THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72863/01 by Hermann MALLE against Austria

The European Court of Human Rights (Third Section), sitting on 13 May 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 26 June 2001,

Having regard to the decision to apply the procedure under Article 29 § 3 of the Convention and examine the admissibility and merits of the case together;

Having regard to the friendly settlement declarations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hermann Malle, is an Austrian national, who was born in 1934 and lives in Ferlach (Austria). He is represented before the Court by Mr R. Vouk, a lawyer practising in Klagenfurt.

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, 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.

On 25 August 1999 the applicant filed an action for compensation of damages resulting from a car accident at the Villach District Court ( Bezirksgericht ) against the perpetrators Mr V. and Mr G. and their respective insurance agencies.

A hearing was held on 12 April 2000 and, after an expert opinion had been obtained by the court, the opposing parties made payments to the applicant.

Thereupon, on 18 and 23 August 2000, respectively, the applicant reduced his claims to the reimbursement of costs.

On 26 September 2000 the Villach District Court held another hearing at which it closed the proceedings and announced that the decision on the costs would be delivered in writing.

On 3 October 2000 the District Court ordered Mr V. to pay ATS 13,344.19 to the applicant and also established that Mr V.'s insurance agency was jointly and severally liable for this amount. As regards the costs claim concerning Mr G. and his insurance agency, it found that each party had to bear its own legal costs ( Kostenkompensation ).

Upon the opposing parties' appeals, which were not submitted to the applicant for comments, the Klagenfurt Regional Court ( Landesgericht ) changed both costs orders. The court ordered Mr V. to pay ATS 2,940.98 to the applicant and found Mr V.'s insurance agency jointly and severally liable for that amount. It further ordered the applicant to pay ATS 18,437.18 to Mr G. and his insurance agency. Finally, it found the applicant liable to pay the costs of the appeal proceedings, in particular ATS 2,384.45 to Mr V. and his insurance agency and ATS 2,680.13 to Mr G. and his insurance agency.

COMPLAINT

The applicant complained under Article 6 of the Convention that in civil proceedings the Court of Appeal, upon an appeal lodged by the opposing parties against the costs orders, had amended the order without informing the applicant of that appeal or giving him the possibility to react thereto .

THE LAW

On 22 March 2004 the Court received the following declaration from the Government:

“I declare that the Government of Austria offer to pay the amount of EUR 3,327.09 to Hermann Malle in respect of the above application an ex gratia basis for the withdrawal of its application pending before the Court. This sum (EUR 3,327.09) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. 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. The payment will constitute the final resolution of the case.”

On 16 March 2004 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay the applicant the amount of EUR 3,327.09 on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 3,327.09) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. 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.

I accept the offer and withdraw the application waiving any further claims against Austria in respect of the application. I declare that this constitutes a final settlement 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

(a) the applicant does not intend to pursue his application;

(b) the matter has been resolved;

  ...

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, the application to the case of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Georg Ress Registrar President