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FIRST
SECTION
CASE OF RAMBAUSKE v. AUSTRIA
(Application
no. 45369/07)
JUDGMENT
STRASBOURG
28 January
2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Rambauske v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 7 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 45369/07) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Austrian nationals, Mr Wolfgang Rambauske and Mrs Martina
Rambauske (“the applicants”), on 15 October 2007.
- The
applicants were represented by Mr P.-L. Kirste, a lawyer practising
in Salzburg. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry for European and International Affairs.
- On
11 February 2009 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants are the joint owners of a house in Salzburg which they had
acquired in 1996. In spring 1997 they discovered that the distance
between an annex to their house and the neighbouring plot of land did
not correspond to the minimum distance required by the building
permit.
- On
24 November 1997 the applicants applied to the Salzburg Municipal
Authority (Magistrat) for a retrospective building permit
including, among other points, the authorisation to go below the
minimum distance between the annex to their house and the
neighbouring plot.
- The
Salzburg Municipal Authority fixed a date for a hearing on the
property in question, but cancelled that date on the applicants’
request. Subsequently, the applicants and their neighbours filed
comprehensive submissions and the applicants submitted substitute
plans which were then examined by a court-appointed expert, A.
- A
hearing on the applicants’ property was held on 4 November
1998. On the applicants’ request the time-limit for commenting
on the results of the hearing was extended from 4 to 31 December
1998. Having announced to submit a private expert opinion by the end
of January 1999 the applicants did so on 2 June 1999. On 1 August
1999 the applicant’s neighbours filed comments. The Salzburg
Municipal Authority granted the applicants’ request on 7
December 1999.
- On
23 December 1999 the applicants’ neighbours appealed against
the authorisation to reduce the minimum distance between their
property and the applicants’ house.
- Until
August 2000 the Appeals Commission (Bauberufungs-kommission)
tried to achieve a settlement between the applicants and their
neighbours. As these efforts failed, it took further evidence, asking
expert A. to supplement his opinion. The parties were asked to
comment by 21 February 2001. That time-limit was extended
several times on the applicants’ request until 30 March 2001.
The Appeals Commission held an on-site hearing on 6 July 2001.
- On
17 October 2001, after a further attempt to achieve a friendly
settlement had failed, the Appeals Commission requested the
applicants for further comments by 6 November. On their request the
time-limit was extended until 28 November 2001. Following a change in
the designation of the applicants’ property, the Appeals
Commission asked them to comment by 13 February 2002. On that date
the applicants submitted comments and amended their request which was
subsequently submitted to expert A. The latter submitted his opinion,
after the applicants had made further necessary amendments of the
plan, on 24 September 2002. On the applicants’ request, the
time-limit for filing comments was extended from 12 November until
9 December 2002. The time-limit for replying to their
neighbours’ comments was extended from 2 January until 28
January 2003.
- On
18 March 2003 the Appeals Commission confirmed the Municipal
Authority’s decision.
- On
2 May 2003 the applicants’ neighbours lodged a complaint to the
Administrative Court. The Appeals Commission submitted its
observations on 3 July and the applicants submitted their
observations in reply on 24 July 2003.
- On
27 March 2007 the Administrative Court (Verwaltungsgerichtshof)
dismissed the neighbours’ complaint as being unfounded. The
judgment was served on the applicants’ counsel on 19 April
2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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 that argument.
- The
period to be taken into consideration began on 23 December 1999 when
the applicants’ neighbours appealed against the building permit
as it was then that a “dispute” within the meaning of
Article 6 § 1 arose, the administrative authority’s
decision being a necessary preliminary for bringing the dispute
before a tribunal (see Morscher v. Austria, no. 54039/00,
§ 38, 5 February 2004, and König v. Germany, 28 June
1978, § 98, Series A no. 27). It ended on 19 April 2007 when the
Administrative Court’s judgment was served on the applicants.
It has thus lasted seven years and almost four months for two levels
of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicants maintained that the duration of the proceedings before the
Administrative Court was excessive, while accepting that no
unjustified delays occurred in the proceedings before the lower
instances.
- The
Government argued that the case was factually and legally complex. No
periods of inactivity occurred before the building authorities. The
complexity of the proceedings and the Administrative Court’s
excessive workload, which was due to structural reasons, explained
the duration of the proceedings before that instance. The applicants
contributed to the duration of the proceedings as, on the one hand,
the documents submitted by them showed deficiencies and
inconsistencies and, on the other hand, they repeatedly filed
requests for the extension of time-limits. In sum, the duration of
the proceedings was not excessive.
- 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 following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The Court accepts that the case was of some
complexity. While the applicants caused some delays, albeit of a
minor nature, by requesting extensions of time-limits, the Court
notes that the case was pending before the Administrative Court from
2 May 2003 until 27 March 2007 that is for three years and almost
eleven months. In reply to the Government’s argument relating
to the Administrative Court’s excessive workload which was due
to structural reasons, the Court reiterates its well-established
case-law that it is for the Contracting States to organise their
judicial systems in such a way that their courts are able to
guarantee everyone the right to obtain a final decision on disputes
concerning civil rights and obligations within a reasonable time
(see, for instance, Otto v. Austria, no. 12702/08, § 24,
22 October 2009, and Comingersoll S.A. v. Portugal [GC],
no. 35382/97, § 24, ECHR 2000 IV).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Gierlinger v. Austria, no. 38032/05, § 18, 29
November 2007, and Richter v. Austria, no.
4490/06, § 29, 18 December 2000, both with further
references).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained that there was no remedy at their
disposal to complain of the excessive length of proceedings before
the Administrative Court. They relied on Article 13 of the
Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
- The
Court has repeatedly found that no effective remedy was available
against delays occurring before the Administrative Court (see, for
instance, Vitzthum v. Austria, no. 8140/04, § 31, 26 July
2007, and Schutte v. Austria, no. 18015/03, § 38, 26 July
2007). The Government have not made comments on this point, except
for referring to their observations relating to the duration of the
proceedings. There is nothing in the present case which would require
the Court to deviate from the above finding.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the applicants could have obtained
a ruling upholding their right to have their case heard within a
reasonable time, as set forth in Article 6 § 1 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 40,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award them EUR 6,000
under that head.
B. Costs and expenses
- The
applicants also claimed EUR 9,641.60, inclusive of value-added tax,
for the costs and expenses incurred before the Court.
- The
Government asserted that the claim was excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court, plus any tax that may be chargeable to
the applicant on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 6,000
(six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage and EUR 2,000 (two thousand euros)
for costs and expenses plus any tax that may be chargeable to the
applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 28 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
