Application No. 11981/86
by Peter MOOSBRUGGER
against Austria
The European Commission of Human Rights sitting in private
on 5 March 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 January 1986
by Peter Moosbrugger against Austria and registered on 23 January 1986
under file No. 11981/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 12 December 1988 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its
admissibility and merits;
- the agreement reached between the parties as described in
the Government's letter of 10 August 1989;
- the applicant's declaration of 29 December 1989 that he
wishes to withdraw the application, the above agreement
having been fully implemented;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as they have been submitted by the
applicant may be summarised as follows:
The applicant, an Austrian citizen, resident in
Hörbranz/Vorarlberg, is represented by Rechtsanwalt Dr. W.L. Weh of
Bregenz. He complained of expropriation proceedings taken
against him under the Water Act (Wasserrechtsgesetz, Fed. Law Gazette
No. 215/1959 as amended) in connection with the regulation of a
rivulet adjoining his property.
The water regulation proceedings in question were instituted
in 1977.
By a decision of 28 December 1979, the District Authority
(Bezirkshauptmannschaft) of Bregenz ordered the expropriation of some
of the applicant's land and fixed the applicant's compensation.
Following an appeal by the applicant this decision was amended by
the Provincial Government (Landesregierung) of Vorarlberg on
26 August 1980. However, on 22 June 1981 the Administrative Court
(Verwaltungsgerichtshof) quashed the Provincial Government's decision.
On 4 October 1982 the Provincial Government issued a new
decision by which it ordered the expropriation of a smaller piece of
land and fixed the applicant's compensation on a lower basis than in
the previous decisions. On 7 January 1984 the Administrative Court
confirmed the scope of the expropriation but allowed the applicant's
complaint regarding the compensation.
On 17 July 1984 the Provincial Government, after having
consulted both experts who had previously been involved in the
proceedings, confirmed the amount of compensation fixed in the
decision of 4 October 1982. It also rejected the applicant's claim
for the reimbursement of his costs.
The applicant complained to the Constitutional Court (Ver-
fassungsgerichtshof) claiming that Section 117 of the Water Act
contravened Article 6 in conjunction with Article 14 of the Convention
in that, in distinction from other expropriation statutes, it assigned
the jurisdiction on the determination of compensation claims to
administrative authorities. In his view it was insufficient that the
decisions of the said administrative authorities were subject to
ultimate review by the Constitutional and Administrative Courts. The
applicant further complained of the refusal of the reimbursement of
his costs which he likewise considered to be in conflict with Article 6
of the Convention and with the principle of equality.
However, on 21 June 1985 the Constitutional Court, referring
to its earlier case-law, rejected the applicant's complaints as being
without sufficient prospects of success. It referred the case to the
Administrative Court which, on 11 March 1986, quashed the Provincial
Government's decision of 17 July 1984 insofar as the compensation
issue was concerned but upheld it as regards reimbursement of costs.
On 13 May 1987, after having obtained supplementary expert
evidence, the Provincial Government fixed the compensation on yet
another basis. It again rejected the applicant's claim for the
reimbursement of his costs.
The applicant lodged a complaint (B 650/87) with the
Constitutional Court against this decision in which he essentially
repeated the arguments raised in his earlier constitutional complaint.
He now also referred to the Ettl case (No. 9723/81, Comm. Report
3.7.85) where the Commission had come to the conclusion that the
ultimate review of administrative decisions concerning civil rights by
the Constitutional and Administrative Courts was not sufficient for
the purposes of Article 6 para. 1 of the Convention.
The Constitutional Court instituted proceedings for the review
of the constitutionality (Gesetzesprüfungsverfahren) of the applicable
provisions of the Water Act, in particular Section 117 and, on
24 June 1988, quashed the relevant provisions of this Act as being in
conflict with Article 6 para. 1 of the Convention. It found that
compensation issues arising in connection with an expropriation were
matters of "civil rights" within the meaning of the Austrian legal
system. They concerned the determination of civil rights and
obligations of the expropriated party and therefore came within the
area of Article 6 para. 1 of the Convention. The control by the
Administrative Court was not sufficient to bring the proceedings in
line with this provision. The Administrative Court had no full
jurisdiction concerning all questions of fact and law as required by
the Convention organs (Eur. Court H.R., Lecompte, Van Leuven and De
Meyere judgment of 23 June 1981, Series A No. 43, and Albert and
Lecompte judgment of 10 February 1983, Series A No. 58). It was
therefore necessary that new legislation be enacted regulating the
jurisdiction in compensation cases under the Water Act in conformity
with Article 6 para. 1 of the Convention. The Constitutional Court
fixed a time-limit expiring on 31 December 1988 for this purpose.
On 28 September 1988 the Constitutional Court quashed the
Provincial Government's decision of 13 May 1987.
On 29 November 1988 the Water Act was amended to the effect
that the compensation following an expropriation under this Act is to
be determined by the civil courts in non-contentious proceedings if
the party concerned does not accept the initial administrative
determination.
On the basis of the new provisions, the Provincial Government
on 3 January 1989 referred the applicant's case to the District Court
(Bezirksgericht) of Bregenz.
COMPLAINTS
The applicant originally complained that the determination
of the compensation in administrative proceedings subject only to
review by the Constitutional and Administrative Courts violated
Article 6 para. 1 of the Convention because there was no full court
determination of his civil rights and obligations. He further
complained that the length of the proceedings and the fact that the
reimbursement of his costs had been refused also violated Article 6
para. 1. Following the Constitutional Court's decision of 24 June
1988 he only maintained the latter complaints, emphasising that for
ten years he had been refused access to a court within the meaning of
Article 6 para. 1.
PROCEEDINGS
The application was introduced on 20 January 1986 and
registered on 23 January 1986. Subsequently, the applicant asked
for an adjournment of the Commission's proceedings. Following the
Constitutional Court's decision of 24 June 1988, he modified his
complaints as described above.
On 12 December 1988 the Commission decided to give notice
of the application to the respondent Government and to invite them,
pursuant to Rule 42 para. 2 (b) of the Commission's Rules of
Procedure, to submit observations on the admissibility and merits
of the application.
The time-limit fixed by the Commission was repeatedly extended
in view of information received from the parties that they were trying
to come to an agreement.
On 10 August 1989 the Government informed the Commission that
an agreement had been reached on the following basis: the applicant
would receive compensation in the total amount of 100,000 AS (85,000 AS
for costs of proceedings and 15,000 AS in respect of the delay in the
administrative proceedings) and the proceedings before the District
Court of Bregenz would be terminated if the local authority of
Hörbranz declared its readiness that the sums it had deposited with
that Court (22,620 AS and 9,140 AS plus interest) be paid to the
applicant as compensation for expropriation (Substanzentschädigung) in
addition to the sum of 12,510 AS which he had already received. The
applicant would have to consent to this settlement before the District
Court and withdraw his appeal in the administrative proceedings under
the Water Act. Furthermore, he would withdraw his application to the
Commission as soon as the above sums had actually been deposited with
his lawyer.
On 29 December 1989 the applicant informed the Commission
that all the conditions of this above-mentioned agreement with the
Government had now been fulfilled and that he therefore wished to
withdraw the application.
REASONS FOR THE DECISION
Article 30 para. 1 of the Convention provides:
"1. The Commission may at any stage of the proceedings decide
to strike a petition out of its list of cases where the
circumstances lead to the conclusion that:
a. the applicant does not intend to pursue his
petition, or
b. the matter has been resolved, or
c. for any other reason established by the Commission,
it is no longer justified to continue the
examination of the petition.
However, the Commission shall continue the examination of a
petition if respect for Human Rights as defined in this
Convention so requires."
The Commission notes that the applicant wishes to withdraw his
application pursuant to an agreement which he concluded with the
respondent State. The provisions of the Water Act regulating the
compensation proceedings have been amended following a successful
appeal of the applicant to the Constitutional Court. As regards
the disadvantages which the applicant suffered in this case, in
particular as a consequence of the delay in the proceedings, he will
receive financial compensation as a result of his above agreement.
The Commission considers that in these circumstances there are
no reasons of a general character affecting the observance of the
Convention which would require a further examination of the present
application.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy