Schelling v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 28838/95

by Richard SCHELLING

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 September 1995

by Richard SCHELLING against Austria and registered on 3 October 1995

under file No. 28838/95;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 11 June 1996 and the observations in reply submitted by

the applicant on 5 August 1996 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen residing in Langenegg

(Austria). He is a farmer. Before the Commission he is represented

by Mr. W.L. Weh, a lawyer practising in Bregenz.

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

summarised as follows.

On 16 August 1988 the applicant requested permissions under the

Water Act (Wasserrechtsgesetz) and the Landscape Protection Act

(Landschaftsschutzgesetz) which were necessary for putting a culvert

through a drain on agricultural land owned by him.

On 14 September 1988 the Bregenz District Administrative

Authority (Bezirkshauptmannschaft) conducted an oral hearing on the

applicant's requests and inspected his land.

On 21 June 1990 the District Administrative Authority refused the

requested permissions.

On 5 July 1990 the applicant appealed.

On 12 December 1990 the Vorarlberg Regional Governor

(Landeshauptmann) granted the requested permission under the Water Act.

On 2 April 1991 the Vorarlberg Regional Government

(Landesregierung) dismissed the applicant's appeal insofar it concerned

the request for a permission under the Landscape Protection Act.

On 28 May 1991 the applicant introduced a complaint with the

Administrative Court (Verwaltungsgerichtshof) against the Regional

Government's decision.

On 12 June 1991 the Administrative Court transmitted the

applicant's complaint to the Regional Government for observations.

On 9 July 1991 the Regional Government commented on the

applicant's complaint.

On 6 May 1996 the Administrative Court quashed the Regional

Government's decision and remitted the case to the latter.

The proceedings are still pending.

COMPLAINTS

The applicant complains that the proceedings on his request under

the Landscape Protection Act were not concluded within a reasonable

time as required by Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 September 1995 and

registered on 3 October 1995.

On 28 February 1996 the Commission decided to communicate the

application.

The Government's written observations were submitted on

11 June 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 5 August 1996.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the proceedings on his request under the Landscape

Protection Act have not been conducted within a reasonable time.

Article 6 para. 1 (Art. 6-1) of the Convention, as far as

material to the case, read as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a ... hearing within a reasonable

time by an independent and impartial tribunal established by law.

..."

The Government submit that the case as it had been submitted to

the Administrative Court was particularly complex as it involved

difficult questions of constitutional and administrative law. The

applicant had also failed to draw the Administrative Court's attention

to the fact that he considered his case as a matter of urgency.

This is disputed by the applicant. In his view the case was not

complex at all as in deciding it the Administrative could an did rely

on its recent case law on similar issues. The length of the

proceedings at issue was entirely attributable to the Austrian

authorities.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the competent authorities), and having regard to

all the information in its possession, that an examination of the

merits of this complaint is required.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber