CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 12884/87                       by M.O.                       against Austria           The European Commission of Human Rights sitting in private on 29 June 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 September 1986 by M.O. against Austria and registered on 8 April 1987 under file No. 12884/87;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is an Austrian citizen born in 1913 who resides in Linz.   She is represented by Mr Richard Proksch, a lawyer in Vienna.   Particular circumstances of the case         The applicant complains of the grant of building permits concerning land adjoining her property at Leonding which had earlier been designated as a green belt.   She claims that as a result of these building permits she has been subjected to considerable interferences with the use of her property, in particular noise pollution emanating from the neighbours' path of access which immediately adjoins her property.         The redesignation of the neighbouring land as building plots was decided in 1978 and confirmed by an area-zoning plan adopted by the City of Leonding in September 1980.         In January 1981 the City issued a building plan permitting the construction of terraced houses on the land.   When building permits were granted to the owners of the plots concerned, the applicant raised objections which, however, were rejected by the competent administrative authorities.         The applicant then lodged complaints with the Constitutional Court (Verfassungsgerichtshof) in two cases and with the Administrative Court (Verwaltungsgerichtshof) in three cases.         On 2 October 1985 the Constitutional Court interrupted its proceedings concerning the applicant's complaints as it had doubts as to the compatibility of the applicable area-zoning and building plans with the Upper Austrian Regional Planning Act (Oberösterreichisches Raumordnungsgesetz).   It provisionally assumed that according to this Act the green belt in question could be redesignated for building purposes only if there were overriding public interests.   It accordingly instituted a norm control procedure in respect of the decrees by which the plans in question had been issued.   The Administrative Court likewise interrupted its proceedings in the cases pending before it and requested the Constitutional Court to quash the relevant area-zoning and building plans as being unconstitutional.         However, by a decision of 19 March 1986 the Constitutional Court eventually found the plans to be lawful, the proceedings having revealed that the neighbouring land had already been designated as building plots in 1971 and that this designation had been confirmed by the former area-zoning plan.   The new area-zoning plan of 1981 therefore had not changed the designation and accordingly the question of overriding public interests did not arise.   The Constitutional Court also found the area-zoning plan to be in conformity with the applicable regional planning regulations and the Regional Planning Act.         On the same day the Constitutional Court also rejected the applicant's individual complaints and referred the case to the Administrative Court.   The latter rejected the applicant's complaints by decisions of 14 and 28 October 1986 referring to the Constitutional Court's decisions in which the area-zoning and building plans were found to be lawful.       Relevant Domestic Law and Practice         Section 23 of the Upper Austrian Building Regulations Act (Ober- österreicher Bauordnung) provides as follows:   (Original)         "(1) Bauliche Anlagen müssen in allen ihren Teilen nach den       Erfahrungen der technischen Wissenschaften so geplant und       errichtet werden, daß sie den normalerweise an bauliche       Anlagen der betreffenden Art zu stellenden Anforderungen       der Sicherheit, der Festigkeit, des Brand-, Wärme- und       Schallschutzes, der Gesundheit und der Hygiene, des       Umweltschutzes und der Zivilisation entsprechen und das       Orts- und Landschaftsbild nicht gestört wird..."   (Translation)         "(1) All parts of the building development must be planned and       constructed in all aspects so as to correspond to the state of       the technical sciences such that the development meets the normal       requirements of such buildings as regards safety, rigidity, fire       protection, insulation (sound and warmth), health, hygiene,       environmental protection and civilisation, and not to disturb the       visual amenity of town and country ..."         Section 46 provides:   (Original)         "(2) Nachbarn können gegen die Erteilung der Baubewilligung       mit der Begründung Einwendungen erheben, daß sie durch das       Bauvorhaben in subjektiven Rechten verletzt werden, die       entweder in der Privatrechtsordnung (privatrechtliche       Einwendungen) oder im öffentlichen Recht (öffentlich-       rechtliche Einwendungen) begründet sind.         (3) Öffentlich-rechtliche Einwendungen der Nachbarn sind im       Baubewilligungsverfahren nur zu berücksichtigen, wenn sie       sich auf solche Bestimmungen des Baurechtes oder eines       Flächenwidmungsplanes oder Bebauungsplanes stützen, die       nicht nur dem öffentlichen Interesse sondern auch dem       Interesse der Nachbarschaft dienen.   Hierzu gehören       insbesondere alle Bestimmungen über die Bauweise, die       Ausnutzbarkeit des Bauplatzes, die Lage des Bauvorhabens,       die Abstände von den Nachbargrenzen und Nachbargebäuden,       die Gebäudehöhe, die Belichtung und Belüftung sowie jene       Bestimmungen, die gesundheitlichen Belangen oder dem Schutz       der Nachbarschaft gegen Immissionen dienen."   (Translation)         "(2) Neighbours may make objections to the grant of       planning permission on the ground that their subjective       rights have been affected.   Such subjective rights may be       based on private law (private law objections) or public law       (public law objections).             (3)   Public law objections of neighbours shall only be       taken into consideration in proceedings for the grant of       planning permission if they are based on provisions of the       building regulations, the area-zoning plan or the building       plan which serve not merely the general public interest but       also the interests of the neighbourhood.   These include, in       particular, all provisions concerning the type of building,       the use of the building land, the situation of the proposed       development, distances from adjoining boundaries and       buildings on adjoining properties, height of buildings,       light and air and provisions which are concerned with       health matters or protection of the neighbourhood against       emission."   COMPLAINTS           The applicant generally complains under Article 6 of the Convention that the proceedings before the Constitutional Court and the Administrative Court were not fair.           She contends in particular that the Constitutional Court's proceedings were unfair because they were based on wrong factual assumptions and failed to deal with the question of the overriding public interest in the redesignation of the land adjoining her property.   She alleges that the Constitutional Court was misled by wrong submissions of the Provincial Government of Upper Austria as to the continued validity of an earlier provisional building permit (Bauplatzerklärung) dating from 1972 which in fact had expired in 1975.           For these reasons, the applicant, in submissions of 27 September 1989, further claims that there has also been an unlawful interference with her right to the peaceful enjoyment of her property, as guaranteed by Article 1 of Protocol No. 1 to the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 10 September 1986 and registered on 8 April 1987.         On 12 July 1991 the Commission decided to request observations of the parties in connection with the applicability of Article 6 to the proceedings at issue, and whether the scope of the Administrative Court's jurisdiction was sufficient to comply with that provision.   The Commission also asked whether the proceedings were "fair".         The Government submitted their observations on 6 December 1991 and the applicant was set a time-limit of 2 February 1992 for submitting observations in reply.   On 7 February 1992 the applicant's representative requested an extension of the time limit for submitting observations.   The request was refused on 20 February 1992.       THE LAW   1.     The applicant alleges a violation of Article 6 (Art. 6) of the Convention which provides, so far as relevant, as follows:         "1.   In the determination of his civil rights and       obligations ..., everyone is entitled to a fair and public       hearing within a reasonable time by an independent and       impartial tribunal established by law.   ..."         The Commission has put questions to the parties concerning the applicability of Article 6 para. 1 (Art. 6-1) of the Convention and the scope of review of the Administrative Court and whether the proceedings were "fair".         The Government submit, first, that the applicant has failed to exhaust domestic remedies because she did not raise Article 6 para. 1 (Art. 6-1) of the Convention in form or in substance before the Constitutional Court in any of her constitutional complaints.   They also consider that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to the proceedings at issue, principally because the sole link between the proceedings the applicant brought and any property rights she may have had was the public law interest which she was able to put forward in the proceedings.   They consider that the right to intervene in planning proceedings which is given to neighbours by virtue of Section 46 of the Upper Austrian Building Regulations Act is to vindicate "neighbourhood rights" (Nachbar- schaftsrechte), rather than to protect the private rights which Article 6 (Art. 6) refers to. Finally, the Government consider that the requirements of Article 6 (Art. 6) of the Convention are, in any event, met by the review available from the Administrative Court, taken together with that of the Constitutional Court.         The applicant has not submitted any observations.         The Government submit that the applicant has not exhausted domestic remedies because she failed to raise the question of the applicability of and compliance with Article 6 para. 1 (Art. 6-1) of the Convention before the Constitutional Court.         The Commission recalls that Article 26 (Art. 26) of the Convention only requires the exhaustion of such remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress.   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach (cf. No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78, at p. 85).   Moreover, the burden of proving the existence of available and sufficient remedies lies upon the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26, and No. 9013/80, Dec. 11.12.82, D.R. 30 p. 96, at p. 102).   In the present case, given the Constitutional Court's case-law on the existence of civil rights and the scope of review of the Administrative Court (VfSLG 11500/1987, Decision of 14.10.87), the Commission finds that the Government have not established that an application to the Constitutional Court could have resulted in consideration of the applicant's complaint.   Accordingly, the Commission finds that the application cannot be declared inadmissible for non-exhaustion of domestic remedies.             The Government also submit that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to the present proceedings, and that if it is, the scope of review by the Administrative Court and the Constitutional Court taken together is sufficient to comply with the requirements of the provision.         Having regard to its own case-law in this matter (cf. No. 12235/86, Dec. 16.10.91, in which the Commission considered the applicability of Article 6 (Art. 6) of the Convention to proceedings before the Austrian Administrative and Constitutional Courts in planning matters), the Commission finds that this part of the application raises serious issues of law and fact the determination of which requires an examination of the merits.   2.     As regards the applicant's complaint that there has been an unjustified interference with her property rights contrary to Article 1 of Protocol No. 1 (P1-1) to the Convention, the Commission notes that this complaint was first raised in the applicant's letter of 27 September 1989, i.e. more than six months after the final domestic decisions.   This part of the application must accordingly be rejected under Article 26 in conjunction with Article 27 para. 3 (Art. 26+27-3) of the Convention as having been introduced out of time.         For these reasons, the Commission by a majority         DECLARES ADMISSIBLE the part of the application concerning the       proceedings before the Administrative and Constitutional Courts         and         DECLARES INADMISSIBLE the remainder of the application.     Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)