THIRD SECTION

DECISION

Application no. 71884/01 by Erwin SEIFERT against Austria

The European Court of Human Rights (Third Section), sitting on 26 June 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mrs H.S. Greve , Mr K. Traja , Mrs E. Steiner, judges , and Mr   M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 12 June 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Erwin Seifert, is a German national, who was born in 1932 and lives in Koblenz. He is represented before the Court by Mr W. Wiedner, a lawyer practising in Vienna.

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

In maintenance proceedings which the applicant had brought against his divorced wife, the Döbling District Court, on 19 February 2001, dismissed the applicant’s action and ordered him to pay the defendant’s costs. The defendant’s appeal against the costs order was not served on the applicant.

On 26 April 2001 the Vienna Regional Civil Court, sitting in camera , partly granted the defendant’s appeal, increasing the amount the applicant had to reimburse to the defendant.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that, in the proceedings on the defendant’s appeal against the costs order, the principle of equality of arms had been violated since he had not been informed of the appeal and had not been given the possibility to react thereto.

THE LAW

On 13 May 2003 the Court received the following declaration from the respondent Government:

“I declare that, with a view to securing a friendly settlement of the above-mentioned case, the Government of Austria offer to pay EUR 4,000 to Mr Erwin Seifert . This sum is to cover any non-pecuniary damage as well as costs and expenses, and it will be payable 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.”

On 28 April 2003 the Court received the following declaration from the applicant:

“I note that the Government of Austria are prepared to pay me the sum of EUR 4,000 covering non-pecuniary damage as well as costs and expenses with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum will be payable 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 proposal and waive any further claims against Austria in respect of the facts of this 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; or

(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 agreement reached by the parties and considers that the applicant no longer intends to pursue his application and that the matter has been resolved. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require that the examination of the application be continued. Consequently, the case should be struck out of the Court’s list in accordance with Article 37 § 1 (a) and (b) of the Convention.

For these reasons, the Court unanimously

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

           Mark Villiger Georg Ress           D eputy Registrar President