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FIRST
SECTION
CASE OF HOFBAUER v. AUSTRIA (No. 2)
(Application
no. 7401/04)
JUDGMENT
STRASBOURG
10 May
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Hofbauer v. Austria (no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 10 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7401/04) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Alois Hofbauer (“the applicant”)
on 19 February 2004.
- The
applicant was represented by Mr H. Malek, a lawyer practising in
Krems (Austria). The Austrian Government (“the Government”)
were represented by their Agent, Ambassador Mr F. Trauttmansdorff,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that the Administrative Court had
failed to hold an oral hearing and had thus breached Article 6.
- On
24 November 2005 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1935 and lives in Gföhl.
- On
1 May 1994 the applicant requested the mayor of Gföhl to issue a
demolition order for his neighbour's wicker fence. He submitted, in
particular, that the fence had not been constructed in accordance
with the provisions of the Building Act relating to fire-protection
measures. Further, the fence hindered him in the exercise of his
right to carry out maintenance works on a wooden fence he had erected
on his own land.
- As
the mayor had not taken a decision within the statutory time-limit,
the applicant lodged a request for transfer of jurisdiction with the
Gföhl municipal council on 28 August 2001. On 6 September 2001
the applicant repeated his request of 1 May 2004 for the removal of
the neighbour's fence.
- The
mayor notified the applicant on 27 September 2001 that, according to
his neighbours' statements, the applicant would be allowed to enter
their property provided that they were given eight days' notice. The
issuing of an administrative decision (Bescheid) would
therefore be superfluous. The applicant filed a further request on 30
September 2001, insisting on a decision by the mayor.
- By
notification of 4 October 2001 the mayor informed the applicant that,
according to his neighbours, the fence had already been removed. He
asked the applicant if he still wanted the municipal council to
decide on his request for transfer of jurisdiction.
- On
7 October 2001 the applicant wrote to the municipal council saying
that he was still waiting for a decision. On 18 October 2001 the
Gföhl municipal council, informed the applicant that it did not
find it necessary to take a formal decision on the case, as the fence
had been removed.
- On
5 November 2001 the applicant lodged an appeal (Vorstellung)
with the Lower Austria Regional Government stating that even though
the fence itself had been removed, there were still five iron fence
posts standing along the common border.
- On
3 May 2002 the Lower Austria Regional Government rejected the appeal,
finding that the letter of 18 October 2001 could not be regarded as a
formal decision (Bescheid), which is why an appeal was not
admissible. An appeal lay only against formal decisions.
- The
applicant then lodged an application with the Administrative Court on
23 May 2002 against the administration's failure to decide
(Säumnisbeschwerde).
- On
3 June 2002 the Administrative Court ordered the municipal council to
issue a decision within three months. On the municipal council's
request, the Administrative Court extended the time-limit to 15
November 2002.
- By
decision of 9 October 2002 the municipal council dismissed the
applicant's request, holding that the fence had already been removed
in October 2001.
- On
21 October 2002 the applicant lodged an appeal (Vorstellung)
with the Lower Austria Regional Government claiming that as there
were still five posts standing on the neighbours' premises the fence
had not been entirely removed.
- Confirming
the municipal council's decision, the Lower Austria Regional
Government dismissed the applicant's appeal on 23 March 2003. It
stated that the fence had been removed and that the wooden fence
standing on his own premises was an even greater fire risk than the
five iron posts at issue.
- On
11 April 2003 the applicant lodged a complaint with the
Administrative Court. He also requested a public hearing before that
court.
- On
24 April 2003 the Administrative Court ordered the applicant to
supplement his complaint, which he did on 14 May 2003. The Lower
Austria Regional Government submitted their comments on the
applicant's complaint on 21 July 2003.
- On
18 November 2003 the Administrative Court dismissed the applicant's
complaint as being unfounded. It found that the posts did not
constitute a risk endangering the applicant's property and therefore
no removal could be requested. Furthermore, the Administrative Court
dismissed the applicant's request for an oral hearing, relying on
Section 39(2)(6) of the Administrative Court Act, which allows
it to forego a hearing if it is not likely to contribute to the
clarification of the case. The decision was served on the applicant's
counsel on 4 December 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE LACK OF AN ORAL HEARING
- The
applicant complained under Article 6 § 1 of the Convention about
the Administrative Court's refusal to hold an oral hearing.
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government, referring to the Court's case-law, argued that under
exceptional circumstances the domestic courts, for reasons of
efficiency, could refrain from holding a public and oral hearing
where only questions of law or highly technical questions were to be
determined or where questions of fact or law raised by the applicant
did not require the conduct of such a hearing. As the questions in
the present case merely concerned the correct application of the
relevant provisions of the Lower Austria Building Act, the
Administrative Court could forego an oral hearing as those questions
could adequately be decided on the basis of the case file. Moreover
the applicant had not given any specific reasons why a hearing before
the Administrative Court was necessary. In particular, he had not
requested the Administrative Court to hear him in person.
- The
applicant submitted that the Administrative Court should have held a
hearing in which questions of facts and law had to be discussed. He
submitted that the relevant provisions of the Lower Austria Building
Act required that an oral hearing be held before the building
authorities. The Administrative Court should therefore have held one.
In addition, there was nothing to indicate that he should have given
reasons for wanting an oral hearing.
- The
Court notes that the applicant's case was heard by the municipal
council and the Regional Government, that is, purely administrative
authorities, and then by the Administrative Court, which dismissed
the applicant's complaint. Although the applicant argued that the
Administrative Court did not qualify as a tribunal, there is no
indication in the file that the Administrative Court's scope of
review was insufficient in the circumstances of the case (see, for
instance, Fischer v. Austria, judgment of 26 April 1995,
Series A no. 312, pp. 17-18, §§ 30-34 with further
references). Thus, the Administrative Court was the first and only
tribunal which examined the applicant's case.
- As
the Austrian reservation in respect of Article 6 § 1 concerning
the requirement that hearings be public has been found to be invalid
(see Eisenstecken v. Austria, no. 29477/95, § 29, ECHR
2000-X), the applicant was in principle entitled to a public hearing
before the first and only tribunal examining his case, unless there
were exceptional circumstances which justified dispensing with such a
hearing (see, for instance, Fredin v. Sweden (no.2),
judgment of 23 February 1994, Series A no. 283-A, pp. 10- 11,
§§ 21-22; Fischer, cited above, pp. 20-21, §
44; Stallinger and Kuso v. Austria, judgment of 23 April 1997,
Reports of Judgments and Decisions 1997-II, pp. 679-80, §
51; and Allan Jacobsson v. Sweden (no. 2), judgment of 19
February 1998, Reports 1998-I, p. 168, § 46).
- The
Court has accepted such exceptional circumstances in cases where the
proceedings concerned exclusively legal or highly technical questions
(see Schuler-Zgraggen v. Switzerland, judgment of 24 June
1993, Series A no. 263, pp. 19-20, § 58; Varela Assalino v.
Portugal (dec.), no. 64336/01, 25 April 2002; and Speil
v. Austria (dec.) no. 42057/98, 5 September 2002). In
particular, the Court has had regard to the rather technical nature
of disputes over benefits under social-security schemes and has
repeatedly held that in this sphere the national authorities, having
regard to the demands of efficiency and economy, could abstain from
holding a hearing if the case could be adequately resolved on the
basis of the case file and the parties' written observations (see,
among other authorities, Döry v. Sweden, no. 28394/95, 12
November 2002, and Pitkänen v. Sweden (dec.), no.
52793/99, 26 August 2003).
- Turning
to the circumstances of the present case, the Court notes that the
dispute, as presented by the applicant to the Administrative Court,
concerned the issue whether the competent authorities should have
issued a removal order and, in that context, had to decide questions
of fact, namely, whether the remaining posts constituted a danger for
the applicant's land.
- The
Court cannot find that the subject matter of the dispute was of such
a nature –namely, highly technical or exclusively legal –
as to dispense the national authorities from their obligation to hold
a hearing.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 AND ARTICLE 3 OF
THE CONVENTION
- Invoking
Article 6 of the Convention, the applicant also complained about the
length of proceedings. In addition, he complained about the
Administrative Court's limited scope of review. Without specifying
his complaint, he alleged a breach of Article 3 of the Convention.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of pecuniary damage
for the costs incurred on account of the unlawful erection of the
wicker fence, which violated his rights as a neighbour under the
Lower Austria Building Act. Under the head of non-pecuniary damage
the applicant claimed EUR 25,000 and submitted that he had suffered
as a result of the treatment by the competent municipal authorities,
which had refused to deal with his request for political reasons.
- The Government submitted that there was no causal link
between the pecuniary damage claimed and the lack of an oral hearing
before the Administrative Court. They further contended that the
finding of a violation constituted sufficient reparation in respect
of any non-pecuniary damage suffered.
- The
Court reiterates that it cannot speculate what the outcome of the
proceedings would have been if they had been in conformity with
Article 6 of the Convention. Accordingly, it dismisses the claim for
damages for pecuniary loss. Further, the Court considers that the
finding of a violation constitutes sufficient just satisfaction for
any non-pecuniary damage the applicant may have sustained in the
present case (see, mutatis mutandis, Osinger v. Austria,
no. 54645/00, § 58, 24 March 2005, with further references).
B. Costs and expenses
- The
applicant claimed EUR 3,987.23 (including turnover tax) for the costs
and expenses incurred before the domestic courts and EUR 1,331.90
(including turnover tax) for those incurred in the proceedings before
the Court, plus EUR 396 for an expert opinion of 29 March 2006 on the
costs of maintenance work on his wooden fence.
- The Government argued that there was no casual link
between the costs incurred before the domestic courts and the lack of
an oral hearing. They further asserted that the applicant's claims
concerning the proceedings before the Court were excessive.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case, it
does not appear from the applicant's submissions that any specific
costs were incurred in relation to the request for an oral hearing.
As to the costs of a further expert opinion, the Court notes that the
claim has nothing to do with the subject matter of the proceedings
before the Court. Therefore no award can be made under this head.
- As
regards the costs and expenses incurred before the Court, the Court
notes that the applicant, who was represented by counsel, did not
have the benefit of legal aid. It considers it reasonable that the
sum claimed should be awarded in full.
C. Default
interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaint concerning the
lack of an oral hearing before the Administrative Court and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the lack of an oral hearing
before the Administrative Court;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,331.90 (one thousand
three hundred and thirty one euros ninety cents) in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
