Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21640/93

by Ulrike GRABENWARTER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 31 March 1993 by

Ulrike GRABENWARTER against Austria and registered on 8 April 1993

under file No. 21640/93;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1941, is an Austrian national residing in

Graz. In the proceedings before the Commission, she is represented by

Mr. Karlheinz Grabenwarter, a solicitor practising in Graz.

A. Particular circumstances of the case

In 1982 the applicant bought a farm house and a plot of land in

Bad Gams, Styria. She built a well on her land in order to gain a

supply of drinking water. In early 1985 a couple owning the

neighbouring plot of land, claimed before the Austrian Courts a right

of servitude to use a way on applicant's property, situated above the

well.

The present case concerns proceedings relating to the applicant's

request to have a water protection zone established on her property,

to compensation proceedings brought by her neighbours and to further

proceedings regarding the water protection zone.

1. The establishment of a water protection zone

On 5 March 1986 the Deutschlandsberg District Administrative

Authority (Bezirkshauptmannschaft) dismissed the applicant's request

of 14 October 1985 that a water protection zone for her well be

established on her real estate in accordance with Section 34 para. 1

of the Water Rights Act (Wasserrechtsgesetz).

On 11 November 1987 the Ministry for Agriculture and Forestry

(Bundesministerium für Land und Forstwirtschaft), on the applicant's

appeal, quashed the decision of the District Administrative Authority.

The Ministry did not decide on the merits itself but referred the

matter back to the District Administrative Authority for a new

decision.

On 22 March 1988 the Administrative Court (Verwaltungs-

gerichtshof), on the complaint lodged by the applicant, quashed the

decision by the Ministry for Agriculture and Forestry on the reason

that the Ministry had not itself decided on the merits.

On 30 November 1988 the Ministry for Agriculture and Forestry,

having held a hearing on 4 November 1988, established an inner and an

outer protection zone for the well, which were both located entirely

on the applicant's property, and stated inter alia that the use of a

way was not allowed within these zones. As regards any claims by the

neighbours for being prohibited from using the existing way, the

Ministry found that no decision could be taken before their claim to

a servitude on the way had been decided upon. A decision about their

claim for compensation had to be reserved for supplementary proceedings

before the District Administrative Authority, according to Section 117

para. 2 of the Water Rights Act.

On 25 April 1989 the Administrative Court rejected the

neighbours' complaint against the Ministry's decision. It found that

the Water Rights Act gives persons having a right to servitude the

right to participate in the proceedings and to have their point of view

heard, but does not give them the full position of a party. The Court

considered that the neighbours were therefore not entitled to lodge a

complaint.

2. The compensation proceedings

On 6 July 1989 the neighbours requested the Deutschlandsberg

District Administrative Authority to institute supplementary

proceedings under Section 117 para. 2 in connection with Section 34

para. 4 Water Rights Act. They requested compensation for being

prohibited of using the way in the water protection zone. Their right

to servitude had apparently meanwhile been granted.

On 15 March 1990 the District Administrative Authority dismissed

the neighbours' request. The Authority found that the neighbours were

not entitled to claim damages under Section 34 para. 4 or any other

provision of the Water Rights Act.

On 2 July 1990 the Provincial Governor, on the neighbours'

appeal, quashed this decision and referred the case back to the

District Administrative Authority.

On 10 July 1991 the District Administrative Authority, based on

Section 34 para. 4 and Section 117 paras. 1 and 2 of the Water Rights

Act, ordered the applicant to pay AS 27,000 to the neighbours as

compensation for being prohibited from using the way which had

meanwhile been destroyed.

On 10 December 1991 the Administrative Court, following the

applicant's complaint, quashed the Provincial Governor's decision of

2 July 1990. It seems that the administrative Authorities have not

taken any further decisions in respect of the compensation proceedings.

Meanwhile, in August 1991, the neighbours had challenged the

District Authority's decision before the Stainz District Court

(Bezirksgericht), according to Section 117 para. 4 Water Rights Act.

This provision had entered into force on 1 January 1989, and newly

defined the competence for appeal proceedings relating to claims for

compensation. After the applicant had successfully challenged the

Stainz District Court for bias, following a hearing held on 30 January

1992, the proceedings were transferred to the Graz District Court.

On 29 January 1993 the Graz District Court dismissed the

neighbours' claim. It found that they were not entitled under Section

34 para. 4 Water Rights Act to claim damages.

3. The further proceedings concerning the water protection zone

In mid 1990, the Deutschlandsberg District Administrative

Authority introduced new proceedings concerning the water protection

zone, based on an amendment of Section 34 para. 1 of the Water Rights

Act, which had entered into force on 1 July 1990, in order to

reconsider the restrictions imposed on the use of applicant's property

in 1988.

On 10 July 1991 the District Administrative Authority, in the

above-mentioned decision on the neighbours' compensation claim, changed

the restrictions relating to the water protection zone. Based on the

amended version of Section 34 para. 1 Water Rights Act, the Authority

upheld the establishment of an inner and an outer protection zone, but

permitted a way in the outer protection zone.

On 27 May 1992 the Ministry for Agriculture and Forestry

dismissed the applicant's appeal against this decision.

On 22 September 1992 the Administrative Court, without holding

a hearing as requested by the applicant, quashed the decision by the

Ministry for Agriculture and Forestry. The Court found that the

Ministry had not sufficiently dealt with the expert opinion presented

by the applicant. The Court referred the case back to the Ministry.

On 12 October 1992 the Constitutional Court dismissed the

applicant's complaint against the Ministry's decision of 27 May 1992

for lack of sufficient prospects of success.

Since 5 November 1992 the proceedings concerning the water

protection zone are pending before the Ministry for Agriculture and

Forestry.

B. Relevant domestic law

Section 34 para. 1 Water Rights Act (Wasserrechtsgesetz) deals

with the protection of water supply facilities against pollution or any

influence affecting the volume of the water supply. To achieve such

protection, the competent Authority may issue orders about the use of

lands and waters. Inter alia the Authority may decide to establish a

protection zone.

An amendment of the Water Rights Act, which entered into force

on 1 July 1990, added a sentence to Section 34 para. 1 empowering the

competent Authority to change existing orders whenever the protection

of the water supply allows it or makes it necessary.

Section 34 para. 4 provides that a person who is restricted by

orders under para. 1 in the use of his land and facilities, may claim

damages from the person entitled to the water right.

The amendment, which entered into force on 1 July 1990, changed

para. 4, giving the right to claim damages also to persons whose

enjoyment of rights concerning the use of forests or pasturage are

restricted by orders under para. 1.

Section 117 of the Water Rights Act deals with the procedure for

compensation. Para. 1 states that the Authority competent under the

Water Rights Act also has to decide on damages, unless a specific

exception is made. In its decision the Authority has to say whether

compensation is due at all, and if so, whether compensation has to be

given in money or in kind.

Section 117 para. 2 states that in the case of a request for a

permission under the Water Rights Act or for the granting of any

enforceable right under the Water Rights Act, the Authority has to

include its ruling on compensation in the decision in respect of the

request. If this is not possible, a supplementary decision shall be

issued within one year. Before issuing this decision the Authority has

to hold a hearing.

An amendment, which entered into force on 1 January 1989, added

para. 4 to Section 117, which states that the parties concerned may

request a decision by the Courts concerning the question of damages

within two months after the Authority's decision based on para. 1 was

issued. In this case the Authority's decision becomes void.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 about the length

of the proceedings concerning the water protection zone and her

neighbours' compensation claim. In particular, she submits that it took

from October 1985 until November 1988 to get a decision on her request

to have a water protection zone established on her property. She

further submits that the proceedings about her neighbours claim to

damages are still pending before the administrative authorities.

Moreover, due to a change in law, new proceedings relating to the water

protection zone were started by the competent authorities in mid 1990

and are still pending.

2. As regards the proceedings concerning the water protection zone,

the applicant further complains that none of the authorities involved

were independent and impartial tribunals within the meaning of Article

6 para. 1. She also complains that on 22 September 1992 the

Administrative Court decided without having held a hearing.

THE LAW

The applicant raises various complaints under Article 6 para. 1

(Art. 6-1) about several proceedings relating to her request to have

a water protection zone established on her property, to compensation

proceedings brought by her neighbours, and subsequent proceedings

concerning the water protection zone. In particular, the applicant

complains about the length of these proceedings.

As regards the relevant period, the Commission recalls that

various sets of proceedings may have to be considered as a whole, if

they are interrelated, in that they all bear on questions, which are

preliminary to the main contentious issue (see Eur. Court H.R.,

Wiesinger judgment of 30 October 1991, Series A no. 213, p. 20,

para. 52).

In the present case, a link of this kind did not exist between

the proceedings complained about. The Commission notes that three sets

of proceedings were conducted. The first set concerned the applicant's

request to have a water protection zone established on her land. The

second set was relating to her neighbours' claim to damages. New

proceedings concerning the water protection zone were stated due to a

change in law. The Commission, therefore, finds that the three sets of

proceedings have to be considered separately.

a. In respect of the first set of proceedings concerning the water

protection zone, the Commission finds that the applicant failed to

lodge her application with the Commission within six months after the

final decision taken by the Administrative Court on 25 April 1989.

It follows that this part of the application must be rejected

under Article 27 para. 3, in conjunction with Article 26

(Art. 27-3+26), of the Convention.

b. The Commission notes that the proceedings concerning the

neighbours' claim to damages started before the District Administrative

Authority on 6 July 1989, when the neighbours' brought their request

for compensation. The Commission, even assuming that the proceedings

were not formally discontinued before the administrative authorities,

finds that, following the amendment of Section 117 para. 4 of the Water

Rights Act, which had entered into force on 1 January 1989, the

proceedings were terminated by the Graz District Court's decision of

29 January 1993, which dismissed the neighbours' claim for damages.

The period to be taken into consideration therefore lasted from

6 July 1989 until 29 January 1993, that is about three years and

three months.

The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's case

law and in the light of the circumstances of the case, which in this

instance call for an overall assessment (see Eur. Court H. R., Cesarini

judgment of 12 October 1992, Series A no. 245-B, p. 26, para. 17). The

Commission finds that the proceedings in question were of some

complexity. The parties contributed to the length by lodging appeals

and other remedies. Moreover, the applicant has not shown any important

periods of inactivity on behalf of the Austrian authorities.

In these circumstances, the Commission considers that the total

length of the proceedings, which were pending before two instances,

cannot be regarded as excessive. It follows that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

c. A further set of proceedings concerning the water protection

zone, was instituted by the Deutschlandsberg District Administrative

Authority in mid 1990, in accordance with an amendment to Section 34

para. 1 of the Water Rights Act. These proceedings are still pending.

As regards these proceedings, the applicant also complains that

none of the authorities involved in these proceedings were independent

and impartial tribunals and that she did not have an oral hearing

before the Administrative Court prior to its decision of

22 September 1992.

The Commission considers it cannot, on the basis of the present

state of the file, determine the admissibility of these complaints and

that it is necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of the complaint concerning the

length of these proceedings to the respondent Government.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant's complaint

that the proceedings concerning the water protection zone on her land,

which were instituted by the Deutschlandsberg District Administrative

Authority in mid 1990 lasted unreasonably long and her further

complaints that none of the administrative authorities involved in

these proceedings were independent and impartial tribunals, and that

she did not have an oral hearing before the Administrative Court prior

to its decision of 22 September 1992.

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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GRABENWARTER v. AUSTRIA

GRABENWARTER v. AUSTRIA

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