CASE OF ORTENBERG v. AUSTRIA

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
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:
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;
Mr H. Blum, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Okresek, Mr Ermacora and
I. The circumstances of the case
6. Mrs Ortenberg, an Austrian national, owns a house at Leonding,
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
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.
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
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,
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
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
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
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
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
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).
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:
"(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,
(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
(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
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
(b) the facts require further investigation on an
(c) procedural rules have been disregarded, compliance
with which could have led to a different decision by the
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)"
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
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.
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
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
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
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
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ... by
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,
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
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)
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
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
35. The applicant further complained that she had not had a fair
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