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. 20952/92                       by Wilhelm GSTÖTTNER                       against Austria         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 14 September 1992 by Wilhelm GSTÖTTNER against Austria and registered on 16 November 1992 under file No. 20952/92;         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 an Austrian citizen born in 1949 and living   in Linz.   He is represented by Mr. P. Wagner, a lawyer practising in Linz.         It follows from the applicant's statements and the documents submitted that the he is the owner of a multi-story apartment block in Linz.         By an order dated 29 May 1991 of the Magistrate of the City of Linz, the applicant and his wife, who is apparently the joint owner, were requested to dismantle a structural change they had effected in the form of an elevation of 60cm. of the roof framework.         The additional construction had been carried out by the applicant without the necessary prior planning permission.         The authorities considered that there was no reason to give the applicant the possibility, in accordance with Section 61 (1) of the Upper Austrian Construction Order (Bauordnung) of 1976, to make a retroactive request for planning permission as such a request would not have offered any prospect of success in view of the fact that a similar request had previously been made by one of the applicant's tenants, Mrs. S.L., and had been rejected by final decision.         The applicant's appeal was rejected by the City Senate on 26 September 1991.   The Senate also considered that the negative decision given in respect of Mrs. S.L.'s request was also binding with regard to the applicant, who had been a party to the prior proceedings.         A further appeal was rejected by the Upper Austrian Regional Government (Landesregierung) on 27 January 1992.   The Government did not agree with the opinion of the lower instance that the prior decision relating to Mrs. S.L.'s request was automatically binding for the applicant.   It nevertheless took into consideration that the applicant had been invited, in accordance with Section 47 (1) of the Construction Order, to participate as a party and had been communicated the first and second instance decision rejecting Mrs. S.L.'s request. Therefore the prior decision was binding for the applicant as both the legal and factual situations were identical.         The applicant then brought an action with the Administrative Court (Verwaltungsgerichthof).   It was rejected on 16 June 1992.   It is pointed out in the decision that according to Section 61 (1) of the Construction Order an owner who has effected construction work without prior authorisation may either be ordered immediately to remove the construction or be given the possibility to request retroactive planning permission.   This possibility was however, not to be envisaged if and when the legal situation was such that the subsequent request offered no prospects of success.   The Administrative Court likewise shared the opinion of the authorities that in view of the legal and factual similarity of the situation, the rejection of Mrs. S.L.'s request had the effect of res judicata vis-à-vis the applicant.         Insofar as the applicant denied that the facts were identical the court points out that expert opinions and photos confirmed the factual assessments made by the authorities.   COMPLAINTS         The applicant alleges that although he participated as a party in the proceedings relating to Mrs. S.L.'s request he did not agree with that request and therefore its refusal did in no way violate his rights.   Consequently he was not in a position to formulate an appeal in Mrs. S.L.'s proceedings.   He argues that he was denied a fair hearing because the authorities considered his matter to be precluded by the binding decision given with regard to Mrs. S.L.'s request.   THE LAW         The applicant submits that in the proceedings relating to his objections against the order to dismantle certain construction work without planning permission he was denied a fair hearing because the authorities as well as the Administrative Court considered that a final decision given with regard to an analogous request made by one of his tenants had the effect of res judicata.         However, the Commission notes that the Administrative Court also took into consideration the applicant's allegation that the factual situation in his case was different from that underlying Mrs. S.L.'s request.   In this respect the Administrative Court pointed out that there existed expert evidence to show that the assessment of the facts made by the planning authorities was correct.         The applicant has not shown that this finding is unwarranted or incompatible with evidence submitted in the domestic proceedings by himself and, therefore, arbitrary.   The Commission also notes that the applicant was a party to the procedures relating to the request of Mrs. S.L..         It cannot in these circumstances be found that the applicant was denied a fair hearing and consequently there is no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.         It follows that the application has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.         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)