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FIRST
SECTION
CASE OF RICHTER v. AUSTRIA
(Application
no. 4490/06)
JUDGMENT
STRASBOURG
18
December 2008
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 Richter v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4490/06) 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 an Austrian national, Mr Richard
Richter (“the applicant”), on 18 January 2006.
- The
applicant was represented by Mr W.L. Weh, a lawyer practising in
Bregenz. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the Law Department at the Federal Ministry
for European and International Affairs.
- On
4 April 2007 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Wolfurt.
- By
decision of 17 November 1998 the Hard municipality granted a request
by H., a building company, for permission to construct an apartment
block, situated next to the applicant's property. H. carried out the
construction work and, since the building deviated from one of the
authorised height levels by 21 centimetres, it requested an amendment
of the building permit on 19 November 1999.
- On
7 February 2000 the mayor of Hard granted the amended building
permit. He dismissed the applicant's objection that the ramp of the
building's underground car park failed to comply with the statutory
distance from his property.
- The
applicant lodged an appeal with the Hard Municipal Council
(Gemeinderat) on 23 February 2000. He alleged, in particular,
that the covered ramp of the underground car park did not constitute
a construction (Bauwerk) within the meaning of section 2(e) of
the Vorarlberg Building Act, for which a distance of two metres from
the adjacent property was required, but was a part of the building
within the meaning of section 2(g) of the said Act, for which a
minimum distance of three metres had to be observed. In addition he
claimed that, at any rate, the ramp was too high.
- On
12 December 2000 the Hard Municipal Council dismissed the applicant's
appeal. It found that the applicant had failed to raise his argument
in the initial proceedings concerning the building permit and was
therefore precluded from raising it now in the proceedings concerning
a mere request for amendment of the building permit. In any event,
the covered ramp to the underground car park could neither be
classified as a building or part of a building, but qualified as a
construction within the meaning of section 2(e) of the Vorarlberg
Building Act. The minimum distance from the applicant's plot of land
was therefore two metres and had in fact been respected.
- Subsequently,
on 28 December 2000 the applicant filed an objection (Vorstellung)
with the Bregenz District Administrative Authority, contesting the
Municipal Council's competence, because the respective appeals
commission had not been duly composed following municipal elections.
In addition, he repeated that the amendment of the permit did not
only involve minor changes, but constituted an overall change of the
project.
- On
31 May 2001 the District Administrative Authority dismissed the
applicant's objection.
- The
applicant lodged a complaint with the Administrative Court on 20 July
2001, repeating his arguments. Moreover, he requested an oral
hearing.
- On
28 September 2001 the District Administrative Authority submitted its
observations.
- On
20 March 2003 the Administrative Court, without a hearing, quashed
the District Administrative Authority's decision and remitted the
case back to it. Referring to a previous decision in a similar case,
it found that contrary to section 53 of the Vorarlberg Municipal Act
the Municipal Council's decision had been signed by the mayor and not
by the president of the appeals commission.
- On
14 May 2003 the District Administrative Authority granted the
applicant's objection of 28 December 2000 and remitted the case to
the Hard Municipal Council.
- Upholding
its decision of 12 December 2000, the Municipal Council again
dismissed the applicant's appeal on 19 August 2003.
- On
2 September 2003 the applicant lodged a further objection
(Vorstellung) with the Bregenz District Administrative
Authority, which the latter dismissed by a decision of 21 January
2004. It found that the ramp of the underground car park was only
partly covered and was thus to be qualified as a construction within
the meaning of section 2(e) of the Vorarlberg Building Act. The fact
that the building was 21 centimetres higher than initially authorised
did not change that assessment.
- Subsequently,
on 6 February 2004, the applicant lodged a further complaint with the
Administrative Court. He requested an oral hearing and, relying on
Article 6 of the Convention, complained that he had never been heard
in person during the proceedings. He contested the authority's
finding that the ramp of the underground car park was only partly
covered. The authority had wrongly applied the statutory minimum
distance between his plot of land and that ramp. Complying with an
order of the Administrative Court, the applicant supplemented his
complaint on 13 April 2004. The District Administrative Authority
submitted its observations on 6 July 2004.
- On
21 June 2005 the Administrative Court, without a hearing, dismissed
the applicant's complaint as being unfounded. It upheld the District
Administrative Authority's decision as to the minimum distance from
the applicant's property. Referring to the case of Allan Jacobsson
v. Sweden (no. 2) (19 February 1998, Reports of Judgments and
Decisions 1998 I) it held that no legal or factual questions
had been at stake, which required the holding of an oral hearing.
- The
decision was served on the applicant's counsel on 25 July 2005.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the length of the proceedings and about
the lack of a hearing before the Administrative Court. He relied on
Article 6 § 1 of the Convention, the relevant part of which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Government asserted that Article 6 was not applicable in the present
case. They underlined that the applicant had not appealed against the
decision granting the initial building permit to the H. company. In
the proceedings which concerned the amendment of that building
permit, the applicant's objection as to the distance of the ramp from
his property was dismissed as being precluded. The only point in
dispute was the increased height of the building. In the Government's
view a minor increase in the height of the building could not affect
the applicant's civil rights or pecuniary interests and the case
therefore had to be distinguished from the Ortenberg v. Austria
judgment (25 November 1994, Series A no. 295 B).
- For
his part the applicant maintained that Article 6 applied. He argued
in particular that the change in the height of building negatively
affected his property.
- The
Court observes that in the Ortenberg judgment (cited above,
§ 28) it found that the civil limb of Article 6 § 1
applied to proceedings in which the applicant opposed the granting of
planning permission to her neighbour. In coming to that conclusion
the Court had regard to the close link between the proceedings and
the consequences of their outcome for the applicant's property. The
present proceedings concerned an amendment of the building permit
granted to the applicant's neighbour allowing an increase of the
height of the building. Moreover, the authorities dealt with the
merits of the applicant's objection concerning the distance between
the ramp of the underground car park and his property. The Court sees
no reason to doubt that an increase in the height of a neighbouring
building or its distance has consequences for the applicant's
property. The civil limb of Article 6 §1 therefore applies.
- The
Court notes that this complaint 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
1. The length of the proceedings
- The
applicant maintained that the duration of the proceedings was
unreasonable.
- The
Government referred to the facts of the case, arguing that they did
not disclose a violation of Article 6 of the Convention.
- The
period to be taken into consideration began on 7 February 2000 when
the mayor of Hard granted the amended building permit to the
applicant's neighbour, dismissing at the same time the applicant's
objection against it, and ended on 25 July 2005, when the
Administrative Court's decision was served on the applicant's
counsel. It thus lasted five years and five and a half months for
four levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
present case was not complex and the applicant did not contribute to
their duration. As regards the conduct of the domestic authorities,
the Court notes that while the administrative authorities dealt
expeditiously with the case, considerable delays occurred in the
proceedings before the Administrative Court. There were periods of
inactivity in both sets of proceedings, namely from September 2001 to
March 2003 and from July 2004 to June 2005, thus amounting to a total
delay of two years and five months.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for instance, Gierlinger v. Austria, no. 38032/05,
§§ 18-20, 29 November 2007; Bösch v. Austria,
no.17912/05, §§ 20-22, 3 May 2007; Brunnthaler v.
Austria, no. 45289/99, §§ 38-41, 29 June 2006; and Alge
v. Austria, no. 38185/97, §§ 23-25, 22 January
2000).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. The lack of a hearing before the Administrative
Court
- The
applicant argued that the legal and factual questions raised by the
case were not straightforward and would have benefitted from oral
argument.
- The
Government asserted that the Administrative Court had to deal
exclusively with questions of law which could be determined on the
basis of the case file without a hearing. Furthermore, the applicant
had failed to give any reasons for his request for an oral hearing.
- The
Court notes that the applicant's case was heard by the mayor of Hard,
the Hard Municipal Council and the Bregenz District Administrative
Authority, that is, purely administrative authorities, and then by
the Administrative Court, which was the first and only tribunal to
examine the 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), 23
February 1994, §§ 21-22, Series A no. 283-A; Fischer v.
Austria, 26 April 1995, § 44, Series A no. 312; Stallinger
and Kuso v. Austria, 23 April 1997, § 51, Reports
1997-II; and Allan Jacobsson, cited above, § 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, 24 June 1993, § 58,
Series A no. 263; 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,
involved legal issues but also questions of fact. In particular the
applicant contested the District Administrative Authority's finding
that the ramp of the underground car park was only partly covered.
- 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 Administrative Court from the obligation to hold a
hearing. It notes that it has found violations of Article 6 § 1
of the Convention in a number of similar cases (see, for instance,
Emmer-Reissig v. Austria, no. 11032/04, §§ 29-31,
10 May 2007; Hofbauer v. Austria, no. 7401/04, §§
28-30, 10 May 2007; Bösch, cited above, §§
29-31; Brugger v. Austria, no. 76293/01, §§
23-25, 26 January 2006; Schelling v. Austria, no. 55193/00,
§§ 31-33, 10 November 2005; Birnleitner v. Austria,
no. 45203/99, §§ 40-41, 24 February 2005; and Alge,
cited above, §§ 30 31). It does not see any
reason to come to a different conclusion in the present case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage suffered as a result of the unreasonable duration of the
proceedings.
- The
Government contested the claim.
- The
Court, having regard to the sums awarded in comparable cases and
making an assessment on an equitable basis, awards the applicant
EUR 2,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable to the applicant on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 7,402.32, inclusive of value-added tax
(VAT), for the costs and expenses incurred in the second set of
domestic proceedings and in the Convention proceedings. He argued
that the duration of the proceedings would have remained reasonable
had the Administrative Court had the power to rule on the merits of
the case instead of referring it back to the administrative
authorities.
- The
Government commented that the costs incurred in the domestic
proceedings were not caused by an attempt to prevent or redress the
violation at issue. The costs claimed in respect of the Convention
proceedings were excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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, regard being had to the information in its
possession and the above criteria, the Court rejects the claim for
costs and expenses in the domestic proceedings. As regards the
Convention proceedings, the Court finds that an amount of EUR 2,000
is reasonable. This sum includes VAT.
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 the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the lack of a hearing
before a tribunal;
- 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 2,000 (two thousand
euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable to the applicant on that amount, and EUR 2,000 (two
thousand euros), which includes value-added tax, 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 amounts 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 18 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
