Lexploria

Application No. 11981/86

by Peter MOOSBRUGGER

against Austria

The European Commission of Human Rights sitting in private

on 5 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 January 1986

by Peter Moosbrugger against Austria and registered on 23 January 1986

under file No. 11981/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 12 December 1988 to bring the

application to the notice of the respondent Government and

invite them to submit written observations on its

admissibility and merits;

- the agreement reached between the parties as described in

the Government's letter of 10 August 1989;

- the applicant's declaration of 29 December 1989 that he

wishes to withdraw the application, the above agreement

having been fully implemented;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the

applicant may be summarised as follows:

The applicant, an Austrian citizen, resident in

Hörbranz/Vorarlberg, is represented by Rechtsanwalt Dr. W.L. Weh of

Bregenz. He complained of expropriation proceedings taken

against him under the Water Act (Wasserrechtsgesetz, Fed. Law Gazette

No. 215/1959 as amended) in connection with the regulation of a

rivulet adjoining his property.

The water regulation proceedings in question were instituted

in 1977.

By a decision of 28 December 1979, the District Authority

(Bezirkshauptmannschaft) of Bregenz ordered the expropriation of some

of the applicant's land and fixed the applicant's compensation.

Following an appeal by the applicant this decision was amended by

the Provincial Government (Landesregierung) of Vorarlberg on

26 August 1980. However, on 22 June 1981 the Administrative Court

(Verwaltungsgerichtshof) quashed the Provincial Government's decision.

On 4 October 1982 the Provincial Government issued a new

decision by which it ordered the expropriation of a smaller piece of

land and fixed the applicant's compensation on a lower basis than in

the previous decisions. On 7 January 1984 the Administrative Court

confirmed the scope of the expropriation but allowed the applicant's

complaint regarding the compensation.

On 17 July 1984 the Provincial Government, after having

consulted both experts who had previously been involved in the

proceedings, confirmed the amount of compensation fixed in the

decision of 4 October 1982. It also rejected the applicant's claim

for the reimbursement of his costs.

The applicant complained to the Constitutional Court (Ver-

fassungsgerichtshof) claiming that Section 117 of the Water Act

contravened Article 6 in conjunction with Article 14 of the Convention

in that, in distinction from other expropriation statutes, it assigned

the jurisdiction on the determination of compensation claims to

administrative authorities. In his view it was insufficient that the

decisions of the said administrative authorities were subject to

ultimate review by the Constitutional and Administrative Courts. The

applicant further complained of the refusal of the reimbursement of

his costs which he likewise considered to be in conflict with Article 6

of the Convention and with the principle of equality.

However, on 21 June 1985 the Constitutional Court, referring

to its earlier case-law, rejected the applicant's complaints as being

without sufficient prospects of success. It referred the case to the

Administrative Court which, on 11 March 1986, quashed the Provincial

Government's decision of 17 July 1984 insofar as the compensation

issue was concerned but upheld it as regards reimbursement of costs.

On 13 May 1987, after having obtained supplementary expert

evidence, the Provincial Government fixed the compensation on yet

another basis. It again rejected the applicant's claim for the

reimbursement of his costs.

The applicant lodged a complaint (B 650/87) with the

Constitutional Court against this decision in which he essentially

repeated the arguments raised in his earlier constitutional complaint.

He now also referred to the Ettl case (No. 9723/81, Comm. Report

3.7.85) where the Commission had come to the conclusion that the

ultimate review of administrative decisions concerning civil rights by

the Constitutional and Administrative Courts was not sufficient for

the purposes of Article 6 para. 1 of the Convention.

The Constitutional Court instituted proceedings for the review

of the constitutionality (Gesetzesprüfungsverfahren) of the applicable

provisions of the Water Act, in particular Section 117 and, on

24 June 1988, quashed the relevant provisions of this Act as being in

conflict with Article 6 para. 1 of the Convention. It found that

compensation issues arising in connection with an expropriation were

matters of "civil rights" within the meaning of the Austrian legal

system. They concerned the determination of civil rights and

obligations of the expropriated party and therefore came within the

area of Article 6 para. 1 of the Convention. The control by the

Administrative Court was not sufficient to bring the proceedings in

line with this provision. The Administrative Court had no full

jurisdiction concerning all questions of fact and law as required by

the Convention organs (Eur. Court H.R., Lecompte, Van Leuven and De

Meyere judgment of 23 June 1981, Series A No. 43, and Albert and

Lecompte judgment of 10 February 1983, Series A No. 58). It was

therefore necessary that new legislation be enacted regulating the

jurisdiction in compensation cases under the Water Act in conformity

with Article 6 para. 1 of the Convention. The Constitutional Court

fixed a time-limit expiring on 31 December 1988 for this purpose.

On 28 September 1988 the Constitutional Court quashed the

Provincial Government's decision of 13 May 1987.

On 29 November 1988 the Water Act was amended to the effect

that the compensation following an expropriation under this Act is to

be determined by the civil courts in non-contentious proceedings if

the party concerned does not accept the initial administrative

determination.

On the basis of the new provisions, the Provincial Government

on 3 January 1989 referred the applicant's case to the District Court

(Bezirksgericht) of Bregenz.

COMPLAINTS

The applicant originally complained that the determination

of the compensation in administrative proceedings subject only to

review by the Constitutional and Administrative Courts violated

Article 6 para. 1 of the Convention because there was no full court

determination of his civil rights and obligations. He further

complained that the length of the proceedings and the fact that the

reimbursement of his costs had been refused also violated Article 6

para. 1. Following the Constitutional Court's decision of 24 June

1988 he only maintained the latter complaints, emphasising that for

ten years he had been refused access to a court within the meaning of

Article 6 para. 1.

PROCEEDINGS

The application was introduced on 20 January 1986 and

registered on 23 January 1986. Subsequently, the applicant asked

for an adjournment of the Commission's proceedings. Following the

Constitutional Court's decision of 24 June 1988, he modified his

complaints as described above.

On 12 December 1988 the Commission decided to give notice

of the application to the respondent Government and to invite them,

pursuant to Rule 42 para. 2 (b) of the Commission's Rules of

Procedure, to submit observations on the admissibility and merits

of the application.

The time-limit fixed by the Commission was repeatedly extended

in view of information received from the parties that they were trying

to come to an agreement.

On 10 August 1989 the Government informed the Commission that

an agreement had been reached on the following basis: the applicant

would receive compensation in the total amount of 100,000 AS (85,000 AS

for costs of proceedings and 15,000 AS in respect of the delay in the

administrative proceedings) and the proceedings before the District

Court of Bregenz would be terminated if the local authority of

Hörbranz declared its readiness that the sums it had deposited with

that Court (22,620 AS and 9,140 AS plus interest) be paid to the

applicant as compensation for expropriation (Substanzentschädigung) in

addition to the sum of 12,510 AS which he had already received. The

applicant would have to consent to this settlement before the District

Court and withdraw his appeal in the administrative proceedings under

the Water Act. Furthermore, he would withdraw his application to the

Commission as soon as the above sums had actually been deposited with

his lawyer.

On 29 December 1989 the applicant informed the Commission

that all the conditions of this above-mentioned agreement with the

Government had now been fulfilled and that he therefore wished to

withdraw the application.

REASONS FOR THE DECISION

Article 30 para. 1 of the Convention provides:

"1. The Commission may at any stage of the proceedings decide

to strike a petition out of its list of cases where the

circumstances lead to the conclusion that:

a. the applicant does not intend to pursue his

petition, or

b. the matter has been resolved, or

c. for any other reason established by the Commission,

it is no longer justified to continue the

examination of the petition.

However, the Commission shall continue the examination of a

petition if respect for Human Rights as defined in this

Convention so requires."

The Commission notes that the applicant wishes to withdraw his

application pursuant to an agreement which he concluded with the

respondent State. The provisions of the Water Act regulating the

compensation proceedings have been amended following a successful

appeal of the applicant to the Constitutional Court. As regards

the disadvantages which the applicant suffered in this case, in

particular as a consequence of the delay in the proceedings, he will

receive financial compensation as a result of his above agreement.

The Commission considers that in these circumstances there are

no reasons of a general character affecting the observance of the

Convention which would require a further examination of the present

application.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MOOSBRUGGER v. Austria

MOOSBRUGGER v. Austria

LEXI