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FIRST
SECTION
CASE OF GIERLINGER v. AUSTRIA
(Application
no. 38032/05)
JUDGMENT
STRASBOURG
29
November 2007
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 Gierlinger v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr A.
Wampach, Deputy Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38032/05) 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, Mr Ernst
Gierlinger (“the applicant”), on 20 October 2005.
- The
applicant was represented by Dr. H. Blum, a lawyer practising in
Linz. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador F. Trauttmansdorff, Head
of the International Law Department at the Federal Ministry of
Foreign Affairs.
- On
11 January 2007 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1964 and lives in Neustift.
- In
December 1999 the Neustift community (Gemeinde) requested a
permit from the Rohrbach District Administrative Authority
(Bezirkshaupt-mannschaft) to enlarge its canalisation system.
At a hearing scheduled on 4 May 2000 the applicant, who had not
been summoned as a party, filed objections and submitted that the
project would interfere with his property rights as it would affect
the drainage system on his real estates.
- On
15 June 2000, after having heard an official expert on water
construction technology and biology, the Administrative Authority
granted the requested permit. The applicant lodged an appeal with the
Upper Austrian Regional Governor (Landeshauptmann).
- In
the subsequent proceedings the Regional Governor ordered the expert
to supplement his opinion which was then submitted to the applicant
for comment.
- On
25 January 2001 the Regional Governor (Landeshauptmann)
dismissed the applicant's appeal. Referring to the supplemented
expert opinion, the Regional Governor found that the project at issue
would not affect the drainage system on the applicant's premises.
- On
16 March 2001 the applicant filed a complaint with the Administrative
Court (Verwaltungsgerichtshof).
- Having
held an oral hearing, upon the applicant's request, the
Administrative Court dismissed this complaint on 31 March 2005. It
noted that the breach of the applicant's right to being summoned to
be heard as a party before the District Administrative Authority had
been remedied in the course of the proceedings. The applicant had
been given an opportunity to submit comments and objections before
the second instance and had thus been heard as a party. As to the
remaining complaint concerning the alleged interference of the
project with his property, the Administrative Court found that the
applicant's general submissions could not disprove the conclusive
findings of the expert. This decision was served on the applicant's
counsel on 26 April 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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
Court reiterates that in civil matters the reasonable time may begin
to run in some circumstances, even before the issue of the writ
commencing proceedings before the court to which the plaintiff
submits the dispute (see Golder v. the United Kingdom,
judgment of 21 February 1975, Series A no. 18, p. 15, §
32). This is the situation, if the applicant cannot seize an
authority or court before receiving a decision which could be
appealed against (see Vilho Eskelinen and others v. Finland,
[GC] judgment of 19 April 2007, § 65).
- In
the present case, the period to be taken into consideration began on
4 May 2000, when the applicant filed his objections at the hearing of
the District Administrative Authority. Without these objections the
applicant would not have received the decision of the authority and
could therefore not have appealed against it. The period ended on 26
April 2005. It thus lasted almost five years for three levels of
jurisdiction but was pending before the Administrative Court for four
years.
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
applicant maintained that the proceedings were unreasonably long.
- The
Government contested that argument.
- 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
present case, which was not particularly complex, came before three
levels of jurisdiction. It was dealt with expeditiously by the
authorities of the first and second instance. However, the
proceedings were pending before the Administrative Court between 16
March 2001 and 26 April 2005, i.e. for four years and one
month.
- 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 Alge v. Austria, no. 38185/97, judgment of 22
January 2004).
- 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
proceedings at issue were unfair in that he had not been summoned to
the hearing before the District Administrative Authority and could,
therefore, not sufficiently prepare his case. Furthermore the
Administrative Authority did not record all his comments in a
transcript. He also complained that all three instances failed to
deal with the merits of his submissions. Under Article 1 of
Protocol No.1 the applicant complained that the granting of the
permit to the municipality affected the drainage system on his real
estates.
- With
regard to the complaints concerning the proceedings at the first and
second instance the Court notes that the applicant filed a complaint
with the Administrative Court, but did not file a complaint with the
Constitutional Court and therefore failed to exhaust all available
domestic remedies. The question of exhaustion of domestic remedies
must, however, be assessed differently as regards the complaint about
the proceedings before the Administrative Court, since no complaint
from the Administrative Court to the Constitutional Court, both being
at the same level, was possible.
- The
complaint that the Administrative Court did not deal with the merits
of the case is unsubstantiated. The Court further notes that the
Administrative Court followed the applicant's request to hold a
hearing and gave sufficient reasons in its decision. There is no
indication that the applicant, who was assisted by counsel at the
second instance and before the Administrative Court, could not duly
forward his arguments or that the proceedings were otherwise unfair.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the claim pointing out that the applicant failed
to substantiate the claim in detail and that the amount seemed
excessive.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 2,000
under that head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 3,068 for the costs and expenses incurred
before the domestic courts and EUR 1,554 for those incurred before
the Court.
- The
Government contested the first claim, because only the costs incurred
for activities taken in the course of the proceedings in an attempt
to prevent the violation of the Convention found could be
compensated. However, the applicant did not take any such step.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 (see inter alia, Belziuk v. Poland,
judgment of 25 March 1998, Reports 1998-II, p. 573,
§ 49, and Craxi v. Italy, no. 34896/97, §
115, 5 December 2002).
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court rejects the claim for
costs and expenses in the domestic proceedings since they were not
incurred to prevent or redress the violation found. Furthermore, the
Court considers the applicant's claim in respect of the costs and
expenses incurred in the Convention proceedings reasonable and awards
the amount in full, i.e. EUR 1,554. This sum includes
VAT.
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 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount, and EUR 1,554 (one thousand five
hundred fifty four euros) 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 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Loukis Loucaides
Deputy
Registrar President
