FOURTH SECTION

CASE OF NADERHIRN v. AUSTRIA

(Application no. 5136/10)

JUDGMENT

STRASBOURG

5 July 2016

This judgment is final but it may be subject to editorial revision.

In the case of Naderhirn v. Austria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Paulo Pinto de Albuquerque, President,
	Iulia Motoc,
	Gabriele Kucsko-Stadlmayer, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 14 June 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5136/10) 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 Manfred Naderhirn (“the applicant”), on 13 January 2010.
2.  The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.
3.  On 6 March 2013 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1963 and lives in Leonding.
Section 1.01	A.  The first set of proceedings
5.  On 10 July 2001 the applicant applied to the Regional Governor (Landeshauptmann) of Upper Austria (Oberösterreich) for the granting of a licence to run a pharmacy in Leonding. On 25 September 2002 the Governor dismissed the application.
6.  On 14 June 2002 the applicant lodged an appeal with the Federal Minister for Health and Women (Bundesministerin für Gesundheit und Frauen, “the Minister”). On 14 June 2004 he filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the Minister’s failure to give a decision (Säumnisbeschwerde). On 30 September 2004 the Administrative Court set a time-limit of 31 March 2005 for the Minister to make a decision.
7.  On 24 March 2005 the Minister dismissed the applicant’s appeal.
8.  On 11 May 2005 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) against that decision. On 12 October 2005 the Constitutional Court refused to deal with the complaint and, upon the applicant’s request, referred the case to the Administrative Court.
Section 1.02	B.  The second set of proceedings
9.  Already on 22 April 2005 the applicant lodged a request for re‑opening of the proceedings with the Minister, who allowed the request on 10 May 2005.
10.  Thereupon, a number of owners of other pharmacies in the area, who had been parties to the administrative proceedings, lodged a complaint with the Administrative Court challenging the Minister’s decision. While the complaints against the Minister’s decision of 24 March 2005 and concerning the re-opening decision of 10 May 2005 were still pending before the Administrative Court, the Minister granted the applicant a licence to run a pharmacy on 5 December 2005.
11.  The applicant challenged parts of the Minister’s decision before the Constitutional Court, which dismissed his complaint on 27 February 2007. A request to transfer his complaint to the Administrative Court was dismissed.
Section 1.03	C.  The joint proceedings before the Administrative Court
12.  On 16 July 2009 the Administrative Court, dealing with the complaints of the first and the second sets of proceedings at the same time, decided that neither of the Minister’s decisions of 24 March and 10 May 2005 had been lawful, and quashed them. As a consequence, the Administrative Court also had to quash the Minister’s decision of 5 December 2005. The proceedings were thus referred back to the Minister.
Section 1.04	D.  The third set of proceedings
13.  On 19 March 2010 the Minister granted the applicant’s appeal against the decision of the Regional Governor of Upper Austria of 25 September 2002. The applicant was granted a licence to establish and run a new public pharmacy in Leonding.
14.  The complaint against that decision raised by the owners of an existing pharmacy was dismissed by the Administrative Court on 28 May 2013 and the applicant was awarded compensation for costs in the amount of 1,106.40 euros (EUR).
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
16.  The Government contested that argument.
17.  The period to be taken into consideration began on 25 September 2002, when the Regional Governor of Upper Austria dismissed the applicant’s request for a pharmacy licence, and ended on 28 May 2013 when the Administrative Court dismissed the other pharmacy owners’ appeal. It thus lasted ten years and eight months, including retrials, during which the case came before two administrative and two judicial bodies.
Section 2.01	A.  Admissibility
18.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 2.02	B.  Merits
19.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
20.  The Court notes that the proceedings were of some complexity, as several expert opinions needed to be obtained from the Chamber of Pharmacists (Apothekerkammer), and several third parties were involved. However, the Court considers that this could not justify the two particularly long periods of inactivity while the case was pending before the Administrative Court during both sets of proceedings.
21.  Turning to the conduct of the parties, it does not appear that the applicant has significantly contributed to the length of the proceedings. On the contrary, he had actively tried to accelerate them by lodging a complaint against the Minister’s failure to give a decision, whereas there were evident periods of inactivity before the authorities.
22.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see for example Rambauske v. Austria, no. 45369/07, 28 January 2010, and Kücher v. Austria, no. 2834/09, 5 February 2015).
23.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
Article III.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
24.  The applicant also raised a complaint under Article 6 regarding the fairness of the proceedings and a wrong application of the law, and under Article 1 of Protocol No. 1 about the quashing by the Administrative Court of the already granted licence to run a pharmacy.
25.  However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. They must therefore be declared inadmissible.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
26.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
27.  The applicant claimed a total of 543,291 euros (EUR) in respect of pecuniary damage, and EUR 10,000 in respect of non-pecuniary damage.
28.  The Government contested these claims.
29.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 4,000 in respect of non‑pecuniary damage.
Section 4.02	B.  Costs and expenses
30.  The applicant also claimed EUR 10,000 for the costs and expenses incurred before the domestic courts. He did not submit a claim in respect of those incurred before the Court.
31.  The Government contested the claim.
32.  According to the Court’s case-law, an applicant is entitled to the reimbursement of such costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in an attempt to redress the violation found. As the applicant failed to itemise his claims, the Court rejects the claim for costs and expenses in the domestic proceedings. Because the applicant made no claim for costs incurred in the proceedings before the Court, no award is made under this head either.
Section 4.03	C.  Default interest
33.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Andrea Tamietti	Paulo Pinto de Albuquerque
	Deputy Registrar	President