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.