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You are here: BAILII >> Databases >> European Court of Human Rights >> ORTENBERG v. AUTRICHE - 12884/87 [1994] ECHR 42 (25 November 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/42.html Cite as: 19 EHRR 524, (1995) 19 EHRR 524, [1994] ECHR 42

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In the case of Ortenberg v. Austria*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A**, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr C. Russo,

Mr A. Spielmann,

Mr R. Pekkanen,

Mr A.N. Loizou,

Sir John Freeland,

and also of Mr H. Petzold, Acting Registrar,

Having deliberated in private on 27 May and 25 October 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 33/1993/428/507. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 9 September 1993, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 12884/87) against the Republic of Austria lodged with

the Commission under Article 25 (art. 25) by an Austrian national,

Mrs Margarete Ortenberg, on 10 September 1986.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that she

wished to take part in the proceedings and designated the lawyer who

would represent her (Rule 30). The lawyer was given leave by the

President to use the German language (Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 24 September 1993, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr L.-E. Pettiti, Mr R. Macdonald, Mr C. Russo,

Mr N. Valticos, Mr R. Pekkanen, Mr A.N. Loizou and Sir John Freeland

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently Mr A. Spielmann, substitute judge, replaced Mr Valticos,

who was unable to take part in the further consideration of the case

(Rules 22 paras. 1 and 2 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Deputy Registrar, consulted the Agent of the

Austrian Government ("the Government"), the applicant's lawyer and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the Government's and the applicant's memorials

on 25 February 1994. On 8 and 28 April the Commission provided him

with various documents that he had sought on the President's

instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 May 1994. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr W. Okresek, Head of the International

Affairs Division, Department of the

Constitution, Federal Chancellery, Agent,

Mrs E. Bertagnoli, Human Rights Division,

Department of International Law,

Federal Ministry of Foreign Affairs, Adviser;

(b) for the Commission

Mr F. Ermacora, Delegate;

(c) for the applicant

Mr H. Blum, Rechtsanwalt, Counsel.

The Court heard addresses by Mr Okresek, Mr Ermacora and

Mr Blum.

AS TO THE FACTS

I. The circumstances of the case

6. Mrs Ortenberg, an Austrian national, owns a house at Leonding,

near Linz (Upper Austria).

A. The administrative proceedings

7. On 12 September 1980 Leonding District Council adopted a

land-use plan (Flächenwidmungsplan) which designated as building land

an area comprising five parcels (725/3-7) adjoining the applicant's

property. On 30 January 1981 the council voted for a development plan

(Bebauungsplan) authorising the construction of terrace houses on this

land.

8. Subsequently the mayor of the town issued building permits to

the owners of the parcels. Mrs Ortenberg lodged an appeal (Berufung)

with the district council against all these decisions, challenging in

particular the lawfulness of the land-use and development plans and

complaining of the substantial nuisance that would be caused to her by

the proposed buildings. The council dismissed the appeal.

9. The applicant then lodged administrative complaints

(Vorstellungen) with the Government of the Land of Upper Austria. In

decisions (Bescheide) taken on 27 May (parcel 725/7), 8 July (parcel

725/6), 3 September (parcel 725/5), 14 October (parcel 725/4) and

22 October 1982 (parcel 725/3) the Land Government dismissed them, on

the ground that there was no infringement of Mrs Ortenberg's personal

rights as a neighbour that were laid down in sections 23(2) and 46(3)

of the Building Regulations Act of the Land of Upper Austria 1976

(Oberösterreichische Bauordnung - see paragraph 15 below). The Land

Government stated that, according to the experts, the nuisance caused

by the noise, dust and smells would not exceed locally permitted levels

and that the proposed buildings complied with the development plan.

B. The court proceedings

10. Mrs Ortenberg then applied to the Constitutional Court in

respect of parcels 725/6 and 725/7, alleging that her constitutional

rights had been infringed and that unlawful regulations (gesetzwidrige

Verordnungen) had been applied.

Concurrently she lodged three appeals (Beschwerden) with the

Administrative Court (in respect of parcels 725/3, 725/4 and 725/5).

She complained that her personal rights as a neighbour had been

infringed on account of nuisance caused by the building of a driveway

adjoining her property - nuisance which had not been properly assessed

by the experts - and also that certain building norms had not been

complied with.

11. On 2 October 1985 the Constitutional Court, doubting whether

the land-use and development plans complied with the Town and Country

Planning Act of the Land of Upper Austria (Oberösterreichisches

Raumordnungsgesetz), stayed the proceedings and decided to review the

lawfulness of the plans. It indicated, among other things, that under

the terms of the Act, reclassification of the green belt in question

could only be envisaged if it served dominant public interests, which

had not been so in the case before it.

On 3 December 1985 the Administrative Court also applied to

the Constitutional Court, asking it to quash the regulations relating

to the aforementioned plans, since they also applied to parcels 725/3,

725/4 and 725/5.

12. On 19 March 1986 the Constitutional Court joined all the

relevant proceedings and in response to the reference by the

Administrative Court held that the land-use and development plans were

lawful. The court took the view that as the land adjoining the parcels

in question, which was three times larger in area, had been designated

as building land by Leonding District Council as early as 1971, the

administrative authority had only slightly enlarged that designated

area, and this was not contrary to the Town and Country Planning Act

of the Land of Upper Austria.

At the same time, the court dismissed Mrs Ortenberg's own

individual appeals on the grounds that there had been no breach of her

constitutional rights and referred her to the Administrative Court (in

respect of parcels 725/6 and 725/7).

13. The Administrative Court dismissed the applicant's appeals in

judgments of 30 September (parcel 725/5) and 14 October 1986 (parcels

725/3 and 725/4), which contained the following reasons:

"...

As the neighbour has a personal right in public law to

compliance with the aforementioned provision [section 23(2)

Building Regulations Act of the Land of Upper Austria 1976],

a right to which regard must, as a matter of principle, be

had in planning-application proceedings, ... the Court was

required in the present case to consider whether the

additional traffic brought about by the proposed development

on the driveway to be constructed along the boundary of the

applicant's property would cause the applicant considerable

nuisance...

From the statements concerning noise in the observations

(of 23 May 1982) of the Air Pollution Control Subdivision of

the Office of the Upper Austrian Land Government it can be

seen that the driveway from the garage to Zaubertal Road is

48 m long, that the average distance between the driveway and

the applicant's house is about 25 m and that, if one assumes

an average speed of 5 k.p.h., it takes approximately 35

seconds to get from the garage to the public highway ...

...

... In the light of the fact that during the proceedings

the appellant did not make any concrete statements to counter

the above conclusions of the expert, the Court cannot attach

any material importance - within the meaning of section

42(2)(3)(b) and (c) of the Administrative Court Act, such as

would lead to the challenged decision being quashed - either

to the failure to measure the background noise level as the

appellant had requested or to the alleged shortcomings in the

medical expert's opinion, all the less as the appellant did

not give any indication of why, if matters had been

otherwise, the relevant authorities would have come to the

conclusion that the - uncontestedly extremely light - motor

traffic would entail considerable nuisance for the appellant

on her property ...

The Court is precluded by the rule in section 41(1) of the

Administrative Court Act prohibiting the raising of new

matters in the Administrative Court from considering the

appellant's contention that the assumption that an average of

some 40 vehicle movements an hour during the daytime was

considerably exaggerated.

...

Neither in her administrative complaint against this

decision [of Leonding District Council] nor in her appeal did

the appellant state in concrete terms in what way her

complaints were justified, and accordingly, in the absence of

any indication of the material importance of the alleged

violation of procedural rules within the meaning of section

42(2)(3) of the Administrative Court Act, the complaint

alleging a procedural irregularity (Verfahrensrüge) cannot

justify setting aside the challenged decision.

...

Accordingly, the present appeal is ill-founded as a whole,

and must be dismissed in accordance with section 42(1) of the

Administrative Court Act.

..."

14. On 28 October 1986 the Administrative Court also dismissed

Mrs Ortenberg's appeals in respect of parcels 725/6 and 725/7,

submitted to it by the Constitutional Court, reiterating the reasons

set out in its earlier judgments (see paragraph 13 above).

II. Relevant domestic law

A. The Building Regulations Act of the Land of Upper Austria

15. Two provisions of the Building Regulations Act of the Land of

Upper Austria 1976 are relevant to the case:

Section 23

"(1) All parts of buildings must be designed and

constructed in accordance with the latest technical knowledge

in such a manner that the buildings meet the normal

requirements of such buildings as regards safety, solidity,

protection from fire, insulation (against sound and heat),

health and hygiene, environmental protection and

"Zivilisation", and that natural and architectural

surroundings are not spoiled ..."

(2) In particular, all parts of buildings must be designed

and constructed in such a manner as to avoid as far as

possible any harmful effects on the environment. Harmful

effects on the environment are those which are likely to

cause ... considerable nuisance to the general public and, in

particular, to users of the buildings and the neighbourhood,

such as ... noise..."

Section 46

"(1) ...

(2) Neighbours may make objections to a grant of planning

permission on the ground that the proposed development will

infringe personal rights derived from either private law

(private-law objections) or public law (public-law

objections).

(3) Public-law objections by neighbours shall only be taken

into consideration in planning-application proceedings if

they are based on provisions of building law or of a land-use

or development plan that serve not only the public interest

but also the interests of the neighbourhood. Such

provisions include, in particular, all those concerning the

type of building, the uses to which the building land may be

put, the site of the proposed development, distances from the

boundaries of adjoining land and from neighbouring buildings,

the height of buildings, light and ventilation and those

dealing with health matters or the protection of the

neighbourhood from air pollution."

B. The applications to the Constitutional Court

16. On an application (Beschwerde) the Constitutional Court will

determine whether an administrative decision (Bescheid) has infringed

a right guaranteed by the Constitution or has applied regulations

(Verordnung) contrary to the law, a law contrary to the Constitution

or an international treaty incompatible with Austrian law (Article 144

para. 1 of the Federal Constitution - Bundesverfassungsgesetz).

C. Applications to the Administrative Court

17. Under Article 130 of the Federal Constitution, the

Administrative Court has jurisdiction to hear, inter alia, applications

alleging that an administrative decision is unlawful.

Section 41(1) of the Administrative Court Act

(Verwaltungsgerichtshofsgesetz) reads as follows:

"In so far as the Administrative Court does not find any

unlawfulness deriving from the respondent authority's lack of

jurisdiction or from breaches of procedural rules (section

42(2)(2) and (3)) ..., it must examine the contested decision

on the basis of the facts found by the respondent authority

and with reference to the complaints put forward .... If it

considers that reasons which have not yet been notified to

one of the parties might be decisive for ruling on [one of

these complaints] ..., it must hear the parties on this point

and adjourn the proceedings if necessary."

Under section 42(2) of the Act,

"The Administrative Court shall quash the impugned decision

if it is unlawful

1. by reason of its content, [or]

2. because the respondent authority lacked jurisdiction, [or]

3. on account of a breach of procedural rules, in that

(a) the respondent authority has made findings of fact

which are, in an important respect, contradicted by the case

file, or

(b) the facts require further investigation on an

important point, or

(c) procedural rules have been disregarded, compliance

with which could have led to a different decision by the

respondent authority."

18. Proceedings in the Administrative Court consist essentially

of an exchange of written pleadings (section 36). If one of the

parties so requests, the Administrative Court may hold an adversarial

hearing, which in principle is held in public (sections 39 and 40).

19. If the court quashes the challenged decision, "the

administrative authorities [are] under a duty ... to take immediate

steps, using the legal means available to them, to bring about in the

specific case the legal situation which corresponds to the

Administrative Court's view of the law (Rechtsansicht)"

(section 63(1)).

PROCEEDINGS BEFORE THE COMMISSION

20. Mrs Ortenberg applied to the Commission on 10 September 1986.

Relying on Article 6 para. 1 (art. 6-1) of the Convention, she

complained that she had not had access to a court with full

jurisdiction or had a fair hearing. She also complained of an

interference with her right of property as secured in Article 1 of

Protocol No. 1 (P1-1).

21. On 29 June 1992 the Commission declared the application

(no. 12884/87) admissible in respect of the complaint under

Article 6 para. 1 (art. 6-1) and inadmissible as to the remainder. In

its report of 14 May 1993 (Article 31) (art. 31), it expressed the

opinion that there had been no violation of Article 6 para. 1

(art. 6-1) as regards both access to a court (by fifteen votes to one)

and the fairness of the proceedings (unanimously). The full text of

the Commission's opinion and of the two concurring opinions contained

in the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will appear

only with the printed version of the judgment (volume 295-B of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

22. In their memorial the Government asked the Court to

"hold that Article 6 (art. 6) of the Convention does not

apply to the present case, or alternatively hold that there

has been no violation of the applicant's right to have her

case determined by a tribunal or of her right to a fair trial

guaranteed by Article 6 para. 1 (art. 6-1) ...".

23. The applicant requested the Court

"1. to find that the decisions given by the Constitutional

Court and the Administrative Court in the proceedings in the

instant case relating to the construction of houses on land

adjoining the property of the applicant ... violated

(a) her right to a hearing by a tribunal as required by

Article 6 para. 1 (art. 6-1) of the Convention, for the

determination of her civil rights;

(b) her right to a fair hearing as required by

Article 6 para. 1 (art. 6-1) of the Convention; and

(c) her right to the peaceful enjoyment of her

possessions, in accordance with Article 1 of Protocol No. 1

(P1-1) ...

2. to award the applicant appropriate compensation under

Article 50 (art. 50) of the Convention, in the sum of

1,140,000 Austrian schillings, plus legal costs, and to order

the Republic of Austria to pay this amount to the applicant

...".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

24. Mrs Ortenberg complained that she had not had access to a

tribunal with full jurisdiction or had a fair and public hearing. She

relied on Article 6 para. 1 (art. 6-1) of the Convention, which

provides:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by

[a] ... tribunal ..."

A. Applicability of Article 6 para. 1 (art. 6-1)

25. The Government considered that this provision did not apply

in the present case. The right of neighbours to object to the granting

of planning permission under section 46(3) of the Building Regulations

Act of the Land of Upper Austria (see paragraph 15 above) was

essentially a public-law right. It was designed to ensure compliance

with legal provisions, in particular those for the protection of the

environment. Furthermore, a grant of planning permission concerned the

relationship between a public authority and an individual; it did not

directly affect the owner of adjacent land.

26. Mrs Ortenberg, on the other hand, maintained that she had

brought the proceedings in question in order to prevent any

infringement of her pecuniary rights and that the outcome of them had

therefore had a direct bearing on her civil rights and obligations.

27. This was also in substance the opinion of the Commission.

28. The Court points out that Article 6 para. 1 (art. 6-1) applies

where the subject-matter of an action is "pecuniary" in nature and is

founded on an alleged infringement of rights which are likewise

pecuniary (see the Editions Périscope v. France judgment of

26 March 1992, Series A no. 234-B, p. 66, para. 40) or where its

outcome is "decisive for private rights and obligations" (see the H.

v. France judgment of 24 October 1989, Series A no. 162-A, p. 20,

para. 47).

It notes that section 46(2) of the Building Regulations Act

of the Land of Upper Austria expressly provides that neighbours may

object to the granting of planning permission by complaining that their

personal rights will be infringed, which "may be derived from either

private law (private-law objections) or public law (public-law

objections)" (see paragraph 15 above).

In this instance the applicant relied on public law and

alleged that the provisions of section 23(2) of the aforementioned Act

(see paragraph 15 above) had not been complied with. In so doing, she

nonetheless wished to avoid any infringement of her pecuniary rights,

because she considered that the works on the land adjoining her

property would jeopardise her enjoyment of it and would reduce its

market value.

Having regard to the close link between the proceedings

brought by Mrs Ortenberg and the consequences of their outcome for her

property, the right in question was a "civil" one.

Accordingly, Article 6 para. 1 (art. 6-1) applies.

B. Compliance with Article 6 para. 1 (art. 6-1)

1. Right of access to a court

29. In the applicant's submission, neither the Constitutional

Court nor the Administrative Court could be regarded as a "tribunal"

within the meaning of Article 6 para. 1 (art. 6-1).

The Constitutional Court did not have any power to review

questions of fact or of law and had confined itself to making a summary

examination of the land-use and development plans.

The Administrative Court had wide powers to review questions

of law but was bound by the administrative authorities' findings other

than in cases of a material breach of the procedural rules laid down

in section 42(2)(3) of the Administrative Court Act (see paragraph 17

above). That court was accordingly not empowered to take evidence

directly or to establish the facts itself or to take account of new

information. Furthermore, if it quashed an administrative decision,

it could not substitute its own decision for that of the

decision-making authority but always had to remit the case to it. In

short, it only reviewed conformity with the law, and this could not be

equated with full jurisdiction.

30. The Government, on the other hand, submitted that the

Administrative Court had powers which, taken together with those of the

Constitutional Court, afforded sufficient scope for the purposes of

Article 6 para. 1 (art. 6-1). Under section 42(2)(3) of the

Administrative Court Act, it had wide powers of review as regards both

the establishment of the facts and the taking of evidence. In the

instant case, just as in the Zumtobel v. Austria case (judgment of

21 September 1993, Series A no. 268-A), the Administrative Court had

accordingly reviewed the facts in detail. Moreover, if it quashed an

administrative decision, the decision-making authority was bound by the

Administrative Court's opinion (section 63(1) of the aforementioned Act

- see paragraph 19 above).

31. The Court points out that under Article 6 para. 1 (art. 6-1)

of the Convention it is necessary that decisions of administrative

authorities which do not themselves satisfy the requirements of that

Article should be subject to subsequent control by a "judicial body

that has full jurisdiction" (see the Albert and Le Compte v. Belgium

judgment of 10 February 1983, Series A no. 58, p. 16, para. 29).

32. The Constitutional Court is not such a body. In this instance

it could only review the lawfulness of the land-use and development

plans, and, on the Government's own admission, this did not enable it

to consider all the facts of the case. It therefore did not have the

competence required by Article 6 para. 1 (art. 6-1).

33. As for the Administrative Court's review, its scope must be

assessed in the light of the fact that granting planning permission is

not a matter exclusively within the discretion of the administrative

authorities; it remains subject to the rules set out in sections 23 and

46 of the Building Regulations Act of the Land of Upper Austria (see

paragraph 15 above). It was for the Administrative Court to satisfy

itself that these provisions had been complied with. In this respect,

the present case is distinguishable from the Obermeier v. Austria case

(judgment of 28 June 1990, Series A no. 179) and more closely resembles

the Zumtobel case (judgment previously cited).

34. Like the Commission, the Court notes that in its judgments of

1986 (see paragraph 13 above) the Administrative Court thoroughly

examined the applicant's complaints point by point, without ever having

to decline jurisdiction in replying to them. In particular, it looked

in detail at whether the traffic on the driveway would amount to

"considerable nuisance", before giving reasons for holding that there

had been no breach of the procedural rules within the meaning of

section 42(2)(3)(b) and (c) of the Administrative Court Act.

Regard being had to the fact that this was a decision taken

by an administrative authority on grounds of expediency and to the

nature of Mrs Ortenberg's complaints, the review by the Administrative

Court fulfilled the requirements of Article 6 para. 1 (art. 6-1) in

this instance.

2. Right to a fair hearing

35. The applicant further complained that she had not had a fair

hearing.

36. The Constitutional Court is not in issue, as it was not a

"tribunal" within the meaning of Article 6 para. 1 (art. 6-1) for the

purposes of this case (see paragraph 32 above).

37. The same is not true of the Administrative Court. However,

the European Court notes, like the Government, that Mrs Ortenberg did

not point to any feature that might cast doubt on the fairness of the

proceedings in the case in that court.

3. Right to a public hearing

38. The applicant complained that the Administrative Court had not

held a hearing.

39. The Court notes that this complaint was not raised before the

Commission. It accordingly has no jurisdiction to consider it.

4. Conclusion

40. In sum, there has been no breach of Article 6 para. 1

(art. 6-1).

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)

41. In her memorial Mrs Ortenberg also complained of a breach of

her right of property, contrary to Article 1 of Protocol No. 1 (P1-1).

42. This complaint, having been declared inadmissible by the

Commission on 29 June 1992 as being out of time (Articles 26 and 27

para. 3 of the Convention - see paragraph 21 above) (art. 26,

art. 27-3), lies outside the scope of the case referred to the Court.

That being so, the Court has no jurisdiction to entertain it.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been no breach of Article 6 para. 1

(art. 6-1) of the Convention as regards access to a court;

2. Holds that there has been no breach of Article 6 para. 1

(art. 6-1) of the Convention as regards the fairness of the

proceedings;

3. Holds that it has no jurisdiction to consider the complaint

based on the lack of a hearing in the Administrative Court;

4. Holds that it has no jurisdiction to entertain the complaint

raised under Article 1 of Protocol No. 1 (P1-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 25 November 1994.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Acting Registrar