Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22097/93

by Johann MAYR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 13 September 1995, 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

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 14 June 1993 by

Johann MAYR against Austria and registered on 21 June 1993 under file

No. 22097/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 31 August 1994 to communicate the

application;

- the observations submitted by the respondent Government on

13 January 1995 and the observations in reply submitted by the

applicant on 2 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1936 and living in

St. Johann. He is represented by Mr. R. Kaan, a lawyer practising in

Graz. The applicant is a farmer and quarry entrepreneur.

The facts as submitted by the parties are as follows:

1. On 7 October 1971 the community of Kirchdorf was granted a permit

by the Regional Authorities (Landeshauptmann) to construct a community

water pipe system. Thereby the community was, inter alia, authorised

drainage from a spring designated as Q8 and situated on a real estate

plot belonging to the Austrian Republic (Federal Forest

Administration). Among other conditions the order of 7 October 1971

provided that the water pipe system should be terminated by 30 June

1973. It further mentioned that previously the community of Kirchdorf

had been granted the right to use the water from the spring Q8 by the

owner, namely the Federal Forest Administration.

In 1981 the applicant acquired the land in question.

2. In 1990 the applicant made a request to be authorised to run a

quarry on his land. The community of Kirchdorf opposed his request. In

nature conservation proceedings (Naturschutzverfahren) a negative

decision was given with regard to the applicant's request and a

constitutional appeal was rejected by the Constitutional Court

(Verfassungsgerichtshof) on 27 September 1994. The matter was referred

to the Administrative Court where it is still pending.

Also the Ministry for Agriculture and Forestry (Bundesministerium

für Land- und Forstwirtschaft) decided on 30 August 1994 against the

applicant's project refusing to allow the necessary cutting of trees.

This decision was, inter alia, based on the reasoning that there

existed no public interest in a quarry.

3. By letter of 11 September 1990 the community informed the

applicant that it had the right to use the water from Q8 and intended

to start the necessary drainage works by the end of the month. The

applicant thereupon brought a civil action against the community of

Kirchdorf claiming that as the owner of the premises he alone had the

right to use the spring while any user right the community might have

had was forfeited because the drainage works had not been completed

before 30 June 1973 as provided for in the order of 7 October 1971.

The action was dismissed by the Innsbruck Regional Court

(Landesgericht) on 23 December 1991 and on 30 April 1992 the

applicant's appeal (Berufung) against this judgment was rejected. The

Regional Court found that the community's public law water-right had

ex lege expired (erloschen) in accordance with Sec. 27 (1) lit. f of

the Water Rights Act 1959 (Wasserrechtsgesetz - WRG) because the

drainage works had not been carried out within the time-limit fixed in

the order of 7 October 1971. On the other hand the community had a

civil law user right (Dienstbarkeit) which although it was not entered

in the land register (Grundbuch) but in the water register (Wasserbuch)

at Kitzbühel could be invoked against the applicant as its existence

was obvious (offenkundig).

The Court of Appeal of Innsbruck found that the question as to

whether the public law water-right had in fact expired depended,

according to an exception provided for in Sec. 121 (1), last sentence

of the Water Rights Act, exclusively on a decision of the competent

Water Authority. Private parties had no claim that such a decision be

taken. In any event it was not for the civil courts to take such

decision. Therefore the action had been correctly dismissed. The

appellate court further confirmed that the defendant community could

invoke against the plaintiff a civil law user right.

The applicant lodged an extraordinary appeal on points of law

(ausserordentliche Revision) which the Supreme Court (Oberster

Gerichtshof) declared inadmissible (unzulässig) on 14 July 1992.

4. By order of 28 April 1992 the Regional Governor (Landeshauptmann)

extended the time-limit for construction of the water pipe system

relating to spring Q8 which according to the order of 7 October 1971

had expired on 30 June 1973.

The applicant's appeal (Berufung) against this order was rejected

by the Federal Ministry of Forestry and Agriculture on 23 June 1992.

Insofar as the applicant had submitted that the right of the

community to use spring Q8 had been forfeited in accordance with

Section 27 para. 1 lit. (f) and also lit.(g) of the Water Rights Act

it is stated in the decision that even if the extension of the

time-limit for the construction of the water pipe system was unlawful,

this unlawfulness could not be invoked by third persons.

The applicant lodged another appeal (Beschwerde) which was

rejected by the Administrative Court (Verwaltungsgerichtshof) on

22 September 1992 and served on the applicant on 17 December 1992. The

court confirmed that although the extension of the time-limit for the

construction of the water pipe system was, from an objective point of

view, unlawful, this unlawfulness could be invoked only by the body

requesting the permit (Bewilligungsbewerber) not however by the

applicant as no substantive rights could be derived by him from the

Water Rights Act. The applicant's complaint that the Regional Governor

had not been competent to decide on the extension of the time-limit was

rejected as being unfounded.

5. On 25 June 1993 the applicant requested the Regional Governor

to institute proceedings in accordance with Sections 29, 70 and 138 of

the Water Rights Act with a view to obtaining a decision that the

community's water right relating to his premises had expired. The

request was rejected on 4 August 1993. This decision was confirmed by

the Federal Ministry for Agriculture and Forestry on 16 August 1994.

The Ministry pointed out that while the order of 7 October 1971 had

fixed a time limit for the termination of the construction works it had

not contained any clause providing for the automatic expiry of the

community's water right in case of non-respect of this time-limit. In

addition the Ministry referred to the Administrative Court's decision

of 22 September 1992 according to which the applicant had no

substantive right to claim a finding that the community's water rights

had expired. Furthermore it was pointed out that the community had

informed the Regional Governor by letter of 27 May 1993 that the

construction works relating to spring Q8 had been terminated. In these

circumstances the water rights could not have expired in accordance

with Sec. 27 (1) lit. f of the Water Rights Act regardless of whether

the spring was used or not.

Relevant Provisions of the Water Rights Act

[Translation]

Section 27 (1) Water-use rights expire:

...

f) by failure to start building works or to terminate the authorised

installation within the time-limit fixed in the permit or within any

subsequently extended time-limit.

g) by non-use or destruction of the installation necessary for the

water use, if the interruption of the water-use has lasted more than

three years ...

Section 29 (1) The expiry of a water-use right is to be established

by the appropriate water authority ...

Section 70 (1) When a water-right permit expires, all unregistered

user rights granted in accordance with Sections 63 to 67 or conceded

by way of agreement in the course of the water-right proceedings

expire, to the extent that they have become superfluous on account of

the expiry of the water-right. If however the right is registered,

both the owner of the property concerned and the holder of the right

may request the water authority expressly to annul this right.

Section 121 (1) Once any installation which requires a permit is

completed, the first instance authority which granted the permit shall

carry out proceedings in accordance with Sections 44 - 44 AVG 1950

(Code of Administrative Proceedings) ... in order to establish that the

installation ..., corresponds to the permit ...

If a time-limit has been exceeded the installation is

nevertheless considered to have been completed on time unless the

permit is expressly declared to have expired.

[German]

§ 27 (1) Wasserbenutzungsrechte erlöschen:

...

f) durch Unterlassung der Inangriffnahme des Baues oder der

Fertigstellung der bewilligten Anlagen binnen der im

Bewilligungsbescheide hiezu bestimmten oder nachträglich verlängerten

Frist;

g) durch den Wegfall oder die Zerstörung der zur Wasserbenutzung

nötigen Vorrichtungen, wenn die Unterbrechung der Wasserbenutzung über

drei Jahre gedauert hat ...

§ 29 (1) Den Fall des Erlöschens eines Wasserbenutzungsrechtes hat

die zur Bewilligung zuständige Wasserrechtsbehörde festzustellen ...

§ 70 (1) Mit dem Erlöschen einer wasserrechtlichen Bewilligung

erlöschen alle nach den §§ 63 bis 67 eingeräumten oder aus Anlaß des

wasserrechtlichen Verfahrens durch Ãœbereinkommen bestellten, nicht im

Grundbuch eingetragenen Dienstbarkeiten, soweit sie durch das Erlöschen

des Wasserrechtes entbehrlich geworden sind. Ist jedoch eine solche

Dienstbarkeit im Grundbuch eingetragen, so kann sowohl der Eigentümer

des belasteten Gutes als auch der bisherige Wasserberechtigte die

ausdrückliche Aufhebung der Dienstbarkeit bei der Wasserrechtssbehörde

verlangen.

§ 121 (1) Unmittelbar nach erfolgter Ausführung einer nach diesem

Bundesgesetze bewilligungspflichtigen Wasseranlage hat sich die zur

Erteilung der Bewilligung in erster Instanz zuständige

Wasserrechtsbehörde in einem nach den Bestimmungen der §§ 40 bis 44

AVG. 1950 ... durchzuführenden Verfahren von der Übereinstimmung der

Anlage mit der erteilten Bewilligung ... zu überzeugen ...

Wird bei einer Fristüberschreitung die Bewilligung nicht

ausdrücklich für erloschen erklärt, so gilt die Anlage als fristgemäß

ausgeführt.

COMPLAINTS

The applicant considers that by extending the time-limit for the

construction of the water pipe system on his land the community of

Kirchdorf was granted a right which seriously affected his own property

rights. Despite this interference with his property rights he did not

have any possibility to defend his own interests. He considers that

he was denied access to a court and that in addition his right to the

peaceful enjoyment of possessions as guaranteed by Article 1 of the

First Protocol was violated. He submits that in consequence of the

community's right to use his spring his real estate has become

practically useless for himself but he has received no compensation.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 June 1993 and registered on

21 June 1993.

On 31 August 1994 the Commission decided to communicate the

application to the Austrian Government and to ask for written

observations on its admissibility and merits.

After extension of the time-limit, the Government's observations

were submitted on 22 December 1994 and the applicant's reply was

submitted on 2 March 1995. In their observations the Government

supplemented the facts by what is set out under points 2., 3. and 5.

above.

THE LAW

The applicant alleges that he was denied access to a court to

defend his interests vis-à-vis the community of Kirchdorf whose right

to use a spring on his real property he intends to put in question.

He considers that the fact that it is not possible for him to invoke

the expiry of the community's user right deprives him of his possession

and violates Article 1 of Protocol No. 1 (P1-1).

The Government first argue that the applicant could have lodged

a constitutional complaint against the order of the Federal Ministry

of Forestry and Agriculture given on 23 June 1992.

They further submit that the question of whether or not the

community had a user right with regard to the applicant's property was

thoroughly examined and affirmed by the civil courts. Consequently,

there was no violation of Article 6 (Art. 6) of the Convention.

On the other hand the question of authorisation under the Water

Rights Act did not relate to any civil rights. Furthermore, the user

right had been agreed upon in a private law contract concluded between

the previous owner and the community and consequently there was no

violation of Article 1 of Protocol No. 1 (P1-1) either. In addition

it is pointed out that the user right served a public interest in

providing drinking water for the inhabitants of the community.

The applicant replies that a constitutional complaint would have

offered no chances of success.

The Commission considers that it is not required to examine the

question whether the applicant's right to the peaceful enjoyment of

possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) was

respected.

Nor is it required to examine the question whether the

applicant's right of access to a tribunal in matters relating to a

civil right or obligation guaranteed in Article 6 para. 1

(Art. 6-1) of the Convention was observed.

Article 26 (Art. 26) of the Convention reads:

"The Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally

recognised rules of international law".

The Commission notes that the Convention is directly applicable

in Austrian domestic law and enjoys the rank of constitutional law.

The applicant therefore could have raised in a constitutional complaint

against the decision of the Federal Ministry of Forestry and

Agriculture of 23 June 1992 the provisions of the Convention he now

invokes with the present application. In such a constitutional

complaint the applicant could also have claimed that certain provisions

of the Water Rights Act applied in his case were unconstitutional and

contrary to the Convention. The case-law referred to by the applicant

in support of his argument that a constitutional complaint would have

offered no chances of success does not relate exactly to the same legal

and factual situation. Consequently it is difficult to argue that in

fact a constitutional complaint would have been ineffective. Mere

doubts, however, as to the effectiveness of a domestic remedy do not

absolve an applicant from making use of it (No. 10148/82, Dec. 14.3.85,

D.R. 42 p. 98 with further references on p. 122).

The applicant, therefore, cannot be considered to have exhausted

the available domestic remedies in Austrian law. Furthermore, neither

an examination of the case as presented nor even the ex officio

examination undertaken by the Commission have disclosed any special

circumstances which might have absolved the applicant, under the

generally recognised principles of international law in this field,

from exhausting the domestic remedies.

It follows that the applicant has not complied with the condition

requiring the exhaustion of domestic remedies and that his application

must be dismissed in accordance with Article 27 para. 3 (Art. 27-3) of

the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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MAYR v. AUSTRIA

MAYR v. AUSTRIA

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