CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mars 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)