THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59879/00 
by Alois BERKMANN 
against Austria

The European Court of Human Rights (Third Section), sitting on 14 November 2002 as a Chamber composed of

Mr I. Cabral Barreto, 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 having deliberated, decides as follows:

 

THE FACTS

The applicant, Mr Alois Berkmann, is a Austrian national, who was born in 1946 and lives in Riefensberg (Austria). He is represented before the Court by Mr W. L. Weh, a lawyer practising in Bregenz (Austria).

A.  The circumstances of the case

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

Since 1975 Mr B ran a camping ground (“camping ground I”) on land owned by the applicant in Riefensberg. As the lease between Mr B and the applicant was due to expire in 1990, Mr B wanted to establish a new camping ground (“camping ground II”) in the neighbourhood of the applicant’s land. A planing permission for this project, however, required a modification of the area zoning plan (Flächenwidmungsplan) as the land at issue was designated as undeveloped land (Freifläche).

1. Building permit proceedings concerning camping ground I and II

On 10 August 1987 the Riefensberg Municipality modified the area zoning plan in respect of a parcel of land which was situated in the immediate neighbourhood of the applicant’s land on which Mr B intended to establish camping ground II. The parcel at issue was redesignated as a special area for camping grounds. Pursuant to the applicable law, the applicant was not a party to these proceedings.

On 22 December 1987 the Vorarlberg Regional Government (Landesregierung) granted authorisation for the modification of the area zoning plan as required under the Land Planning Act (Raumplanungsgesetz). It found that the modification was justified under the applicable law.

On 10 May 1988 Mr B applied for a building permit for camping ground II.

On 12 July 1988 the applicant filed an application for a building permit for camping ground I. On 6 September 1988 the District Administrative Authority asked the applicant to submit a building plan (Bebauungsplan) concerning his application.

On 1 February 1989 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) granted a temporary permit for camping ground II and found that camping ground I on the applicant’s land had to be shut down once Mr B started to use the new camping ground. The applicant appealed against that decision. He claimed that the old building permit of camping ground I passed onto him ex lege and that therefore the order to shut down was unlawful.

On 10 April 1989 the Vorarlberg Provincial Government partly allowed the applicant’s appeal but confirmed that Mr B had to shut down camping ground I.

On 5 June 1989 the applicant lodged a complaint with the Constitutional Court and requested that suspensive effect (aufschiebende Wirkung) be granted for his complaint. He alleged that the old building permit of camping ground I had passed onto him ex lege and that therefore the order to shut down camping ground I was unlawful. Further, he submitted that the above-mentioned modification of the area zoning plan was unlawful.

On 1 August 1989 the Constitutional Court refused to grant suspensive effect.

On 25 January 1990 the District Administrative Authority again asked the applicant to submit a building plan for camping ground I, referring to its letter of 6 September 1988.

On 25 February 1990 the applicant filed a request to suspend the building permit proceedings concerning camping ground I due to the pending proceedings concerning camping ground II.

On 27 February 1990 the Constitutional Court refused to deal with the applicant’s complaint of 5 June 1989 for lack of prospects of success. It endorsed the arguments given by the Regional Government in its observations in reply (Gegenschrift), in which the Regional Government had stated that the modification of the area zoning plan was justified under local tourism aspects and that no other reasons were established which  militated against the lawfulness of the modification. Subsequently, the case was transferred to the Administrative Court.

On 26 June 1990 the applicant supplemented his complaint to the Administrative Court.

On 8 October 1990 the Administrative Court refused to grant suspensive effect (aufschiebende Wirkung) to the applicant’s complaint.

On 27 November 1990 the Administrative Court dismissed the applicant’s complaint and found that the order to shut down camping ground I and the building permit for camping ground II were lawful. Further, it found that the applicant had no individual rights concerning the designation of Mr B’s land and that, therefore, the area zoning plan was not decisive for the decisions of the administrative authorities. This decision was served on 31 January 1991.

On 11 February 1991 the applicant filed a request to reopen the suspended building permit proceedings concerning camping ground I, modified his application of 12 July 1988 as he, from now on, applied for a prolongation of the old building permit for camping ground I which had originally been granted to Mr B. At the same time he submitted the building plan.

On 30 April 1991 Mr B submitted that he had shut down camping ground I and that camping ground II was opened.

On 15 Mai 1991 the District Administrative Authority held a hearing concerning the building permit for camping ground I.

On 14 November 1991 the applicant filed a request for transfer of jurisdiction (Devolutionsantrag), as the District Administrative Authority failed to decide on his application within the statutory six month-period.

On 16 March 1992 the Vorarlberg Regional Government (Landesregierung) allowed this request. However, it dismissed the applicant’s application for the building permit as it found that the old building permit for camping ground I had been made out to Mr B and that the applicant, therefore, had no right to request its prolongation.

On 15 June 1992 the applicant filed a complaint with the Administrative Court. He contended that the building permit had passed on to him.

On 25 April 1996 the Administrative Court allowed the applicant’s complaint and quashed the Regional Government’s decision.

Subsequently, the Regional Government appointed an expert on nature conservation to clarify whether the prolongation of the building permit for camping ground I interfered with the objectives of the applicable law.

On 10 October 1996 the expert lodged his report.

On 4 November 1996 the applicant filed a request to appoint another expert, alleging that the first expert had been biased.

On 6 December 1996 the Regional Government appointed another expert who was not able to submit his report before springtime due to snow on the applicant’s estate.

On 14 April 1997 the expert submitted his report. The applicant commented on this report. On 26 June 1997 the expert was asked to supplement his report. On 10 October 1997 the expert submitted the supplemented report. He stated that there were no objections against the applicant’s project if he would ensure for proper planting (Bepflanzung) of the land.

On 10 July 1998 Mr B commented on the applicant’s project and the applicant replied.

On 30 July 1998 the applicant submitted a planting plan (Bepflanzungsplan), as he had been ordered to do by the Regional Government.

On 3 November 1998 the Regional Government granted the building permit for camping ground I.

On 17 December 1998 Mr B filed a complaint against that decision with the Administrative Court.

On 16 February 1999 the Administrative Court granted suspensive effect to Mr B’s complaint.

On 11 March 1999 the applicant submitted observations on Mr B’s complaint.

On 5 December 2000 the Administrative Court dismissed Mr B’s complaint and confirmed the Regional Government’s decision to grant the building permit for camping ground I to the applicant.

2. Second building permit proceedings concerning camping ground II

On 19 January 1999 Mr B filed an application for the prolongation of the permit concerning camping ground II.

On 18 April 1999 the applicant commented on Mr B’s application.

On 16 August 1999 the District Administrative Authority granted the permit. The applicant appealed against this decision on 7 September 1999. He submitted that the modification of the area zoning plan of 1987 was unlawful.

On 12 October 1999 the Regional Government dismissed the appeal. The applicant filed a complaint with the Constitutional Court.

On 28 February 2000 the Constitutional Court refused to deal with the case for lack of prospects of success and referred to its constant case-law and to its decision of 27 February 1990. Subsequently, the case was transferred to the Administrative Court.

On 31 May 2000 the Administrative Court ordered the applicant to supplement his complaint.

On 4 August 2000 the applicant submitted the supplemented complaint and on 6 November 2000 Mr B submitted his observations.

On 20 December 2001 the Administrative Court dismissed the complaint and found that the applicant had failed to submit any arguments which would show that his individual rights were violated and that, therefore, the prolongation of the building permit for camping ground II was lawful. Further it found that the applicant had no individual right concerning the dedication of Mr B’s land.

B.  Relevant domestic law and practice

1. The review of administrative decisions and decrees

Austrian administrative law distinguishes between decrees (Verordnung) and (individual) decisions (Bescheid). Decisions of administrative authorities are addressed to individuals and can be challenged by way of appeal (Berufung) under Section 67 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz). Final administrative decisions may be challenged by way of complaints with the Constitutional Court under Article 144 of the Constitution and complaints with the Administrative Court under Article 130 of the Constitution.

In contrast, decrees are addressed to the general public. The lawfulness of decrees can only be reviewed by the Constitutional Court. If it is possible to institute administrative proceedings in which the allegedly unlawful decree applies, the question of the lawfulness, can be brought before the Constitutional Court by a constitutional complaint under Article 144 of the Federal Constitution, or by a request made by the Administrative Court, an Independent Administrative Panel or an ordinary court under Article 139 of the Constitution. In exceptional circumstances a person, who is affected by a decree, may seize the Constitutional Court with an independent request for review of the lawfulness of a decree, namely if the decree has direct consequences for the situation of the person without it being necessary that an administrative decision is taken.

The Constitutional Court reviews whether there has been any infringement of an applicant’s right under the Constitution and whether any decree unauthorised by statute law or any unconstitutional statute or international treaty unlawful under Austrian law has been applied (Article 144 of the Federal Constitution).

2. Vorarlberg Land Planning Act

In Vorarlberg the use of land is governed by the Vorarlberg Land Planning Act (Raumplanungsgesetz). Area zoning plans and any amendments thereto are regarded as decrees. The proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them.

The competent local authorities (Gemeinden) must take into consideration principles of sustainable land use as well as planning proceedings of neighbouring local authorities and other public law corporations (Section 2 and 3 of the Land Planning Act).

If the area zoning plan is the basis for the granting or withholding of building permits the persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings. Further he complains that his right of access to a tribunal with full jurisdiction had been violated. He submits that the lawfulness of the area zoning plan only can be challenged before the Constitutional Court which, allegedly, did not have full jurisdiction.

THE LAW

1. The applicant complains that the proceedings were not concluded within a reasonable time. The applicant relies on Article 6 of the Convention which, insofar as relevant, reads as follows:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ....”

The Court observes that there were three sets of proceedings:

a. As regards the building permit proceedings concerning camping ground I the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

b. As regards the first building permit proceedings concerning camping ground II the Court notes that they were terminated on 31 January 1991, when the Administrative Court’s decision was served. However, the application was only introduced on 21 July 2000, which is more than six months after proceedings were terminated.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

c. As regards the proceedings concerning the prolongation of the building permit for camping ground II the Court notes that the proceedings started on 7 September 1999, when the applicant filed his appeal against the District Administrative Authority’s permit of 16 August 1999. The proceedings were terminated on 20 December 2001, when the Administrative Court dismissed the applicant’s complaint. Thus, they lasted approximately two year and three months.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, for example, Torri v. Italy, judgment of 1 July 1997, Reports 1997-IV, § 24).

In the instant case the Court considers that a period of approximately two years and three months for proceedings before three levels of jurisdiction, notwithstanding the period of thirteen months and two weeks which elapsed between 6 November 2000, when Mr B submitted his observations, and 20 December 2001, when the Administrative Court decided, cannot be regarded as unreasonable.

Consequently, there is no appearance of a violation of Article 6 § 1 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant also submits that, as regards the lawfulness of the area zoning plan, his right of access to court has been violated. He claims that the only possibility to challenge the area zoning plan designating the neighbour’s plot of land was to lodge a complaint with the Constitutional Court against the building permit of the neighbour’s camping ground. He complains that the Constitutional Court does not have full jurisdiction on questions of law and fact. Article 6 of the Convention, insofar as relevant, reads as follows:

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

The Court recalls that, according to the principles laid down in its case-law, Article 6 § 1 of the Convention extends only to “contestations” (disputes) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. Article 6 § 1 is not aimed at creating new substantive rights, without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (W. v. United Kingdom, judgment of 8 July 1987, Series A no. 121-A, p. 32, § 73; Kraska v. Switzerland, judgment of 19 April 1993, Series A no. 254-B, p. 48, § 24; Zander v. Sweden, judgment of 25 November 1993, Series A no. 279, p. 39, § 24).

The Court further recalls that Article 6 applies to proceedings concerning the grant of a building permit (see Ortenberg v. Austria, judgment of 25 November 1994, Series A no. 295-B, pp. 48-49, § 28), to exemptions from building prohibitions (see Skärby v. Sweden, judgment of 28 June 1990, Series A no. 180-B, p. 36, §§ 27 et seq.) or to orders to demolish unlawfully erected buildings (see Bryan v. the United Kingdom, judgment of 22 November 1995, Series A no. 335-A, p. 14, § 31). However, Article 6 is not applicable to proceedings for the amendment of a zoning plan if the person concerned has no right under domestic law to such an amendment and, thus, no civil right is in issue (no. 11844/85, Dec. 29.2.88, D.R. 55 p. 205). Moreover, Article 6 does not apply to proceedings concerning a demolition order addressed to the owner of an adjacent parcel of land (see Krickl v. Austria, application no. 21752/93, Commission decision of 21 May 1997, D.R. 89, p. 5) and to proceedings for a building permit if such a permit is not allowed under the zoning plan in force (no. 10471/83, Dec. 9.12.85, D.R. 45 p. 113; no. 26085/95, Dec. 28.2.96 unreported; no. 26794/95, Dec. 4.9.96, unreported; Enzi v. Austria (Dec.), no. 29268/95, 8.2.2000, unreported).

The Court notes that in the present case the applicant challenged the characterisation of his neighbour’s plot of land in the area zoning plan. The Court observes that Austrian law, in particular the Vorarlberg Land Planning Act, did not provide for locus standi in proceedings regarding an amendment of the area zoning plan. Moreover, Section 8 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz), as Article 6 of the Convention itself, only transforms substantive rights into procedural rights, but does not itself guarantee a particular substantive right.

The Court observes that the proceedings in question were "norm-control proceedings", i.e. proceedings in which the Constitutional Court had to examine the lawfulness of the decree under the Land Planning Act and under the Constitution independently of the particular case of the applicant.

It notes that in the present case the applicant could not rely on a right, recognised under domestic law, to object to the characterisation of his neighbour’s land by the area zoning plan.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the building permit proceedings concerning camping ground I;

Declares inadmissible the remainder of the application.

Vincent Berger Ireneu Cabral Barreto 
 Registrar President

BERKMANN v. AUSTRIA DECISION


BERKMANN v. AUSTRIA DECISION