FIRST SECTION
DECISION
Application no. 31565/03
by Harald PILGER and Others
against Austria
The European Court of Human Rights (First Section), sitting on 6 September 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsN. Vajić
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 16 September 2003,
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 applicants, Mrs Hedwig, Mr Harald, and Mr Wolfgang Pilger are Austrian nationals who were born in 1921, 1944 and 1947 respectively
and live in Frankenfels. They were represented before the Court
by Mr M. Urbanek, a lawyer practising in St Pölten. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Tauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first and the second applicant are the owners of a plot of land on which all three applicants live.
On 5 September 1991 the applicants filed objections against a request for an industrial plant permission to run a car repair business on the neighbouring plot, which had been brought by H before the St Pölten District Administrative Authority.
Subsequently, the applicants informed the District Administrative Authority that H already carried out his business. Their repeated requests for preventive measure were of no avail.
After a first decision of 16 October 1995 granting H’s request had been quashed on appeal, the District Administrative Authority again granted the permission on 11 January 1999, subject to a number of conditions. The applicants appealed on 12 February 1999.
Upon the applicants’ request of 5 May 2000 for transfer of jurisdiction, the Federal Minister for Labour and Economy became competent to decide on their appeal.
On 18 October 2003 the applicants lodged a complaint with the Administrative Court against the Federal Minister’s failure to decide.
Thereupon, on 29 December 2003, the Federal Minister partly granted the applicants’ appeal and amended the District Administrative Authority’s decision in that he ordered H to install a noise barrier. This decision was served on the applicants’ counsel on 2 January 2004 and became final.
On 1 April 2005 the applicants informed the District Administrative Authority that H did not respect any of the conditions. On 2 June 2005 the Administrative Authority informed them that H had been granted a time-limit until October 2005 at the latest to install the noise barrier.
COMPLAINTS
The applicants complained under Article 6 of the Convention about the length of the proceedings concerning H’s request for an industrial plant permission.
They also complained under Article 6 that the authorities conducted the proceedings unfairly and remained inactive upon their requests to hinder H to run his business without permission. Finally, the applicants alleged that, after the termination of the proceedings, the authorities tolerated the running of H’s business without respecting the conditions fixed in the permission and did not hear them when granting H a time-limit until October 2005 to build a noise barrier.
THE LAW
On 18 December 2006 the Court received the following declaration from the applicants:
“We, Hedwig, Harald and Wolfgang Pilger, note that the Government of Austria are prepared to pay us ex gratia the sum of 16,000 euros 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 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.
We accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. We declare that this constitutes a final resolution of the case.”
On 17 January 2007 the Court received the following declaration from the Government:
“I declare that the Government of Austria offer to pay ex gratia 16,000 euros to Hedwig, Harald and Wolfgang Pilger 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 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.”
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
...
(b) the matter has been resolved; or
...
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 strike the application out of its list of cases.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy