THIRD SECTION

DECISION

Application no. 64839/01 by Werner GRASSINGER against Austria

The European Court of Human Rights (Third Section), sitting on 23 October 2003 as a Chamber composed of:

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

Having regard to the above application lodged on 21 November 2000,

Having regard to the declarations submitted by the respondent Government and the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Werner Grassinger , is an Austrian Note national, who was born in 1944 and lives in Krems (Austria). He is represented before the Court by Mr H. Malek , a lawyer practising in Krems (Austria).

The facts of the case, as submitted by the parties, may be summarised as follows.

On 28 December 1993 the applicant requested the Pension Insurance Office ( Pensionsversicherungsanstalt für Arbeiter ) retroactively to increase his widower’s pension, claiming that as a widower he should receive the same pension as a widow.

On 13 May 1994, the Pension Insurance Office formally rejected his request for a retroactive pension rise on the ground of res iudicata .

On 26 September 1994 the Lower Austria Regional Governor ( Landeshauptmann ) dismissed the applicant’s appeal.

On 19 June 1995 the Constitutional Court, referring to its constant case-law, refused to deal with the applicant’s complaint for lack of prospects of success.

On 2 July 1997 the applicant requested an oral hearing before the Administrative Court.

On 20 September 2000 the Administrative Court, sitting in camera, dismissed the applicant’s complaint as being unfounded. The court dispensed with an oral hearing, holding that the applicant’s case merely raised issues of law. The decision was served on the applicant’s lawyer on 10 October 2000.

COMPLAINTS

The applicant complained under Article 6 of the Convention that the proceedings at issue lasted unreasonably long. He also complains about the lack of an oral hearing before the Administrative Court.

THE LAW

On 5 September 2003 the Court received the following declaration from the Government:

“I declare that, the Government offer to pay the amount of 7,000 euros (EUR) to Werner Grassinger in respect of the application no. 64839/01 on an ex gratia basis for the withdrawal of his application pending before the Court. This sum (EUR 7,000) 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 1 September 2003 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay me the amount of 7,000 euros (EUR) on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 7,000) 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 takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention).

Accordingly, the case should be 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