FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53911/00
by Johann ACHLEITNER and Christiana ACHLEITNER
against Austria
The European Court of Human Rights (First Section), sitting on 20 June 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrV. Zagrebelsky, judges, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 27 September 1999,
Having deliberated, decides as follows:
THE FACTS
The applicants, Johann Achleitner and Christiana Achleitner, are Austrian nationals, who were born in 1932 and 1934, respectively, and live in Schalchen, Austria. They are represented before the Court by Mr. Hasibeder, a lawyer practising in Ried, Austria.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants run a fish farm in Schalchen since 1976. Before that date the parents of the first applicant had run the fish farm.
It appears that between 1956 and 1969 the Municipalities of Mattighofen and Schalchen (“the Municipalities”) carried out regulation works on a small river in the vicinity of the applicant’s estate without permission under the Water Act (Wasserrechtsgesetz 1959).
In October 1969 the former owners of the estate requested the Braunau District Authority (Bezirkshauptmannschaft) to order the Municipalities to re-establish the former state of the river bed maintaining that the regulation works had damaged the well which supplied their fish farm with water. They submitted that the original capacity of the well had been 800 litres of water per second. After the regulation of the river the capacity of the well had been reduced to 100 litres of water per second. This constituted an interference with their water-rights. In case that the regulation could not be reversed they requested that the Municipalities be ordered to take other steps to ensure the water supply of the fish farm.
On 14 January 1970 the District Authority dismissed this request.
On 20 May 1970 the Upper Austria Regional Governor allowed the appeal and remitted the case to the District Authority to decide on the request.
On 13 January 1971 the applicants’ predecessors filed a request for transfer of jurisdiction (Devolutionsantrag) as the District Authority failed to decide within the statutory six months time-limit. On 11 February 1971 the Regional Governor dismissed this request.
On 3 September 1971 they filed again a request for transfer of jurisdiction and the Regional Governor again dismissed the request. On 10 February 1972 the Federal Minister for Agriculture and Forestry (Bundesministerium für Land- und Forstwirtschaft) allowed the appeal and remitted the case to the Regional Governor.
On 8 August 1972 the Regional Governor ordered the Municipalities to ask for an ex post permission of the regulation works which had already been carried out or to re-establish the former state of the river.
On 23 August 1973 the Federal Minister dismissed the Municipalities’ appeal.
Subsequently, on 28 November 1973 the Municipalities applied for an ex post permission. On 3 June 1975 the District Authority held a hearing. At this hearing the applicants’ predecessors requested that the Municipalities be ordered to pay compensation as they had suffered prejudice caused by the regulation works.
On 3 September 1975 the District Authority granted the ex post permission and ordered the Municipalities to take specific steps to ensure water supply of the fish farm before 31 December 1976. The District Authority dismissed the request for compensation.
On 2 December 1975 Regional Governor dismissed the applicants appeal and found that the applicant’s water rights were not violated by the granted permission.
On 27 January 1976 the applicants, who meanwhile became the owners of the fish farm, lodged an appeal. The Federal Minister rejected this appeal as belated. Subsequently, the applicants lodged a request for reinstitution into the proceedings (Wiedereinsetzung in den vorigen Stand). On 2 April 1976 the Federal Minister granted this request.
On 5 July 1977 the Federal Minister dismissed the applicant’s appeal and confirmed the Regional Governor’s decision of 2 December 1975.
On 30 November 1979 the Administrative Court, upon a complaint lodged by the applicants, quashed this decision and found that the administrative authorities had not properly decided whether the applicants’ water rights had been prejudiced by the regulation works.
Subsequently, on 19 November 1980, the Federal Minister remitted the case to the Regional Governor and on 15 December 1980 the Regional Governor remitted the case to the District Authority.
On 28 May 1982 the District Authority granted the ex post permission for the regulation works and dismissed the applicants’ request for compensation.
On 28 June 1982 the applicants filed an appeal against this decision. In the years to follow several technical experts were appointed in order to establish whether the regulation works had damaged the well.
On 11 November 1984, as the District Authority had not taken a decision, the Municipalities filed an application for transfer of jurisdiction (Devolutionsantrag) with the Regional Governor. On 21 January 1985, as also the Regional Governor had not taken a decision, the applicants filed an application for a transfer of jurisdiction with the Federal Minister.
On 5 December 1987, as the Federal Minister had not taken a decision, the applicants lodged an application against the administrative authorities’ failure to decide (Säumnisbeschwerde) with the Administrative Court. On 7 January 1988 the Administrative Court ordered the Federal Minister to issue a decision within three months.
On 22 January 1988 the Federal Minister rejected the applicants’ application for transfer of jurisdiction. The applicants lodged a complaint with the Administrative Court against this decision.
On 3 October 1991 the Administrative Court quashed this decision as a consequence of which the Federal Minister had to take a decision on the merits.
On 14 October 1996 the Federal Minister, after having held hearings on 1 and 2 July 1996, dismissed the applicants appeal. The Minister found that the regulation works had not damaged the applicants well and dismissed the request for compensation.
The applicants lodged a complaint with the Constitutional Court as well as with the Administrative Court.
On 13 March 1997 the Constitutional Court refused to deal with the applicants’ complaint.
On 6 August 1998 the Administrative Court quashed the Federal Minister’s decision of 14 October 1996 on the ground that the Federal Minister had failed to take into account the expert reports submitted by the applicants.
Subsequently, the Federal Minister appointed new technical experts and on 16 July 1999 the Federal Minister served a new expert report on the applicants.
On 27 October 1999 the applicants filed their comments on the expert report and challenged the experts appointed by the Federal Minister for bias (Ablehnungsantrag).
On 27 April 2000 the applicants agreed with the Federal Minister on the further conduct of the proceedings. The Federal Minister would furnish a questionnaire to the expert in order that he supplemented his report. Thereafter the applicants would be given the opportunity to comment on the revised report and another hearing would be held.
The proceedings are still pending.
COMPLAINTS
The applicants complain under Article 6 of the Convention about the length of the proceedings.
Under the same provision they complain that the proceedings were unfair in that the official experts were biased as they represented the administrative authorities’ interests. Moreover, they submit that they had no effective remedy to challenge these experts for bias.
They also complain that their rights under Article 1 of Protocol No 1 have been violated as they had to make considerable investments in order to ensure the water supply of the fish farm.
THE LAW
1. The applicants complain that the administrative proceedings were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.
The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.
2. The applicants complain under Article 6 of the Convention about the unfairness of the proceedings. They further complain under Article 1 of Protocol No. 1 about a violation of their rights to peaceful enjoyment of their possession.
Article 6 of the Convention, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”
However, the Court is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 of the Convention, insofar as the applicants complain about the alleged unfairness of the proceedings at issue, or of Article 1 of Protocol No. 1 as it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.
The Court observes that the proceedings are still pending before the Federal Minister and it therefore finds that the application in this respect is premature as no final decision has been taken in the above proceedings.
It follows that this complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of the proceedings;
Declares inadmissible the remainder of the application.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy