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FIRST
SECTION
CASE OF KUGLER v. AUSTRIA
(Application
no. 65631/01)
JUDGMENT
STRASBOURG
14 October
2010
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 Kugler 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 23 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 65631/01) 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 Paul Kugler (“the
applicant”), on 16 January 2001.
- 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 H. Tichy, Head of the
International Law Department at the Federal Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that proceedings for a building
permit had lasted unreasonably long, that no public hearing had been
held and that the proceedings had been unfair.
- By
a decision of 27 November 2008 the Court declared the application
partly admissible. In particular, it declared the application
inadmissible as regards the complaints raised by the then first
applicant Mr Peter Kugler.
- The
applicant, but not the Government, filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in Imst, Austria.
- The
applicant is the co-owner of a plot of land in Lech, Austria which
had been designated as building land (Bauland); one building
had already been constructed on the land. On 22 July 1987 the Lech
municipal authorities informed the applicant that they intended to
modify the area zoning plan (Flächenwidmungsplan) and to
designate the remaining part of the land as open land
(Freihaltefläche) because, being located on a steep
slope, they considered that the remaining part was not suitable for
construction under the Vorarlberg Regional Planning Act
(Raumplanungs gesetz).
- On
6 August 1987 the applicant lodged an application for a building
permit in order to construct a hotel on the plot of land at issue.
- On
14 June 1988 the Lech municipal authorities issued a building
prohibition in respect of the applicant’s plot of land.
- The
Bludenz District Administrative Authority (“the District
Administrative Authority”) (Bezirkshauptmannschaft) held
a hearing on 23 September 1988 concerning the applicant’s
application for a building permit.
On 4
July 1991 the Lech municipal authorities extended the building
prohibition.
- On
31 July 1991 the applicant lodged an application for a transfer of
jurisdiction (Devolutionsantrag) because the District
Administrative Authority had not reached a decision within the
statutory six-month time-limit.
- The
Vorarlberg Regional Government (“the Regional Government”)
allowed that application on 10 October 1991 but dismissed the
applicant’s application for a building permit on the ground
that the permit would contravene the building prohibition. The
applicant lodged a complaint with the Constitutional Court.
- On
19 March 1992 Lech Municipal Council (“the Municipal Council”)
issued a decree determining the maximum building density
(Baunutzungszahl) for the category of land which included the
applicant’s land, and on 2 July 1992 it lifted the building
prohibition. The applicant thereupon asked the Regional Government to
reopen the building permit proceedings.
- On
28 September 1992 the Constitutional Court dismissed the applicant’s
complaint against the decision of 10 October 1991. It found that the
building prohibition was lawful.
- On
29 September 1992 the Regional Government dismissed the request to
reopen the building permit proceedings. The applicant lodged a
complaint with the Administrative Court.
- On
28 January 1993 the Administrative Court dismissed the applicant’s
complaint. It found that the conditions for reopening the building
permit proceedings had not been met. That decision was served on
24 February 1993.
- The
applicant requested a partition of land (Grundstücksteilung)
on 26 September 1995, but withdrew this request on 30 April
1996.
- On
11 November 1996 the applicant lodged a fresh application for a
building permit to enable him to carry out construction work on his
land.
- On
26 February 1997 the District Administrative Authority informed the
applicant of the Lech municipal authorities’ submissions to the
effect that the maximum building density laid down by the decree of
19 March 1992 did not allow the construction of another building on
his plot of land. The applicant commented on this information. After
the Lech municipal authorities had submitted further comments on 6
October 1997, the applicant asked the District Administrative
Authority to decide on his application.
- On
25 June 1997 the Municipal Council adopted a building plan
(Bebauungsplan) which amended the decree of 19 March 1992 but
left the maximum building density unchanged. On 1 July 1997 the
Regional Government approved the building plan.
- On
28 October 1997 the District Administrative Authority dismissed the
applicant’s application for a building permit. It found that
the maximum building density defined in the building plan did not
allow the construction of another building on the applicant’s
plot of land. On 12 November 1997 the applicant lodged an appeal.
- The
Regional Government dismissed the appeal on 2 June 1998 and upheld
the District Administrative Authority’s finding.
- On
16 July 1998 the applicant lodged a complaint with the Constitutional
Court and requested an oral hearing. He submitted that the area
zoning plan and the building plan were unlawful, and claimed that the
Regional Government had refused to allow him to consult the case file
in the building plan proceedings.
- On
7 September 1998 the Lech municipal authorities submitted their
observations; on 15 September 1998 the Regional Government did
likewise.
- On
6 October 1998 the applicant’s counsel consulted the case file
at the Constitutional Court, which, on the following day, forwarded
all the case file documents to him.
- On
8 June 2001 the applicant’s counsel asked the Constitutional
Court if he could consult further documents concerning the original
area zoning plan.
- On
12 June 2001 the Constitutional Court declined to deal with the
complaint because it lacked any prospect of success. It found that,
considering the hillside location of the plot of land, its allegedly
unlawful designation appeared to be reasonable.
- Subsequently,
the case was transferred to the Administrative Court and on 11
October 2001 the applicant amended his complaint and requested an
oral hearing. He submitted that the refusal to issue the building
permit had been based on an unlawful area zoning plan and building
plan. He requested that a hearing be held and an on-site inspection
carried out, and that he be given the opportunity to consult all the
documents concerning his plot of land.
- On
20 March 2003 the Administrative Court dismissed the complaint. It
found that the refusal to issue the building permit had been lawful,
because the maximum building density for the plot of land at issue
had already been exceeded by the construction of the existing
buildings. Furthermore, it found that it was not necessary to hold a
hearing or to carry out an on-site inspection, because the applicant
had merely contested the lawfulness of the area zoning plan and the
building plan, which had already been reviewed by the Constitutional
Court. That decision was served on 30 April 2003.
- On
19 January 2005 the applicant applied for a building permit for a
private house on the same plot of land.
- Following
a hearing held on 5 August 2005, on 2 September 2005 the Lech
municipal authorities granted the application; the decision was
served on the applicant’s counsel on 5 December 2005.
II. RELEVANT DOMESTIC LAW
- In
Austrian law area zoning plans and any amendments thereto are
regarded as decrees (Verordnungen), even if they only concern
one individual’s property. Accordingly, the proceedings in
which they are issued are not normal administrative proceedings and
the persons affected are not parties to them. The lawfulness of
decrees can be challenged before the Constitutional Court under
Article 139 of the Federal-Constitution Act. However, case-law has
established that area zoning plans cannot be directly challenged in
proceedings under Article 139 by the individuals affected if it is
possible to institute administrative proceedings.
- This
is the case, in particular, where 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.
- The
review of the lawfulness of general legal acts such as decrees issued
by administrative authorities as to their lawfulness and of laws
(Gesetze) as to their constitutionality is concentrated with
the Constitutional Court. Only that Court is therefore to carry out
this review. Article 139 of the Federal-Constitution Act, insofar as
relevant, provides as follows:
“(1) The Constitutional Court decides
on application by an ordinary court or an independent administrative
tribunal whether decrees issued by a federal or regional authority
... are contrary to law, but ex officio in so far as the
Constitutional Court would have to apply such a decree in a case
pending before it. It also decides on application by the Federal
Government whether decrees issued by a regional authority are
contrary to law and likewise on application by the municipality
concerned whether ordinances issued by a municipal affairs
supervisory authority ... are contrary to law. It decides furthermore
whether decrees are contrary to law when an application alleges
direct infringement of personal rights through such unlawfulness in
so far as the decree has become operative for the applicant without
the delivery of a judicial decision or the issue of a ruling ...
(2) If the applicant of a complaint lodged
with the Constitutional Court, entailing application of a decree by
the Constitutional Court, receives satisfaction, the proceedings for
the review of a decree shall nevertheless continue.
(3) The Constitutional Court may repeal a
decree as contrary to law only to the extent that its repeal was
expressly requested or the Constitutional Court would have had to
apply it in the pending case. If the Constitutional Court reaches the
conclusion that the whole decree
a) has no legal basis,
b) was issued by an authority without
competence in the matter, or
c) was published in a manner contrary to law,
it shall repeal the whole decree as unlawful. This does
not hold good if repeal of the whole decree manifestly runs contrary
to the legitimate interests of the applicant who has filed a
complaint pursuant to the last sentence in para 1 above or whose case
has been the occasion for the initiation of ex officio review
proceedings into the decree.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the proceedings concerning
the granting of a building permit had been incompatible with the
“reasonable time” requirement laid down in Article 6 §
1 of the Convention, 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 ...”
- The
Court observes at the outset that in its decision of 27 November 2008
on the admissibility of the present application it only declared
admissible the applicant’s complaint about the length of the
proceedings relating to the proceedings which commenced on 12
November 1997. Thus, the Court will only examine whether the
proceedings which started on that date, when the applicant lodged his
appeal against the District Administrative Authority’s decision
of 28 October 1997 and ended on 30 April 2003, when the
Administrative Court’s decision was served on his lawyer,
comply with the reasonable time requirement under Article 6 § 1.
- The
applicant argued that the length of the proceedings at issue had been
unreasonable. He claimed that while the case had been pending before
the Constitutional Court he had been waiting for further files in
order to submit his written statement. The length of the proceedings
was therefore attributable to the Constitutional Court, which had
failed to provide the applicant with those documents.
- The
Government argued that the duration had not been solely attributable
to the State. The Constitutional Court had asked the authorities to
submit observations, which had been sent to the applicant’s
counsel on 23 September 1998. After an inspection of the case
file by the applicant’s lawyer on 6 October 1998, a volume of
files held by the Lech municipal authorities had been transmitted to
him at his request. The applicant’s written reply and a request
for files concerning a different set of proceedings had not been
received until 8 June 2001, more than two years later. Subsequently,
just four days later, on 12 June 2001 the Constitutional Court had
decided that the complaint lacked any prospect of success. Because
this delay was attributable to the applicant and not to the State,
the length of the proceedings could still be regarded as reasonable.
- 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 (see, among
many other authorities, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000 VII). It notes that the
period to be taken into consideration under Article 6 § 1
lasted for more than five years and five months. During this period
the case was dealt with by one administrative and two judicial
bodies.
- In
the Court’s view the case was not very complex and the delay of
more than two years before the Constitutional Court was not
attributable to the applicant. The Constitutional Court brought the
observations of the Austrian authorities to the applicant’s
attention on 23 September 1998, without requesting written comments
to be submitted in reply by the applicant. The Government have
therefore not shown that the Constitutional Court was actually
waiting for the applicant’s comments for nearly three years;
only if that were the case would the delay have been attributable to
the applicant.
- The
Court therefore considers that in the instant case the length of the
second proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has accordingly been a breach of Article 6 § 1 on account of the
length of the above proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE LACK OF A PUBLIC HEARING
- The
applicant further complained that there had not been a public
hearing. This was contrary to the right to a fair hearing as laid
down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal...”
- The
applicant submitted that neither the Administrative Court nor the
Constitutional Court held a public oral hearing, even though he had
asked for one. In this connection the applicant submitted that the
essential question, namely, the modification of the area zoning plan,
had been examined not by the Administrative Court but by the
Constitutional Court. The applicant maintained that there were no
special circumstances that justified foregoing a hearing. The
applicant also maintained that the Constitutional Court was not a
tribunal within the meaning of Article 6 of the Convention.
- The
Government contended that the right to a public hearing was not
absolute. In the present case the courts had been right to dispense
with a hearing, because the question of the lawfulness of the area
zoning plan concerned exclusively legal questions and could be
decided on the basis of the case file.
- According
to the Court’s case-law, the right to a public hearing under
Article 6 entails an entitlement to an “oral hearing”
unless there are exceptional circumstances that justify dispensing
with such a hearing (see, for instance, Stallinger and Kuso v.
Austria, 23 April 1997, § 51, Reports of
Judgments and Decisions 1997-II, and Allan Jacobsson v. Sweden
(no. 2), 19 February 1998, § 46, Reports of
Judgments and Decisions 1998-I).
- The
applicant requested a hearing before the Constitutional Court and
also before the Administrative Court. Thus, he did not waive his
right to a hearing. The Court must therefore examine whether the lack
of a public hearing in the proceedings before the Constitutional
Court or the Administrative Court violated the applicant’s
rights under Article 6.
- The
Court observes that the Municipal Council which issued the area
zoning plan and the building plan was not a tribunal within the
meaning of Article 6 § 1. Furthermore, the applicant could
not obtain a review of the zoning plan and the building plan in
abstracto by the Constitutional Court, but could only raise the
question of its lawfulness in concreto in the context of
administrative proceedings on a request for a building permit. In a
similar case, also relating to the review of an area zoning plan, the
Convention organs have found that this limitation of access to the
Constitutional and the Administrative Courts does not impair the
"right to a court" as guaranteed by Article 6 of the
Convention (see Berger and Hüttaler v. Austria,
no. 21022/92 and 21023/92, Commission decision of 7 April 1994).
- Thus,
the applicant, in the proceedings relating to his application for a
building permit, could have applied to the Constitutional Court and
to the Administrative Court and put before them a question as to
whether the designation of his land was in accordance with the
provisions of the Land Planning Act.
- Having
regard to the specific nature of the applicant’s complaint,
namely, about the lawfulness of the area zoning plan, the
Constitutional Court was the only body which could have determined
this aspect of the dispute between the applicant and the
administrative authorities. In this respect, the Court reiterates
that the Constitutional Court, for questions which fall within its
specific range of jurisdiction, qualifies as a tribunal before which
a hearing has to be held if the parties so demand (see Pauger v.
Austria, 28 May 1997, § 59, Reports of Judgments and
Decisions 1997 III, and Haider v. Austria (Dec.),
no. 63413/00, 29 January 2004).
- The
Court considers that in such circumstances a hearing before the
Administrative Court would not have served any useful purpose in the
present case because the latter had no jurisdiction concerning the
lawfulness of the area zoning plan but could only suggest to the
Constitutional Court that it review the lawfulness of the decree (see
Haider, cited above).
- The
applicant was therefore in principle entitled to an oral hearing
before the Constitutional Court, because none of the exceptions laid
down in the second sentence of Article 6 § 1 applied (see
Håkansson and Sturesson v. Sweden, 21 February
1990, § 64, Series A no. 171 A). However, no hearing was
held before the Constitutional Court, even though the applicant had
explicitly requested one and, moreover, the Constitutional Court did
not give any reasons why it had considered that no hearing was
necessary.
- The
Court therefore finds that there has been a breach of Article 6
§ 1 of the Convention on account of the lack of a public
hearing.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS ACCESS TO THE CASE FILE
- Lastly,
the applicant complained about the inability to consult all the case
files. This was contrary to the principle of equality of arms laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations or any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal...”
- The
applicant maintained that the Constitutional Court had failed to
communicate to him some of the documents from the proceedings
concerning the original area zoning plan. However, in order for the
applicant to have established the facts of the case, it would have
been necessary for him to have consulted the requested documents
concerning the area zoning plan.
- The
Government argued that the applicant’s lawyer had consulted the
complete file. The documents requested later were not part of this
file.
- The
Court reiterates that the principle of equality of arms implies that
each party must be afforded a reasonable opportunity to present his
or her case - including evidence – under conditions that do not
place him/her at a substantial disadvantage, vis-à-vis,
his or her opponent (see Dombo Beheer B.V. v. the
Netherlands, 27 October 1993, § 33, Series A no. 274).
The concept of a fair trial, of which equality of arms is one aspect,
implies the right for the parties to have knowledge of and to comment
on all evidence adduced or observations filed (see, for instance,
Nideröst-Huber v. Switzerland, 18 February 1997, §
24, Reports of Judgments and Decisions 1997-I, and, as a more
recent authority, Ziegler v. Switzerland, no.33499/96, § 33,
21 February 2002).
- The
Court observes that on 6 October 1998 the applicant’s counsel
consulted the case file at the Constitutional Court. On 8 June 2001,
approximately two years and eight months later, the applicant’s
counsel asked the Constitutional Court for a second opportunity to
consult further documents concerning the original area zoning plan.
On 12 June 2001 the Constitutional Court declined to deal with the
complaint because it lacked any prospect of success but did not
specifically reply to the request for an inspection of the case file.
- The
Court attaches great importance to demands for efficiency and economy
of proceedings, as its case-law bears out, and it will not exclude
that requests for inspection of a file may be refused by the court to
which it is addressed when this for example would serve no meaningful
purpose. From the above circumstances it is apparent that at the time
the applicant asked for a second time to inspect the case-file, after
the elapse of a considerable period of time, the Constitutional Court
was about to decide on the applicant’s case and there is no
indication that the applicant had been invited by the Constitutional
Court to supplement his submissions or had asked for leave to do so.
It follows that any further consultation of the file would not have
caused any reason to believe that further submissions would be
accepted by the Constitutional Court. In these circumstances the
Court finds that the fact that, in order to comply with the
applicant’s request, the Constitutional Court decided the case
rather than adjourning it cannot be considered incompatible with the
requirement of equality of arms as guarantee by Article 6 § 1 of
the Convention.
- Accordingly
there has been no breach of Article 6 § 1 in this respect.
IV. 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 150,000 euros (EUR) in respect of pecuniary damage.
He claimed that if he had obtained the building permit fifteen years
earlier, he would have earned that amount in the meantime. He claimed
a further EUR 30,000 in respect of pecuniary damage because, for the
same period of time, he could more profitably have invested the
earnings he had put aside and had had to keep readily accessible for
the construction work in case the building permit had been granted.
The applicant claimed EUR 30,000 in respect of non-pecuniary
damage.
- The
Government did not comment on the applicant’s claim.
- The
Court does not discern any causal link between the violation found
and the claim in respect of pecuniary damage. Accordingly, no award
can be made under this head. However, the applicant has undoubtedly
sustained non-pecuniary damage. Making an assessment on an equitable
basis, the Court awards EUR 4,000 as compensation for non-pecuniary
damage.
B. Costs and expenses
- The
applicant claimed EUR 41,354.30, inclusive of Turnover Tax, for costs
and expenses incurred in the domestic proceedings and the proceedings
before the Court, of which EUR 20,993.68 was for the proceedings
before the Court.
- The
Government did not comment on the applicant’s claim.
- 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 in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention 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 an attempt to
expedite the proceedings or to prevent the other violations found in
respect of Article 6 § 1. Therefore, no award can be made as
regards the costs of the domestic proceedings.
- As
to the costs of the proceedings before the Court, the Court notes
that the applicant, who was represented by counsel, did not have the
benefit of legal aid but was only partly successful. It considers it
reasonable, having regard to similar cases, to award him EUR 5,000
under this head plus any tax that may be chargeable to the applicant
on this amount.
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
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the 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 public
hearing;
- Holds that there has been no violation of
Article 6 § 1 of the Convention as regards access to the case
file;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four thousand
euros) plus any tax that may be chargeable in respect of
non-pecuniary damage and EUR 5,000 (five thousand euros) plus
any tax that may be chargeable to the applicant 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 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
