AS TO THE ADMISSIBILITY OF
Application No. 23792/94
by Thomas HOCHSTAFFL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 11 January 1994
by Thomas HOCHSTAFFL against Austria and registered on 5 April 1994
under file No. 23792/94;
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 applicant, a retired farmer, is an Austrian citizen born in
1930. He resides in Gerlos. In the proceedings before the Commission
he was initially represented by Mr. G. Mory, a lawyer practising in
Salzburg and is now represented by Messrs. E. Proksch and D. Schimmer,
lawyers practising in Vienna.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is the owner of agricultural land situated in
Gerlos (Tyrol) which comprises, inter alia, parcel No. 500/4 of the
Gerlos land register (Grundbuch). The applicant inherited the land
from his uncle J.H. in 1957, who had acquired the land from the Federal
Forestry Administration (Bundesforste) in 1956. The applicant's land
is in the vicinity of the Gerlos hydroelectric power station. A
pipe-line which brings water from the Schwarzachbach to the Gmünd
storage lake is running under parcel No. 500/4. The power station was
built between 1939 and 1948.
In 1990 the Tauernkraftwerke AG (TKW), the owner of the Gerlos
power station, requested the Federal Minister for Agriculture and
Forestry (Bundesminister für Land- und Forstwirtschaft) to a grant
permit under the Water Act (Wasserrechtsgesetz) for construction works
relating to the barrage, which comprised, inter alia, the replacement
of the pipe-line under the applicant's land. On 7 March 1991 the
Minister granted the permit. Since no complaint with the
Constitutional Court (Verfassungsgerichtshof) or Administrative Court
(Verwaltungs-gerichtshof) was lodged, this decision became final.
On 16 November 1992 the TKW requested the Minister to issue an
order against the applicant to tolerate the construction works on his
land and relied on Section 72 of the Water Act.
Under Section 72 of the Water Act the owner of land had to
tolerate its temporary use for the purpose of constructing and
maintaining waterworks on his land. This comprises in particular the
entering of his property, the storing of building materials, transport
to and from the construction site and the examination of the ground to
the extent which is strictly necessary. Prejudice caused to the owner
of land by these measures must be compensated.
The applicant opposed the request. He submitted that the
replacement of the pipe-line could only take place under a new
servitude agreement since the old servitude would not cover the use of
a pipe-line of a larger bore and, in any event, no servitude for a
pipe-line encumbering parcel No. 500/4 had been entered in the land
register.
On 15 January 1993 the Minister ordered the applicant pursuant
to Section 72 of the Water Act to tolerate that a strip of nine metres
on both sides of the pipe-line be used for the purpose of replacing the
pipe-line on parcel No. 500/4. The Minister also instructed the TKW
to terminate the works before 31 March 1993, to restore the land to its
previous state after the termination of the construction work and to
compensate the applicant for any damage caused by the construction
works.
The Minister found that the construction permit of 7 March 1991
had become final and included the replacement of the pipe-line which
was partly situated on the applicant's land. However, the permit only
concerned the pipe-line itself and did not entitle the TKW to the
temporary use of the land in its vicinity during the time of the
construction works. Under Section 72 of the Water Act the owner of the
land had to tolerate its temporary use for the purpose of constructing
and maintaining waterworks on their land. Since it was apparent that
for the replacement of the pipe-line a strip of land on both sides of
the pipe-line on the applicant's land had to be used temporarily, the
request had to be granted.
As regards the applicant's argument that the TKW had failed to
conclude an agreement with him the Minister noted that the construction
permit provided that the TKW had to conclude private agreements with
certain owners of land, however this clause only applied in a case
where no previous (servitude) agreements existed and was therefore not
relevant to the applicant's case. As regards the applicant's argument
that no servitude for a pipe-line encumbered his land, the Minister
found that even if a servitude for a pipe-line had not been formally
entered in the land register, the TKW had acquired such a servitude by
prescription (Ersitzung). As regards the applicant's argument that the
existing servitude would not cover a pipe-line of a larger dimension,
the Minister found that the difference in size would be minimal and the
mere replacement of an existing pipe-line did not affect the nature and
purpose of the servitude.
On 27 January 1993 the construction works for the pipe-line on
the applicant's land started.
On 4 February 1993 the applicant introduced a civil law action
against the TKW before the Zell District Court (Bezirksgericht). He
requested the court to order the TKW to refrain from further
trespassing on his land and to stop the construction works. He also
requested the court to issue a temporary injunction. The applicant
submitted that the TKW was not the holder of a servitude for a
pipe-line on his land and therefore had no right to carry out
construction works thereon.
On 5 February 1993 the applicant filed a complaint against the
Minister's order of 15 January 1993 with the Administrative Court
(Verwaltungsgerichtshof). He submitted that Section 72 of the Water
Act was not a sufficient legal basis for interfering with his property
rights. Whether a third person had a right to use his land was a civil
law issue and the Minister could not oblige him to tolerate the
constructions works. He also requested that suspensive effect be
granted to his complaint.
On 22 February 1993 the applicant lodged an action for
interference with possession (Besitzstörungsklage) against the TKW in
which he requested the District Court to find that the TKW had
trespassed on his possession.
On 26 February 1993 the District Court dismissed the applicant's
action of 4 February 1993. The Court found that in 1954 the Federal
Forest Administration and the TKW had concluded a servitude agreement,
which concerned, inter alia, the pipe-line on the applicant's land.
It had been forgotten to enter the servitude in the land register when
parcel No. 500/4 had been created in 1956 and transferred to J.H. In
1991 a construction permit which concerned the replacement of the
pipe-line on the applicant's land had been issued and on 15 January
1993 an order against the applicant obliging him to tolerate
construction works on his land had been made. In this order the
Minister found that the TKW had acquired a servitude to construct and
maintain a pipe-line on the applicant's land by prescription. The
Minister had been competent to examine the preliminary question whether
a servitude for a pipe-line encumbered the applicant's land and the
District Court was therefore bound by the minister's decision of 1993.
The District Court concluded that in such circumstances the TKW had
succeeded in proving that they had the right to interfere with the
applicant's property and to carry out construction works on his land.
The applicant appealed against this judgment.
On 23 March 1993 the Administrative Court refused to grant
suspensive effect. It found that the prejudice which the applicant
would allegedly suffer, namely a deterioration of the quality of his
land due to the construction works, could be compensated in money,
while a suspension of the construction works could result in serious
damage to the power lines.
On 7 May 1993 the District Court dismissed the action for
interference with possession. The District Court noted that when
parcel No. 500/4 was registered in the land register, the servitude was
not registered but the Register Court's decision referred to it. The
applicant, who inherited the farm from J.H., had grown up on the farm
and worked there since 1945. When the applicant, 14 years ago, wanted
to level the land at issue the TKW had opposed and explicitly referred
to the pipe-line in the ground. Therefore, the applicant's action was
unfounded because he had known for at least 14 years of the existence
of the pipe-line under his land and had not objected to it. Thus the
TKW had used the applicant's land for a pipe-line since at least 14
years with his knowledge. The TKW had to be considered as a lawful
possessor (im ruhigen Rechtsbesitz) and had not interfered in an
unlawful manner with the applicant's possession.
Against this decision also the applicant appealed.
On 22 June 1993 the Administrative Court discontinued the
proceedings on the applicant's complaint. It found that the subject
of the Minister's decision was only the applicant's obligation to
tolerate the construction works. However, these works had meanwhile
been terminated and applicant was no longer under the obligation to
tolerate any measures taken by the TKW. What the applicant therefore
sought was an abstract review of the lawfulness of the decision which
was not the task of the Administrative Court.
On 20 August 1993 the Innsbruck Regional Court (Landesgericht)
dismissed the applicant's appeal against the District Court's decision
of 7 May 1993. It found that the construction works on the applicant's
land concerned the replacement of an already existing pipe-line and
could not be qualified as interference with possession. The TKW
already enjoyed a protected right of possession.
On 9 September 1993 the Innsbruck Regional Court dismissed the
appeal against the District Court's judgment of 26 February 1993. The
Regional Court found that the civil courts were not bound by the
Minister's order of 15 January 1993. It also found that for the
purpose of the present proceedings it was not necessary to resolve the
question whether the TKW actually had a servitude for a pipe-line on
the applicant's land since the applicant had only attacked the
replacement of the pipe-line and the works related thereto, but had not
requested a declaration by the courts that no servitude was encumbered
his land or that the pipe-line should be removed therefrom. The
applicant's action was unfounded because Section 72 of the Water Act
was a sufficient legal basis for the carrying out the construction
works. Under this provision the TKW had been entitled directly to use
the applicant's land for the construction works and did not need to
rely on the Minister's decision of 15 January 1993. This judgment was
served on the applicant on 8 October 1993.
On 21 December 1993 the Supreme Court (Oberster Gerichtshof)
rejected the applicant's appeal on points of law against the Regional
court's judgment of 9 September 1993. It found that no further appeal
laid against the Regional Court's judgment.
COMPLAINTS
1. The applicant complains that his claim that the TKW should not
interfere with his property without being authorized to do so had not
been properly decided by the courts in fair proceedings as required by
Article 6 para. 1 of the Convention. He submits that the TKW laid the
pipe-line on his land although no servitude had been entered in the
land register which would have allowed it to do so. The Minister's
order of 15 January 1993 was arbitrary, since Section 72 of the Water
Act was not a legal basis for granting the TKW the right to have
permanently a pipe-line on his land. The Administrative Court refused
to take a decision on his complaint, the District Court found itself
bound by the Minister's decision and the Regional Court incorrectly
applied Section 72 of the Water Act.
2. He further complains that the laying of a pipe-line on his land
violated his right to property as protected by Article 1 of Protocol
No. 1.
THE LAW
1. The applicant complains that his claim that the TKW should not
interfere with his property without being authorized to do so had not
been properly decided by the courts in fair proceedings as required by
Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ..."
The Commission notes that the dispute between the applicant and
the TWK related to the question whether or not the latter interfered
lawfully with the applicant's property and possession rights. The
Commission therefore finds that these proceedings involved a
determination of the applicant's civil rights and obligations within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
As regards compliance with this provision, the Commission
observes that the applicant is the owner of a parcel of land under
which a pipe-line, owned by the TKW, runs. In 1991 the TKW was granted
a construction permit to replace this pipe-line by a new one. In
January 1993 the competent Minister issued an order against the
applicant to tolerate construction works on his land in connection with
the replacement of the pipe-line. In February 1993 the applicant
introduced court proceedings before the ordinary courts, in which he
claimed that the TKW unlawfully interfered with his property and
possession and had no right to carry out construction works on his
land. The District Court dismissed the applicant's action holding
essentially that the Minister's order empowered the TKW to interfere
with the applicant's property and that it was bound by this decision.
The Regional Court, upon appeal, found that the interference with the
applicant's property right was lawful since the TKW could rely on
Section 72 of the Water Act. Moreover, it found that the courts need
not decide the question whether the TKW actually had a servitude for
pipe-line on the applicant's land as he had not requested the court to
declare that no servitude was incumbent on his land. The
Administrative Court discontinued proceedings against the Minister's
order of January 1993 since the construction works on his land had
meanwhile been terminated.
The Commission finds that the Austrian courts in two different
proceedings carefully examined the applicant's claims against the TKW
and dismissed them as unfounded, as the TKW was entitled under Section
72 of the Water Act to use the applicant's land. The applicant does
not argue that in these proceedings any specific procedural
requirements had been disregarded by the courts which could have given
rise to a violation of Article 6 (Art. 6) of the Convention. He
essentially attacks the interpretation by the domestic courts of the
substantive provisions of the Water Act.
However, in this respect the Commission recalls that under
Article 19 (Art. 19) of the Convention its sole task is to ensure
observance of the engagements undertaken by the High Contracting
Parties in the Convention. It is not competent to examine applications
concerning errors of law or fact allegedly committed by the competent
national authorities, to whom it falls, in the first place, to
interpret and apply domestic law (No. 11826/85, Dec. 9.5.89, D.R. 61
p. 138; No. 19890/92, Dec. 3.5.93, D.R. 74, p.234).
The Commission therefore finds that there is no appearance of a
violation of the applicant's rights under Article 6 para. 1 (Art. 6-1)
of the Convention. 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.
2. The applicant further complains that the laying of a pipe-line
on his land violated his right to property as protected by Article 1
of Protocol No. 1 (P1-1).
Article 1 of Protocol No. 1 (P1-1) 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.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission observes that the question whether the TKW was
entitled to use the applicant's land was a question which was
determined by the Austrian courts in the actions introduced by the
applicant against the TKW. In this respect, the Commission recalls
that the mere fact that an individual was the unsuccessful party to
private litigation concerning the determination of his civil rights and
obligations is not sufficient to engage state responsibility for an
alleged violation of Article 1 of Protocol No. 1 (P1-1) (No. 11949/86,
Dec. 1.12.86, D.R. 51 p. 195 at p 211).
Moreover, even assuming that the construction permit of 7 March
1991 by which the TKW was allowed to replace the existing pipe-line on
the applicant's land amounted to an interference with the applicant's
property rights, the Commission observes that the applicant failed to
introduce a complaint with the Constitutional Court or Administrative
Court against this decision.
The Commission finds that, in the circumstances of the present
case, the impugned Austrian court decisions do not disclose any
appearance of a violation of the rights protected by Article 1 of
Protocol No. 1 (P1-1).
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy