AS TO THE ADMISSIBILITY OF
Application No. 21640/93
by Ulrike GRABENWARTER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 31 March 1993 by
Ulrike GRABENWARTER against Austria and registered on 8 April 1993
under file No. 21640/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, born in 1941, is an Austrian national residing in
Graz. In the proceedings before the Commission, she is represented by
Mr. Karlheinz Grabenwarter, a solicitor practising in Graz.
A. Particular circumstances of the case
In 1982 the applicant bought a farm house and a plot of land in
Bad Gams, Styria. She built a well on her land in order to gain a
supply of drinking water. In early 1985 a couple owning the
neighbouring plot of land, claimed before the Austrian Courts a right
of servitude to use a way on applicant's property, situated above the
well.
The present case concerns proceedings relating to the applicant's
request to have a water protection zone established on her property,
to compensation proceedings brought by her neighbours and to further
proceedings regarding the water protection zone.
1. The establishment of a water protection zone
On 5 March 1986 the Deutschlandsberg District Administrative
Authority (Bezirkshauptmannschaft) dismissed the applicant's request
of 14 October 1985 that a water protection zone for her well be
established on her real estate in accordance with Section 34 para. 1
of the Water Rights Act (Wasserrechtsgesetz).
On 11 November 1987 the Ministry for Agriculture and Forestry
(Bundesministerium für Land und Forstwirtschaft), on the applicant's
appeal, quashed the decision of the District Administrative Authority.
The Ministry did not decide on the merits itself but referred the
matter back to the District Administrative Authority for a new
decision.
On 22 March 1988 the Administrative Court (Verwaltungs-
gerichtshof), on the complaint lodged by the applicant, quashed the
decision by the Ministry for Agriculture and Forestry on the reason
that the Ministry had not itself decided on the merits.
On 30 November 1988 the Ministry for Agriculture and Forestry,
having held a hearing on 4 November 1988, established an inner and an
outer protection zone for the well, which were both located entirely
on the applicant's property, and stated inter alia that the use of a
way was not allowed within these zones. As regards any claims by the
neighbours for being prohibited from using the existing way, the
Ministry found that no decision could be taken before their claim to
a servitude on the way had been decided upon. A decision about their
claim for compensation had to be reserved for supplementary proceedings
before the District Administrative Authority, according to Section 117
para. 2 of the Water Rights Act.
On 25 April 1989 the Administrative Court rejected the
neighbours' complaint against the Ministry's decision. It found that
the Water Rights Act gives persons having a right to servitude the
right to participate in the proceedings and to have their point of view
heard, but does not give them the full position of a party. The Court
considered that the neighbours were therefore not entitled to lodge a
complaint.
2. The compensation proceedings
On 6 July 1989 the neighbours requested the Deutschlandsberg
District Administrative Authority to institute supplementary
proceedings under Section 117 para. 2 in connection with Section 34
para. 4 Water Rights Act. They requested compensation for being
prohibited of using the way in the water protection zone. Their right
to servitude had apparently meanwhile been granted.
On 15 March 1990 the District Administrative Authority dismissed
the neighbours' request. The Authority found that the neighbours were
not entitled to claim damages under Section 34 para. 4 or any other
provision of the Water Rights Act.
On 2 July 1990 the Provincial Governor, on the neighbours'
appeal, quashed this decision and referred the case back to the
District Administrative Authority.
On 10 July 1991 the District Administrative Authority, based on
Section 34 para. 4 and Section 117 paras. 1 and 2 of the Water Rights
Act, ordered the applicant to pay AS 27,000 to the neighbours as
compensation for being prohibited from using the way which had
meanwhile been destroyed.
On 10 December 1991 the Administrative Court, following the
applicant's complaint, quashed the Provincial Governor's decision of
2 July 1990. It seems that the administrative Authorities have not
taken any further decisions in respect of the compensation proceedings.
Meanwhile, in August 1991, the neighbours had challenged the
District Authority's decision before the Stainz District Court
(Bezirksgericht), according to Section 117 para. 4 Water Rights Act.
This provision had entered into force on 1 January 1989, and newly
defined the competence for appeal proceedings relating to claims for
compensation. After the applicant had successfully challenged the
Stainz District Court for bias, following a hearing held on 30 January
1992, the proceedings were transferred to the Graz District Court.
On 29 January 1993 the Graz District Court dismissed the
neighbours' claim. It found that they were not entitled under Section
34 para. 4 Water Rights Act to claim damages.
3. The further proceedings concerning the water protection zone
In mid 1990, the Deutschlandsberg District Administrative
Authority introduced new proceedings concerning the water protection
zone, based on an amendment of Section 34 para. 1 of the Water Rights
Act, which had entered into force on 1 July 1990, in order to
reconsider the restrictions imposed on the use of applicant's property
in 1988.
On 10 July 1991 the District Administrative Authority, in the
above-mentioned decision on the neighbours' compensation claim, changed
the restrictions relating to the water protection zone. Based on the
amended version of Section 34 para. 1 Water Rights Act, the Authority
upheld the establishment of an inner and an outer protection zone, but
permitted a way in the outer protection zone.
On 27 May 1992 the Ministry for Agriculture and Forestry
dismissed the applicant's appeal against this decision.
On 22 September 1992 the Administrative Court, without holding
a hearing as requested by the applicant, quashed the decision by the
Ministry for Agriculture and Forestry. The Court found that the
Ministry had not sufficiently dealt with the expert opinion presented
by the applicant. The Court referred the case back to the Ministry.
On 12 October 1992 the Constitutional Court dismissed the
applicant's complaint against the Ministry's decision of 27 May 1992
for lack of sufficient prospects of success.
Since 5 November 1992 the proceedings concerning the water
protection zone are pending before the Ministry for Agriculture and
Forestry.
B. Relevant domestic law
Section 34 para. 1 Water Rights Act (Wasserrechtsgesetz) deals
with the protection of water supply facilities against pollution or any
influence affecting the volume of the water supply. To achieve such
protection, the competent Authority may issue orders about the use of
lands and waters. Inter alia the Authority may decide to establish a
protection zone.
An amendment of the Water Rights Act, which entered into force
on 1 July 1990, added a sentence to Section 34 para. 1 empowering the
competent Authority to change existing orders whenever the protection
of the water supply allows it or makes it necessary.
Section 34 para. 4 provides that a person who is restricted by
orders under para. 1 in the use of his land and facilities, may claim
damages from the person entitled to the water right.
The amendment, which entered into force on 1 July 1990, changed
para. 4, giving the right to claim damages also to persons whose
enjoyment of rights concerning the use of forests or pasturage are
restricted by orders under para. 1.
Section 117 of the Water Rights Act deals with the procedure for
compensation. Para. 1 states that the Authority competent under the
Water Rights Act also has to decide on damages, unless a specific
exception is made. In its decision the Authority has to say whether
compensation is due at all, and if so, whether compensation has to be
given in money or in kind.
Section 117 para. 2 states that in the case of a request for a
permission under the Water Rights Act or for the granting of any
enforceable right under the Water Rights Act, the Authority has to
include its ruling on compensation in the decision in respect of the
request. If this is not possible, a supplementary decision shall be
issued within one year. Before issuing this decision the Authority has
to hold a hearing.
An amendment, which entered into force on 1 January 1989, added
para. 4 to Section 117, which states that the parties concerned may
request a decision by the Courts concerning the question of damages
within two months after the Authority's decision based on para. 1 was
issued. In this case the Authority's decision becomes void.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 about the length
of the proceedings concerning the water protection zone and her
neighbours' compensation claim. In particular, she submits that it took
from October 1985 until November 1988 to get a decision on her request
to have a water protection zone established on her property. She
further submits that the proceedings about her neighbours claim to
damages are still pending before the administrative authorities.
Moreover, due to a change in law, new proceedings relating to the water
protection zone were started by the competent authorities in mid 1990
and are still pending.
2. As regards the proceedings concerning the water protection zone,
the applicant further complains that none of the authorities involved
were independent and impartial tribunals within the meaning of Article
6 para. 1. She also complains that on 22 September 1992 the
Administrative Court decided without having held a hearing.
THE LAW
The applicant raises various complaints under Article 6 para. 1
(Art. 6-1) about several proceedings relating to her request to have
a water protection zone established on her property, to compensation
proceedings brought by her neighbours, and subsequent proceedings
concerning the water protection zone. In particular, the applicant
complains about the length of these proceedings.
As regards the relevant period, the Commission recalls that
various sets of proceedings may have to be considered as a whole, if
they are interrelated, in that they all bear on questions, which are
preliminary to the main contentious issue (see Eur. Court H.R.,
Wiesinger judgment of 30 October 1991, Series A no. 213, p. 20,
para. 52).
In the present case, a link of this kind did not exist between
the proceedings complained about. The Commission notes that three sets
of proceedings were conducted. The first set concerned the applicant's
request to have a water protection zone established on her land. The
second set was relating to her neighbours' claim to damages. New
proceedings concerning the water protection zone were stated due to a
change in law. The Commission, therefore, finds that the three sets of
proceedings have to be considered separately.
a. In respect of the first set of proceedings concerning the water
protection zone, the Commission finds that the applicant failed to
lodge her application with the Commission within six months after the
final decision taken by the Administrative Court on 25 April 1989.
It follows that this part of the application must be rejected
under Article 27 para. 3, in conjunction with Article 26
(Art. 27-3+26), of the Convention.
b. The Commission notes that the proceedings concerning the
neighbours' claim to damages started before the District Administrative
Authority on 6 July 1989, when the neighbours' brought their request
for compensation. The Commission, even assuming that the proceedings
were not formally discontinued before the administrative authorities,
finds that, following the amendment of Section 117 para. 4 of the Water
Rights Act, which had entered into force on 1 January 1989, the
proceedings were terminated by the Graz District Court's decision of
29 January 1993, which dismissed the neighbours' claim for damages.
The period to be taken into consideration therefore lasted from
6 July 1989 until 29 January 1993, that is about three years and
three months.
The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's case
law and in the light of the circumstances of the case, which in this
instance call for an overall assessment (see Eur. Court H. R., Cesarini
judgment of 12 October 1992, Series A no. 245-B, p. 26, para. 17). The
Commission finds that the proceedings in question were of some
complexity. The parties contributed to the length by lodging appeals
and other remedies. Moreover, the applicant has not shown any important
periods of inactivity on behalf of the Austrian authorities.
In these circumstances, the Commission considers that the total
length of the proceedings, which were pending before two instances,
cannot be regarded as excessive. It follows that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
c. A further set of proceedings concerning the water protection
zone, was instituted by the Deutschlandsberg District Administrative
Authority in mid 1990, in accordance with an amendment to Section 34
para. 1 of the Water Rights Act. These proceedings are still pending.
As regards these proceedings, the applicant also complains that
none of the authorities involved in these proceedings were independent
and impartial tribunals and that she did not have an oral hearing
before the Administrative Court prior to its decision of
22 September 1992.
The Commission considers it cannot, on the basis of the present
state of the file, determine the admissibility of these complaints and
that it is necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of the complaint concerning the
length of these proceedings to the respondent Government.
For these reasons, the Commission unanimously
DECIDES TO ADJOURN the examination of the applicant's complaint
that the proceedings concerning the water protection zone on her land,
which were instituted by the Deutschlandsberg District Administrative
Authority in mid 1990 lasted unreasonably long and her further
complaints that none of the administrative authorities involved in
these proceedings were independent and impartial tribunals, and that
she did not have an oral hearing before the Administrative Court prior
to its decision of 22 September 1992.
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy