CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1996

.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. 22474/93                       by Herz-Jesu Kloster Sacré Coeur Riedenburg                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 4 September 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 27 July 1993 by Herz Jesu Kloster Sacré Coeur Riedenburg against Austria and registered on 19 August 1993 under file No. 22474/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      28 February 1995 and the observations in reply submitted by the      applicant on 7 March 1996;   -     the Government's further comment on 3 April 1996 and the      applicant's comment on it of 7 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a monastery which runs a private school in Bregenz.   It is represented before the Commission by Mr. W.L. Weh, a lawyer practising in Bregenz.   The facts of the present case, as submitted by the parties, may be summarised as follows.   The particular circumstances of the case        On 26 January 1979 a butcher whose premises adjoined the applicant's and, who wished to construct and operate a small abattoir there, applied to the Bregenz District Authority (Bezirkshauptmannschaft) for a Trading Authority Licence (gewerbebehördliche Genehmigung - TAL).   The application was duly notified, and on 19 March 1979 the applicant monastery gave notice of its interest in the proceedings.   The applicant monastery gave notice on 4 April 1979 that in its opinion, the TAL would have to be refused.        On 26 June 1979 the Bregenz District Authority refused to grant the TAL.   The Vorarlberg Provincial Governor (Landeshauptmann) allowed the butcher's appeal, and granted the TAL on 7 February 1980, subject to a series of conditions.   The applicant and another neighbour (a church) appealed to the Minister for Trade, who on 7 October 1986, after a series of expert reports and a public hearing, amended and added conditions.   The applicant made an administrative complaint to the Administrative Court (Verwaltungsgerichtshof) which, on 10 June 1987, quashed the Minister's decision.        On 2 March 1989 the Provincial Governor granted a fresh TAL to the butcher.   The applicant's appeal to the Minister for Trade was successful in that certain amendments were made to the conditions attached to the consent.   The Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant's constitutional complaint on 17 June 1992.        The applicant's complaint was transmitted to the Administrative Court.   In its submissions to the Administrative Court, the applicant alleged a violation of its right to prevent the grant of a TAL (Recht auf Nichterteilung der Gewerbeanlagengenehmigung), its right to a proper proceedings and its right (not) to have an unlawful zoning plan applied.    On 24 November 1992 the Administrative Court rejected the administrative complaint pursuant to Section 34 (1) of the Administrative Court Act (Verwaltungsgerichtshofgesetz) because the applicant had raised no grounds upon which to base a challenge to the licence.   In particular, the Administrative Court recalled that the substantive provision for granting a TAL (Section 77 (1) of the Trade Regulations - Gewerbeordnung) set up conditions under which a TAL could be granted, but the second sentence of Section 77 (1), on which the applicant based its administrative complaint, could not form a ground of challenge by a neighbour.   The substantive rights to which the applicant referred could therefore not have been violated.   The Court added that the procedural aspects of the case could not be separated from the substantive aspects.        On 15 November 1992, the butcher told the Bregenz District Authority that he no longer intended to build the abattoir as so much time had elapsed.   The butcher's application for planning permission, made in January 1987, has never been pursued.        The applicant's representative received the Administrative Court's decision on 28 January 1993.   Relevant domestic law        Section 77 (1) of the Trade Regulations (Gewerbeordnung) sets up the conditions for the grant of a TAL.   The first sentence of Section 77 (1) provides that a licence is to be granted if technical requirements are met.   The technical requirements include adequate provision in respect of the matters listed in Section 74 (2) (1),(2),(3) and (5) of the Trade Regulations, namely health hazards, nuisance to neighbours, influencing the running of various types of institution, and water protection.        The second sentence of Section 77 (1) (since repealed) provided that a TAL was not to be granted if the construction or operation of the business in question was otherwise prohibited.        Section 356 (3) of the Trading Rules provides that a neighbour may join TAL proceedings to complain about the matters in Section 74 (2) (1),(2),(3) or (5), provided he raises his objections at an early stage of the proceedings.   COMPLAINTS        The applicant monastery alleges violations of Article 6 para. 1 of the Convention in connection with both the length and the fairness of the proceedings.   It considers that Article 6 clearly applies to the proceedings as it raised questions about the civil rights protection of neighbours.   It is contended that the Administrative Court failed to deal with the applicant's arguments "point by point", as required by the European Court of Human Rights in the case of Zumtobel, and that the Constitutional Court, by declining to deal with the case, failed to consider it at all.   As to the alleged undue length, the applicant observes that the proceedings lasted 14 years in all, and were not at all complicated.   It points out that if the Administrative Court were able to take decisions on the merits itself, rather than remitting cases to the administrative authority, the case would have ended in 1987, when the Administrative Court took its first decision.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 July 1993 and registered on 19 August 1993.        On 12 October 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 28 February 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 7 March 1996.   On 3 April 1996 the Government added a comment, and on 3 April 1996, and on 7 May 1996 applicant made a further observation.   THE LAW   1.    The applicant monastery complains of the length of the proceedings.   It alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which guarantees the right to determination of civil rights and obligations in a reasonable time.        The Government consider that the proceedings did not determine any of the applicant monastery's civil rights, with the result that Article 6 (Art. 6) does not apply to the proceedings.   They underline that a neighbour only has status to become involved in a third party's application for a TAL when he can show that he is likely to be affected by the grant of a TAL.   Such a neighbour is then entitled to invoke public-law rights for his personal protection, but the rights remain public-law rights (subjektiv-öffentliche Rechte).   The rights are certain of the matters with which an applicant for a TAL must comply. In the Government's opinion, the rights which are determined are the rights of the person who applied for the TAL, not of the neighbour. The Government also point out that whilst the public-law rights which the applicant was able to claim in the TAL proceedings were matters relating to the grant of the TAL (principally environmental health matters such as health hazards and emission protection), what it really objected to was the siting of an abattoir next to a school: and that was a matter which was not relevant to the TAL proceedings.        Even if Article 6 (Art. 6) were to apply, the Government consider that the applicant monastery could have brought an application for the superior authority to decide the case if any decisions were not taken within the prescribed 6 months period: an application for a transfer of jurisdiction (Devolutionsantrag) to the superior administrative authority if there was one, or an application for the Administrative Court to deal with the case (Säumnisbeschwerde) if there was no superior administrative authority.   They consider that the complaint as to the length of the proceedings is therefore inadmissible for non- exhaustion of domestic remedies.        As to the length of the proceedings, the Government consider that the proceedings began on 9 April 1979, when the Bregenz District Authority received the applicant authority's objections to the grant of a TAL.   They ascribe responsibility for part of the length of the proceedings to the butcher who applied for the TAL, and point to a certain complexity in the proceedings.   They also point out that a large number of expert reports had to be prepared, and that there were two rounds of proceedings which gave rise to a total of six administrative decisions (Bescheide) and three court rulings.   They see the applicant as responsible for some of the length as it pursued a number of remedies, and failed to apply for another body to determine the case.        The applicant monastery considers that, given its right to join the TAL proceedings to protect its property, civil rights were clearly at issue.        It does not accept that it has failed to exhaust domestic remedies, as an application for transfer of jurisdiction (Devolutionsantrag) only applies where the delay has been caused exclusively by the authority: where an expert has failed to submit a report, for example, no application for transfer will be successful. It considers that it is in any event not open to a neighbour to bring a complaint to the Administrative Court for transfer, as only the formal party to the proceedings (here, the butcher) is entitled to make such a complaint, and not a neighbour.        As to the length of the proceedings, the applicant is of the opinion that the proceedings related simply to the grant of a licence to run a small abattoir one day a week and there was no reason for them to last 14 years.        The Commission recalls that in the case of Ortenberg, the European Court of Human Rights considered that Article 6 para. 1 (Art. 6-1) of the Convention was applicable in proceedings which a neighbour brought to vindicate public-law objections to a building project (Eur. Court H.R., Ortenberg judgement of 25 November 1994, Series A no. 295, p. 48, para. 28; see also Eur. Court H.R., Zander judgment of 25 November 1993, Series A no. 279-B, pp. 38 - 40, paras. 22 - 27).   In the present case, the applicant monastery was entitled to join the TAL proceedings as a neighbour, and did so.   Although it was relying on public law considerations in the proceedings, the applicant's interest was related to its use of the property, and the right to property is clearly a "civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see, for example, the above-mentioned Zander judgment, p. 40, para. 27).        Accordingly, Article 6 para. 1 (Art. 6-1) applies in the present case.        As to the exhaustion of domestic remedies in connection with the length of the proceedings, the Commission notes that the applicant's intention in joining the butcher's TAL proceedings was to prevent, if it could, the grant of the TAL in order to avoid having an abattoir next to the church school.   The mere fact that it may not have been in the applicant's interest to try to accelerate the proceedings cannot exempt it from the requirement to exhaust effective domestic remedies when it complains of the length of those proceedings - but the Commission is not required to make a finding on exhaustion of domestic remedies in the present case as the complaint is in any event inadmissible for the following reasons.        Although the proceedings lasted a long time, there is no indication of the applicant being prejudiced in any way by that length. Rather, given the eventual outcome of the proceedings (which the applicant lost), the longer the proceedings lasted, the better the applicant's interests were served.        In the event, it transpired that the proceedings lasted so long that the butcher gave up his plans to build an abattoir and although he was successful in his application for a TAL, he did not pursue his application for planning consent for the proposal.        Accordingly, the Commission finds that in the unusual circumstances of the present case, the applicant may not claim to be a victim of a violation of Article 6 para. 1 (Art. 6-1) of the Convention by the length of the proceedings.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant monastery also alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in connection with the scope of review by the Constitutional and Administrative Courts of the decisions of the administrative authorities.        The Government consider that the scope of review by the Administrative Court of the applicant's complaint in the present case was sufficient to meet the criteria set up by the European Court in the case of Zumtobel (Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268-A).   They note that the only argument made by the applicant before the Administrative Court was the zoning of the adjacent plot, and that the Administrative Court dealt with that argument, explaining why the applicant's subjective rights could not be affected by the zoning.        The applicant underlines that the Constitutional Court and the Administrative Court both declined to deal with the case on the ground that the other was competent.   It claims that it was thereby deprived of a court at all, and that its arguments were certainly not dealt with "point by point".        The Commission recalls that even where an adjudicatory body determining disputes over "civil rights and obligations" does not comply with Article 6 para. 1 (Art. 6-1) in some respect, "no violation of the Convention can be found if the proceedings before that body are 'subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1 (Art. 6-1)'" (Eur. Court H.R., Bryan judgment of 22 November 1995, Series A no. 335-A, para. 40, with further references).        In the present case, the applicant monastery joined the proceedings at an early stage, and was successful in its first challenge to the grant of a TAL, culminating in the Administrative Court's decision of 10 June 1987.        In the second round of proceedings, the applicant did not make the same type of challenge to the grant of a TAL as it had made in the first round.   Rather, it chose to challenge the TAL on the ground that the business would in any event have been prohibited, under the second sentence of Section 77 (1) of the Trade Regulations.   Such a challenge was not, however, open to it as it only had standing to bring a challenge under the Section 74 (2) grounds, and the Administrative Court duly rejected the administrative complaint.        The position is therefore that the applicant had access to a court which, in principle, has a sufficient scope of review to comply with Article 6 para. 1 (Art. 6-1) of the Convention, but it chose to challenge the administrative decision on grounds which did not exist.        The Commission finds that in rejecting the applicant's administrative complaint, the Administrative Court did not deny the applicant the access to court required by Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 2(Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber