O. v. AUSTRIA



AS TO THE ADMISSIBILITY OF

Application No. 12884/87

by M.O.

against Austria

The European Commission of Human Rights sitting in private on

29 June 1992, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 September 1986

by M.O. against Austria and registered on 8 April 1987 under file No.

12884/87;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1913 who resides in

Linz. She is represented by Mr Richard Proksch, a lawyer in Vienna.

Particular circumstances of the case

The applicant complains of the grant of building permits

concerning land adjoining her property at Leonding which had earlier

been designated as a green belt. She claims that as a result of these

building permits she has been subjected to considerable interferences

with the use of her property, in particular noise pollution emanating

from the neighbours' path of access which immediately adjoins her

property.

The redesignation of the neighbouring land as building plots was

decided in 1978 and confirmed by an area-zoning plan adopted by the

City of Leonding in September 1980.

In January 1981 the City issued a building plan permitting the

construction of terraced houses on the land. When building permits

were granted to the owners of the plots concerned, the applicant raised

objections which, however, were rejected by the competent

administrative authorities.

The applicant then lodged complaints with the Constitutional

Court (Verfassungsgerichtshof) in two cases and with the Administrative

Court (Verwaltungsgerichtshof) in three cases.

On 2 October 1985 the Constitutional Court interrupted its

proceedings concerning the applicant's complaints as it had doubts as

to the compatibility of the applicable area-zoning and building plans

with the Upper Austrian Regional Planning Act (Oberösterreichisches

Raumordnungsgesetz). It provisionally assumed that according to this

Act the green belt in question could be redesignated for building

purposes only if there were overriding public interests. It

accordingly instituted a norm control procedure in respect of the

decrees by which the plans in question had been issued. The

Administrative Court likewise interrupted its proceedings in the cases

pending before it and requested the Constitutional Court to quash the

relevant area-zoning and building plans as being unconstitutional.

However, by a decision of 19 March 1986 the Constitutional Court

eventually found the plans to be lawful, the proceedings having

revealed that the neighbouring land had already been designated as

building plots in 1971 and that this designation had been confirmed by

the former area-zoning plan. The new area-zoning plan of 1981

therefore had not changed the designation and accordingly the question

of overriding public interests did not arise. The Constitutional Court

also found the area-zoning plan to be in conformity with the applicable

regional planning regulations and the Regional Planning Act.

On the same day the Constitutional Court also rejected the

applicant's individual complaints and referred the case to the

Administrative Court. The latter rejected the applicant's complaints

by decisions of 14 and 28 October 1986 referring to the Constitutional

Court's decisions in which the area-zoning and building plans were

found to be lawful.

Relevant Domestic Law and Practice

Section 23 of the Upper Austrian Building Regulations Act (Ober-

österreicher Bauordnung) provides as follows:

(Original)

"(1) Bauliche Anlagen müssen in allen ihren Teilen nach den

Erfahrungen der technischen Wissenschaften so geplant und

errichtet werden, daß sie den normalerweise an bauliche

Anlagen der betreffenden Art zu stellenden Anforderungen

der Sicherheit, der Festigkeit, des Brand-, Wärme- und

Schallschutzes, der Gesundheit und der Hygiene, des

Umweltschutzes und der Zivilisation entsprechen und das

Orts- und Landschaftsbild nicht gestört wird..."

(Translation)

"(1) All parts of the building development must be planned and

constructed in all aspects so as to correspond to the state of

the technical sciences such that the development meets the normal

requirements of such buildings as regards safety, rigidity, fire

protection, insulation (sound and warmth), health, hygiene,

environmental protection and civilisation, and not to disturb the

visual amenity of town and country ..."

Section 46 provides:

(Original)

"(2) Nachbarn können gegen die Erteilung der Baubewilligung

mit der Begründung Einwendungen erheben, daß sie durch das

Bauvorhaben in subjektiven Rechten verletzt werden, die

entweder in der Privatrechtsordnung (privatrechtliche

Einwendungen) oder im öffentlichen Recht (öffentlich-

rechtliche Einwendungen) begründet sind.

(3) Öffentlich-rechtliche Einwendungen der Nachbarn sind im

Baubewilligungsverfahren nur zu berücksichtigen, wenn sie

sich auf solche Bestimmungen des Baurechtes oder eines

Flächenwidmungsplanes oder Bebauungsplanes stützen, die

nicht nur dem öffentlichen Interesse sondern auch dem

Interesse der Nachbarschaft dienen. Hierzu gehören

insbesondere alle Bestimmungen über die Bauweise, die

Ausnutzbarkeit des Bauplatzes, die Lage des Bauvorhabens,

die Abstände von den Nachbargrenzen und Nachbargebäuden,

die Gebäudehöhe, die Belichtung und Belüftung sowie jene

Bestimmungen, die gesundheitlichen Belangen oder dem Schutz

der Nachbarschaft gegen Immissionen dienen."

(Translation)

"(2) Neighbours may make objections to the grant of

planning permission on the ground that their subjective

rights have been affected. Such subjective rights may be

based on private law (private law objections) or public law

(public law objections).

(3) Public law objections of neighbours shall only be

taken into consideration in proceedings for the grant of

planning permission if they are based on provisions of the

building regulations, the area-zoning plan or the building

plan which serve not merely the general public interest but

also the interests of the neighbourhood. These include, in

particular, all provisions concerning the type of building,

the use of the building land, the situation of the proposed

development, distances from adjoining boundaries and

buildings on adjoining properties, height of buildings,

light and air and provisions which are concerned with

health matters or protection of the neighbourhood against

emission."

COMPLAINTS

The applicant generally complains under Article 6 of the

Convention that the proceedings before the Constitutional Court and the

Administrative Court were not fair.

She contends in particular that the Constitutional Court's

proceedings were unfair because they were based on wrong factual

assumptions and failed to deal with the question of the overriding

public interest in the redesignation of the land adjoining her

property. She alleges that the Constitutional Court was misled by

wrong submissions of the Provincial Government of Upper Austria as to

the continued validity of an earlier provisional building permit

(Bauplatzerklärung) dating from 1972 which in fact had expired in 1975.

For these reasons, the applicant, in submissions of 27

September 1989, further claims that there has also been an unlawful

interference with her right to the peaceful enjoyment of her property,

as guaranteed by Article 1 of Protocol No. 1 to the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 September 1986 and

registered on 8 April 1987.

On 12 July 1991 the Commission decided to request observations

of the parties in connection with the applicability of Article 6 to the

proceedings at issue, and whether the scope of the Administrative

Court's jurisdiction was sufficient to comply with that provision. The

Commission also asked whether the proceedings were "fair".

The Government submitted their observations on 6 December 1991

and the applicant was set a time-limit of 2 February 1992 for

submitting observations in reply. On 7 February 1992 the applicant's

representative requested an extension of the time limit for submitting

observations. The request was refused on 20 February 1992.

THE LAW

1 The applicant alleges a violation of Article 6 (Art. 6) of the

Convention which provides, so far as relevant, as follows:

"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. ..."

The Commission has put questions to the parties concerning the

applicability of Article 6 para. 1 (Art. 6-1) of the Convention and the

scope of review of the Administrative Court and whether the proceedings

were "fair".

The Government submit, first, that the applicant has failed to

exhaust domestic remedies because she did not raise Article 6 para. 1

(Art. 6-1) of the Convention in form or in substance before the

Constitutional Court in any of her constitutional complaints. They

also consider that Article 6 para. 1 (Art. 6-1) of the Convention is

not applicable to the proceedings at issue, principally because the

sole link between the proceedings the applicant brought and any

property rights she may have had was the public law interest which she

was able to put forward in the proceedings. They consider that the

right to intervene in planning proceedings which is given to neighbours

by virtue of Section 46 of the Upper Austrian Building Regulations Act

is to vindicate "neighbourhood rights" (Nachbar- schaftsrechte), rather

than to protect the private rights which Article 6 (Art. 6) refers to.

Finally, the Government consider that the requirements of Article 6

(Art. 6) of the Convention are, in any event, met by the review

available from the Administrative Court, taken together with that of

the Constitutional Court.

The applicant has not submitted any observations.

The Government submit that the applicant has not exhausted

domestic remedies because she failed to raise the question of the

applicability of and compliance with Article 6 para. 1 (Art. 6-1) of

the Convention before the Constitutional Court.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of such remedies which relate

to the breaches of the Convention alleged and at the same time can

provide effective and sufficient redress. An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78, at

p. 85). Moreover, the burden of proving the existence of available and

sufficient remedies lies upon the State invoking the rule (cf. Eur.

Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p.

15, para. 26, and No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, at p.

102). In the present case, given the Constitutional Court's case-law

on the existence of civil rights and the scope of review of the

Administrative Court (VfSLG 11500/1987, Decision of 14.10.87), the

Commission finds that the Government have not established that an

application to the Constitutional Court could have resulted in

consideration of the applicant's complaint. Accordingly, the

Commission finds that the application cannot be declared inadmissible

for non-exhaustion of domestic remedies.

The Government also submit that Article 6 para. 1 (Art. 6-1) of

the Convention is not applicable to the present proceedings, and that

if it is, the scope of review by the Administrative Court and the

Constitutional Court taken together is sufficient to comply with the

requirements of the provision.

Having regard to its own case-law in this matter (cf. No.

12235/86, Dec. 16.10.91, in which the Commission considered the

applicability of Article 6 (Art. 6) of the Convention to proceedings

before the Austrian Administrative and Constitutional Courts in

planning matters), the Commission finds that this part of the

application raises serious issues of law and fact the determination of

which requires an examination of the merits.

2 As regards the applicant's complaint that there has been an

unjustified interference with her property rights contrary to Article

1 of Protocol No. 1 (P1-1) to the Convention, the Commission notes that

this complaint was first raised in the applicant's letter of 27

September 1989, i.e. more than six months after the final domestic

decisions. This part of the application must accordingly be rejected

under Article 26 in conjunction with Article 27 para. 3 (Art. 26+27-3)

of the Convention as having been introduced out of time.

For these reasons, the Commission by a majority

DECLARES ADMISSIBLE the part of the application concerning the

proceedings before the Administrative and Constitutional Courts

and

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)