CASE OF GIERLINGER v. AUSTRIA
Violation of Art. 6-1
Loukis Loucaides
4. The applicant was born in 1964 and lives in Neustift. 5. 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. 6. 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). 7. In the subsequent proceedings the Regional Governor ordered the expert to supplement his opinion which was then submitted to the applicant for comment. 8. 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. 9. On 16 March 2001 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof). 10. 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.