PROCEDURE

The case originated in an application (no. 7401/04) 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 Mr Alois Hofbauer (“the applicant”) on 19 February 2004.

The applicant was represented by Mr H. Malek, a lawyer practising in Krems (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The applicant alleged, in particular, that the Administrative Court had failed to hold an oral hearing and had thus breached Article 6.

On 24 November 2005 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1935 and lives in Gföhl.

On 1 May 1994 the applicant requested the mayor of Gföhl to issue a demolition order for his neighbour's wicker fence. He submitted, in particular, that the fence had not been constructed in accordance with the provisions of the Building Act relating to fire-protection measures. Further, the fence hindered him in the exercise of his right to carry out maintenance works on a wooden fence he had erected on his own land.

As the mayor had not taken a decision within the statutory time-limit, the applicant lodged a request for transfer of jurisdiction with the Gföhl municipal council on 28 August 2001. On 6 September 2001 the applicant repeated his request of 1 May 2004 for the removal of the neighbour's fence.

The mayor notified the applicant on 27 September 2001 that, according to his neighbours' statements, the applicant would be allowed to enter their property provided that they were given eight days' notice. The issuing of an administrative decision (Bescheid) would therefore be superfluous. The applicant filed a further request on 30 September 2001, insisting on a decision by the mayor.

By notification of 4 October 2001 the mayor informed the applicant that, according to his neighbours, the fence had already been removed. He asked the applicant if he still wanted the municipal council to decide on his request for transfer of jurisdiction.

On 7 October 2001 the applicant wrote to the municipal council saying that he was still waiting for a decision. On 18 October 2001 the Gföhl municipal council, informed the applicant that it did not find it necessary to take a formal decision on the case, as the fence had been removed.

On 5 November 2001 the applicant lodged an appeal (Vorstellung) with the Lower Austria Regional Government stating that even though the fence itself had been removed, there were still five iron fence posts standing along the common border.

On 3 May 2002 the Lower Austria Regional Government rejected the appeal, finding that the letter of 18 October 2001 could not be regarded as a formal decision (Bescheid), which is why an appeal was not admissible. An appeal lay only against formal decisions.

The applicant then lodged an application with the Administrative Court on 23 May 2002 against the administration's failure to decide (Säumnisbeschwerde).

On 3 June 2002 the Administrative Court ordered the municipal council to issue a decision within three months. On the municipal council's request, the Administrative Court extended the time-limit to 15 November 2002.

By decision of 9 October 2002 the municipal council dismissed the applicant's request, holding that the fence had already been removed in October 2001.

On 21 October 2002 the applicant lodged an appeal (Vorstellung) with the Lower Austria Regional Government claiming that as there were still five posts standing on the neighbours' premises the fence had not been entirely removed.

Confirming the municipal council's decision, the Lower Austria Regional Government dismissed the applicant's appeal on 23 March 2003. It stated that the fence had been removed and that the wooden fence standing on his own premises was an even greater fire risk than the five iron posts at issue.

On 11 April 2003 the applicant lodged a complaint with the Administrative Court. He also requested a public hearing before that court.

On 24 April 2003 the Administrative Court ordered the applicant to supplement his complaint, which he did on 14 May 2003. The Lower Austria Regional Government submitted their comments on the applicant's complaint on 21 July 2003.

On 18 November 2003 the Administrative Court dismissed the applicant's complaint as being unfounded. It found that the posts did not constitute a risk endangering the applicant's property and therefore no removal could be requested. Furthermore, the Administrative Court dismissed the applicant's request for an oral hearing, relying on Section 39(2)(6) of the Administrative Court Act, which allows it to forego a hearing if it is not likely to contribute to the clarification of the case. The decision was served on the applicant's counsel on 4 December 2003.