CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 1994

.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. 19442/92                       by E. B.                       against Germany           The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 6 November 1991 by E.B. against Germany and registered on 27 January 1992 under file No. 19442/92;         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 a German citizen born in 1928 and living in Gifhorn.   He is represented by Mr. J. Usinger, a lawyer practising in Hannover.         It follows from the applicant's statements and the documents submitted that, as the owner of a shopping centre, he unsuccessfully tried to obtain an authorisation to use part of his property in front of the shopping centre as a car park.   He complains about the decisions in this matter.         In March 1981 the applicant had been granted a construction permit for the shopping centre.   However, his request to arrange a car park for fifteen cars was rejected.   The applicant having formulated objections he was eventually granted authorisation for eight parking places.   As the applicant had in the meantime enlarged the shopping centre, contrary to the construction permit, it had become impossible for him to provide for eight parking places as there was only space left for three instead of eight cars.         The applicant was requested to demolish those parts of the shopping centre which had been constructed contrary to the construction permit.   Eventually agreement was reached between the applicant and the competent authorities according to which the unauthorised construction was approved on condition that the applicant renounce the three parking lots.   Consequently a new construction permit was granted on 5 April 1983 which provided for a trapezium-shaped zone for the purpose of loading and unloading at the place where the applicant had intended having an additional car park supplementing the car park of the shopping centre.   The construction permit of 5 April 1983 imposed the obligation on the applicant to see to it that the southern part of the shopping centre at the street side could not be used for parking purposes except for loading and unloading.         However, the applicant arranged this site in a manner as if it were a car park.   Consequently he was ordered on 19 December 1983 to stop the illegal use ("die rechtswidrige Nutzung zu unterlassen") i.e. to render parking of cars impossible by erecting a kind of fence with stakes connected by a chain.   On 30 September 1985 the District Government in Braunschweig rejected the applicant's appeal.         Meanwhile an action with a view to having the construction permit amended was rejected by the Administrative Court (Verwaltungsgericht) in Braunschweig on 31 January 1985.   The court stated that having inspected the site it also considered that its use for parking purposes would endanger the security and fluidity of public traffic, therefore the construction permit of 5 April 1983 was not objectionable and the order of 19 December 1983 was in conformity with of the Regional Construction Decree (NBauO).         An appeal against this judgment was rejected by the Administrative Court of Appeal (Oberverwaltungsgericht) of Lower Saxony and Schleswig-Holstein in Lüneburg on 26 January 1987.         On 2 July 1987 the Federal Administrative Court (Bundesverwaltungsgericht) rejected the applicant's complaint about the denial of a leave to appeal on points of law.         Further proceedings against the decision of the District Government in Braunschweig of 30 September 1985   were likewise to no avail.   In a judgment of 10 March 1988 the Administrative Court in Braunschweig, reference is made to the prior proceedings and the final judgment of 2 July 1987 and stated that in consequence the authorities had acted lawfully by ordering that a fence should be erected rendering the parking of cars impossible.   Such a measure was not disproportionate.   The Court stated inter alia that the use was illegal both as regards substantive and procedural law ("die Nutzung ist formell und materiell illegal").         An appeal was dismissed on 26 September 1989 by the Administrative Court of Appeal of Lower Saxony and Schleswig-Holstein in Lüneburg.         The Federal Administrative Court refused to grant leave to appeal on points of law on 20 February 1991.   A constitutional complaint lodged thereupon by the applicant was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 28 May 1991 (served on 7 June 1991) as offering no prospects of success.   The applicant was imposed a fee of DM 800.   It is stated in the decision that the question of whether or not the security and fluidity of traffic would be affected by a car park was a matter of interpretation of substantive and not constitutional law and could therefore not be considered by the Constitutional Court.         Furthermore the court stated that even if under substantive law the Administrative Court should have informed the applicant that it did not intend to obtain an expert opinion on the question of whether or not the car park would affect security and fluidity of traffic, it had not violated any constitutional right by not doing so as there was no obligation of the courts to inform the parties about their legal views.         Finally, the applicant's complaint about the alleged partiality of a judge of the Federal Administrative Court was rejected as being ill-founded.   COMPLAINTS         The applicant complains of the order of 19 December 1983 and the court decisions confirming it.   Referring to private expert opinions the applicant submits that the use of the space in question for parking purposes would, under present conditions, not affect security and fluidity of traffic so he therefore considers that the denial of authorisation for a car park amounts to a violation of his right to peaceful enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1.   THE LAW         The applicant considers that his right to the peaceful enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) of the Convention has been violated by the refusal of the authorities to allow the use of part of his property as a car park ("Nutzungsbeschränkung").   Article 1 of Protocol No. 1 (P1-1) provides:              "Every natural or legal person is entitled to the peaceful       enjoyment of his possessions.   No one shall be deprived of his       possessions except in the public interest and subject to the       conditions provided for by law and by the general principles of       international law.              The preceding provisions shall not, however, in any way       impair the right of a State to enforce such laws as it deems       necessary to control the use of property in accordance with the       general interest or to secure the payment of taxes or other       contributions or penalties."         The present case does not disclose any deprivation of the applicant's property, within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 (P1-1).   The interference with property rights disclosed by this application falls solely within the ambit of the second paragraph of Article 1 of Protocol No. 1 (P1-1), the contested decisions in the case being taken to enforce planning and construction legislation deemed necessary, by the competent authorities, "to control the use of property in accordance with the general interest".         The Commission's task under the second paragraph of Article 1 of Protocol No. 1 (P1-1) is to supervise the lawfulness, purpose and proportionality of the restrictions in question (see, for example, No. 10378/83, Dec. 7.12.83, D.R. 35, p. 235).   The question of proportionality, which is an inherent aspect of the whole Convention, requires the Commission to determine whether, whilst recognising the wide margin of appreciation afforded to States in the planning and construction field, a fair balance was struck between the general interest of the community and the protection of the individual's fundamental rights (cf. mutatis mutandis Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, para. 69, and Comm. Report 8.10.80 in the same case, para. 105, Eur. Court H.R., Series B no. 46, p. 48).         The lawfulness of the measure in question is not contested.         As regards the purpose of the measure and the underlying legislation, the Commission acknowledges that it is necessary and desirable in order to maintain security and fluidity of street traffic and is thus, prima facie, in accordance with the general interest.         Concerning the proportionality of the measure taken against the applicant, which required him to cease using part of his premises for parking purposes, the Commission takes account of the following factual considerations:         The applicant was originally granted authorisation for eight parking places.   As he enlarged his shopping centre, contrary to the construction permit, there was no space left for the eight parking places.   Eventually the unauthorised construction was approved by the authorities with the provision, however, that the southern part of the shopping centre should not be used for parking purposes except for loading and unloading.         Nevertheless, the applicant arranged the site in question in the form of a car park, the use of which the authorities considered to endanger the security and fluidity of public traffic.         The Administrative Court, having inspected the site, shared this opinion and therefore held the order of 19 December 1983 to be lawful. This decision was confirmed upon appeal.         The applicant submits that, according to a private expert opinion the use of the site in question for parking purposes would under present conditions not affect the security and fluidity of public traffic. However, it is for the domestic courts to decide this question of a purely factual character and it cannot be found in the circumstances of the present case that, despite the alleged contrary opinion of a private expert the domestic authorities and courts arbitrarily exceeded their margin of appreciation holding that a car park at the site in question would negatively affect the security and fluidity of public traffic.         In view of the foregoing the Commission finds that a proper balance has been struck between the applicant's personal interests and the general interest.   The control of the applicant's property, which prevents him using part of his premises as a car park is, therefore, in accordance with the requirements of Article 1 of Protocol No. 1 (P1-1).         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 1 (Art. 27-1) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)