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1. The authors of the
communication are Franz Deisl and his wife, Maria Deisl, Austrian citizens,
born on 10 July 1920 and 21 January 1932. They claim to be victims of a
violation by Austria [FN1] of articles 14, paragraph 1, and 26 of the
Covenant. They are represented by counsel.
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FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for the State party respectively on 10 December 1978 and 10 March
1988. Upon ratification of the Covenant, the State party entered a
reservation, which reads, in pertinent parts:
"[...] 2. Article 9 and article 14 of the Covenant will be applied provided
that legal regulations governing the proceedings and measures of deprivation
of liberty as provided for in the Administrative Procedure Acts and in the
Financial Penal Act remain permissible within the framework of the judicial
review by the Federal Administrative Court or the Federal Constitutional
Court as provided by the Austrian Federal Constitution. 3. [...].
4. Article 14 of the Covenant will be applied provided that the principles
governing the publicity of trials as set forth in article 90 of the Federal
Constitutional Law as amended in 1929 are in no way prejudiced [...]."
Upon ratification of the Optional Protocol, the State party entered the
following reservation concerning article 5, paragraph 2 (a), of the Optional
Protocol: "On the understanding that, further to the provisions of article
5, paragraph 2, of the Protocol, the Committee provided for in article 28 of
the Covenant shall not consider any communication from an individual unless
it has been ascertained that the same matter has not been examined by the
European Commission on Human Rights established by the European Convention
for the Protection of Human Rights and Fundamental Freedoms."
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THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 By virtue of contracts dated 20 February and 19 October 1966, the
authors bought a plot of land located in the Municipality of Elsbethen near
the City of Salzburg from one Mr. F. H. On 15 February 1967, the authors
were formally registered as owners of the plot.
2.2 On 20 November 1966, and without the authors' knowledge, F. H. applied
for an exception from the zoning regulations in order to change the
designation of the plot from "rural" to "residential". The Elsbethen
Municipal Council approved his request, on 13 April 1967, and forwarded the
decision to grant the exception to the Salzburg Provincial Government for
formal approval. On 31 May 1967, the Salzburg Provincial Government refused
to grant an exception from the zoning regulations, again without the
authors' knowledge.
2.3 Also in the spring of 1967, the authors bought an old granary, after the
mayor of Elsbethen had orally informed them that he would not object to
their plan to rebuild the granary on their property. However, on 12 August
1969, the Municipality of Elsbethen issued a decision ordering the authors
to stop converting the granary into a weekend house. By letter of 12
September 1969, the Municipality advised the authors to apply for an
exception from the zoning regulations prohibiting construction on their plot
of land, pursuant to Section 19, paragraph 3, of the Salzburg Provincial
Zoning Law.
2.4 The Elsbethen Municipal Council granted the authors' application for an
exception on 30 September 1969, and, on 3 October 1969, confirmed its
decision in writing. On 8 October 1969, the Municipality submitted the
decision for approval to the Salzburg Provincial Government, which, on 17
October 1969, denied the exception as res iudicata, stating that the
application for an exception by the former owners of the plot had already
been denied. The authors were not informed of that decision until February
1982.
2.5 In the spring of 1974, the authors acquired and reconstructed another
granary on their property for use as a shed. On 17 July 1974, the mayor
ordered them to demolish the building used as a shed. The authors' appeal of
30 July 1974 against that decision was not examined until May 1987.
2.6 Meanwhile, the mayor of Elsbethen had ordered the authors to discontinue
"construction of a further weekend house" on 21 August 1973, and on 23 April
1974, to demolish "a dwelling" on their plot of land by 31 July 1974. On 7
May 1974, the authors appealed this decision to the Elsbethen Municipal
Council, which set the decision aside on 9 June 1974, stating that it merely
identified a "dwelling", without clarifying which of the two buildings on
the authors' plot was to be demolished. The decision could therefore not be
complied with for lack of precision.
2.7 On 1 February 1982, the Elsbethen Municipal Council dismissed the
authors' application for an exception from the zoning regulations, endorsing
the Provincial Government's argument that the application had to be rejected
as res iudicata. The authors appealed that decision to the Provincial
Government, arguing that the former owners had applied for the exception,
without the authors' authorization or knowledge, after having sold the plot
of land to the authors. On 10 August 1982, the Salzburg Provincial
Government quashed the decision of the Municipal Council because of its
failure to deal with the merits of the application. The Provincial
Government also considered that the Council's decision of 1 February 1982
was the first formal decision on the authors' application, dated 18
September 1969, for an exception from the zoning regulations.
2.8 Thereafter, the Municipality of Elsbethen initiated formal proceedings
to determine whether an exception from the zoning regulations should be
granted. On 7 May 1985, it issued another decision denying the exception,
noting that the authors' weekend house would affect the existing rural
structure of the area, after the authors had been given opportunity to
comment on two one-page expert opinions on the matter. The authors appealed
that decision on 9 July 1985.
2.9 Meanwhile, construction of a family home had started about 70 meters
from the author's plot of land, on the basis of an exception from the zoning
regulations and a building permit granted by the Municipality of Elsbethen
in 1977.
2.10 On 20 December 1985, the authors applied for a retroactive exception
from the zoning regulations under a new "amnesty law", enabling owners of
unlawfully constructed dwellings in the Province of Salzburg to apply for
special retroactive permits. By letter of 4 April 1986 to the Governor of
Salzburg, the mayor of Elsbethen indicated his willingness to grant an
exception from the zoning regulations as well as a building permit for the
first granary, while the second granary on the authors' property should be
removed. At the same time, he recalled that the Municipality had granted two
exceptions permitting the construction of family homes in the immediate
vicinity of the authors' plot, which had been approved by the Provincial
Government.
2.11 By letter of 12 June 1986, an assistant of the Governor informed the
authors of a proposed settlement, whereby the authors would withdraw their
appeal against the denial of an exception from the zoning regulations, while
the Municipality would set aside its decision denying such an exception,
issue a favourable decision, and submit this decision to the Provincial
Government for approval. The authors, accordingly, withdrew their appeal on
4 July 1986; the Municipality, in turn, set aside its decision of 7 May 1985
and submitted a decision dated 21 May 1986, by which the Municipal Council
had granted an exception under the "Amnesty Law", to the Provincial
Government.
2.12 On 13 January 1987, the Provincial Government informed the authors that
their application for an exception from the zoning regulations had to be
rejected as res iudicata. The Municipality of Elsbethen endorsed this
finding on 4 February 1987. The authors appealed that decision on 18
February 1987.
2.13 On 6 February 1987, the mayor of Elsbethen ordered the authors to
demolish the granary and the shed by 31 December 1987. The authors appealed
that decision on 17 February 1987. On 6 May 1987, the Municipality set aside
the mayor's demolition order, as the authors' appeal against the demolition
order of 17 July 1974 in respect of the shed was still pending. With two
decisions relating to the same matter, the second demolition order had to be
set aside, until a decision on the appeal against the first demolition order
was taken. On 11 May 1987, the Municipal Council dismissed the authors'
appeal against the 1974 demolition order and directed the authors to remove
the shed by 31 December 1987. This deadline was extended several times.
2.14 On 13 November 1989, the Salzburg Provincial Government set aside the
Municipality's decision of 4 February 1987 denying an exception from the
zoning regulations, because the Municipality had not addressed the merits of
the authors' application. The Provincial Government ordered the Municipality
to initiate proceedings to determine whether an exception should be granted
and to give the authors access to the file of the proceedings, from 1966
onwards.
2.15 On 25 March 1991, the Municipality of Elsbethen again rejected the
authors' request for an exception, after giving them an opportunity to
comment on the opinion of an expert on zoning issues. On 3 June 1991, the
Provincial Government, on appeal by the authors, set aside the
Municipality's decision, finding that the expert opinion merely contained
general statements. It directed the Municipality to seek another expert
opinion to determine whether the authors' buildings contravened local zoning
regulations, which was completed on 15 January 1993.
2.16 On 22 February 1993, the Municipality again denied an exception from
the zoning regulations. On 4 October 1993, the Provincial Government
dismissed the authors' appeal against that decision, based on the new
Provincial Zoning Law (1992), which no longer provided for exceptions from
the zoning regulations.
2.17 By decision of 29 November 1994, the Constitutional Court refused to
examine the authors' complaint, dated 16 November 1993, against the
Provincial Government's decision of 4 October 1993 and referred the matter
to the Administrative Court. On 12 October 1995, the Administrative Court
set the decision aside, holding that applications for exceptions from zoning
regulations had to be assessed not on the basis of the 1992 Zoning Law, but
of the regulations in force at the material time.
2.18 Meanwhile, on 12 February 1994, the Municipality of Elsbethen had
ordered the authors to demolish their weekend house by 30 September 1994.
The Provincial Government dismissed the authors' appeal against this
decision on 4 December 1995, and on 5 January 1996, affirmed its earlier
decision to deny an exception from the zoning regulations. The authors'
complaints of 15 January 1996 against these decisions, in which they alleged
violations of their rights to a decision by a competent tribunal, equality
before the law, and inviolability of their property, were rejected by the
Constitutional Court on 29 September 1998. The matter was referred to the
Administrative Court, which rejected the complaints on 3 November 1999.
2.19 On 25 September 2001, after the Regional Administrative Authority for
the District of Salzburg-Umgebung had rejected their request for an
extension of the deadline for settling the modalities of the demolition of
their buildings, the authors submitted an application to the European Court
of Human Rights, alleging a breach of their right to property (article 1 of
the first Additional Protocol to the European Convention). At the same time,
they applied for interim measures to prevent the imminent demolition of
their buildings. On 26 September 2001, the European Court registered the
authors' application but rejected their request for interim measures, and on
29 January 2002, it declared the application inadmissible, as it had been
lodged more than six months after the date of the final domestic decision,
i.e. the decision of the Administrative Court of 3 November 1999. [FN2]
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[FN2] See European Court of Human Rights, Decision on the admissibility of
Application no. 74262/01 (Franz and Maria Deisl against Austria), 29 January
2002.
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THE COMPLAINT
3.1 The authors allege violations of their rights under articles 14,
paragraph 1, and 26 of the Covenant, as the proceedings were neither "fair"
nor "public" nor concluded expeditiously, but were conducted by authorities
which consistently and deliberately acted to the detriment of their
procedural position and discriminated against them. By reference to the
jurisprudence of the European Court of Human Rights, they claim that article
14, paragraph 1, is applicable to the proceedings concerning their request
for an exception from the zoning regulations, as well as their appeals
against the demolition orders, since these proceedings determined their
rights and obligations in a suit at law.
3.2 The authors claim that their right to equality before the courts under
article 14, paragraph 1, had been violated through the misapplication of
laws, failure to decide on their petitions and appeals, and the mishandling
of their file at all stages of the proceedings. Thus, they were never
informed of the former owner's application for an exception from the zoning
regulations, or its rejection, despite the fact that the authorities knew
about the pending transfer of ownership. The Provincial Government's
disapproval of the authors' own request for an exception, dated 18 September
1969, was not communicated to them until February 1982. Similarly, their
appeal against the mayor's demolition order of 17 July 1974 was not dealt
with for 13 years and then suddenly decided against the authors in May 1987.
For some 20 years, the authorities failed to examine the substance of the
authors' application, repeatedly rejecting it as res iudicata. When a
decision on the merits was finally taken in 1991, the Municipality again
failed to address the relevant issues and merely relied on generalities. The
Provincial Government, in its decision of 4 October 1993, even found a new
law applicable to the authors' case.
3.3 The authors submit that none of the authorities or administrative courts
conducted a public hearing, as required by article 14, paragraph 1. Their
right to a fair trial before an independent and impartial tribunal was
violated, because the authorities demonstrated by their conduct that they
would decide against the authors, irrespective of the facts put before them.
[FN3]
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[FN3] The authors refer to Communication No. 387/1989, Karttunen v. Finland,
Views adopted on 23 October 1992, at para. 7.2.
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3.4 The authors claim a violation of their right to an expeditious
procedure, an integral element of the right to a fair hearing guaranteed by
article 14, paragraph 1, [FN4] as the proceedings relating to their
application for an exception took more than 30 years, despite the simplicity
of the matter, which required only little factual research and legal
analysis. Given that this duration was prima facie unreasonable, the burden
was on the State party to prove that its organs were not responsible for the
delays. While the authors exercised due diligence throughout the proceedings
and submitted all required information within short deadlines, the
authorities kept them uninformed about the status of the proceedings for
some 15 years (1967 until 1982), failed to take a single decision that
survived even the most rudimentary scrutiny on appeal for 24 years (1969
until 1993) and twice failed to take any decision at all for approximately
13 years. Even the Administrative and Constitutional Courts remained
inactive for considerable periods of time before setting aside a decision of
the Provincial Government in October 1995 (after 11 months) or dismissing
the authors' constitutional complaints in November 1994 (after one year) and
in September 1998 (after two years and nine moths). The authors consider
that the fact that they consistently appealed against obviously flawed
decisions cannot be held against them.
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[FN4] Reference is made to Communication No. 207/1986, Yves Morael v.
France, Views adopted on 28 July 1989, at para. 9.3.
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3.5 The authors claim that the rejection of their application from the
zoning regulations, combined with the authorities' failure to take a
decision on the merits for decades, or to deal with their appeals, the
procedural flaws of their decisions, and the ex post facto application of
the 1992 Provincial Zoning Law, amounted to arbitrariness and discriminated
against them, in violation of article 26 of the Covenant, in comparison to
their neighbour, Mr. X., who obtained an exception from the zoning
regulations and a building permit in 1977, for the construction of a family
home located some 70 meters from the authors' own plot of land.
3.6 The authors submit documentary evidence (pictures, sketches) to show
that, by contrast to the two neighbouring family homes, which are made of
wood and brick with oversize modern roofs and are visible from miles away,
since they stand on a meadow in an elevated position without any treeline
hiding them, their granary and shed are well shielded by a treeline and
cannot be seen unless one steps on their plot of land. From a hiking trail
passing by the authors' property, hikers can only see a small part of the
granary, an antique building dating from 1757, which has been restored and
is an all-wooden construction typical of the Province of Salzburg.
Therefore, neither the granary nor the shed defeat the purpose of the zoning
regulations not to have residential structures erected in rural areas to
preserve the natural beauty of the landscape. Although the neighbouring
buildings were equally located on plots zoned "rural", the Municipality of
Elsbethen, with the explicit approval of the Salzburg Provincial Government,
granted their owners an exception from the zoning regulations.
3.7 The authors submit that their application to the European Court of Human
Rights did not relate to the same matter, as it exclusively alleged a
violation of their right to property, which is not as such protected under
the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 On 28 May 2002, the State party challenged the admissibility of the
communication, by reference to article 5, paragraph 2 (a), of the Optional
Protocol and, insofar as the events complained of had occurred before the
entry into force of the Optional Protocol for Austria on 10 March 1988, also
ratione temporis.
4.2 The State party submits that the same matter is being examined by the
European Court of Human Rights. The fact that, in their application to the
European Court, the authors only claim a violation of their right to
property, as guaranteed in article 1 of the First Additional Protocol to the
European Convention on Human Rights, does not preclude the Court from ex
officio also examining violations of articles 6 (right to a fair trial) and
14 (prohibition of discrimination) of the European Convention. Since the
European Court could therefore examine the facts in a manner consistent with
the fair trial and equal treatment principles enshrined in articles 14 and
26 of the Covenant, the authors' application to the European Court relates
to the same substantive rights as the communication registered before the
Committee.
4.3 By reference to the Committee's jurisprudence, [FN5] the State party
argues that the communication is inadmissible ratione temporis, insofar as
it relates to decisions and delays that occurred prior to the entry into
force of the Optional Protocol for the State party on 10 March 1988. This
particularly concerns the alleged difference in treatment between the
authors and Mr. X., whose request for an exemption from the zoning
regulations was granted in 1977, and the State party's alleged failure to
decide within a reasonable time frame on the authors' request of 18
September 1969 for an exception from the zoning regulations (denied on 1
February 1982) as well as on their appeal dated 30 July 1974 against the
mayor's demolition order of 17 July 1974 (dismissed on 11 May 1987).
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[FN5] The State party refers to Communication No. 490/1992, A.S. and L.S. v.
Australia, Decision on admissibility of 30 March 1993; Communication No.
646/1995, Leonard John Lindon v. Australia, Decision on admissibility of 20
October 1998; Communication No. 754/1997, A. v. New Zealand, Views of 15
July 1999.
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AUTHOR'S ADDITIONAL SUBMISSIONS AND COMMENTS ON THE STATE PARTY'S
OBSERVATIONS ON ADMISSIBILITY
5.1 On 12 June 2002, the authors requested the Committee to issue a request
for interim measures, under Rule 86 of its rules of procedure, asking the
State party to suspend proceedings to enforce the demolition order. They
informed the Committee that, on 23 May 2002, the Regional Administrative
Authority for the District of Salzburg Umgebung had rejected their petition
to suspend the enforcement proceedings until the Committee's final decision,
at the same time ordering them to transfer a down payment of � 4.447,67 by 1
August 2002 for implementing the demolition order, and that an appeal
against that decision had no suspensive effect.
5.2 The authors argue that the enforcement of the demolition order would
cause them irreparable damage, since the destruction of the irreplaceable
antique granaries, which they had restored, maintained and furnished over
the past 30 years, cannot be compensated by money and would give rise to
further breaches of their rights under articles 7 and 17 of the Covenant. By
letter of 9 September 2002, the Committee informed the authors that no
interim measures would be granted in their case.
5.3 On 18 September 2002, the authors noted that the matter was no longer
being examined by the European Court, after the Court had declared their
application inadmissible for non-compliance with the six-month rule on 29
January 2002. Given the purely formal nature of the six-month rule, the
Court was precluded from examining the substance of the application. [FN6]
The Austrian reservation to article 5, paragraph 2 (a), of the Optional
Protocol was consequently inapplicable, as the same matter had never been
examined by the European Court, within the meaning of that provision.
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[FN6] The authors refer to Communication No. 158/1983, O. F. v. Norway,
Decision on admissibility of 26 October 1984, at para. 5.2; Communication
No. 441/1990, Robert Casanovas v. France, Views of 19 July 1994, at para.
5.1.
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5.4 The authors reject the State party's contention that their communication
is inadmissible ratione temporis. At least the decisions which finally
determined their legal position and constituted a violation of their
Covenant rights, in particular the decisions of the Constitutional and
Administrative Courts, were taken after the entry into force of the Optional
Protocol for Austria. [FN7] Moreover, the Committee had repeatedly asserted
its competence to consider alleged violations of the Covenant which, despite
having their origin prior to the entry into force of the Optional Protocol,
either continue or have effects which themselves constitute violations after
that date. This was particularly true for cases where a certain status of
the authors affecting their rights is confirmed by administrative and
judicial decisions after the date of entry into force. [FN8] Moreover, the
Committee was competent to determine whether violations of the Covenant
occur after the date of entry into force as a consequence of acts or
omissions related to the continued application of laws or decisions
affecting the rights of the authors. [FN9]
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[FN7] Reference is made to Communication No. 72/1980, K. L. v. Denmark,
Decision on admissibility of 31 July 1980; Communication No. 75/1980, Duilio
Fanali v. Italy, Views of 31 March 1983.
[FN8] The authors refer to Communication No. 24/1977, Sandra Lovelace v.
Canada, Views of 30 July 1981.
[FN9] Reference is made to Communication No. 196/1985, Ibrahima Gueye et al.
v. France, Views of 3 April 1989, at para. 5.3.
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THE STATE PARTY'S ADDITIONAL SUBMISSIONS ON ADMISSIBILITY AND OBSERVATIONS
ON MERITS
6.1 On 18 September 2002, the State party further commented on the
admissibility and, subsidiarily, on the merits. It reiterates that the
communication is inadmissible ratione temporis, insofar as it relates to
events that occurred before 10 March 1988. Insofar as the authors complain
about a violation of article 14 of the Covenant, the communication must be
rejected ratione materiae, since the authors never had a "right" to
establish a building on their plot of land, which could have been determined
in a suit at law, given that such construction was clearly not allowed under
the zoning regulations. Consequently, the proceedings for removing the
illegally erected buildings must equally fall outside the scope of article
14. Otherwise, the circumvention through illegal building activities of the
proceedings for granting an exemption would lead to an improvement of their
legal position.
6.2 Regarding the duration of the proceedings, the State party submits that
the authors did not exhaust domestic remedies, as they could have alleged a
procedural delay by filing a request for transfer of competence (Devolutionsantrag),
enabling individuals to bring a case before the competent higher authority
if no decision is taken within six months, or by lodging a complaint about
the administration's failure to take a decision within due time (Säumnisbeschwerde)
with the Administrative Court, to speed up the proceedings. According to the
European Court of Human Rights, such complaints constituted "effective
remedies" in cases where an undue delay of the proceedings is alleged.
[FN10] Moreover, the authors' failure to expedite proceedings by challenging
the inactivity of the authorities seemed to indicate that a postponement of
the final removal order was in their interest.
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[FN10] Reference is made to Application No. 29800/96, Basic v. Austria, and
Application No. 30160/96, Pallanich v. Austria.
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6.3 The State party also challenges the authors' status of "victims" on the
basis that they had established two buildings on their plot of land, despite
their being fully aware that any construction on green land required an
exemption from the zoning regulations. It was not until they had been
ordered to stop the construction of the first granary that they applied for
an exemption. Since more expeditious proceedings would only have led to
earlier sanctions for their illegal conduct, the authors had not been placed
at any disadvantage as a result of the duration of the proceedings.
6.4 Insofar as the authors claim that none of the authorities were properly
constituted tribunals within the meaning of article 14, paragraph 1, of the
Covenant, and that no public hearing was conducted in their case, the State
party invokes its reservation to article 14 of the Covenant, which had the
objective of maintaining "the Austrian organisation of administrative
authorities under the judicial control of the Administrative Court and the
Constitutional Court." These claims also lacked sufficient substantiation in
the light of the European Court's jurisprudence that: (a) The right to a
fair trial does not oblige States parties to have a decision on civil rights
issued by tribunals at all stages of the proceedings [FN11]; (b) the
Administrative Court is a tribunal within the meaning of article 6 of the
European Convention [FN12]; and (c) the absence of an oral hearing does not
violate the right to a fair trial, if complainants do not avail themselves
of the possibility to request a hearing (Section 39 of the Austrian
Administrative Court Act), thereby waiving their right to an oral hearing.
[FN13]
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[FN11] The State party refers to the European Court's judgment of 23 June
1981, Le Compte, Van Leuven and De Meyere v. Belgium, Series A 43, at para.
51.
[FN12] European Court of Human Rights, Judgment of 21 September 1993,
Zumtobel v. Austria, Series A 268-A, at paras. 31 et seq.
[FN13] European Court of Human Rights, Judgment of 25 April 1997, Pauger v.
Austria, Application No. 16717/90, at paras. 59 et seq.
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6.5 Concerning the authors' allegations that their right to a fair hearing
and to equality before the courts had been violated, the State party refers
to the Committee's jurisprudence that it is generally for the courts of
States parties to evaluate facts in a particular case and to interpret
domestic legislation, unless such evaluation or interpretation was
manifestly arbitrary or amounted to a denial of justice. Since the alleged
deficiencies in the proceedings, in any event, fell short of manifest
arbitrariness or denial of justice, this part of the communication was
inadmissible for lack of substantiation. The same was true of the authors'
claim that the competent authorities were not impartial, for which no
reasons had been given.
6.6 Subsidiarily and on the merits, the State party submits that the length
of proceedings was justified by the complexity of the matter, the proper
conduct of the authorities as well as the authors' own conduct. Thus,
proceedings with an impact on regional planning were frequently highly
complex because of the numerous interests at stake, e.g. the need to protect
the environment, to ensure that the population density is in line with an
area's economic and ecological capacity, to create the basic prerequisites
for sustainable development of the economy, infrastructure and housing, and
to secure a viable agriculture and forestry. While the authorities complied
with their duty to conduct several rounds of proceedings in order to
determine the authors' requests and appeals, the authors themselves failed
to meet their procedural responsibility to combat delays with all procedural
means, [FN14] such as the above request for transfer of competence or
complaint about the administration's inactivity.
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[FN14] The State party refers to European Court of Human Rights, Judgment of
7 July 1989, Unión Alimentaria Sanders v. Spain, Application No. 11681/85,
at para. 35.
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6.7 As to the allegedly excessive delays in the proceedings before the
Administrative Court and the Constitutional Court, the State party argues
that the authors would have been free to seize both courts simultaneously
rather than successively in order to avoid a loss of time. Moreover, between
1994 and 1996, the Constitutional Court had to give priority to
consideration of some 5.000 cases in the field of alien law, which had
mainly resulted from the crisis in the Balkans. In 1996 and 1997, the Court
was faced with mass proceedings comprising more than 11.000 complaints about
the minimum corporate tax. The temporary backlog resulting from the sudden
increase in the Court's workload could not be attributed to the State party,
considering that prompt remedial action had been taken, with pending cases
being prioritized on the basis of importance. [FN15]
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[FN15] Reference is made to the European Court's judgment of 25 June 1987,
Baggetta v. Italy, Application No. 10256/83, at para. 23, as well as to the
Report of the European Commission of Human Rights of 12 December 1983,
Application No. 9132/80, at para. 125.
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6.8 The State party submits that the authors' situation could not be
compared to that of their neighbours, who had applied for a permit prior to
establishing buildings on their plot of land. Moreover, these buildings were
permanent homes rather than weekend homes, constructed in the vicinity of
existing farms. Owing to the spatial connection with the existing farm
buildings, these constructions were less exposed than the authors' weekend
home, which lacked any connection with existing settlements.
6.9 The authors' claim under article 26 of the Covenant would be unfounded,
even if the situations were comparable, in the absence of a right to
"equality in injustice". According to the Constitutional Court's
jurisprudence, the legality of an authority's decision cannot be challenged
on the basis of that authority's failure to sanction similar misconduct in
comparable cases. Otherwise, any law would invariably be inapplicable, and
the principle of the rule of law jeopardized, whenever a decision that is
favourable to the applicant but contrary to the law were to be issued by an
authority. This could not have been the intention of the equality principle
in article 26 of the Covenant.
6.10 Lastly, the State party submits that the "amnesty regulations for
illegal buildings" referred to by the authors were merely a statement of
intent by the Salzburg Regional Government designed to remedy defects in the
zoning regulations and providing for a review of individual cases in order
to establish (a) whether a building was constructed in good faith; (b)
whether a building was constructed at a time when no zoning regulations
existed; or (c) whether a building was constructed with the intention of
circumventing existing legal provisions. Given the lack of good faith of the
authors, who had knowingly erected their buildings in contravention of the
existing zoning regulations, the refusal retroactively to grant them a
permit could not be considered an arbitrary act in violation of article 26.
Furthermore, the 30-year long existence of these buildings could not lead to
the "prescription" of an unlawful condition.
AUTHORS' COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND
MERITS
7.1 By submission of 24 July 2003, the authors object to the State party's
contention that they had erected the buildings unlawfully, thereby
circumventing the proceedings for granting a permit. Rather, they had merely
moved an antique granary from a neighbouring plot to their own land, after
having sought the consent of the mayor of Elsbethen, which had given rise to
their expectation that they could lawfully erect the building. From a
formalistic point of view, this was entirely lawful at that time, given that
an exception from the zoning regulations had initially been granted to the
former owner of their property, albeit unknown to them.
7.2 The authors reaffirm that the communication is admissible ratione
temporis and, moreover, ratione materiae, because article 14, paragraph 1,
of the Covenant lacks the qualifying word "civil", therefore covering a
wider scope than article 6, paragraph 1, of the European Convention. Since
their case concerns the question of whether an existing building could be
maintained or would have to be torn down, it directly affects "rights"
within the meaning of article 14, paragraph 1. The State party's argument
that a permit to build on the authors' land, by means of an exception from
the zoning regulations, was "clearly not allowed", was inconsistent with the
fact that the Elsbethen Municipal Council had granted exactly such an
exception to the former owners of the plot, presumably because it considered
that this exception was lawful. Taking into account that it took the
administrative authorities and courts more than 35 years to reach a final
conclusion, it could hardly be claimed that there was any degree of clarity
in this respect.
7.3 Regarding domestic remedies, the authors submit that they were not
required actively to pursue, or even accelerate, a set of proceedings that
could result in a legal consequence detrimental to their interests and
property rights, [FN16] such as the demolition of their buildings.
------------------------------------------------------------------------------------------------------------------------
[FN16] By way of analogy, the authors refer to the jurisprudence of the
European Court of Human Rights in Eckle v. Germany, Judgment of 23 June
1982, Series A, No. 51, at para. 82; Corigliano v. Italy, Judgment of 10
December 1982, Series A, No. 57, at para. 42; Dobbertin v. France, Judgment
of 28 January 1993, Series A, No. 256-D, at para. 44; Francesco Lombardo v.
Italy, Judgment of 26 November 1992, Series A, No. 249-B, at para. 23.
-------------------------------------------------------------------------------------------------------------------------
7.4 The authors reaffirm that they are victims of a violation of article 14,
paragraph 1, which seeks to protect the right to have one's case determined
in a reasonable period of time; prolonged proceedings placed those affected
in the situation and formal status of victims, in particular if they lasted
for no less than 35 years.
7.5 The authors argue that the length of the proceedings was not
attributable to their own conduct. In the absence of any obligation to
actively pursue the case, they were merely required to, and indeed did,
comply with the procedural norms, respond to official queries and file
appeals with due diligence. By contrast, the State party had failed to
ensure that the proceedings initiated by its authorities were completed in
compliance with article 14, paragraph 1.
7.6 The authors recall that, out of their allegations concerning the
numerous delays in the proceedings, the State party had merely challenged
those related to proceedings before the Constitutional and Administrative
Courts. They reject the State party's attempt to justify these delays by the
alleged complexity of the case, which was neither supported by the case
file, containing documents and decisions produced in the course of 35 years
which barely filled one folder, nor by the little effort required for the
assessment of the facts and the law, the scarce evidence taken or the
marginal involvement of experts. Similarly, the State party had failed to
substantiate that the increased workload of the Constitutional Court
allegedly caused by mass proceedings in asylum and minimum corporate tax
cases impaired the Court in such a way as to justify the substantial delays
complained of.
7.7 In support of their claim under article 26, the authors submit that the
State party falsely stated (a) that the houses constructed by the authors'
neighbours are permanent homes; (b) that these homes had been built for the
farmers' children; and (c) that the neighbouring buildings are not as
exposed as the authors' granary, despite the detailed documentary evidence
proving that the opposite is true. While the granary, a traditional
structure which had been located in the immediate vicinity since the 18th
century, was virtually invisible unless one entered the authors' property,
the other buildings were large and imposing homes which could be seen from
far away.
7.8 In response to the State party's argument that no "equality in
injustice" exists, the authors argue that article 26 governs any official
conduct regulated by law, be it positive or negative for the individual.
ADDITIONAL OBSERVATIONS BY THE STATE PARTY AND AUTHORS' COMMENTS
8.1 On 22 October 2003, the State party reiterated its arguments made in May
2002. In particular, it emphasizes that the authors had never obtained a
permit under the Regional Planning Act, as the decision issued by the
Municipal Council on 13 April 1967 had not been approved by the supervisory
authority in its decision of 31 May 1967. An oral consent by the mayor could
not replace the required permit under the Provincial Zoning Law.
8.2 The State party submits that it was irrelevant for the requirement of
exhaustion of domestic remedies whether proceedings are directed against an
author. Thus, the European Court of Human Rights considered that even an
accused in criminal proceedings must make use of legal remedies to expedite
proceedings in order to exhaust domestic remedies in cases where a violation
of the right to have one's case determined without undue delay is alleged.
[FN17] In any event, this right had not been violated in the present case,
taking into account the authors' counterproductive conduct, i.e. their
request to suspend the proceedings during a four-month absence in 1987.
[FN18]
-------------------------------------------------------------------------------------------------------------------------
[FN17] The State party refers to Application No. 29800/96, Basic v. Austria;
Application No. 30160/96, Pallanich v. Austria; Application No. 37323/97,
Talirz v. Austria; Application No. 57652/00, Lore Wurm v. Austria.
[FN18] The State party refers to European Court of Human Rights, Judgment of
7 July 1989, Unión Alimentaria Sanders v. Spain, Application No. 11681/85,
at para. 35.
-------------------------------------------------------------------------------------------------------------------------
8.3 The State party reiterates that it follows from the far reaching
similarity between articles 6, paragraph 1, of the European Convention and
article 14, paragraph 1, of the Covenant [FN19] that the latter is
inapplicable to the authors' case. Moreover, the authors were never entitled
to construct a building on their plot of land. In the absence of such a
right, the present proceedings did not relate to the "determination of
rights" within the meaning of article 14 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------
[FN19] Reference is made to the European Court's judgment of 25 June 1987,
Baggetta v. Italy, Application No. 10256/83, at para. 23, as well as to the
Report of the European Commission of Human Rights of 12 December 1983,
Application No. 9132/80, at para. 125.
-------------------------------------------------------------------------------------------------------------------------
8.4 The State party maintains that the workload of the Constitutional Court
rose tremendously between 1994 and 1996, with more than 5.000 cases relating
to foreigners alone and 11.122 complaints against notices requiring
prepayment of corporate taxes.
9.1 On 8 December 2003, the authors reply that their request to postpone the
Provincial Government's decision on their appeal against the Municipality's
denial of 4 February 1987 to grant the requested exception from the zoning
regulations for res iudicata only showed their determination to fully
participate in the proceedings. Although they had returned from their
vacation in November 1987, it took the Provincial Government until 13
November 1989 to take a decision on their appeal.
9.2 Regarding the length of proceedings, the authors consider it appropriate
to follow the traditional approach of the European Court of Human Rights
[FN20] of not requiring individuals to actively cooperate with the
prosecuting authorities. Even if the Committee were to prefer the Court's
recent jurisprudence, requiring applicants to avail themselves of legal
remedies to complain about the excessive length of proceedings also in
criminal cases, this requirement had so far only been applied by the
European Court to cases with a single set of proceedings within which a
remedy to accelerate the same existed but was not used by the applicants.
[FN21] The present communication had to be distinguished from these cases in
that it involved numerous administrative and judicial review proceedings.
------------------------------------------------------------------------------------------------------------------------
[FN20] The authors refer to the European Court's judgment of 23 June 1982,
Eckle v. Germany, Application No. 8130/78, Series A, No. 51, at para. 82.
[FN21] Reference is made to, inter alia, Application No. 23459/94, Holzinger
v. Austria (No.1); Application No. 30160/96, Pallanich v. Austria;
Application No. 37323/97, Talirz v. Austria.
-------------------------------------------------------------------------------------------------------------------------
9.3 Moreover, the authors submit that the effectiveness of such remedies
depends on whether they had a significant impact on the length of
proceedings as a whole and whether they were available throughout the
proceedings. However, from 8 October 1969 to 1 February 1982, remedies to
accelerate proceedings were unavailable to the authors, simply because they
did not know that proceedings concerning the approval of the exception
granted by the Municipality were pending before the Provincial Government.
Subsequently, negotiations on a friendly settlement had resulted in an
agreement in 1986, which was unilaterally terminated by the Provincial
Government's withdrawal of its approval.
9.4 The authors submit that no remedy to accelerate proceedings exists
before the Constitutional and Administrative Courts. The part of the
communication relating to the delays before these courts, totaling five
years and nine months, was therefore admissible in any event. [FN22]
-------------------------------------------------------------------------------------------------------------------------
[FN22] The authors refer to the European Court's decision of 6 June 2002 on
Application No. 42032/98, Widmann v. Austria.
-------------------------------------------------------------------------------------------------------------------------
9.5 The authors reiterate that the increase in the Constitutional Court's
workload was not substantial, since all 11.000 complaints relating to the
minimum corporate tax had been removed from the Court's docket with one
single judgment of 22 pages. While the sorting, registering and storing of
the thousands of petitions had surely constituted a burden for the Court's
registry, it had in no way affected the adjudicative processes.
9.6 Lastly, the authors submit that the European Court's case law was
unequivocal in declaring article 6, paragraph 1, of the European Convention
applicable to proceedings concerning building permits and demolition orders.
[FN23]
-------------------------------------------------------------------------------------------------------------------------
[FN23] Reference is made, respectively, to Application No. 74159/01, Egger
v. Austria, decision of 9 October 2003, and to the Court's judgment of 22
November 1995, Bryan v. The United Kingdom, Series A, No. 335-A, at para.
31.
--------------------------------------------------------------------------------------------------------------------------
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
10.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
10.2 Irrespective of whether the State party has invoked its reservation to
article 5, paragraph 2 (a), of the Optional Protocol or not, the Committee
recalls that when the European Court has based a declaration of
inadmissibility solely on procedural grounds, rather than on reasons that
include a certain consideration of the merits of the case, then the same
matter has not been "examined" within the meaning of the Austrian
reservation to article 5, paragraph 2 (a), of the Optional Protocol. [FN24]
The Committee notes that the European Court declared the authors'
application inadmissible for failure to comply with the six-month rule
(article 35, paragraph 4, of the European Convention), and that no such
procedural requirement exists under the Optional Protocol. In the absence of
an "examination" of the same matter by the European Court, the Committee
concludes that it is not precluded from considering the authors'
communication by virtue of the Austrian reservation to article 5, paragraph
2 (a), of the Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------
[FN24] See Communication No. 716/1996, Pauger v. Austria, Views adopted on
25 March 1999, at para. 6.4.
-------------------------------------------------------------------------------------------------------------------------
10.3 The Committee takes note of the State party's objection that the
communication is inadmissible ratione temporis, insofar as it relates to
events which occurred prior to the entry into force of the Optional Protocol
for Austria on 10 March 1988. It recalls that it cannot consider alleged
violations of the Covenant which occurred before the entry into force of the
Optional Protocol for the State party, unless these violations continue
after that date or continue to have effects which in themselves constitute a
violation of the Covenant. [FN25] It notes that the 13-year delay in
informing the authors about the Provincial Government's decision of 17
October 1969, which disapproved the Municipality's decision to grant their
application for an exemption from the zoning regulations, as well as in
deciding on the authors' appeal of 30 July 1974 against the mayor's
demolition order of 17 July 1974, both predate the entry into force of the
Optional Protocol for the State party. The Committee does not consider that
these alleged violations continued to have effects after 10 March 1988,
which would in themselves have constituted violations of the authors'
Covenant rights. The communication is therefore inadmissible ratione
temporis under article 1 of the Optional Protocol, insofar as it relates to
the above mentioned delays.
-------------------------------------------------------------------------------------------------------------------------
[FN25] See Communication No. 520/1992, Könye and Könye v. Hungary, Decision
on admissibility adopted on 7 April 1994, at para. 6.4; Communication No.
24/1977, Sandra Lovelace v. Canada, Views adopted on 30 July 1981, at para.
7.3.
--------------------------------------------------------------------------------------------------------------------------
10.4 As to the State party's argument that the allegedly discriminatory
treatment of the authors also predated the entry into force of the Optional
Protocol for Austria, the Committee notes that, while it is true that an
exemption from the zoning regulations and a building permit had been granted
to Mr. X. as early as 1977, the authors' request for similar permits was
ultimately rejected by the Provincial Government on 5 January 1996, and
their appeal against that decision dismissed by the Administrative Court on
3 November 1999.
10.5 However, the Committee considers that the authors have failed to
substantiate, for purposes of admissibility, that their allegedly
discriminatory treatment was based on one of the grounds enumerated in
article 26. Similarly, they have not substantiated, for purposes of
admissibility, that the reasons advanced by the Provincial Government and
the Administrative Court for rejecting their request for an exemption from
the zoning regulations were arbitrary. The Committee concludes that this
part of the communication is inadmissible under article 2 of the Optional
Protocol.
10.6 Regarding the authors' claim that the absence of any oral hearing
throughout the proceedings violated their right to a fair and public hearing
under article 14, paragraph 1, of the Covenant, the Committee has noted the
State party's argument that the authors could have requested an oral hearing
before the Administrative Court and that, by failing to do so, they had
waived their right to such a hearing. It also notes that the authors have
not refuted this argument in substance and that they were represented by
counsel throughout the proceedings before the Administrative Court. The
Committee therefore considers that the authors have failed to substantiate,
for purposes of admissibility, that their right to a fair and public hearing
has been violated. Consequently, this part of the communication is
inadmissible under article 2 of the Optional Protocol.
10.7 Insofar as the authors allege a violation of their rights under
articles 14, paragraph 1, and 26 of the Covenant, because the competent
authorities did not qualify as independent and impartial tribunals within
the meaning of article 14, paragraph 1, deliberately acted to their
detriment, and ex post facto applied the 1992 Provincial Zoning Law to facts
that occurred prior to 1992, the Committee observes that article 14,
paragraph 1, does not require States parties to ensure that decisions are
issued by tribunals at all appellate stages. In this regard, it notes that
the Provincial Government's refusal of 4 October 1993, to grant an exception
from the zoning regulations was subsequently quashed by the Administrative
Court. The Committee concludes that this part of the communication is
equally inadmissible under article 2 of the Optional Protocol, for lack of
substantiation.
10.8 As for the remaining claims, i.e. alleged delays in the examination of
their appeal against the Municipality's decision of 4 February 1987, delays
in the proceedings before the Constitutional and Administrative Courts, and
in relation to the length of the proceedings as a whole, the Committee must
address the State party's objection to the author's status as "victim", the
applicability of article 14, paragraph 1, to the facts of the case, and the
issue of exhaustion of domestic remedies.
10.9 The Committee is satisfied that the authors have sufficiently
substantiated, for purposes of admissibility, that article 14, paragraph 1,
of the Covenant applies to proceedings concerning building permits and
demolition orders, and that they qualify as victims of a violation of their
right, under article 14, to have their case determined without undue delay.
10.10 On the issue of exhaustion of domestic remedies, the Committee notes
that the authors have raised the issue of delays in the proceedings in their
complaint of 15 January 1996 to the Constitutional Court, which referred the
matter to the Administrative Court. The State party has not shown that the
authors could have availed themselves of any further remedies to appeal the
final decision of the Administrative Court. Moreover, it has not refuted the
authors' argument that no remedies exist which would have enabled them to
accelerate the proceedings before the Constitutional and Administrative
Courts. The Committee is therefore satisfied that the authors have exhausted
domestic remedies, in accordance with article 5, paragraph 2 (b), of the
Optional Protocol.
10.11 The Committee concludes that the communication is admissible insofar
as the length of the examination of the authors' appeal against the
Municipality's decision of 4 February 1987 and the proceedings before the
Constitutional and Administrative Courts are concerned, and that the delays
of the proceedings as a whole raise issues under article 14, paragraph 1, of
the Covenant. It proceeds to the examination of these claims on the merits.
CONSIDERATION OF THE MERITS
11.1 The Committee recalls, at the outset, that the concept of a "suit at
law" in article 14, paragraph 1, of the Covenant is based on the nature of
the right and obligations in question rather than on the status of the
parties. FN26 It notes that the proceedings concerning the authors' request
for an exemption from the zoning regulations, as well as the orders to
demolish their buildings, relate to the determination of their rights and
obligations in a suit at law, in particular their right to freedom from
unlawful interference with their privacy and home, their rights and
interests relating to their property, and their obligation to comply with
the demolition orders. It follows that article 14, paragraph 1, is
applicable to these proceedings.
------------------------------------------------------------------------------------------------------------------------
[FN26] See Communication No. 207/1986, Yves Morael v. France, Views adopted
on 28 July 1989, at para. 9.3.
--------------------------------------------------------------------------------------------------------------------------
11.2 The Committee further recalls that the right to a fair hearing under
article 14, paragraph 1, entails a number of requirements, including the
condition that the procedure before the national tribunals must be conducted
expeditiously. [FN27] The issue before the Committee is therefore whether
the delays complained of violated this requirement, to the extent that they
occurred or continued after the entry into force of the Optional Protocol
for the State party.
-------------------------------------------------------------------------------------------------------------------------
[FN27] See Communication No. 441/1990, Robert Casanovas v. France, at para.
7.3; Communication No. 238/1987, Floresmilo Bolaños v. Ecuador, at para.
8.4; Communication No. 207/1986, Yves Morael v. France, at para. 9.3.
--------------------------------------------------------------------------------------------------------------------------
11.3 As to the alleged delay in examining the authors' appeal of 18 February
1987, the Committee notes that the authors themselves requested a
postponement of the decision until November 1987. Although it thereafter
took the Provincial Government another two years to set aside the impugned
decision, of which 20 months coincide with the period of time following the
entry into force of the Optional Protocol for the State party, the Committee
considers that the authors have not demonstrated that this delay was so
unreasonable, as to amount to a violation of article 14, paragraph 1, taking
into account that: (a) the delay had no detrimental effect on their legal
position; (b) the authors chose not to avail themselves of available
remedies to accelerate the proceedings; and (c) the outcome of the appellate
proceedings was beneficial to them.
11.4 Regarding the alleged delays in the proceedings before the
Constitutional Court (16 November 1993 to 29 November 1994 and 15 January
1996 to 29 September 1998), the Committee observes that, while the first set
of these proceedings were conducted expeditiously, the second may have
exceeded the ordinary length of proceedings resulting in a complaint's
dismissal and referral to another court. However, in the Committee's view,
the second delay is not so long as to constitute, in proceedings before a
constitutional court in a property-related matter, a violation of the
concept of fairness enshrined in article 14, paragraph 1, of the Covenant.
11.5 As to the alleged delays in the proceedings before the Administrative
Court (29 November 1994 to 12 October 1995 and 29 September 1998 to 3
November 1999), the Committee has noted the State party's uncontested
argument that the authors could have filed their complaints simultaneously
with the Constitutional and Administrative Courts, to avoid a loss of time.
In the light of the complexity of the matter complained of, as well as the
Court's detailed legal reasoning in its decisions of 12 October 1995 and 3
November 1999, the Committee does not consider that the delays complained of
amount to a violation of article 14, paragraph 1, of the Covenant.
11.6 The Committee notes that the length of the proceedings as a whole,
counted from the date of entry into force of the Optional Protocol for
Austria (10 March 1988) to the date of the Administrative Court's final
decision (3 November 1999), totaled eleven years and eight months. In
assessing the reasonableness of this delay, the Committee bases itself on
the following considerations: (a) the length of each individual stage of the
proceedings [FN28]; (b) the fact that the suspensive effect of the
proceedings vis-à-vis the demolition orders was beneficial, rather than
detrimental, to the authors legal position; (c) the fact that the authors
did not avail themselves of possibilities to accelerate administrative
proceedings or to file complaints simultaneously; (d) the considerable
complexity of the matter; and (e) the fact that, during this time, the
Provincial Government twice, and the Administrative Court once, set aside
negative decisions on appeal by the authors. The Committee considers that
these factors outweigh any detrimental effects which the legal uncertainty
during the protracted proceedings may have caused to the authors. It
concludes, having regard to all the circumstances of the case, that their
right to have their case determined without undue delay has not been
violated.
--------------------------------------------------------------------------------------------------------------------------
[FN28] See above paras. 11.4-11.6.
-------------------------------------------------------------------------------------------------------------------------
12. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it do not disclose a
violation of article 14, paragraph 1, of the Covenant.
_________________________________
Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
|
