, as required by Article 35 § 1 of the Convention, exhausted domestic remedies. It follows that this part of the application must be rejected in accordance with Article 35 § 4.

2. The applicants further complain under Article 6 § 1 of the Convention about the discontinuation of criminal proceedings. However, the Court observes that the Convention does not guarantee a right to have criminal proceedings instituted against third persons. Therefore, this complaint must be rejected as being incompatible ratione materiae , pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Finally the applicants complain under Article 6 § 1 of the Convention about the length of the compensation proceedings.

a. The Court observes at the outset that only the first applicant, as the sole plaintiff, has been a party to the compensation claims. It follows that the other applicants cannot claim to be victims of a violation of Article 6 § 1 of the Convention as regards the length of these proceedings. Accordingly, this complaint, insofar as it is raised by the second, third and fourth applicants, must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

b. As regards the first applicant’s complaint about the length (six years and three months) of the proceedings for the recognition of his damages claim, the Court considers that it cannot at the present stage, on the basis of the case-file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

c. As regards the proceedings for the payment of damages, the Court notes that they started on 13 June 1996. On 10 June 1999 the first applicant concluded a settlement with R.Z. and on 8 September 1999 the Regional Court gave its decision as regards the other defendants. The first applicant appealed and the appeal proceedings are still pending. Thus, the proceedings have been pending for four years and one month.

The reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case, namely its complexity and the conduct of the first applicant and the authorities ( Ficara v. Italy judgment of 19 February 991, Series A no. 196-A, p. 9, § 17).

As regards the pending appeal proceedings, the Court finds that their duration, some eight months, does not appear objectionable. As regards the first instance proceedings, which lasted for three years and three months, the Court observes that on 7 July 1997 the Regional Court decided to suspend the proceedings pending the outcome of the proceedings on the recognition of the first applicant’s claim for damages and that, in September 1998, the proceedings were resumed. The first applicant had no objection to this suspension as it was not his but the defendants’ appeal. Taking these elements into account, the Court cannot find that at the present stage the length of these proceedings has exceeded the reasonable time requirement of Article 6 § 1 of the Convention.

It follows that this aspect of the complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the first applicant ’s complaint about the length of the proceedings for the recognition of his compensation claim,

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President