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FIRST
SECTION
CASE OF WURZER v. AUSTRIA
(Application
no. 5335/07)
JUDGMENT
STRASBOURG
6 March
2012
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 Wurzer v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 5335/07) 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 an
Austrian national, Ms Anna Wurzer (“the applicant”), on
12 January 2007.
- The
applicant was represented by Mr K. Kocher, a lawyer practising in
Graz. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
- On
9 April 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Floing, where she owns a
house. Her neighbours (Mr and Mrs R.) own two plots of land opposite
her house.
A. The neighbour’s proceedings for a building
permit and authorisation of use
- It
appears that on 2 February 1972 Mr and Mrs R. obtained a decision on
designation of use of their land (Widmungsbewilligung) and on
10 March 1972 they obtained permission (Baubewilligung) to
construct a guest-house. Mr and Mrs R. changed the construction plans
and built a dance-hall and adjoining rooms in the basement of the
house. On 29 April 1976 the Mayor (Bürgermeister) of
Floing retroactively granted a building permit and authorised this
use of the building (Benützungsbewilligung). The
authorisation of use applied to the rooms in the basement of Mr and
Mrs R.’s house, which were then used as a discotheque.
According to the applicant, this led to noise emissions and heavier
traffic on the road leading to the applicant’s and Mr and Mrs
R.’s houses.
- The
applicant was not considered to be a party to the proceedings in
respect of the building permit and thus was not able to lodge her
objections with the relevant authorities.
- In
mid-1988 the Regional Government instructed the Mayor that the
applicant (and some other neighbours) were parties to the proceedings
and thus would have to be served the decision on the designation of
use of land of 2 February 1972 and the building permit of 10 March
1972. The Mayor did not serve the decisions on the applicant; in
mid-1989 he was instructed again to serve the decisions, which he
refused. On 2 October 1989 the applicant applied to the Mayor to be
served the decisions. On 13 November 1989 she received the decisions.
- The
applicant appealed against the building permit and decision of
authorisation of use of 29 April 1976. The Municipal Council partly
set aside the decisions on 28 March 1991, holding that the building
was in breach of the area zoning plan in force since 27 May 1986 and
that the building was in contravention of the building permit and the
designation decision. Thus, parts of the authorisation of the use of
the building (in the present case the alterations to the rooms for
their use as a discotheque) were set aside.
- Mr
and Mrs R. raised objections (Vorstellung) to the setting
aside of the decision, arguing, inter alia, that the Municipal
Council should have obtained data on the noise emissions coming from
the discotheque, and that the applicant should have been considered a
party to the proceedings only if the noise emissions had exceeded a
certain level. They also argued that they had entered into a
settlement agreement with the applicant (see paragraph 13
below), according to which she would tolerate the discotheque against
payment of a certain amount of money. Furthermore when the noise
levels were measured the noise was found not to exceed the usual
noise levels in the area.
- The
objections were dismissed by the Styrian Regional Government by
decision of 16 October 1991; Mr and Mrs R. complained to the
Administrative Court. By decision of 12 March 1992 the Administrative
Court granted suspensive effect to Mr and Mrs R’s complaint.
- On
24 September 1992 the Administrative Court confirmed the setting
aside of the authorisation of use. It held that the authorisation of
use was in fact an additional building permit and the neighbours (in
this case the applicant) were parties to these proceedings. It also
confirmed the Regional Government’s view that the area in which
Mr and Mrs R. were running their discotheque was a residential area
in which discotheques were prohibited.
B. Further application for a building permit
- Meanwhile,
on 27 August 1991 Mr and Mrs R. had applied for an alteration to
their building and for a change of the authorised use of their
building as a dance bar. The application was refused by the Mayor on
30 November 1993; an appeal to the Regional Government also
failed on 21 December 1995. No further remedies were lodged, so
this set of proceedings was terminated with final effect.
C. The settlement agreement
- On
2 July 1980 the applicant and Mr and Mrs R. had entered into a
settlement agreement (gerichtlicher Vergleich) according to
which Mr and Mrs R. undertook that at night no noise exceeding 35
decibels would reach a room in the upper floor of the applicant’s
house, and undertook to pay compensation to the applicant. The
applicant undertook to withdraw her appeal in the proceedings on the
permission of commercial use of the site (Betriebsanlagengenehmigung)
before the Weiz District Authority and to withdraw her appeal against
the Mayor’s designation permit of 4 April 1979. Mr and Mrs R.
undertook not to carry out the project to enlarge the discotheque
rooms; the applicant undertook to agree to an amended project which
was subject to the application of permission for commercial use of
the site before the Weiz District Authority, in which a decision had
been issued on 15 April 1980.
D. The proceedings under section 40 of the Styrian
Buildings Act
- On
8 March 1996 Mr and Mrs R. applied for a decision that the
discotheque was built in accordance with the law. They relied on
section 40 of the Styrian Buildings Act (Steiermärkisches
Baugesetz), according to which a building can be declared to have
been constructed lawfully if it was erected between 1 January 1969
and 31 December 1984 and if certain further conditions have been
fulfilled. The application was rejected by the Mayor on 2 September
1996 and an appeal was rejected by the Municipal Council on 9 April
1997. Mr and Mrs R. submitted an objection to the Regional
Government, which set aside the decision on 30 September 1997 and
referred the case back to the Municipal Council. It held that the
Municipal Council should have taken into consideration whether the
building theoretically could have been authorised at the time of its
construction. It appears that no further decision was taken by the
Municipal Council.
- The
applicant was not considered to be a party at first. When she found
out that there had been proceedings, she applied on 22 and 23 March
2005 to have the decisions served on her. The rescinded decision of
the Mayor of 2 September 1996 was served on her on 4 April 2005 and
the Regional Government’s decision of 30 September 1997 was
served on her 18 April 2005.
- The
applicant made a complaint against the Regional Government’s
decision of 30 September 1997 to the Constitutional Court on 27 May
2005, which refused to deal with the complaint on 10 October 2005.
The case was transferred to the Administrative Court.
- On
27 June 2006 the Administrative Court rejected the complaint. It
rejected the applicant’s arguments, but upheld the Regional
Government’s reasoning that section 40 of the Styrian Buildings
Act applied to buildings for which no building permission could be
provided and to buildings for which permission had been refused; any
other interpretation might put people who tried to obtain a building
permit, even if in vain, at a disadvantage vis-à-vis
those who had never even tried to obtain a building permit. The
decision was served on the applicant’s counsel on 14 July 2006.
As a result of the decision of the Administrative Court, the case was
placed once more before the Municipal Council.
- In
September 2007 an expert’s opinion was obtained on the question
whether Mr and Mrs R.’s building could have been permissible
under the area zoning plan in force at the time of the construction
of the building. It was sent to the applicant’s counsel on 15
October 2007 for comments.
- On
25 January 2008 the Municipal Council rejected Mr and Mrs R.’s
appeal against the Mayor’s decision of 2 September 1996 (the
decision that the building would not be authorised under section 40
of the Styrian Buildings Act); Mr and Mrs R. appealed against the
refusal. The appeal decision was not served on the applicant. On 8
April 2008 the Regional Government set aside the decision of 25
January 2008 and remitted the case to the Municipal Council.
- On
29 September 2008 the Municipal Council allowed Mr and Mrs R.’s
appeal and thus their application of 8 March 1996 that the building
be declared lawfully constructed, and a building permit and
authorisation of use were granted.
- The
applicant submitted an objection (Vorstellung) to the decision
to allow the appeal. On 18 December 2008 the Regional Government
sustained the objection and set aside the decision of 29 September
2008 since the authorities had failed to take noise emissions and
other disturbances into consideration; however it also stated that
from a zoning planning point of view the discotheque would be
permissible.
- The
applicant appealed against the Regional Government’s decision
to the Constitutional Court on 2 February 2009. She contested the
finding that the discotheque would be permissible from a zoning
planning point of view. By decision of 2 March 2009 the
Constitutional Court refused to deal with the case for lack of
prospects, as the case neither appeared to contain questions of
constitutional law nor was the contested decision based on a law
appearing to be in violation of constitutional rights.
- The
applicant did not apply to have the case transferred to the
Administrative Court.
- By
a decision of 9 July 2009 the Municipal Council again allowed Mr and
Mrs R’s appeal and held that their building was lawful under
section 40, paragraphs 2 and 3 of the Styrian Buildings Act. On 11
February 2010 the Regional Government dismissed the applicant’s
objection against this decision. On 14 June 2010 the Constitutional
Court refused to deal with the applicant’s complaint and
transferred the case to the Administrative Court.
- The
Administrative Court requested the applicant to supplement her
complaint, which she did on 24 August 2010. On 2 November 2010 the
Regional Government submitted observations. On 9 November 2011 the
Administrative Court dismissed the applicant’s complaint. The
decision was served on 18 November 2011.
II. RELEVANT DOMESTIC LAW
- Section
40 of the Styrian Buildings Act provides as follows:
§ 40: Lawful existence
“(1) Existing physical structures and
heat-producing appliances for which a building permit was necessary
at the time of their construction shall, where evidence of such a
permit cannot be supplied, be deemed lawful if they were erected
before 1 January 1969.
(2) Any physical structures and
heat-producing appliances which were erected between 1 January 1969
and 31 December 1984 and would have been permissible at the time of
their construction shall likewise be deemed lawful.
(3) The assessment of lawfulness for the
purposes of subsection (2) above shall be carried out on an
application by the owner of the building or ex officio. It
shall take into account the applicable legal position at the time of
the construction. If the requirements in subsection (2) are
satisfied, the authority must issue a declaration of lawfulness. The
declaration shall be treated as equivalent to a building permit and
authorisation of use...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement and
that the proceedings had been unfair. Article 6 § 1 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 fair ...... hearing within
a reasonable time by [a] ... tribunal...”
A. The complaint about the duration of the proceedings
- The
Government contested the argument that the proceedings had lasted an
unreasonably long time.
1. Admissibility
(a) Whether the six-month time-limit of
Article 35 (1) of the Convention was respected
- The
Government argued that only the proceedings under section 40 of the
Styrian Buildings Act (see section d) above) could be examined. The
other proceedings were separate and not connected to each other. They
were concluded in 1992, 1980 and 1995 respectively, and the applicant
had thus failed to lodge an application with the Court within the
six-month time-limit after their final decision provided for by
Article 35 § 1 of the Convention. In eventu, the
Government argued that the applicant had failed to exhaust domestic
remedies.
- The
applicant argued that the proceedings should be seen as one, as they
were all directed against the operation of the discotheque on the
neighbouring land.
- The
Court agrees that there were different sets of proceedings, and the
various proceedings are thus to be seen separately (see Emsenhuber
v. Austria (dec.), no. 54536/00, 11 September 2003; and
Ebmer v. Austria (dec.), no. 28519/05, 4 February 2010).
- The
first three sets of proceedings ended by decisions of 24 September
1992 (see above, paragraph 11), 21 December 1995 (see above,
paragraph 12) and 2 July 1980 (see above, paragraph 13),
respectively. The application with the Court was lodged on 12 January
2007, thus significantly more than six months after the final
decisions in these proceedings. The fourth set of proceedings under
section 40 of the Styrian Buildings Act was terminated in November
2011 (see above, paragraph 25) and was therefore still pending when
the application was lodged. In respect of this set of proceedings,
the applicant has complied with the six-month rule.
- Consequently,
the complaints about the duration of all the sets of proceedings
except for the one under section 40 of the Styrian Buildings Act, are
inadmissible as lodged outside the six-month time-limit provided for
by Article 35 § 1 of the Convention.
(b) Whether domestic remedies were
exhausted
- In
respect of this last set of proceedings, the Government
contested that the applicant had exhausted domestic remedies, as
she had never complained about the duration to the Constitutional
Court despite having repeatedly lodged complaints before that court.
- The
applicant stated that she had complained under Article 6 to the
Constitutional Court, which had led to the decision of the
Constitutional Court of 10 October 2005. Furthermore, the
Constitutional Court is under a duty to find violations of rights
guaranteed by constitutional law out of its own motion.
- The
Court has constantly held that domestic remedies have to be exhausted
if they are effective, sufficient and accessible (see Mifsud
v. France (dec.) [GC], no. 57220/00, ECHR 2002-VIII).
- The
Court notes that the applicant did not raise the issue of the length
of proceedings explicitly in her complaints to the Constitutional
Court. However, as the Court held in the cases of Stechauner v.
Austria, no. 20087/06, § 34, 28 January 2010, and
Puchstein v. Austria, no. 20089/06, § 31, 28
January 2010, such a complaint to the Constitutional Court has a
merely declaratory effect and does not have preventive or
compensatory effects. Thus, this type of remedy does not fulfil the
criterion of effectiveness in the light of the principles developed
by the Court, and an applicant is not bound to make use of that
remedy. In conclusion, the Court dismisses the Government’s
objection of non-exhaustion.
(c) Whether the applicant can claim to be
a victim of a violation
- The Government finally argued that the applicant could
not be considered a victim. The applicant was an “omitted
party” (übergangene Partei) in the proceedings
under section 40 of the Buildings Act. Being an “omitted party”
meant that she was a party to the proceedings but was not summoned to
hearings and did not have the procedural rights of parties. Also, no
decision was issued vis-à-vis her, and she was not
served any of the decisions. From a legal point of view, the
applicant did not suffer any disadvantage from having been an omitted
party, as the decisions did not have any effect on her. In any event
the Government maintained that she could only claim to be a victim of
a violation of her human rights after the decisions were served on
her, i.e. after 18 April 2005.
- The
applicant argued that she had been affected by the operation of the
discotheque ever since it started.
- The
Court finds that the Government arguments can be split into two
parts, the first one being whether the applicant can claim to be a
victim of a violation, as the proceedings concerned her neighbours’
building project, and the second one being the question of when the
proceedings at issue started. Turning to the question as to whether
the applicant can claim to be a victim of a violation, the Court
reiterates that it held in the case of Emsenhuber v. Austria
(dec.), no. 54536/00, 11 September 2003:
“The Court firstly reiterates that proceedings for
the granting of a building permit to a particular person also involve
the determination of a civil right of the neighbour who opposes a
building permit. The Court considered that in such proceedings
pecuniary interests of the opposing neighbour could be at stake and
therefore found the civil right limb of Article 6 § 1 to be
applicable (see Ortenberg v. Austria, judgment of 25 November
1994, Series A no. 295-B, pp. 48-49, § 28).”
- The
Court reiterates, furthermore, that a declaration of lawfulness under
Section 40 of the Styrian Buildings Act shall be treated as
equivalent to a building permit and authorisation of use. The Court
thus considers that the applicant can claim to be a victim of a
violation of her civil rights. However, the question of the relevant
starting point of the proceedings under Section 40 of the Buildings
Act is so closely connected with the merits of the complaints that it
should be joined to the merits.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- The
applicant maintained that all proceedings should be considered
cumulatively, and thus had lasted for more than thirty years.
- The
Government argued that according to the Court’s case-law, in
administrative proceedings a dispute about a civil right begins when
an applicant challenges an authority’s decision. The applicant
had been an “omitted party” at first and was served the
decisions on 5 April and 18 April 2005. These decisions were then
challenged by the applicant on 27 May 2005, thus it is only from this
date that the proceedings started.
- 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” within the meaning of
Article 6 § 1 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).
- In
a previous case, concerning an “omitted party” in
administrative proceedings on a request for approval of a sales
contract relating to real property, the Court accepted the date of
the decision by which the competent authority had refused approval as
the starting point of the proceedings. That decision, given on the
request of the seller, had erroneously not been served on the
applicants who, being the buyers of the property at issue, could
consequently not be entered into the land register. In its reasoning
the Court noted in particular that the refusal of the approval of the
sales contract had had a direct bearing on the applicants’
civil rights (see Rieberer and Engleitner v. Austria (dec.),
no. 8749/02, 7 October 2004).
- In
the present case, the Court observes that none of the decisions taken
at the stage of the proceedings when the applicant was an “omitted
party” had a direct bearing on her civil rights. First, the
mayor had rejected her neighbours’ request to have their
building declared lawful under section 40 of the Styrian
Buildings Act. Then, the Municipal Council had dismissed their appeal
and, subsequently, the Regional Government had referred the case back
to the Municipal Council, which apparently took no further decision.
In March 2005 the applicant, having learned that proceedings were
pending, requested that the decisions be served on her. On 27 May
2005 she lodged a complaint against the Regional Government’s
decision with the Constitutional Court. The Court therefore considers
that a “dispute” within the meaning of Article 6 § 1
of the Convention only arose on that date, which should consequently
be taken as the starting point of the proceedings. These proceedings
ended on 18 November 2011 when the Administrative Court’s
judgment was served on the applicant. They have therefore lasted
almost six and a half years and have come before three 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 following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court finds that the present case was not particularly complex. The
applicant’s conduct did not give rise to any significant
delays. As to the conduct of the authorities, it is noted that partly
the length of the proceedings is due to the fact that the case was
repeatedly remitted to the Municipal Council. Furthermore, delays
which are attributable to that authority occurred: In particular,
after the Administrative Court had referred the case back to
Municipal Council by decision of 27 June 2006, it took the latter
more than one and a half years to issue a new decision on 25 January
2008.
- Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court considers that in the instant
case, the overall length of the proceedings was excessive and failed
to meet the “reasonable time” requirement. There has
accordingly been a breach of Article 6 § 1 in that respect.
B. The complaint of unfairness of the proceedings
- The
applicant complained that the proceedings had been unfair, as she had
not been considered a party to them at first.
- The
Court reiterates that it can only examine the applicant’s
complaints in respect of the proceedings under Section 40 of the
Styrian Buildings Act, as the application was lodged outside the
six-month time limit in respect of the other sets of proceedings
(see paragraphs 32-33 above).
- The
Court refers to its above finding that, at the stage of the
proceedings when the applicant was an “omitted party”, no
decisions were taken which had a direct bearing on her civil rights
and that a “dispute” over the applicant’s civil
rights only arose once she had learned about the proceedings and
lodged a complaint against the Regional Government’s decision
(see above, paragraph 47). The proceedings were then remitted to the
Municipal Council. There is no indication that the applicant could
not submit all her arguments in the subsequent proceedings or that
they were otherwise unfair.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION AND ITS
PROTOCOLS
- Relying
on Article 8 of the Convention, the applicant complained that Mr and
Mrs R’s building and the operation of the discotheque had led
to noise emissions and increased traffic on the road, thus violating
her right to respect for her private life and her home. Furthermore,
she complained under Article 1 of Protocol No. 1 that, because of the
noise levels on the neighbours’ land and the authorities’
inactivity tolerating the noise emissions, she was restricted in the
use she could make of her property.
- Again,
the Court can only examine the applicant’s complaints as far as
they relate to the proceedings under Section 40 of the Styrian
Buildings Act. In these proceedings, the question of noise emissions
was one of the points examined (see above, paragraph 21). The mere
fact that the authorities decided in favour of the applicant’s
neighbours finding that their building was lawful does not disclose
any indication of a violation of Article 8 of the Convention or of
Article 1 of Protocol No. 1. The applicant has not further
substantiated her complaint. In particular she has not claimed that
the noise emissions from the discotheque exceeded the threshold fixed
in the relevant laws or in the settlement agreement she had concluded
with her neighbours in 1980.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 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
applicant claimed 33,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim as excessive and pointed out that the
Court can also find that the finding of a violation constitutes just
satisfaction in itself.
- The
Court considers that the applicant must have sustained non pecuniary
damage related to the violation found. Ruling on an equitable basis,
it awards her EUR 1,500 under that head, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 8,132.76 for the costs and expenses
incurred before the domestic courts and EUR 7,689.60 for those
incurred before the Court.
- The
Government contested these claims, arguing that the costs and
expenses incurred in the domestic proceedings did not serve to
prevent the long duration of the proceedings. Moreover, the costs
claimed for the proceedings before the Court were not in line with
the awards the Court usually makes.
- 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 are
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 that 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 complaint concerning the excessive
length of the proceedings under section 40 of the Styrian Buildings
Act admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500
(one-thousand five hundred euros), plus any tax that may be
chargeable, in respect of non pecuniary damage, and EUR 2,000
(two thousand euros) plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
