Peter and Paul KUGLER v Austria - 65631/01 [2008] ECHR 1759 (27 November 2008)

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The European Court of Human Rights (First Section), sitting on 27 November 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicants, Paul and Peter Kugler, are Austrian nationals who live in Imst. They are represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) are represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants are the co-owners of a plot of land in Lech (Austria) which was designated as building land (Bauland); one building had already been constructed on the land. On 22 July 1987 the Lech municipal authorities informed the applicants that they intended to modify the area zoning plan (Flächenwidmungsplan) and to designate the remaining part of their land as open land (Freihaltefläche), as they considered that the remaining part was not suitable for construction under the Vorarlberg Regional Planning Act (Raumplanungsgesetz), since it consisted of a steep slope.

On 6 August 1987 the second applicant lodged an application for a building permit in order to construct a further hotel on the plot of land at issue.

On 14 June 1988 the Lech municipal authorities issued a building prohibition in respect of the applicants’ plot of land.

The Bludenz District Administrative Authority (Bezirkshaupt-mannschaft) held a hearing on 23 September 1988 concerning the second applicant’s application for a building permit.

On 4 July 1991 the Lech municipal authorities extended the building prohibition.

On 31 July 1991 the applicants lodged an application for a transfer of jurisdiction (Devolutionsantrag), as the District Administrative Authority had not decided within the statutory six-month time-limit.

The Vorarlberg Regional Government allowed this application on 10 October 1991 but dismissed the second applicant’s application for a building permit on the ground that the permit would contravene the building prohibition. The second applicant lodged a complaint with the Constitutional Court.

On 19 March 1992 Lech Municipal Council issued a decree determining the maximum building density (Baunutzungszahl) for the category of land which included the applicants’ land, and on 2 July 1992 it lifted the building prohibition. The second applicant thereupon requested the Regional Government to reopen the building permit proceedings.

On 28 September 1992 the Constitutional Court dismissed the second applicant’s complaint against the decision of 10 October 1991. It found that the building prohibition was lawful.

On 29 September 1992 the Regional Government dismissed the request to reopen the building permit proceedings. The second applicant lodged a complaint with the Administrative Court.

On 28 January 1993 the Administrative Court dismissed the second applicant’s complaint. It found that the conditions for reopening the building permit proceedings were not met. This decision was served on 24 February 1993.

The second applicant requested a partition of land (Grundstücksteilung) on 26 September 1995, but withdrew this request on 30 April 1996.

On 11 November 1996 the second applicant lodged a fresh application for a building permit for his project.

On 26 February 1997 the District Administrative Authority informed the second applicant of the municipal authorities’ submissions to the effect that the maximum building density laid down by the decree of 19 March 1992 did not allow the construction of a further building on his plot of land. The second applicant commented on this information. After the municipal authorities submitted further comments on 6 October 1997, the second applicant requested the District Administrative Authority to decide on his application.

On 25 June 1997 the Municipal Council adopted a building plan (Bebauungsplan) which amended the decree of 19 March 1992 but left the maximum building density unchanged. On 1 July 1997 the Regional Government granted the required authorisation of the building plan.

On 28 October 1997 the District Administrative Authority dismissed the second applicant’s application for a building permit. It found that the maximum building density defined in the building plan did not allow the construction of a further building on the applicants’ plot of land. On 12 November 1997 the second applicant lodged an appeal.

The Regional Government dismissed the appeal on 2 June 1998 and upheld the District Administrative Authority’s finding.

On 16 July 1998 the second applicant lodged a complaint with the Constitutional Court and requested an oral hearing. He submitted that the area zoning plan and the building plan were unlawful, and claimed that the Regional Government had refused to allow him to consult the case file in the building plan proceedings.

On 7 September 1998 the municipal authorities submitted their observations; on 15 September 1998 the Regional Government did likewise.

On 6 October 1998 the applicant’s counsel consulted the case file at the Constitutional Court and the latter submitted all the documents of the case file to him on the following day.

On 8 June 2001 the applicant’s counsel requested the Constitutional Court to consult further documents concerning the original area zoning plan.

On 12 June 2001 the Constitutional Court declined to deal with the complaint for lack of prospect of success. It found that, considering the hillside situation of the plot of land, its allegedly unlawful designation appeared to be reasonable.

Subsequently, the case was transferred to the Administrative Court and on 11 October 2001 the second applicant amended his complaint and requested an oral hearing. He submitted that the refusal of the building permit was based on an unlawful area zoning plan and building plan. He requested that a hearing be held and an on-site inspection carried out, and that he be given the opportunity to consult all the documents concerning his plot of land.

On 20 March 2003 the Administrative Court dismissed the complaint. It found that the refusal of the building permit had been lawful, as the maximum building density for the plot of land at issue was already exceeded by the existing buildings. Further, it found that it was not necessary to hold a hearing or to carry out an on-site inspection, as the second applicant had merely contested the lawfulness of the area zoning plan and the building plan, which had already been reviewed by the Constitutional Court. This decision was served on 30 April 2003.

On 19 January 2005 the second applicant applied for a building permit for a private house on the same plot of land.

After holding a hearing on 5 August 2005 the Lech municipal authorities granted the application on 2 September 2005; the decision was served on the applicant’s counsel on 5 December 2005.

The applicants complained under Article 6 of the Convention about the length of the administrative proceedings concerning them, in particular about the proceedings before the Constitutional Court and the Administrative Court.

The applicants also complained that they had had no opportunity to consult the case file. They further complained that the Administrative Court did not have full jurisdiction and that therefore their civil rights had not been determined by a tribunal within the meaning of Article 6 of the Convention. In addition, they complained that the Administrative Court had declined to hold a hearing and to carry out an on-site inspection. In this connection the applicants submitted that the essential question, the modification of the area zoning plan, had been examined not by the Administrative Court but by the Constitutional Court, which was not a tribunal within the meaning of Article 6 of the Convention; furthermore, such a review should have included an oral hearing.

Finally, they complained that the refusal to grant the building permit for the erection of a hotel had violated their rights under Article 1 of Protocol No. 1.

“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 that argument. As regards the period to be taken into account, the Government submitted that there had been two different sets of proceedings. The first had started in August 1987 and ended with the decision of the Administrative Court on 28 January 1993. The second set of proceedings had started on 11 November 1996 and ended on 30 April 2003.

This was disputed by the applicants. In their view, both sets of proceedings should be taken together since they concerned the same set of facts.

With regard to the first applicant, the Court notes at the outset that he was not a party to the domestic proceedings, which concerned only the second applicant. Therefore, the first applicant cannot complain about the length of proceedings to which he was not a party, despite the fact that he is the co-owner of the plot of land at issue.

It follows that this part of the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

With regard to the second applicant, the Court finds that there were distinct sets of proceedings as the Administrative Court had taken a final decision on the first request for a building permit. After having withdrawn a request to have the land partitioned, the second applicant lodged a fresh application for the permit.

As regards the first set of proceedings, the Court considers that it ended when the final decision of the Administrative Court was served on the second applicant’s counsel on 24 February 1993. The application was lodged on 16 January 2001.

It follows that this part of the complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention

As regards the second set of proceedings, the Court notes that the period to be taken into consideration started on 12 November 1997, when the second applicant lodged his appeal against the District Administrative Authority’s decision of 28 October 1997. It ended on 30 April 2003, when the Administrative Court’s decision was served on his lawyer. It thus lasted for five years and more than five months.

The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. The Court notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government contended that the right to a public hearing is not absolute. In the present case the courts were justified in dispensing with a hearing, since the question of the lawfulness of the area zoning plan concerned exclusively legal questions and could be decided on the basis of the case file.

The applicants maintained that there were no special circumstances that justified foregoing a hearing. Moreover, there were essentially questions of fact that needed clarification in an oral hearing.

The Court notes at the outset that the first applicant was not a party to the domestic proceedings, which concerned only the second applicant. Therefore, the first applicant cannot complain about the lack of having been heard, despite the fact that he is the co-owner of the plot of land at issue.

In light of the parties submissions the Court concludes with regard to the second applicant that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

“In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government argued that the applicants’ lawyer consulted the complete file. The documents requested later were not part of this file.

The applicants maintained that the requested documents concerning the area zoning plan were necessary to establish the facts of the case.

As regards the first applicant, the Court reiterates that he was not a party to the domestic proceedings.

Concerning the second applicant the Court notes that this complaint is closely linked to the complaint concerning the lack of an oral hearing and that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible.

“Every natural [...] 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 [...]”

As regards the first applicant, the Court reiterates that he was not a party to the domestic proceedings. However, the Court finds that it can be left open whether this applicant has exhausted domestic remedies in these circumstances as this part of the application is in any event inadmissible for the following reasons.

The Court points out that the measure at issue did not amount to a deprivation of property within the meaning of paragraph 1 of Article 1 but constitutes an interference with the applicants’ right to the peaceful enjoyment of their possessions (see Berger and Hüttaler v. Austria, no. 21022/92 and 21023/92, Commission decision of 7 April 1994, unpublished; U.C. v. Austria no. 28569/95, Commission decision of 10 April 1997). It is covered by the second paragraph of Article 1 of Protocol No. 1 which allows Contracting States to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose, which means that there must exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

The Court finds that the measures taken were based on the relevant domestic legal provisions. Furthermore, they were clearly in pursuance of a general interest, as they hindered the further erection of buildings, inter alia, having regard to the hillside situation of the applicants’ plot of land, for security reasons. Having regard to the fact, that the already erected building overstepped the degree of utilisation, the refusal of a further building permit for a hotel did not impose an excessive burden on the applicants. Thus, the Court considers that this part of the application does not disclose any appearance of a violation of Article 1 of Protocol No. 1 to the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

Declares admissible, without prejudging the merits, the second applicant’s complaints relating to the excessive length of the proceedings which commenced on 12 November 1997 and the lack of an oral hearing and the equality of arms related to those proceedings;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Peter and Paul KUGLER v Austria - 65631/01 [2008] ECHR 1759 (27 November 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1759.html Cite as: [2008] ECHR 1759