CASE OF KUGLER v. AUSTRIA
Violations of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
6. The applicant lives in Imst, Austria. 7. The applicant is the co-owner of a plot of land in Lech, Austria which had been designated as building land (Bauland); one building had already been constructed on the land. On 22 July 1987 the Lech municipal authorities informed the applicant that they intended to modify the area zoning plan (Flächenwidmungsplan) and to designate the remaining part of the land as open land (Freihaltefläche) because, being located on a steep slope, they considered that the remaining part was not suitable for construction under the Vorarlberg Regional Planning Act (Raumplanungsgesetz). 8. On 6 August 1987 the applicant lodged an application for a building permit in order to construct a hotel on the plot of land at issue. 9. On 14 June 1988 the Lech municipal authorities issued a building prohibition in respect of the applicant's plot of land. 10. The Bludenz District Administrative Authority (“the District Administrative Authority”) (Bezirkshauptmannschaft) held a hearing on 23 September 1988 concerning the applicant's application for a building permit. On 4 July 1991 the Lech municipal authorities extended the building prohibition. 11. On 31 July 1991 the applicant lodged an application for a transfer of jurisdiction (Devolutionsantrag) because the District Administrative Authority had not reached a decision within the statutory six-month time-limit. 12. The Vorarlberg Regional Government (“the Regional Government”) allowed that application on 10 October 1991 but dismissed the applicant's application for a building permit on the ground that the permit would contravene the building prohibition. The applicant lodged a complaint with the Constitutional Court. 13. On 19 March 1992 Lech Municipal Council (“the Municipal Council”) issued a decree determining the maximum building density (Baunutzungszahl) for the category of land which included the applicant's land, and on 2 July 1992 it lifted the building prohibition. The applicant thereupon asked the Regional Government to reopen the building permit proceedings. 14. On 28 September 1992 the Constitutional Court dismissed the applicant's complaint against the decision of 10 October 1991. It found that the building prohibition was lawful. 15. On 29 September 1992 the Regional Government dismissed the request to reopen the building permit proceedings. The applicant lodged a complaint with the Administrative Court. 16. On 28 January 1993 the Administrative Court dismissed the applicant's complaint. It found that the conditions for reopening the building permit proceedings had not been met. That decision was served on 24 February 1993. 17. The applicant requested a partition of land (Grundstücksteilung) on 26 September 1995, but withdrew this request on 30 April 1996. 18. On 11 November 1996 the applicant lodged a fresh application for a building permit to enable him to carry out construction work on his land. 19. On 26 February 1997 the District Administrative Authority informed the applicant of the Lech municipal authorities' submissions to the effect that the maximum building density laid down by the decree of 19 March 1992 did not allow the construction of another building on his plot of land. The applicant commented on this information. After the Lech municipal authorities had submitted further comments on 6 October 1997, the applicant asked the District Administrative Authority to decide on his application. 20. On 25 June 1997 the Municipal Council adopted a building plan (Bebauungsplan) which amended the decree of 19 March 1992 but left the maximum building density unchanged. On 1 July 1997 the Regional Government approved the building plan. 21. On 28 October 1997 the District Administrative Authority dismissed the applicant's application for a building permit. It found that the maximum building density defined in the building plan did not allow the construction of another building on the applicant's plot of land. On 12 November 1997 the applicant lodged an appeal. 22. The Regional Government dismissed the appeal on 2 June 1998 and upheld the District Administrative Authority's finding. 23. On 16 July 1998 the applicant lodged a complaint with the Constitutional Court and requested an oral hearing. He submitted that the area zoning plan and the building plan were unlawful, and claimed that the Regional Government had refused to allow him to consult the case file in the building plan proceedings. 24. On 7 September 1998 the Lech municipal authorities submitted their observations; on 15 September 1998 the Regional Government did likewise. 25. On 6 October 1998 the applicant's counsel consulted the case file at the Constitutional Court, which, on the following day, forwarded all the case file documents to him. 26. On 8 June 2001 the applicant's counsel asked the Constitutional Court if he could consult further documents concerning the original area zoning plan. 27. On 12 June 2001 the Constitutional Court declined to deal with the complaint because it lacked any prospect of success. It found that, considering the hillside location of the plot of land, its allegedly unlawful designation appeared to be reasonable. 28. Subsequently, the case was transferred to the Administrative Court and on 11 October 2001 the applicant amended his complaint and requested an oral hearing. He submitted that the refusal to issue the building permit had been based on an unlawful area zoning plan and building plan. He requested that a hearing be held and an on-site inspection carried out, and that he be given the opportunity to consult all the documents concerning his plot of land. 29. On 20 March 2003 the Administrative Court dismissed the complaint. It found that the refusal to issue the building permit had been lawful, because the maximum building density for the plot of land at issue had already been exceeded by the construction of the existing buildings. Furthermore, it found that it was not necessary to hold a hearing or to carry out an on-site inspection, because the applicant had merely contested the lawfulness of the area zoning plan and the building plan, which had already been reviewed by the Constitutional Court. That decision was served on 30 April 2003. 30. On 19 January 2005 the applicant applied for a building permit for a private house on the same plot of land. 31. Following a hearing held on 5 August 2005, on 2 September 2005 the Lech municipal authorities granted the application; the decision was served on the applicant's counsel on 5 December 2005. 32. In Austrian law area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), even if they only concern one individual's property. Accordingly, the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them. The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal-Constitution Act. However, case-law has established that area zoning plans cannot be directly challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings. 33. This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation. 34. The review of the lawfulness of general legal acts such as decrees issued by administrative authorities as to their lawfulness and of laws (Gesetze) as to their constitutionality is concentrated with the Constitutional Court. Only that Court is therefore to carry out this review. Article 139 of the Federal-Constitution Act, insofar as relevant, provides as follows: “(1) The Constitutional Court decides on application by an ordinary court or an independent administrative tribunal whether decrees issued by a federal or regional authority ... are contrary to law, but ex officio in so far as the Constitutional Court would have to apply such a decree in a case pending before it. It also decides on application by the Federal Government whether decrees issued by a regional authority are contrary to law and likewise on application by the municipality concerned whether ordinances issued by a municipal affairs supervisory authority ... are contrary to law. It decides furthermore whether decrees are contrary to law when an application alleges direct infringement of personal rights through such unlawfulness in so far as the decree has become operative for the applicant without the delivery of a judicial decision or the issue of a ruling ... (2) If the applicant of a complaint lodged with the Constitutional Court, entailing application of a decree by the Constitutional Court, receives satisfaction, the proceedings for the review of a decree shall nevertheless continue. (3) The Constitutional Court may repeal a decree as contrary to law only to the extent that its repeal was expressly requested or the Constitutional Court would have had to apply it in the pending case. If the Constitutional Court reaches the conclusion that the whole decree a) has no legal basis, b) was issued by an authority without competence in the matter, or c) was published in a manner contrary to law, it shall repeal the whole decree as unlawful. This does not hold good if repeal of the whole decree manifestly runs contrary to the legitimate interests of the applicant who has filed a complaint pursuant to the last sentence in para 1 above or whose case has been the occasion for the initiation of ex officio review proceedings into the decree.”