AS TO THE ADMISSIBILITY OF
Application No. 23397/94
by Manfred HUBER
Gerald STAUFER
Karl STAUFER
SPORTANGLERBUND VÖCKLABRUCK
Josef ECKHARDT
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 12 January 1994
by Manfred HUBER and Others against Austria and registered on
4 February 1994 under file No. 23397/94;
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 applicants are Austrian citizens. The fourth applicant is an
association established under Austrian law. The applicants are
represented by Mr. F. Hitzenberger, a lawyer practising in Vöcklabruck,
Austria.
A. Particular circumstances of the case
The facts as submitted by the applicants may be summarised as
follows:
The applicants have fishing rights (Fischereiberechtigung)
relating to Lake Attersee.
On 31 March 1992 the District Authority (Bezirkshauptmannschaft)
at Vöcklabruck granted Mr. and Mrs. H. a permission to extend a wooden
landing stage by 14,5 meters plus 5,33 meters as well as the
construction on the side of the landing stage of a concrete swimming
platform. The landing stage begins at Mr. and Mrs. H.'s premises
bordering the lake. The permission was valid until 31 December 2011
and subject to a number of conditions. It was in particular necessary
to obtain the consent of the nature protection authority (Zustimmung
der Naturschutzbehörde). The objections raised by the applicants were
considered to be inadmissible and therefore rejected. However, Mr. and
Mrs. H. were ordered to pay compensation in the amount of 2.475- AS for
damages resulting from the construction project.
The applicants' appeals (Berufung) were dismissed by the Ministry
for Agriculture and Forestry on 23 November 1992. It is stated in the
decision that in accordance with Section 15 para. 1 of the Water Rights
Act (Wasserrechtsgesetz) of 1959, as amended in 1990, holders of
fishing rights were entitled to suggest measures to protect their
fishing interests to the extent that the suggested measures did not
unreasonably hinder the construction project. Under Section 117 of
this same Act they could claim compensation if the project caused them
material damages (vermögensrechtliche Nachteile). The fishing rights
however were not water rights in the sense of the Water Rights Act and
therefore could not be raised in opposition to the construction project
as such. The applicants had, however, not made any proposals for
measures mitigating the negative effects of the project in question but
had requested its prohibition. This went beyond the possibilities open
to them under Section 15 of the Water Rights Act.
The applicants then lodged a constitutional complaint which was
rejected by the Constitutional Court (Verfassungsgerichtshof) on
22 March 1993. The court considered that there was no appearance of
a denial of constitutional rights or of rights guaranteed by the
Convention. It referred to its constant jurisprudence according to
which Section 15 of the Water Rights Act was compatible with the
Austrian Constitution. The Constitutional Court transferred the matter
to the Administrative Court (Verwaltungsgerichtshof).
On 22 June 1993 the Administrative Court dismissed the
applicant's complaint (Beschwerde). This court noted that only holders
of rights as mentioned in Section 12 para. 2 of the Water Rights Act
were entitled in the relevant proceedings to make a request for the
rejection of a construction project, but not holders of fishing rights.
Therefore the administrative decision complained of was not illegal
(rechtswidrig) even though according to an opinion of an official
expert for the fishing industry (fischereiwirtschaftlicher
Amtssachverständiger) the applicants' objections against the building
project in question were justified. Under Section 15 para. 1 of the
Water Rights Act a complete prohibition of the project in question
could not be requested by the holders of the fishing rights even if
such prohibition would constitute the only possible way of protecting
their interests. Therefore the authorities did not have to take into
account the opinion of the expert for the fishing industry and did not
have to examine ex officio if the construction project could be
realised in a manner such as better to respect the interests of the
applicants. Rather it had been the applicants' obligation to make
concrete proposals in this respect.
Insofar as the applicants had alleged that the project in
question also violated public interests, the court noted that only the
authorities and not the applicants were called upon to ensure respect
for public interests.
The decision of the Administrative Court was served on the
applicants' lawyer on 13 July 1993.
B. Relevant domestic law
The following provisions of the Water Rights Act are relevant:
[Translation]
"s. 12. Principles for the granting of permits taking into
account the public interest and third-party rights. (1) The
extent and nature of any water use to be permitted shall be
determined in such a way that the public interest .......... is
not prejudiced and existing rights are not violated.
(2) Any lawfully-exercised use of water except common use,
............ rights of use under s. 5(2) and ownership of land
shall be deemed to be existing rights as referred to in para. 1
above.
(...)
s. 15. Limitation for the benefit of fishing. (1) Persons
holding fishing rights may, in the event of a permit being
granted for a project entailing adverse consequences for their
fishing waters, request measures for the protection of the
fishery. Such a request is to be taken into account provided
that it does not disproportionally affect the realisation of the
planned project. Any adverse financial consequences resulting
from a project shall give rise to a right to fair compensation
for the persons entitled to fish (see s. 117).
(...)
s. 117. Compensation and contributions. (1) [Any question as
to] the duty to pay any compensation, damages, contributions or
charges provided for in this Federal Act or in any special
regulations for the care and protection of particular waters
shall be determined by the water authority, save where this
Federal Act ...... or the relevant special regulations provide
otherwise. (...)
[German]
"§12. Grundsätze für die Bewilligung hinsichtlich öffentlicher
Interessen und fremder Rechte. (1) Das Mass und die Art der zu
bewilligenden Wasserbenutzung ist derart zu bestimmen, dass das
öffentliche Interesse (...) nicht beeinträchtigt und bestehende
Rechte nicht verletzt werden.
(2) Als bestehende Rechte im Sinne des Abs. 1 sind rechtmässig
geübte Wassernutzungen mit Ausnahme des Gemeingebrauches (...),
Nutzungbefugnisse nach §5 Abs. 2 und das Grundeigentum anzusehen.
§15. Einschränkung zugunsten der Fischerei. (1) Die
Fischereiberechtigten können anlässlich der Bewilligung von
Vorhaben mit nachteiligen Folgen für ihre Fischwässer Massnahmen
zum Schutz der Fischerei begehren. Dem Begehren ist Rechnung zu
tragen insoweit hiedurch das geplante Vorhaben nicht
unverhältnismässig erschwert wird. Für sämtliche aus einem
Vorhaben erwachsenden vermögensrechtlichen Nachteile gebührt den
Fischereiberechtigten eine angemessene Entschädigung (§ 117).
§117. Entschädigungen und Beiträge. (1) Über die Pflicht zur
Leistung von Entschädigungen, Ersätzen, Beiträgen und Kosten, die
entweder in diesem Bundesgesetz oder in den für die Pflege und
Abwehr bestimmter Gewässer geltenden Sondervorschriften
vorgesehen sind, entscheidet, sofern dieses Bundesgesetz oder die
betreffende Sondervorschrift nichts anderes bestimmt, die
Wasserrechtsbehörde."
COMPLAINTS
The applicants submit that when placing fishing nets they have
to observe a distance of at least 100 meters with regard to a landing
stage. Consequently the stage in question deprives them of a
considerable fishing area. In addition they complain that Section 15
of the Water Rights Act disregards the justified interests of holders
of fishing rights in that they must tolerate construction projects even
if they cause material damages to them. The applicants therefore
consider Article 1 of Protocol No. 1 to be violated as the situation
complained of in their opinion amounts to a de facto expropriation.
They also consider themselves to be discriminated against in the
enjoyment of their property rights because they are less favourably
treated than those who can claim water rights under Section 12 para. 2
of the Water Rights Act.
For the same reason they invoke Article 6 also read in
conjunction with Article 14 of the Convention and argue in particular
that the principle of equality of arms was violated in the domestic
proceedings on the ground that Mr. and Mrs. H. who requested leave for
extending their landing stage were in a stronger position than they as
opponents to this request. They further complain that contrary to
their request the Administrative Court had denied them a public oral
hearing.
Finally the applicants invoke Article 13 of the Convention
considering that under Austrian law they had no possibility of
complaining of the interference with their property right. They state
that they are not interested in the possibility of requesting
compensation and claim that they should have a right to oppose the
construction project in an effective manner.
THE LAW
1. The applicants have mainly complained under Article 1 of Protocol
No. 1 (P1-1) to the Convention that the authorisation given to Mr. and
Mrs. H. to enlarge their landing stage infringed their fishing rights
and constituted a de facto expropriation, i.e. an infringment of their
right to the peaceful enjoyment of possessions.
The Commission first notes that the applicants did not make use
of the possibility given to them under Section 117 of the Water Rights
Act to claim compensation. It therefore appears to be doubtful whether
they can be considered as having exhausted domestic remedies as
required by Article 26 (Art. 26) of the Convention (cf. No. 23048/93,
P. and others v. Finland, Dec. 17.1.96). This question can however be
left open as the above complaint must in any event be rejected for the
following reasons.
It is true that according to the Commission's jurisprudence
fishing rights can be considered as possessions under Article 1 of
Protocol No. 1 (P1-1) (cf. No. 11763/85, Banér v. Sweden, Dec. 9.3.89,
D.R. 60, p. 128 [139]) and that deprivation of property within the
meaning of this article is not limited to cases where property is
formally expropriated. The applicants have however failed to show that
in the present case their fishing rights were affected by the measure
complained of in a substantial manner such as to impose on them an
individual and excessive burden (cf. Eur. Court H.R., Sporrong and
Lönnroth judgment of 23 September 1982, Series A no. 52, p. 28
para. 73). In particular the applicants have not shown that the
fishing area of which they dispose of on Lake Attersee or their fishing
yield was substantially diminished as a consequence of the enlarged
landing stage.
There is consequently no appearance of a violation of Article 1
of Protocol No. 1 (P1-1) and this part of the application therefore has
to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention
as being manifestly ill-founded.
2. The applicants have next invoked Article 6 (Art. 6) of the
Convention, which, inter alia, guarantees the right to a "fair hearing"
in proceedings relating to the determination of "civil rights".
However, while fishing rights may be considered to constitute
" civil rights", the proceedings here in question did not relate to the
determination of the applicants' fishing rights nor did the applicants
have standing under Austrian law to ask the authorities to prohibit the
enlargement of the landing stage in question. Contrary to the case of
Sander v. Sweden in which the European Court of Human Rights found a
violation of Article 6 (Art. 6) of the Convention (judgment of
25 November 1993, Series A, No. 279 B) the applicants thus had no
claim in the domestic proceedings that would have restricted the
discretionary powers of the Austrian authorities deciding upon the
request for the enlargement of the landing stage as such. The only
claim that they could pursue in this respect was a claim for
compensation under Section 117 of the Water Rights Act, a claim which
the applicants deliberately chose not to raise in the present case.
On the other hand Article 6 para. 1 (Art. 6-1) of the Convention is not
intended to create new substantive rights which have no legal basis in
the legal order of the State concerned. It provides procedural
protection only to rights which can be said, at least on arguable
grounds, to be recognised in domestic law. As this is not the case
here the Commission accordingly finds that this part of the application
must be dismissed as being incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The foregoing finding implies that Article 14 (Art. 14) is
likewise inapplicable insofar it is invoked in relation to Article 6
(Art. 6) of the Convention. Even assuming that Article 14 (Art. 14)
does apply insofar as it has been invoked in conjunction with Article
1 of Protocol No. 1 (Art. 14+P1-1), the applicants have not shown that
their position is comparable to holders of water rights in the sense
of Section 12 of the Water Rights Act.
This part of the application must therefore be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicants finally allege a violation of Article 13 (Art. 13)
of the Convention which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
However Article 13 (Art. 13) does not guarantee a remedy whereby
a Contracting State's laws as such can be challenged before a national
authority on the ground that they are contrary to the Convention or to
equivalent domestic legal norms (Eur. Court H.R., James and others
judgment of 21 February 1986, Series A No. 98, p. 47 para. 85).
The applicants' allegations of violations of Convention rights
are directed at the effect of the Water Rights Act.
It follows that Article 13 (Art. 13) does not entitle the
applicants to a remedy for such allegations.
Accordingly there is no appearance of a violation of the
Convention in this respect either and this part of the application must
also be rejected as being 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