FIRST SECTION
DECISION
Application no. 30485/02
by Maria OZLBERGER
against Austria
The European Court of Human Rights (First Section), sitting on 23 November 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 7 August 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Maria Ozlberger, is an Austrian national who was born in 1938 and lives in Linz. She is represented before the Court by Mr Peter Ozlberger, a lawyer practising in Vienna. The respondent Government are represented by Mr F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 January 1981 the applicant’s father died, leaving several testaments. The Eferding District Court (Bezirksgericht) subsequently opened succession proceedings (Verlassenschaftsverfahren).
These proceedings, opposing the applicant and her brother, are still pending before the appeal court.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the length of the succession proceedings. She further complained that the proceedings were unfair.
THE LAW
On 20 October 2006 the Court received the following declaration from the Government:
“I declare that the Government of Austria offer to pay ex gratia thirty thousand euros to Maria Ozlberger with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 23 October 2006 the Court received the following declaration from the applicant’s lawyer:
“I note that the Government of Austria are prepared to pay ex gratia the sum of thirty thousand euros to Maria Ozlberger with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; ...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.
Søren Nielsen, Christos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy