THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30193/96 by Georg SCHLADER against Austria

The European Court of Human Rights ( Third Section ), sitting on 7 March 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 November 1995 and registered on 14 February 1996,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1937 and living in Steyrling (Austria).

He is represented before the Court by Mr. M. Schlossgangl , a lawyer practising in Steyr (Austria).

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

The applicant is the proprietor of a gravel pit situated in Klaus, Upper Austria.

On 12 November 1976 the Upper Austrian Regional Government (hereinafter "Regional Government") declared a cliff containing conglomerates, which was partly situated on the applicant's land, a site of natural beauty ( Naturdenkmal ). Consequently, the applicant was prevented from exploiting the gravel pit in this area.

On 7 December 1976 the applicant, referring to section 10 of the 1964 Upper Austrian Environmental Protection Act ( Oberösterreichisches Naturschutzgesetz 1964), filed a request for compensation with the Kirchdorf District Administrative Authority ( Bezirkshaupt-mannschaft ). He extended his initial claim by further requests of 6 December 1978, 27 May  and 21 November 1980.

On 24 August 1982 the applicant lodged an appeal with the Administrative Court ( Verwaltungsgerichtshof ) against the administration's failure to decide on his compensation claim ( Säumnisbeschwerde ). Thereupon, on 9 November 1982 the Regional Government rejected the applicant's request for compensation.

On 18 April 1983 the Administrative Court, upon the applicant's complaint, quashed the Regional Government's decision.

On 6 September 1985 the Regional Government partly dismissed and partly rejected the applicant's requests for compensation, noting that they fell to be examined under the 1982 Upper Austrian Environmental Protection Act ( Oberösterreichisches Natur - und Landschaftsschutzgesetz 1982), which had entered into force on 1 January 1983.

On 21 December 1987 the Administrative Court quashed the Regional Government's decision to the extent that it had dismissed the applicant's request, and referred the case back.

On 3 April 1991 the Administrative Court, upon the applicant's appeal against the administration's failure to decide, ordered the Regional Government to issue a decision on the applicant's compensation claim within three months. On 15 April 1991 the Regional Government dismissed the applicant's request for compensation.

On 21 May 1991 the applicant, referring to section 28 § 4 of the 1982 Upper Austrian Environmental Protection Act, filed a motion with the Kirchdorf District Court ( Bezirksgericht ). He requested compensation of approximately 4,5 million Austrian schillings (ATS) for the reduction in yield suffered from the prohibition to exploit the gravel pit, plus 4 % default interest since the introduction of the proceedings on 7 December 1976, as well as the costs and expenses incurred in the proceedings.

On 21 June 1991 the Kirchdorf District Court rejected the applicant's motion as being inadmissible. It held that section 28 § 4 of the 1982 Upper Austrian Environmental Protection Act provided that the courts were only competent to decide on the amount of compensation. They were, however, not competent to decide on the merits of the compensation claim. On 2 September 1991 the Steyr Regional Court ( Landesgericht ), upon the applicant's appeal ( Rekurs ), quashed this decision and referred the case back to the District Court. On 15 January 1992 the Supreme Court ( Oberster Gerichtshof ) granted the appeal of the Land of Upper Austria ( Land Oberösterreich ), restoring the decision of the Kirchdorf District Court.

On 30 April 1992 the Administrative Court, upon the applicant’s motion, seized the Constitutional Court ( Verfassungsgerichtshof ) requesting it to set aside, in whole or in part, section 28 § 4 of the 1982 Upper Austrian Environmental Protection Act.  It found that the applicant's claim for compensation was a "civil right" within the meaning of Article 6 of the European Convention of Human Rights.  Thus, the applicant should have access to a tribunal within the meaning of Article 6 of the Convention if his request for compensation were dismissed by the administrative authorities.

On 23 June 1994 the Constitutional Court dismissed the request. It did not share the Administrative Court's concerns as to the constitutionality of Section 28 § 4 of the 1982 Upper Austrian Environmental Protection Act, but found that the competence of the courts was not restricted to fixing the amount of compensation. They were also competent to decide on the merits of the compensation claim. In a further decision of 21 June 1995, the Constitutional Court set aside the Supreme Court’s decision of 15 January 1992 on the ground that it had wrongly denied the competence of the civil courts.

On 4 September 1995 the Kirchdorf District Court informed the applicant that it would determine his compensation claim.

On 13 December 1995 the Kirchdorf District Court held a hearing and appointed an expert, who carried out an on-site visit on 2 July 1996. According to the applicant, the representative of the Regional Government, Mrs.G. -H., was present on this occasion and was informed about the fact that an application concerning the duration of the proceedings had been lodged with the European Commission of Human Rights. The expert submitted his opinion on 2 January 1997. A hearing which had been set down for 2 April 1997 was postponed at the request of the defendant.

On 21 May 1997 a further hearing was held in the Kirchdorf District Court. It was adjourned in order to give the parties an opportunity to conclude a settlement.

According to the applicant, Mrs G. ‑ H., who was assisted by Mrs P., was, in the course of the settlement negotiations, informed by the applicant’s counsel about the Strasbourg proceedings. However, she apparently only expressed an interest in resolving the case before the Kirchdorf District Court. According to the Government, the representatives of the Regional Government were not informed about the Strasbourg proceedings when concluding the settlement. The Government submit that they heard Mrs P. on this issue (Mrs G.-H. being unavailable), who stated that she only learned about the Strasbourg proceedings in September 1997, when the case was communicated.

After the settlement negotiations between the parties, the hearing was resumed and the following settlement was entered in the minutes:

"The defendant, the Land of Upper Austria, represented by the Upper Austrian Regional Government, undertakes ... to pay within one month of this settlement becoming legally effective, 2 million Austrian schillings to the claimant's representative Dr. Martin Schloßgangl .

This settlement will become legally effective unless a revocation is lodged with the court by 25 June 1997 at the latest.

With the conclusion of this settlement all compensation claims of the applicant resulting from the decision to declare the cliff of conglomerates ... a site of natural beauty are compensated and settled.

The defendant is to pay the fees of the expert.

In case the settlement becomes legally effective and if the defendant is in default of payment, it will pay 4 % interest for the delay."

Following the expiry of the time-limit for a possible revocation, the settlement became final on 25 June 1997.

THE LAW

The applicant complains under Article 6 of the Convention about the length of the proceedings relating to his request for compensation for the losses incurred by the prohibition to exploit a gravel pit in an area of natural beauty.

Article 6 § 1 of the Convention, so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time ...”

The Government, referring to the settlement of 21 May 1997 between the applicant and the Regional Government, argue that the applicant can no longer claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention. They submit that the representatives of the Regional Government were not aware of the proceedings before the Commission and therefore entered into the settlement on the understanding that it would terminate the applicant’s case entirely. They also argue that the sum paid by way of settlement covers all compensation claims, including those relating to the duration of the proceedings.

The applicant contests the Government’s view. He submits in particular that the settlement concluded with the Regional Government does not affect his claims resulting from the duration of the proceedings, as it only related to his compensation claim for about ATS 4,5 million in respect of the loss of yield incurred by the prohibition to exploit the gravel pit, plus 4% default interest since 7 December 1976. Only that claim was settled by the overall payment of ATS 2 milllion . Moreover, the applicant submits that the representative of the Regional Government, Mrs. G.-H., was aware of the proceedings pending before the Commission but had not intended to include them in the settlement. In any case, the applicant maintains that the wording of the settlement refers exclusively to his claims for loss of yield. In his view, there was no need to exclude the Strasbourg proceedings explicitly from the settlement as, in general, a settlement only affects the parties concerned and the claims at issue in the underlying proceedings.

The Court recalls that a judicial settlement may only deprive an applicant of his status as a victim if the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the alleged breach of the Convention (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 16, § 32). Moreover, as a general rule, the question whether an applicant may still claim to be a victim depends on the legal interest which the applicant may have in a determination by the Convention organs that his Convention rights have been breached (cf. no. 9320/81,  Dec. 15.3.84, D.R. 36, p. 24)

The Court notes that there is disagreement between the parties as to whether or not they intended to exclude the proceedings before the Convention organs from the settlement of 21 May 1997. The Court observes that the settlement neither refers to the present application, nor expressly takes account of the duration of the domestic proceedings. However, the applicant himself concedes that it settled his claims for the loss of yield, including default interest as of 7 December 1976, i.e. from the beginning of the proceedings of which complaint is made. Thus, the settlement undeniably contains compensation for certain damages caused by the length of the proceedings. In these circumstances, the Court considers that the applicant’s counsel, who is also his representative before the Court, could have been expected to exclude expressly from the settlement any possible further claims relating to the length of the proceedings, all the more so if - as he claims - this was the intention of the parties. Given that he failed to do so, and having regard to the contents of the settlement which provided for the payment of a considerable sum, namely ATS 2 million, intended to cover “all compensation claims of the applicant resulting from the decision to declare” the site one of natural beauty, the Court finds that the settlement was capable of removing any prejudice resulting from a possible violation of the Convention.

Moreover, in view of the size and terms of the settlement, the Court also finds that the applicant no longer has any legal interest in a determination by the Court that his Convention rights have been breached.

In these circumstances, the Court concludes that the applicant can no longer claim, under Article 34 of the Convention, to be a victim of the alleged violation of Article 6 § 1 of the Convention. It follows that the application must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President