AS TO THE ADMISSIBILITY OF
Application no. 54039/00
by Quido MORSCHER
The European Court of Human Rights (Third Section), sitting on 20 March 2003 as a Chamber composed of
Mr G. Ress, President,
Mr L. Caflisch,
Mr P. Kūris,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mrs H.S. Greve,
Mrs E. Steiner, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 10 December 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 applicant, Mr Quido Morscher, is an Austrian national who was born in 1952 and lives 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.
In 1989 the applicant acquired real property in Weiler. On 7 February 1990 the Vorarlberg Regional Real Property Transactions Commission (Landesgrundverkehrskommission) dismissed the applicant’s request for a land acquisition permission which is required for the transfer of agricultural property under the Real Property Transaction Act (Grundverkehrsgesetz).
On 4 April 1990 the Vorarlberg Real Property Transactions Senate (Grundverkehrssenat) allowed the applicant’s appeal and granted the land acquisition permission.
On 7 January 1994 the applicant applied for a planning permission as he wished to construct a storehouse and production facilities to produce wood chips.
On 24 May 1994 the Feldkirch District Authority (Bezirkshaupt-mannschaft) dismissed this request, finding that there was no adequate way of access to the applicant’s plot of land. On 9 June 1994 the applicant filed an appeal against this decision.
On 29 September 1994 the Weiler Municipality issued a building prohibition for the area within which the applicant’s plot of land was situated, as it was planning to open re-allocation proceedings (Umlegungsverfahren) to ensure a more efficient use of the area. The Vorarlberg Regional Government (Landesregierung), which had to decide on the applicant’s appeal of 9 June 1994, asked the applicant to comment on the building prohibition.
On 9 November 1994 the Weiler Municipality issued a new building prohibition as the previous one had been quashed by the District Authority ex officio. The Vorarlberg Regional Government asked the applicant to comment on the new building prohibition.
On 29 December 1994 the Vorarlberg Regional Government, referring to the building prohibition, dismissed the appeal against the District Authority’s decision of 24 May 1994. The decision was served on 15 February 1995.
Meanwhile, on 2 February 1995 the applicant lodged an application against the administration’s failure to decide (Säumnisbeschwerde) with the Administrative Court (Verwaltungsgerichtshof), as the Regional Government had not decided on his appeal of 9 June 1994 within the statutory six-month time-limit. On 18 May 1995 the Administrative Court discontinued the proceedings for failure to decide as the Regional Government had already issued its decision on 29 December 1994.
On 29 March 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Regional Government’s decision of 29 December 1994. He complained that the building prohibition and consequently the refusal of the planning permission were unlawful.
On 25 September 1995 the Constitutional Court rejected the complaint for lack of prospects of success. Subsequently, the applicant requested the case to be transfered to the Administrative Court.
On 19 December 1995 the Administrative Court ordered the applicant to supplement his complaint.
On 9 February 1996 he complied with this order, and on 3 May 1996 the Regional Government submitted its observations.
On 29 August 1996 the Administrative Court allowed the complaint and quashed the Regional Government’s decision. It found that there was no indication that the applicant’s project interfered with the objective of the intended re-allocation proceedings for which reason the refusal of the planning permission was unlawful.
On 15 January 1997 the Regional Government remitted the case to the District Authority.
In January 1997 the Municipality opened the re-allocation proceedings and the District Authority asked the applicant to comment thereupon, as a planning permission could only be issued under the Vorarlberg Regional Planning Act (Raumplanungsgesetz), if the project did not interfere with the objective of the re-allocation proceedings and if the Regional Government authorised the project.
On 27 March 1997 the District Authority held a hearing.
On 2 May 1997 the applicant filed a request with the Regional Government for the authorisation of his project, as required under the Regional Planning Act.
On 5 March 1998, after the applicant had filed a number of comments and requests, he lodged with the Regional Government an application for a transfer of jurisdiction (Devolutionsantrag), as the District Authority had not decided within the statutory six-month time-limit. On the same day, the applicant lodged an application with the Administrative Court, on the ground that the Regional Government has failed to give authorisation as requested under the Regional Planning Act (Säumnisbeschwerde).
On 23 March 1998 the Administrative Court ordered the Regional Government to give a decision.
On 29 April 1998 the Regional Government refused the authorisation required under the Regional Planning Act.
On 14 Mai 1998 the Regional Government allowed the application for a transfer of jurisdiction but dismissed the request for the planning permission on the ground that the applicant’s project could have interfered with the objective of the re-allocation proceedings.
On 17 June 1998 the applicant lodged a complaint with the Administrative Court against the Regional Government’s decisions of 29 April and 14 Mai 1998.
On 5 June 1999 the Regional Government discontinued the re-allocation proceedings ex officio as the Municipality had not issued a re-allocation plan within two years as required under the applicable law. Since at this stage there was no building prohibition in force, the applicant requested the Regional Government to grant a planning permission on 26 August 1999.
On 1 October 1999 the Regional Government rejected the application on the ground that new re-allocation proceedings had meanwhile been opened for which reason the District Authority would have been the competent authority.
On 14 October 1999 the applicant filed an application for planning permission with the District Authority.
On 14 June 2000 the District Authority dismissed the new application. On 16 June 2000 the applicant filed an appeal against this decision with the Regional Government.
On 27 April 2000 the Administrative Court again quashed the decisions of the Regional Government of 29 April 1998 and of 14 Mai 1998, finding that there was no indication that the applicant’s project interfered with the objective of the re-allocation proceedings. This decision was served on 13 June 2000.
On 28 August 2000 the Regional Government granted both the authorisation which was required under the Regional Planning Act and the planning permission (served on 30 August 2000).
The applicant complains under Article 6 of the Convention about the length of the proceedings. Further, he complains that the Administrative Court cannot be regarded as a tribunal within the meaning of this provision because it does not have full jurisdiction. Further he complains that the Administrative Court’s decisions were no longer binding for the lower authorities, once the latter issued a new building prohibition.
The applicant complains under Article 6 § 1 about the length and the alleged unfairness of the administrative proceedings against him. Article 6 § 1, so far as relevant, provides as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”
1. In regard of the complaint about the length of the proceedings the Government contend that there were three sets of administrative proceedings. The first set of the proceedings under the Real Property Act, was terminated in April 1990, was not related to the following planning permission proceedings and the proceedings under the Regional Planning Act. The Government submit that the relevant period in the present context started on 24 May 1994 when the District Authority dismissed the applicant’s request for the planning permission, and ended in August 2000, when the Regional Government granted the requested permissions. Thus, the proceedings lasted six years and three months. Further, the Government argue that the proceedings were of some complexity as the authorities had to consider if the applicant’s project would have interfered with the planned re-allocation proceedings and that at all stages the authorities conducted the proceedings speedily and without any standstill. As to the applicant’s conduct, the Government submit that the applicant did not demonstrate much interest in a speedy conduct of the proceedings.
The applicant replies that the proceedings under the Real Property Act have to be considered together with the subsequent proceedings as he had taken preparatory steps which led to his application for the planning permission of 7 January 1994. He, further submits that the proceedings were not at all complex and that the complicated division of jurisdiction in land planning matters under Austrian law had been one of the main reasons for the long duration of the proceedings. Moreover, he contends that he made use of all available legal steps to accelerate the proceedings.
The Court notes that the proceedings under the Real Property Act, in which the authorities had to consider whether the requirements for the transfer of agricultural property had been met, were terminated in April 1990. The Court finds that these proceedings were not interrelated with the following proceedings at issue which started about four years later. In this respect and having regard to the date of the introduction of the present application, which was the 10 December 1999, the Court recalls 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 complaint concerning the planning permission proceedings and the proceedings under the Regional Planning Act the Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. As regards the complaint that the Administrative Court does not have full jurisdiction, the Court observes that the Austrian authorities eventually granted the applicant’s request for a planning permission. Having regard to these circumstances, the Court finds that the applicant can no longer claim to be a victim of the alleged violation, as required by Article 34 of the Convention.
It follows that this complaint is manifestly ill-founded with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints concerning length of the planning permission proceedings;
Declares the remainder of the application inadmissible.
Vincent Berger Georg Ress
MORSCHER v. AUSTRIA DECISION
MORSCHER v. AUSTRIA DECISION