CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 septembre 2004

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Rozakis , President ,   Mr   P. Lorenzen ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mrs   E. Steiner , judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 27 March 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Alois Hofbauer, is an Austrian national who was born in 1935 and lives in Gföhl. He was represented before the Court by Mr H. Malek, a lawyer practising in Krems. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Departement at the Federal Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. A. Proceedings under the Lower Austrian Building Act On 5 May 1985 the mayor of Gföhl granted the applicant’s neighbours a building permit for a house and a garage, whereby the latter was to be situated on the border of the applicant’s property. The applicant’s appeals were to no avail and the proceedings were terminated by the Administrative Court’s decision of 17 January 1989. Further proceedings in which the applicant had contested his obligation to allow his neighbours to enter upon his land in order to enable them to construct the garage remained unsuccessful and were terminated by the Administrative Court’s decision of 19 January 1993. Subsequently, proceedings to enforce the applicant’s obligation were conducted. On 11 July 1993 the applicant requested the Gföhl municipality to issue a demolition order for his neighbours’ garage. He submitted, in particular, that the garage had not been constructed in accordance with the requirements of the building permit as regards fire protection measures. On 4 August 1993 the mayor of Gföhl dismissed the applicant’s request. On 22 June 1994 the applicant’s appeal was dismissed by the Municipal Council. On 2 January 1995 the Lower Austria Regional Government, upon the applicant’s objection, quashed the Municipal Council’s decision and referred the case back to it, finding that it had failed to establish the relevant facts as regards the question whether deviations from the building permit impeded the fire resistance of the garage at issue. On 2 February 1995 the applicant lodged a complaint against the Regional Government’s decision, alleging in particular that the reasons given indicated that his request was unfounded. On 21 February 1995 the Administrative Court, without holding a hearing, dismissed the applicant’s complaint against the Regional Government’s decision. It noted that, in any case, the reasons given for a decision were not binding. On 3 July 1995 the Municipal Council carried out an inspection of the garage in presence of an expert for building matters but in absence of the applicant. A report was drawn up by the expert, finding that the garage’s outer wall was fire resistant. Subsequently, on 21 December 1995, the Municipal Council again dismissed the applicant’s appeal against the decision of 4 August 1993. On 13 March 1996 the Lower Austria Regional Government, upon the applicant’s objection, quashed the Municipal Council’s decision and referred the case back to it, finding that it had failed to give the applicant an opportunity to comment on the report of the inspection carried out on 3 July 1995. On 1 April 1996 the applicant’s counsel, on whom the Municipal Council had served the report of 3 July 1995, submitted written observations. He submitted in particular that the expert’s submissions contained in the report did not meet the basic requirements of an expert opinion. On 25 April 1996 the applicant lodged a complaint with the Constitutional Court, claiming that the decision of 13 March 1996 was arbitrary and that the reasons given for it showed that the Regional Government considered his request to be unfounded. On 8 October 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success and transferred the case to the Administrative Court. On 24 March 1998 the Administrative Court, without holding a hearing, dismissed the applicant’s complaint against the Regional Government’s decision of 13 March 1996. On 21 December 1998 the Municipal Council again dismissed the applicant’s appeal against the decision of 4 August 1993. On 9 March 1999 the Lower Austria Regional Government dismissed the applicant’s objection. It found in essence that the outer wall of the garage was fire-resistant. As it had not been constructed in contravention of the building permit, there was no basis for issuing a demolition order. On 8 June 1999 the Constitutional Court dismissed the applicant’s complaint for lack of prospects of success and transferred the case to the Administrative Court. On 8 September the applicant supplemented his complaint to the Administrative Court and requested that an oral hearing be held. He complained about the duration of the proceedings. As to their merits, he maintained that his neighbours’ garage did not comply with the relevant provisions on fire-resistance. Further, he complained that he had not been present at the inspection of the garage on 3 July 1995 and that the expert opinion was not conclusive. Moreover, he challenged all members of the competent chamber of the Administrative Court for bias. On 18 October 1999 the Administrative Court dismissed the applicant’s motion for bias. On 29 August 2000 the Administrative Court dismissed the applicant’s complaint as being unfounded. Furthermore, the Administrative Court refused the applicant’s request for an oral hearing, relying on section 39 §   2   (6) of the Administrative Court Act which allows it to forego a hearing if it is not likely to contribute to the clarification of the case. The court noted that the applicant’s neighbours had a final building permit, which he could no longer challenge. As regards the applicant’s complaint about the duration of the proceedings it noted that the proceedings concerning the issuing of the building permit and the proceedings concerning his request for a demolition order were to be regarded separately. The latter proceedings had not yet lasted unreasonably long. As to the applicant’s request for a demolition order, the court noted that the report of the inspection of 3 July 1995 had been duly served on the applicant who had commented thereon. Consequently, the fact that he had not been summoned to participate in the inspection did not constitute a procedural defect. Furthermore, the authority’s finding that the garage’s outer wall was fire-resistant was based on a conclusive expert opinion. Consequently, the Administrative Court confirmed the Regional Government’s view that the garage complied with the building permit. The Administrative Court’s decision was served on 5 October 2000. B. Other proceedings In connection with the above proceedings, the applicant conducted two sets of proceedings under the Official Liability Act. On 9 October 1998 the applicant filed an action with the Krems Regional Court, claiming that the Gföhl municipality had acted unlawfully in that it had failed to summon him to the inspection of 3 July 1995 and requesting lawyer’s costs incurred for the appeal against the ensuing decision. The court held a hearing on 12 January 1999. A further hearing was postponed once on the defendant’s request and once on the applicant’s request and was finally held on 26 November 1999. On 19 June 2000 the Krems Regional Court granted the applicant’s action on the merits but reduced the amount claimed by some 65 Euros. The decision was served on 26 June 2000. In a further set of proceedings started on 2 February 1999 the applicant claimed costs incurred on account of the allegedly unlawful decisions of the Lower Austria Regional Government. On 11 June 1999 the Krems Regional Court found that it did not have jurisdiction to deal with the case and transferred it to the St. Pölten Regional Court. The latter, after having received submissions from both parties, held a hearing on 18 January 2000. On 25 August 2000 the St. Pölten Regional Court dismissed the applicant’s claim. On 9 January 2001 the Vienna Court of Appeal dismissed the applicant’s appeal. The decision was served on 5 February 2001. In June 1999, proceedings concerning the possible appointment of a guardian for the applicant were instituted by the Krems District Court. They were discontinued on 12 December 1999 after the court had established that the applicant did not need the assistance of a guardian. COMPLAINTS 1.     The applicant complained under Article 6 of the Convention about the length of the proceedings concerning his neighbours’ garage. 2.     Further, he complained under Article 6 that the Administrative Court failed to hold a public hearing in the proceedings concerning his request for a demolition order and that the proceedings were unfair. He submitted, in particular, that the authorities decided arbitrarily and wrongly applied the law. Moreover, he complained that he was not present at the inspection carried out on 3 July 1995. 3.     Moreover, the applicant complained that proceedings were conducted against him in 1993 in order to enforce his obligation to allow his neighbours to enter upon his property. 4.     The applicant also complains that proceedings concerning the possible appointment of a guardian were instituted against him. 5.     Finally, the applicant complains in general terms about the length and alleged unfairness of the official liability proceedings. Again, he relies on Article 6. THE LAW The applicant raised a number of complaints under Article 6 of the Convention which, so far as material, reads 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 [a] ... tribunal ...” 1.     The applicant complained about the length of the proceedings concerning his neighbours’ garage. The Government asserted that only the proceedings concerning the applicant’s request for a demolition order were to be taken into account, as the building permit proceedings which had been terminated in 1989 constituted a separate set of proceedings. They argued that the present proceedings were of a certain complexity, as they required an examination of complicated technical issues, including the taking of an expert opinion. Furthermore, the applicant contributed to the duration of the proceedings, in that he filed complaints with the Constitutional Court even against decisions in his favour and filed requests which were devoid of any prospects of success (e.g. an unsubstantiated motion for bias in the last set of proceedings before the Administrative Court). As to the authorities’ conduct the Government contended that there were no undue delays. For his part, the applicant asserted that the proceedings started in May   1985 and maintained that their duration was excessive. The Court observes that the building permit proceedings and the proceedings concerning the applicant’s request for a demolition order are separate sets of proceedings. Only the latter, in respect of which the application was introduced within the six months time-limit provided for in Article 35 of the Convention, are under consideration in the present case. These proceedings started on 11 July 1993, when the applicant filed his request for a demolition order, and and were terminated on 5 October 2000 when the Administrative Court’s decision was served. They have thus lasted seven years two months and three weeks. During this period, the proceedings, which were twice referred back to the lower instance, came before four levels of jurisdiction. 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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities ( Frydlender v. France [GC], no. 30979/96, §   43, ECHR   2000   VII). The proceedings at issue in the present case were of a certain complexity, as they necessitated the taking of an expert opinion. As to the conduct of the applicant, the Court notes that he contributed to a considerable extent to the duration of the proceedings in that he twice filed appeals against decisions in his favour, namely the Regional Government’s decisions of 2 January 1995 and 13 March 1996. While the first of these appeals only caused a delay of about three weeks, the second caused a delay of almost one and a half years. In addition, in the last set of proceedings before the Administrative Court, he unsuccessfully challenged all members of the competent chamber of that court for bias. As regards the conduct of the authorities, the Court notes that there are no substantial periods of delay attributable to the authorities. In conclusion, having regard to the fact that the case was dealt with by four levels of jurisdiction and given that the applicant contributed to a considerable extent to their duration, the Court finds that the overall duration of seven years two months and three weeks can still be regarded as “reasonable” for the purpose of Article 6 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicant complained about the lack of a public hearing and the alleged unfairness of the proceedings concerning his request for a demolition order. a.     As to the lack of a public hearing, the Government accepted that the Administrative Court was the only tribunal deciding on the present case and that Article 6 § 1, in principle, required a public hearing. However, relying on the Court’s case-law, the Government argued that special circumstances pertained in the present case which justified dispensing with a public hearing. The case concerned a rather technical matter and the applicant raised only points of law and the question of the conclusiveness of the expert opinion, which could be assessed on the basis of the file. The applicant maintained that, despite his requests, the Administrative Court failed to hold a public hearing at any moment during the examination of his request for a demolition order. The Court observes that the applicant’s case was heard by the mayor of Gföhl, the Municipal Council and the Regional Government, i.e. by a number of purely administrative authorities. In the last instance it came before the Administrative Court. The applicant does not contest that the Administrative Court qualifies as a tribunal, and there is no indication in the file that the Administrative Court’s scope of review was insufficient in the circumstances of the case (see, for instance, Fischer v. Austria , judgment, of 26 April 1995, Series A no. 312, pp. 17-18, §§ 30-34 with further references). Thus, the Administrative Court was the first and only tribunal which examined the applicant’s case. As the Austrian reservation in respect of Article 6 § 1 concerning the requirement that hearings be public, has been found to be invalid (see, Eisenstecken v. Austria , no. 29477/95, § 29, ECHR 2000-X), the applicant was in principle entitled to a public hearing before the first and only tribunal examining his case, unless there were exceptional circumstances which justified dispensing with such a hearing (see, for instance, Fredin v. Sweden (no.2) , judgment of 23 February 1994, Series A no. 283-A, pp10-11, §§   21 ‑ 22; Fischer , cited above, p. 20-21, § 44; Stallinger and Kuso v.   Austria , judgment of 23 April 1997, Reports of Judgments and Decisions 1997-II, pp. 679-80, § 51, Allan Jacobsson v. Sweden (no. 2) , judgement of 19   February 1998, Reports 1998-I, p. 168, § 46). The Court has accepted, however, that the requirements of Article 6 may be fulfilled even in the absence of a public hearing, or any hearing at all, where proceedings concern exclusively legal or highly technical questions (see Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, p. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25   April 2002; Speil v. Austria (dec.) no. 42057/98, 5 September 2002). In the present case, the Court observes that the applicant’s complaint to the Administrative Court partly raised questions of law and partly concerned a highly technical issue, namely the fire-resistance of his neighbours’ garage. In these particular circumstances, and taking into account the national authorities’ demands of efficiency and economy (see Schuler ‑ Zgraggen , cited above, p. 20, § 58), the Court concludes that the Administrative Court was entitled to dispense with a hearing. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. b.     As to the alleged unfairness of the proceedings, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The applicant complains in particular that he was not summoned to the inspection of the garage carried out on 3 July 1995. The Court observes that the personal presence at the taking of expert evidence may be required by Article 6 where the party concerned is otherwise unable to comment effectively on the report once it is finished ( Mantovanelli v. France , judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, §   36, relating to the hearing of witnesses by a medical expert in the absence of the parties). In the present case, the purpose of the inspection was the examination of the site by the building expert and the applicant was subsequently given an opportunity to comment on the expert’s report. There is no indication that he could not effectively forward his arguments. The applicant’s further submissions do not disclose any indication of a violation of Article 6 § 1 either. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 3.     As far as the applicant complains about the enforcement proceedings conducted against him in 1993, in order to secure compliance with his obligation to allow his neighbours to enter upon his property, the Court observes that the present application has been introduced on 27 March 2001. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 4.     The applicant further complains that proceedings concerning the possible appointment of a guardian were instituted against him. The Court notes that these proceedings were discontinued on 12 December 1999, that is more than six months before the introduction of the application on 27   March 2001. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 5.     Finally, the applicant complains about the length of two sets of proceedings under the Official Liability Act. The Court notes that there is no indication in the file that the applicant lodged an application for the acceleration of the proceedings under Section 91 of the Courts Act, which constitutes an effective remedy as regards complaints about the length of proceedings (see, Holzinger v. Austria (no.1), no. 23459/94, §§ 22-25, ECHR 2001-I). Even assuming exhaustion of domestic remedies, the Court notes that the first set of proceedings started on 9 October 1998 and was terminated on 26   June 2000, thus having lasted one year and some eight months before one instance. No major periods of inactivity occurred. The second set of proceedings started on 2 February 1999 and was terminated on 5   February   2001. It lasted two years and was dealt with by two levels of jurisdiction. In these circumstances, the Court finds that neither of the two sets of proceedings lasted unreasonably long. As to the alleged unfairness of the proceedings, the Court notes that the applicant has failed to substantiate his complaint. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos R ozakis   Registrar   President