Lexploria

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)

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HUBER, STAUFER, SPORTANGLERBUND VÖCKLABRUCK, AND ECKHARDT v. AUSTRIA

HUBER, STAUFER, SPORTANGLERBUND VÖCKLABRUCK, AND ECKHARDT v. AUSTRIA

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