CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 février 2013

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They are represented before the Court by Nenning & Tockner, lawyers practising in Steyr. The respondent Government are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3.     All applicants with the exception of the second applicant, are owners of houses and plots of land in Pyhra. Their plots of land are situated in the vicinity of a pig breeding farm owned by the H family but are not directly adjacent to the H’s land. 1.     Proceedings relating to applications for building permits by the applicant’s neighbours 4.     On 30 June 1997 the H family applied for a building permit ( Baubewilligung ) for changes in the existing sty buildings on plot no. 236/1, the construction of a liquid manure tank and a tractor garage. The case was registered under number B-52/1997. 5.     On the same day they applied for a building permit for the construction of a pigsty in an existing farm building on plot no. 32 and the amendment of a farm building to make an “emergency sty” on plot no.   236/1. The case was registered under number B-53/1997. 6.     The applicants were not considered to be parties to the proceedings. On 31   January 1998 the Mayor ( Bürgermeister ) granted both building permits. 7.     On 26 August 1997, the third and fourth applicants applied to be considered as parties to the proceedings. On 27 August 1997, the first applicant applied to be considered a party to the proceedings. Their applications were rejected by the Mayor on 29   October 1997. 8.     On 10 December 1997, the fifth applicant applied to be considered a party to the proceedings. His application was rejected by the Mayor on 15   December 1997. 9.     The first, third, fourth and fifth applicants appealed against the decisions. On 18 February 1998, the Municipal Council ( Gemeinderat ) upheld the Mayor’s decision. The applicants lodged objections ( Vorstellung ) which were dismissed by the Lower Austrian Regional Government ( Niederösterreichische Landesregierung – “the Regional Government”) on 1 September 1998. 10.     On 15 December 1999 the Constitutional Court ( Verfassungsgerichtshof ) refused to deal with the complaints. 11.     The case was referred to the Administrative Court ( Verwaltungsgerichtshof ). By decision of 26 April 2000, the Administrative Court rejected the third and fourth applicants’ complaints. It noted that their plot of land did not have a common border with the plots of land to which the requests for building permits related and that the distance between the respective plots of land exceeded 14 metres. Consequently, they were not considered parties to the building permit proceedings pursuant to section 6 of the Lower Austria Building Act ( Bauordnung- “the Building Act”). The   decision was served on the third and fourth applicants’ counsel on 25   May 2000. 12.     On 4 July 2000 the Administrative Court granted the first and fifth applicants’ complaints and set aside the decision of the Regional Government. The Administrative Court held that the first and fifth applicants fulfilled the statutory requirements to be considered as parties to the building permit proceedings. Although their plots of land did not have a common border with the plots of land to which the requests for building permits related, they were at a distance of less than 14 metres. 13.     On 17 August 2000, the first and fifth applicants lodged an application to be served the building permits of 31 January 1998. The   service of the decisions was carried out on 3 November 2000. 14.   Subsequently, the first and fifth applicants appealed against the building permits of 31 January 1998. 15.     The Municipal Council did not decide on the appeals within the statutory six-month time-limit. Therefore, the first applicant lodged an application against the administration’s failure to decide ( Säumnisbeschwerde ) under Article 132 of the Federal Constitution before the Administrative Court. While the complaint was pending, the Municipal Council decided on the appeal on 18   October 2001. It upheld both building permits of 31 January 1998. 16.     The first and fifth applicants lodged objections with the Regional Government. 17.     On 27 August 2002 the Regional Government issued a decision. Firstly, it set aside parts of the contested decisions, namely the decision in file number B-52/1997 in so far as it concerned the amendments of the existing sty building on plot no. 236/1, and the decision in file   number   B   53/1997 in so far as it concerned the changes in the existing farm building for the “emergency sty” on plot no. 236/1 and referred the case back to the Municipal Council for a new decision. The Regional Government found that the building permits were unlawful, as parts of the buildings at issue were wrongly qualified as “lawfully existing” ( Bestand ), although no final building permits for these parts existed. Secondly, the Regional Government rejected the first and fifth applicants’ objections against the construction of a pigsty in an existing farm building on plot no.   32, also part of file number B-53/1997 finding that they were not parties in respect of this request for a building permit. 18.     On 17 June 2003 the Administrative Court rejected the first and fifth applicants’ complaint against the Regional Government’s decision as unfounded. It found that the Regional Government had rightly refused to consider them as parties in the proceedings in case B-53/1997 regarding the construction of a pigsty in an already existing farm building on plot no. 32, as the building was not on a neighbouring parcel to their plots of land and the distance between the respective plots of land exceeded 14 metres. Consequently, the building permit in respect of the construction of a pigsty in an existing farm building became final. 19.     In the meantime, the Municipal Council continued the proceedings relating to the requests for amendments in the existing sty building and the changes in the existing farm building for the “emergency sty”, i.e. the proceedings relating to plot no. 236/1 to which the first and fifth applicants were parties. 20.     In a decision of 22 May 2003 the Municipal Council upheld the first and fifth applicants’ objections and set aside the respective building permits. The first and fifth applicants lodged objections on 10 June 2003 and 11   June   2003, respectively. 21.     On 30 August 2004 the Regional Government set aside the decision of 22 May 2003 on formal grounds and referred the case back to the Municipal Council. 22.     On 18 November 2004 the Municipal Council issued a new decision on the building permits in files B-52/1997 and B-53/1997, in which it again granted the first and fifth applicants’ appeals and set aside the building permits in so far as they had not yet become final. That meant that the building permits for amendments in the existing sty building and for changes in the existing farm building for the “emergency sty”, both relating to plot no. 236/1 were refused. 23.     On 16 December 2004 the first and fifth applicants lodged objections against the decision of 18 November 2004, contesting in particular the building permit in respect of the construction of a pigsty in an existing farm building on plot no. 32, which was part of file no. B-53/1997. 24.     Due to the failure of the Regional Government to issue a decision on the objections within the time-limit provided for by law, the first and fifth applicants lodged an application against the administration’s failure to decide with the Administrative Court on 10 July 2006. The Administrative Court requested the Regional Government to issue a decision within three months. 25.     The Regional Government complied with the request and issued a decision on 17 October 2006, in which it dismissed the objections. It held that the proceedings related only to file number B-52/1997 (amendments to the existing sty building) and parts of file number B-53/1997 (amendments to a farm building to make an “emergency sty”), both relating to plot no. 236/1. Both building permits had been refused. The building permit under file no. B-53/1997 (construction of a pigsty in an existing farm building) on plot no. 32, which the applicants tried to contest, had already become final. The decision was served on the two applicants on 18 October 2006. 26.     The first and fifth applicants did not lodge complaints with the Administrative Court or the Constitutional Court against the Regional Government’s decision of 17 October 2006. 2. Applications for retroactive building permits by the applicants’ neighbours 27.     In the meantime, the H family applied for two retroactive building permits for existing sty buildings in late September 2005. These   applications were registered under files Bau 26-2005 and Bau   27 ‑ 2005. 28.     By land registry decision of 16 December 2005 the H family had one of its plots of land, namely plot no. 236/2, divided. 29.     On 22 February 2006 the H family withdrew the applications registered under files Bau 26-2005 and Bau 27-2005. On 22 February and 1   March 2006 the H family submitted new applications for retroactive building permits concerning two sty buildings on plot no. 236/2. These cases were registered under file no. Bau 0005-2006 and Bau   0006 ‑ 2006. A   further request for a building permit for a fuel storage room in the existing farm building was registered under Bau 0044-2006. 30.     On 6 April 2006 the Regional Government found that the projects concerned by the requests for building permits did not require the conduct of an environmental impact assessment. 31.     A hearing on the newly submitted applications for retroactive building permits was scheduled for 25 September 2006. On   19   September   2006 the first, third, fourth and fifth applicants requested to be considered as parties to the proceedings and submitted objections to the requests for retroactive building permits. 32.     On 13 August 2007 the Mayor granted the retroactive building permits requested by the H family, subject to a number of conditions. The objections of the first, third, fourth and fifth applicants were dismissed, as they were not parties to the proceedings as the distance between their land and the parcel concerned by the applications for retroactive building permits exceeded 14 metres. 33.     The first, third, fourth and fifth applicants appealed against the building permits. 34.     On 16 January 2008 the Municipal Council dismissed their appeal finding that as the applicants were not parties to proceedings. 35.     The first, third, fourth and fifth applicants lodged objections. The Regional Government dismissed the objections by decision of 25   September 2008, confirming the Municipal Council’s legal view that the applicants were not parties to the proceedings. 36.     The first, second and fifth applicants complained to the Constitutional Court, which refused to deal with the case on 1   December   2008. 37.     The case was transferred to the Administrative Court, which asked the first, second and fifth applicants to submit further copies of their complaints. As they failed to do so within the time-limit set, the Administrative Court discontinued proceedings on 2 April 2009. The decision was served on the first, second and fifth applicants on 23   April   2009. 38.     On 14 October 2009 the first, third, fourth and fifth applicants submitted an application for transfer of jurisdiction pursuant to section 73 of the Code of General Administrative Procedure ( Devolutionsantrag ), claiming that they had made a request to be recognised as parties to the proceedings on 28 April 2006 and that the authorities had failed to decide on that request. 39.     After a first decision by the Municipal Council had been set aside by the Regional Government on formal grounds, the Municipal Council issued a new decision on 28 June 2010. It noted that the files Bau 0005-2006, 0006-2006 and Bau 0044-2006 did not contain a request dated 28   April   2006 by the first, third, fourth and fifth applicants. In any case, their request of 19 September 2006 to be recognised as parties to the proceedings had been dismissed by the Mayor’s decision of 13   August   2007. That decision had been confirmed by the Regional Government on 25   September 2008. The decision granting retroactive building permits under the mentioned file numbers had meanwhile become final. 3.     Proceedings relating to applications for a demolition order brought by the first, third, fourth and fifth applicants 40.     In July 2000 the first and fifth applicants applied to the building inspectorate to prohibit pig breeding on the farm owned by the H family. 41.     In February 2004 and on 1 August 2005, the first, third, fourth and fifth applicants requested a demolition order under section 35 of the Building Act and prohibitions to use the sty buildings. 42.     On 25 February 2006 the first and fifth applicants applied to the Municipal Council for transfer of jurisdiction pursuant to section 73 of the Code of General Administrative Procedure, as the Mayor had failed to act on their application dated July 2000 to prohibit pig breeding on the H’s   property. 43.   On 1 March 2006 the first, third, fourth and fifth applicants also made an application for transfer of jurisdiction relating to their request for a demolition order. 44.     On 3 October 2006 the Municipal Council rejected the two applications for transfer of jurisdiction, finding that the proceedings which were pending concerned plot no. 236/2. However, the applicants were not parties to the proceedings on building inspections as their plots of land did not have a common border with plot no. 236/2 and the distance between that plot of land and their parcels exceeded 14 metres. 45.     On 16 October 2006 the first, third, fourth and fifth applicants lodged objections against the decision of 3 October 2006. 46.     By decision of 25 November 2008 the Regional Government rejected the objections as unfounded. As no further remedies were lodged, the decision became final. B.     Relevant domestic law 47.     The relevant provisions of the Lower Austria Building Act ( niederösterreichische Bauordnung ) provide as follows: Section 6 – parties to the proceedings, neighbours and interested parties “(1) In building permit proceedings and proceedings of the building inspectorate in accordance with section 32, section 33(2), section 34(2) and section 35 the following are recognised as parties to the proceedings: 1. the prospective builder and/or owner of a building 2. the owner of the building plot 3. the owners of the plots of land that border the building plot or that are separated from them by strips of land with a total width of up to 14 metres (e.g. narrow plots of land, traffic areas, water, green belts (neighbours), and 4. the owners of buildings above or below ground level on the plots of land defined in subparagraphs (2) and (3), e.g. buildings on third-party land, buildings erected on the basis of an agreement between the owner of the land and the person entitled to build, basements, branches of sewer systems (neighbours). Neighbours are only recognised as parties to the proceedings if the building or its use affect the subjective public rights defined exhaustively in paragraph 2. Interested parties are all the remaining persons whose private rights and interests are affected. (2) Subjective-public rights are founded on those provisions of this Act, of the 1976 Lower Austria Zoning Act [...] of the Lower Austria Lift Regulations [...] as well as the Implementing Regulations concerning these Acts, which guarantee   1. the stability, dryness and fire safety of the buildings of the neighbours (paragraph 1, subparagraph 4),   2. protection against emissions (Section 48) except those resulting from the use of a building for the purpose of living there or of a parking facility within the legally permissible limits (Section 63), and regarding   3. the way of construction, the development height, the building distance from bordering plots of land, the distance between buildings or their permissible height, insofar as these provisions have the purpose of ensuring adequate light exposure of the main windows (section 4(9)) of the permissible buildings of the neighbours (i.e.   existing and approved buildings as well as future buildings eligible for approval). (3) If a road borders the building plot, the road maintainer shall be a party to the proceedings within the meaning of paragraph 1. Notwithstanding, the road maintainer may invoke only those rights that guarantee road usability and road safety.” Section 35 Safety measures and demolition order “(1) The building authority shall order all safety measures necessary to protect persons and things, in particular it shall order to vacate buildings completely or partly. (2) The building authority shall order demolition of a building if   1. more than half of the fully developed enclosed volume of a building became unusable due to building defects and to irregularities determined by the health building or fire protection authorities; or   2. it is economically unviable to remedy building defects and the owner has not remedied the irregularities within the term granted under Section 33 (2), or   3. there is no building permit (Section 23) or building notification (Section 15) for the respective building and   the building is inadmissible (Section 15 (3) and Section 23 (1)) or   if the owner has not submitted an application for a building permit or a building notification necessary to obtain the lacking permit within the term fixed by the building authority and commencing on the service of the respective official order.   Subparagraph 3 shall apply mutatis mutandis to other projects (3) If necessary to avoid danger to people and things or unacceptable nuisance, the building authority shall prohibit the use of a building for another purpose than that permitted or stated in the notification (Section 15) by issuing a decision.” COMPLAINT   48.     The applicants complained under Article 6 of the Convention that the proceedings lasted unreasonably long. THE LAW 49.     In their complaint about the length of the proceedings, the applicants relied on Article 6 of the Convention which, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The Government contested this argument. A. Whether the second applicant may claim to be a victim within the meaning of Article 34 of the Convention 50.     In the Government’s view the second applicant was not a victim of the alleged violation. They asserted that his wife, the first applicant, was the owner of the property situated in the vicinity of the land concerned by the requests for building permits and related proceedings. Accordingly, the first applicant but not the second applicant had been a party to the proceedings complained of. 51.     The applicants contested this view. They considered that the second applicant, who lived on the property at issue with the first applicant, was also affected by the excessive duration of the proceedings. 52.     The Court reiterates that in order to be able to lodge a petition in pursuance of Article 34, a person, non-governmental organisation or group of individuals must be able to claim “to be the victim of a violation ... of the rights set forth in the Convention ...”. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see   Micallef v. Malta [GC], no. 17056/06, § 44, ECHR 2009). 53.     The Court notes that the second applicant does not own property situated in the vicinity of the plots of land to which the proceedings complained of related. Consequently, he was not a party to the domestic proceedings. It was only after the introduction of the present application that he lodged a complaint with the Constitutional Court on 10 November 2008. However, he could not assert any legal position of his own. He can therefore not claim to have been directly affected by the excessive length of the proceedings. The Court concludes that he cannot claim to be a victim of the alleged violation. 54.     It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. B. Whether the application of the first, third, fourth and fifth applicants is admissible 55.     The Government argued that contrary to the applicants’ submissions, the proceedings were not to be seen as a whole. Although they all arose from the same neighbourhood dispute, they were separate sets of proceedings relating to different requests for building permits or retroactive building permits brought by the H family and to the request for a demolition order brought by the applicants. 56.     In respect of the proceedings relating to the H’s requests for building permits under file nos B-52/1997 and B-53/1997 the Government argued that the third and fourth applicants were not recognised as parties to the proceedings. In respect of the first and fifth applicant, who were admitted as parties to the proceedings, the proceedings were terminated on 18   October   2006 and the application, submitted on 30 May 2007, had therefore been lodged outside the six-month time-limit. 57.     In respect of the proceedings relating to the request for retroactive building permits, the Government submitted that the first requests (files   Bau   26-2005 and Bau 27-2005) were withdrawn on 22 February 2006. Consequently, the application was also lodged outside the six-month time ‑ limit. Regarding the renewed requests (files Bau 005-2006, 006-2006 and 0044-2006), the Government asserted there had not been any dispute on the applicants’ civil rights when they lodged the application on 30   May   2007 as the authorities had not taken any decision at that time. Moreover, the applicants had failed to exhaust domestic remedies as they did not lodge an application for transfer of jurisdiction, which according to the Court’s case ‑ law was an effective remedy in respect of the length of proceedings. 58.   For their part,   the applicants argued that the proceedings had to be seen as a whole as they concerned a single subject-matter, namely requests for building permits on their neighbours’ property. Furthermore, the applicants mentioned that the other proceedings, such as the ones concerning a demolition order, were only initiated in addition, but the main proceedings complained of were the proceedings in which the H family tried to obtain building permits for their pig-breeding farm. 59.     The Court finds that various sets of proceedings have to be distinguished. Although the subject matter of the proceedings was similar, they concerned separate applications for building permits or retroactive building permits on various plots of land and a request for a demolition order, respectively. Therefore the proceedings must be seen separately (see,   as similar cases, also relating to various sets of proceedings in the context of requests for building permits: Emsenhuber v. Austria (dec.), no.   54536/00, 11 September 2003, Hofbauer v. Austria (dec.), no. 68087/01, 2 September 2004 and Ebmer v. Austria (dec.), no. 28519/05, 4   February   2010; Wurzer v. Austria , no. 5335/07, § 31, 6 March 2012). 60.     The Court reiterates that, in administrative proceedings, in which the administrative authorities’ decisions are a necessary precondition for bringing the case before a “tribunal” the point in time when a “dispute” arises is, as a rule, taken as the starting point of the proceedings (see, for instance Morscher v. Austria , no. 54039/00, § 38, 5 February 2004; Wurzer , cited above, § 45). 61.     Furthermore the Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law ( Micallef , cited above, § 74). Article   6   §   1 is not aimed at creating new substantive rights, without a legal basis in the Contracting State, but at providing procedural protection of rights already recognised in domestic law (see, Zander v. Sweden , 25   November 1993, § 24, Series A no. 279 ‑ B; K.T. v. Norway , no.   26664/03, § 83, 25   September 2008). 1.     Proceedings relating to applications for building permits by the applicant’s neighbours 62.     The first set of proceedings related to the H family’s requests for building permits under file no. B-52/1997 for changes in the existing sty buildings on plot no. 236/1 and under file no. B-53/1997 for the construction of a pigsty into an existing farm building on plot no. 32 and the amendment of a farm building to make an “emergency sty” on plot no.   236/1. The Court considers that in respect of the first and fifth applicants, who were eventually recognised as parties to the proceedings, the proceedings started on 31 January 1998 when the mayor granted the neighbours’ requests for building permits, as this decision had a direct bearing on their civil rights as neighbours and thus a “dispute” arose at that date (see, mutatis mutandis , Wurzer , cited above, §§ 46-47). The proceedings were terminated by the Regional Government’s decision of 17   October 2006, which was served on 18 October 2006. The present application was lodged on 30 May 2007. It follows that the first and fifth applicants’ complaint about this set of proceedings has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 63.     In respect of the third and fourth applicants the Court notes that they did not fulfil the requirements to be recognised as parties to the proceedings under section 6 (1) of the Building Act as their plot of land did not have a common border with the plot to which the requests for building permits related and was at a distance exceeding the statutory limit of 14 meters. Consequently, they were not entitled to assert any of the rights enumerated in section 6 (2) of the Building Act. In the Court’s view the proceedings therefore did not concern a dispute over rights which can be said, at least on arguable grounds, to be recognised under domestic law. Consequently, Article 6 § 1 did not apply to the proceedings in respect of the third and fourth applicants. It follows that the third and fourth applicant’s complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. 2. Applications for retroactive building permits by the applicants’ neighbours 64.     The second set of proceedings related to the H family’s requests for retroactive building permits. No dispute arose in respect of the request of September 2005 as it was withdrawn on 22 February 2006. On that date and on 1 March 2006 the H family lodged a new request for retroactive building permits for two sty buildings on plot no. 236/2 under files Bau 005-2006 and Bau 006-2006 plus a further request for a construction permit of a fuel storage room on the same plot of land. 65.     The Court observes that the first, third, fourth and fifth applicants did not fulfil the statutory requirements to be recognised as parties under section 6 (1) of Building Act as their respective plots of land did not have a common border with plot no. 236/2 and were at a distance of more than 14   metres. The applicants were therefore not entitled to assert any rights pursuant to section 6 (2) of the Building Act. Consequently these proceedings did not concern a dispute over rights which can be said, at least on arguable grounds, to be recognised under domestic law. Article 6 § 1 did therefore not apply. It follows that the first, third and fourth applicants’   complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. 3. Proceedings relating to applications for a demolition order brought by the first, third, fourth and fifth applicants 66.     The third set of proceedings related to the application for a prohibition of pig-breeding lodged by the first and fifth applicants in July   2000 and a further application for a demolition order under section 35 of the Building Act, lodged by the first, third, fourth and fifth applicants in February 2004. Again the applicants did not fulfil the statutory requirements to be recognised as parties to these proceedings. They were therefore not entitled to lodge a request for a demolition order under section 35 of the Building Act (see, mutatis mutandis , Emsenhuber (dec.), cited above). Consequently these proceedings did not concern a dispute over rights which can be said, at least on arguable grounds, be to recognised under domestic law. Consequently, Article 6 did not apply. It follows that the first, third and fourth applicant’s complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. C. Conclusion 67.     In sum, the Court considers that the second applicant cannot claim to be a victim of the alleged violation within the meaning of Article 34 of the Convention. The first, third, fourth and fifth applicants’ complaints are inadmissible on the following grounds: 68.     In respect of the first set of proceedings, the Court finds that the first and fifth applicants have submitted the application outside the six-months time-limit provided for in Article 35 § 1 of the Convention. In respect of the third and fourth applicants the complaint about this set of proceeding is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4. 69.     In respect of the second and third sets of proceedings, the first, third, fourth and fifth applicants’ complaints are also incompatible ratione   materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4.   For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Isabelle Berro-Lefèvre   Registrar   President