Partial approval of the constitutional complaint regarding the deadline for restoring the lawful state

Facts

The complainant [X.] had submitted an application for a building permit for the use of premises as a medical practice with an operating room, recovery room, and X-ray room in October 2002. The municipal authorities of Bern rejected the application on December 15, 2003, and ordered the restoration of the lawful state within six months. The complainant appealed to the Building, Transport, and Energy Directorate of the Canton of Bern, but the appeal was late. The Directorate rejected the application for reinstatement of the appeal period. The complainant appealed to the Administrative Court of the Canton of Bern, which dismissed the appeal. The complainant filed a constitutional complaint with the Federal Court, alleging denial of legal hearing and arbitrary determination of the facts and arbitrary application of the law.

The municipal authorities of Bern and the Building, Transport, and Energy Directorate of the Canton of Bern requested the dismissal of the complaint. The Administrative Court of the Canton of Bern requested the dismissal of the complaint. The complainant requested the annulment of the contested decision.

Considerations

The Federal Court examined the constitutional complaint and came to the conclusion that the opinion of the Administrative Court, according to which any fault, no matter how minor, would exclude the application of Art. 43 para. 2 VRPG, is not arbitrary. The court based its decision on the doctrine and commentaries on the Administrative Procedure Act, according to which "excusable" reasons within the meaning of the aforementioned provision only exist if the person in default has been prevented from acting in a timely manner or appointing a representative due to sufficient objective or subjective reasons, and if they are not guilty of negligence.

The Federal Court also rejected the allegation of insufficient reasoning of the contested decision, as the different wording of Art. 43 para. 2 VRPG and Art. 35 para. 1 FJA is not decisive for the interpretation of the cantonal norm.

The court also examined the complaint of violation of the right to be heard and came to the conclusion that the Administrative Court was allowed to remedy the defects of the lower court's decision, as Art. 18 para. 1 VRPG provides for the principle of investigation and all instances of the Bernese administrative procedure have to clarify the facts…