FIRST SECTION

CASE OF STÖTTINGER v. AUSTRIA

(Application no. 63463/09)

JUDGMENT

10 July 2014

STRASBOURG

This judgment is final but it may be subject to editorial revision.

In the case of Stöttinger v. Austria,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Erik Møse,
	Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 June 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 63463/09) 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 two Austrian nationals, Mr Johann Stöttinger and Mrs Gertraud Stöttinger (“the applicants”), on 17 November 2009.
2.  The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.
3.  On 5 July 2010 the application was communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicants were born in 1952 and 1958 respectively and live in Neukirchen.
5.  The applicants own agricultural real estate in Upper Austria which is dedicated green area (Grünland) in the zoning plan – therefore land that is not meant for construction purposes with the exception of buildings necessary to use the land agriculturally.
6.  On 29 July 2002, the applicants applied for a building permit for an agricultural building, stables and a riding hall to conduct horse breeding and training for therapy purposes. The mayor of Neukirchen requested an expert opinion of the Regional Agricultural and Forestry Authority (Agrar- und Forstrechtsabteilung der Oberösterreichischen Landesregierung) which, on 7 February 2003, stated that the conditions for the construction were not met by the project.
7.  On 24 April 2004 the applicants filed a new request for a building permit on the same plot. In this request the same project was presented and in addition premises for the production of brandy. This request included a business plan for the activities envisaged by the applicants and plans of the construction.
8.  On 10 August 2004, the Regional Agricultural and Forestry Authority again commented on the project.
9.  On 11 November 2004, the mayor of Neukirchen dismissed the request of 29 July 2002 as well as the request of 24 April 2004 stating that the planned construction was not permitted by the zoning plan. The applicants appealed against that decision.
10.  On 25 May 2005, the Neukirchen Municipal Council dismissed the appeal. This decision was based on an expert opinion according to which the project was uneconomical and merely a hobby and therefore not in compliance with the zoning plan for the area in question.
11.  The applicants filed objections (Vorstellung) with the Upper Austria Regional Government (Landesregierung), which quashed the decision on 17 November 2005 finding that it violated the applicants’ rights in that it was based on an unclear expert opinion.
12.  After obtaining supplementary expert opinions, on 17 May 2006, the Neukirchen Municipal Council dismissed both building requests. The applicants again filed objections.
13.  On 16 November 2006, the Regional Government dismissed the applicants’ objections against the decision concerning the first building request of 29 July 2002, quashed that decision regarding the second request of 24 April 2004 and referred it back to the Municipal Council stating that the supplemented expert opinion was still not sufficiently clear. The decision regarding the dismissal of the first request of 29 July 2002 became final.
14.  The Neukirchen Municipal Council lodged a complaint with the Administrative Court against the Regional Government’s decision on 22 December 2006.
15.  On 18 May 2007, the Neukirchen Municipal Council suspended appeal proceedings awaiting the Administrative Court’s decision on the complaint. The applicants filed objections against this decision with the Regional Government.
16.  On 6 November 2007, the Regional Government granted the applicants’ objections and quashed that decision. The Neukirchen Municipal Council lodged a complaint against this decision with the Administrative Court.
17.  Meanwhile, the applicants had filed an application against the administration’s failure to decide (Säumnisbeschwerde), challenging the decision concerning the suspension of further proceedings. On 21 September 2007 the Administrative Court rejected this application.
18.  On 29 January 2008 the Administrative Court dismissed the complaints by the Municipal Council against the Regional Government’s decisions of 16 November 2006 and 6 November 2007 as unfounded.
19.  On 6 March 2008, the Municipal Council requested the same expert to supplement his opinion. On 10 March 2008, the applicants filed objections against that decision with the Regional Government.
20.  On 18 March 2008 and on 15 May 2008, the applicants challenged the expert. On 10 September 2008, the Municipal Council dismissed this challenge of the expert and at the same time it dismissed the appeal against the mayor’s decision.
21.  On 9 March 2009, the Regional Government quashed the Municipal Council’s decision of 10 September 2008, stating that the (supplemented) expert opinion was still not thorough and convincing enough.
22.  On 15 June 2009, the Constitutional Court declined to deal with the complaint lodged by the Municipal Council against the appeal decision of the Regional Government and referred the complaint to the Administrative Court on 4 August 2009.
23.  On 23 September 2009, the applicants lodged a second application with the Administrative Court complaining of the Municipal Council’s failure to decide anew on the appeal after the Regional Government’s decision of 9 March 2009.
24.  On 9 October 2009, the Municipal Council requested the applicants to provide additional information on their economic business concept as required by the newly commissioned expert.
25.  On 21 December 2009, the Municipal Council requested the extension of the time-limit for deciding on the applicants’ appeal until 13 July 2010.
26.  On 13 January 2010, the Administrative Court in the proceedings on the applicant’s complaint of 23 September 2009 ordered the Municipal Council to decide on the applicants’ appeal by 30 April 2010.
27.  As regards the complaint lodged by the Municipal Council against the appeal decision of 9 March 2009, the Administrative Court dismissed that complaint as unfounded on 23 February 2010.
28.  On 5 March 2010, the Municipal Council dismissed the applicants’ appeal and thus refused the construction permit.
29.  On 15 September 2010 the Government dismissed the applicants’ appeal and found that the business activity envisaged by the applicants did not allow for a construction under the Land Planning Act as it was not economically viable. The applicants lodged a complaint with the Administrative Court. On 9 November 2010 the Administrative Court initiated preliminary proceedings.
30.  On 31 January 2012 the Administrative Court dismissed the applicants’ complaint as unfounded. This decision was served on 9 February 2012.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31.  The applicants complained that the length of the proceedings 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 ...”.
32.  The Government contested that argument.
A.  Admissibility
33.  The Government submitted that there were two distinct sets of proceedings to be taken into consideration. The first set concerning the request of 29 July 2002 and the second set concerning the request of 24 April 2004. The length of these two proceedings had to be assessed separately and the request of 29 July 2002 had de facto been withdrawn by filing the request of 24 April 2004. In any event a final decision regarding the request of 29 July 2002 had been taken by the Regional Government on 16 November 2006. The complaint concerning the first request of 29 July 2002 was hence inadmissible under the six-months rule.
34.  Furthermore the Government argued that the applicants had failed to exhaust domestic remedies as they had not filed a request against the administration’s failure to decide in due time but only at a time when they had already lodged the present application with the Court.
35.  Moreover, the Government submitted that Article 6 did not apply to proceedings for a building permit if such a permit was clearly not allowed under the zoning plan in force. Since the applicants’ project was contrary to the zoning plan in force, the applicants had no “civil right”.
36.  The applicants argued that the request of 29 July 2002 had become part of the further proceedings regarding the request of 24 April 2004. The applicants also claimed that they had exhausted all domestic remedies. Furthermore they submitted that it was not obvious that no building was allowed on the land.
37.  The Court notes that the domestic authorities already made a distinction between the first and the second request. In its final decision the Administrative Court mentioned the first request of 29 July 2002, but noted that subject of the proceedings was the request of 24 April 2004. There is no indication that the first request was actually dealt with in the following proceedings concerning the second request. Insofar as the complaint concerns the first request for a building permit of 29 July 2002, it follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
38.  The period to be taken into consideration began on 11 November 2004 when the Neukirchen mayor dismissed the applicants’ request for a building permit for the first time and ended on 9 February 2012 when the final decision by the Administrative Court was dispatched. It thus lasted seven years, two months and 28 days for three levels of jurisdiction.
39.  As regards the Government’s argument that the applicants had failed to exhaust domestic remedies, the Court notes that the applicants filed two requests against the administration’s failure to decide. The applicants have therefore made use of this remedy and the mere fact that the first request was rejected and the proceedings regarding the second request were pending when the applicant lodged the present complaint with the Court is not relevant. Thus, the applicants exhausted all domestic remedies available to them.
40.  As regards the applicants’ argument that Article 6 in its civil limb does not apply to the proceedings at issue, the Court reiterates that the applicability of Article 6 depends on whether there was a dispute over “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law and, if so, whether this right was of a civil character within the meaning of Article 6 § 1 (see James and Others v. the United Kingdom, 21 February 1986, Series A no. 98, and Z and Others v. the United Kingdom [GC], no. 29392/95, §81, ECHR 2001‑V, and the authorities cited therein, together with McElhinney v. Ireland [GC], no. 31253/96, § 23, 21 November 2001). The dispute must be genuine and serious; it may relate not only to the existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Allan Jacobsson v. Sweden (no. 1), 25 October 1989, §§ 66-67, Series A no. 163, and Masson and Van Zon v. the Netherlands, 28 September 1995, § 44, Series A no. 327‑A).
41.  In the present case the applicant had a right to erect buildings on their land, namely if the building was necessary for agricultural purposes. In the Court’s view this amounted clearly to a genuine dispute over the scope of the right. Article 6 therefore applies.
42.  The Court notes that the complaint under Article 6 § 1 of the Convention concerning the second request for a building permit of 24 April 2004 is not manifestly ill-founded within the meaning of Article 35 § 3. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
43.  The applicants maintained that the length of the proceedings was unreasonable. In their view the proceedings were not complex and any delays occurred were caused by the authorities as the choice and conduct of the experts involved were attributable to them. No delays were attributable to the applicants and they had submitted all the observations requested.
44.  The Government claimed that the length of the proceedings was still reasonable bearing in mind the complexity of the case which required several expert opinions and went through various instances several times. Moreover, the applicants’ conduct had added to the duration as they had failed to submit observations to the authorities in due time and they had prevented an expert to inspect the land.
45.  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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
46.  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 Frydlender, cited above, Riepl v. Austria, no. 37040/02, 3 February 2005, Gierlinger v. Austria, no. 38032/05, 29 November 2007).
47.  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. In the Court’s opinion the case was not especially complex even though it required that reports by experts be taken. As regards the conduct of the authorities and courts the Court observes that on three occasions the Regional Government quashed the decision of the lower instance as the expert opinion was defective and the Municipal Council had repeatedly failed to give the necessary instructions to the expert appointed by it. It ordered the lower instance to give the expert clear instructions. As regards the conduct of the applicants, there is no indication that they delayed the proceedings. Even if they refused the expert to enter their property, this did not cause any substantial delay to the proceedings since the expert had nevertheless been able to obtain the information necessary for his report. From the documents submitted, there is also no indication that the applicants had not submitted observations within due time. The Court concludes 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.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
48.  The applicants complained under Article 8 that they were being hindered to build the buildings requested. Under Article 1 Protocol 1, they complained further of a violation of their right to property in that they cannot use their land for their planned business. Finally, the applicants complained under Article 13 of a lack of an effective remedy in respect of the length of the proceedings.
49.  However, 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 these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
50.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
51.  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
52.  The applicants claimed 44,374.40 euros (EUR) in respect of pecuniary damage (loss or earnings) and 21,006 euros (EUR) in respect of non-pecuniary damage.
53.  The Government contested these claims.
54.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, having regard to the sums awarded in comparable cases and making an assessment on an equitable basis, awards the applicants EUR 3,000 in respect of non-pecuniary damage.
B.  Costs and expenses
55.  The applicants also claimed EUR 31,652.82 for the costs and expenses incurred before the domestic courts and EUR 551.41 for those incurred before the Court.
56.  The Government contested the claim concerning costs and expenses incurred in the domestic proceedings. They did not comment on the applicants’ claims concerning the Convention proceedings.
57.  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 and in order to accelerate the proceedings. In the present case, only the costs for the applicants’ application of 23 September 2009 against the administration’s failure to decide fulfil this requirement. The applicants’ counsel charged EUR 1,326.40. This sum, which appears reasonable, is awarded to the applicants.
58.  As regards the costs of the Convention proceedings, the Court notes that the applicants, who were not represented by counsel, claim EUR 551.41 as reimbursement of expenses for translation and postage costs. The Court considers this amount reasonable and it is therefore also awarded in full.
C.  Default interest
59.  The Court considers it appropriate that the default interest rate 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,
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicants, within three months, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount, and EUR 1,877.81 (one thousand eight hundred seventy seven euros and eighty one cents) in respect of costs and expenses plus any taxes that may be chargeable to the applicants on this amount;
(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;

4.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Khanlar Hajiyev
	Deputy Registrar	President