CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 23397/94                       by Manfred HUBER                       Gerald STAUFER                       Karl STAUFER                       SPORTANGLERBUND VÖCKLABRUCK                       Josef ECKHARDT                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 12 January 1994 by Manfred HUBER and Others against Austria and registered on 4 February 1994 under file No. 23397/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are Austrian citizens. The fourth applicant is an association established under Austrian law.   The applicants are represented by Mr. F. Hitzenberger, a lawyer practising in Vöcklabruck, Austria.   A.    Particular circumstances of the case        The facts as submitted by the applicants may be summarised as follows:        The applicants have fishing rights (Fischereiberechtigung) relating to Lake Attersee.        On 31 March 1992 the District Authority (Bezirkshauptmannschaft) at Vöcklabruck granted Mr. and Mrs. H. a permission to extend a wooden landing stage by 14,5 meters plus 5,33 meters as well as the construction on the side of the landing stage of a concrete swimming platform.   The landing stage begins at Mr. and Mrs. H.'s premises bordering the lake.   The permission was valid until 31 December 2011 and subject to a number of conditions.   It was in particular necessary to obtain the consent of the nature protection authority (Zustimmung der Naturschutzbehörde).   The objections raised by the applicants were considered to be inadmissible and therefore rejected.   However, Mr. and Mrs. H. were ordered to pay compensation in the amount of 2.475- AS for damages resulting from the construction project.        The applicants' appeals (Berufung) were dismissed by the Ministry for Agriculture and Forestry on 23 November 1992. It is stated in the decision that in accordance with Section 15 para. 1 of the Water Rights Act (Wasserrechtsgesetz) of 1959, as amended in 1990, holders of fishing rights were entitled to suggest measures to protect their fishing interests to the extent that the suggested measures did not unreasonably hinder the construction project.   Under Section 117 of this same Act they could claim compensation if the project caused them material damages (vermögensrechtliche Nachteile).   The fishing rights however were not water rights in the sense of the Water Rights Act and therefore could not be raised in opposition to the construction project as such.   The applicants had, however, not made any proposals for measures mitigating the negative effects of the project in question but had requested its prohibition.   This went beyond the possibilities open to them under Section 15 of the Water Rights Act.        The applicants then lodged a constitutional complaint which was rejected by the Constitutional Court (Verfassungsgerichtshof) on 22 March 1993.   The court considered that there was no appearance of a denial of constitutional rights or of rights guaranteed by the Convention.   It referred to its constant jurisprudence according to which Section 15 of the Water Rights Act was compatible with the Austrian Constitution.   The Constitutional Court transferred the matter to the Administrative Court (Verwaltungsgerichtshof).        On 22 June 1993 the Administrative Court dismissed the applicant's complaint (Beschwerde).   This court noted that only holders of rights as mentioned in Section 12 para. 2 of the Water Rights Act were entitled in the relevant proceedings to make a request for the rejection of a construction project, but not holders of fishing rights. Therefore the administrative decision complained of was not illegal (rechtswidrig) even though according to an opinion of an official expert for the fishing industry (fischereiwirtschaftlicher Amtssachverständiger) the applicants' objections against the building project in question were justified.   Under Section 15 para. 1 of the Water Rights Act a complete prohibition of the project in question could not be requested by the holders of the fishing rights even if such prohibition would constitute the only possible way of protecting their interests.   Therefore the authorities did not have to take into account the opinion of the expert for the fishing industry and did not have to examine ex officio if the construction project could be realised in a manner such as better to respect the interests of the applicants.   Rather it had been the applicants' obligation to make concrete proposals in this respect.        Insofar as the applicants had alleged that the project in question also violated public interests, the court noted that only the authorities and not the applicants were called upon to ensure respect for public interests.        The decision of the Administrative Court was served on the applicants' lawyer on 13 July 1993.   B.    Relevant domestic law        The following provisions of the Water Rights Act are relevant:   [Translation]        "s. 12.      Principles for the granting of permits taking into      account the public interest and third-party rights.   (1) The      extent and nature of any water use to be permitted shall be      determined in such a way that the public interest ..........   is      not prejudiced and existing rights are not violated.        (2) Any lawfully-exercised use of water except common use,      ............   rights of use under s. 5(2) and ownership of land      shall be deemed to be existing rights as referred to in para. 1      above.        (...)          s. 15.       Limitation for the benefit of fishing.   (1) Persons      holding fishing rights may, in the event of a permit being      granted for a project entailing adverse consequences for their      fishing waters, request measures for the protection of the      fishery.   Such a request is to be taken into account provided      that it does not disproportionally affect the realisation of the      planned project.   Any adverse financial consequences resulting      from a project shall give rise to a right to fair compensation      for the persons entitled to fish (see s. 117).        (...)          s. 117.      Compensation and contributions.   (1) [Any question as      to] the duty to pay any compensation, damages, contributions or      charges provided for in this Federal Act or in any special      regulations for the care and protection of particular waters      shall be determined by the water authority, save where this      Federal Act ...... or the relevant special regulations provide      otherwise. (...)   [German]        "§12. Grundsätze für die Bewilligung hinsichtlich öffentlicher      Interessen und fremder Rechte.   (1) Das Mass und die Art der zu      bewilligenden Wasserbenutzung ist derart zu bestimmen, dass das      öffentliche Interesse (...) nicht beeinträchtigt und bestehende      Rechte nicht verletzt werden.      (2)   Als bestehende Rechte im Sinne des Abs. 1 sind rechtmässig      geübte Wassernutzungen mit Ausnahme des Gemeingebrauches (...),      Nutzungbefugnisse nach §5 Abs. 2 und das Grundeigentum anzusehen.          §15. Einschränkung zugunsten der Fischerei.   (1) Die      Fischereiberechtigten können anlässlich der Bewilligung von      Vorhaben mit nachteiligen Folgen für ihre Fischwässer Massnahmen      zum Schutz der Fischerei begehren.   Dem Begehren ist Rechnung zu      tragen insoweit hiedurch das geplante Vorhaben nicht      unverhältnismässig erschwert wird.   Für sämtliche aus einem      Vorhaben erwachsenden vermögensrechtlichen Nachteile gebührt den      Fischereiberechtigten eine angemessene Entschädigung (§ 117).        §117.   Entschädigungen und Beiträge. (1) Über die Pflicht zur      Leistung von Entschädigungen, Ersätzen, Beiträgen und Kosten, die      entweder in diesem Bundesgesetz oder in den für die Pflege und      Abwehr bestimmter Gewässer geltenden Sondervorschriften      vorgesehen sind, entscheidet, sofern dieses Bundesgesetz oder die      betreffende Sondervorschrift nichts anderes bestimmt, die      Wasserrechtsbehörde."   COMPLAINTS        The applicants submit that when placing fishing nets they have to observe a distance of at least 100 meters with regard to a landing stage.   Consequently the stage in question deprives them of a considerable fishing area.   In addition they complain that Section 15 of the Water Rights Act disregards the justified interests of holders of fishing rights in that they must tolerate construction projects even if they cause material damages to them.   The applicants therefore consider Article 1 of Protocol No. 1 to be violated as the situation complained of in their opinion amounts to a de facto expropriation.        They also consider themselves to be discriminated against in the enjoyment of their property rights because they are less favourably treated than those who can claim water rights under Section 12 para. 2 of the Water Rights Act.        For the same reason they invoke Article 6 also read in conjunction with Article 14 of the Convention and argue in particular that the principle of equality of arms was violated in the domestic proceedings on the ground that Mr. and Mrs. H. who requested leave for extending their landing stage were in a stronger position than they as opponents to this request.   They further complain that contrary to their request the Administrative Court had denied them a public oral hearing.        Finally the applicants invoke Article 13 of the Convention considering that under Austrian law they had no possibility of complaining of the interference with their property right.    They state that they are not interested in the possibility of requesting compensation and claim that they should have a right to oppose the construction project in an effective manner.   THE LAW   1.    The applicants have mainly complained under Article 1 of Protocol No. 1 (P1-1) to the Convention that the authorisation given to Mr. and Mrs. H. to enlarge their landing stage infringed their fishing rights and constituted a de facto expropriation, i.e. an infringment of their right to the peaceful enjoyment of possessions.        The Commission first notes that the applicants did not make use of the possibility given to them under Section 117 of the Water Rights Act to claim compensation.   It therefore appears to be doubtful whether they can be considered as having exhausted domestic remedies as required by Article 26 (Art. 26) of the Convention (cf. No. 23048/93, P. and others v. Finland, Dec. 17.1.96).   This question can however be left open as the above complaint must in any event be rejected for the following reasons.        It is true that according to the Commission's jurisprudence fishing rights can be considered as possessions under Article 1 of Protocol No. 1 (P1-1) (cf. No. 11763/85, Banér v. Sweden, Dec. 9.3.89, D.R. 60, p. 128 [139]) and that deprivation of property within the meaning of this article is not limited to cases where property is formally expropriated.   The applicants have however failed to show that in the present case their fishing rights were affected by the measure complained of in a substantial manner such as to impose on them an individual and excessive burden (cf. Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 28 para. 73).   In particular the applicants have not shown that the fishing area of which they dispose of on Lake Attersee or their fishing yield was substantially diminished as a consequence of the enlarged landing stage.        There is consequently no appearance of a violation of Article 1 of Protocol No. 1 (P1-1) and this part of the application therefore has to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.   2.    The applicants have next invoked Article 6 (Art. 6) of the Convention, which, inter alia, guarantees the right to a "fair hearing" in proceedings relating to the determination of "civil rights".        However, while fishing rights may be considered to constitute " civil rights", the proceedings here in question did not relate to the determination of the applicants' fishing rights nor did the applicants have standing under Austrian law to ask the authorities to prohibit the enlargement of the landing stage in question.   Contrary to the case of Sander v. Sweden in which the European Court of Human Rights found a violation of Article 6 (Art. 6) of the Convention (judgment of   25 November 1993, Series A, No. 279 B) the applicants thus had no claim in the domestic proceedings that would have restricted the discretionary powers of the Austrian authorities deciding upon the request for the enlargement of the landing stage as such. The only claim that they could pursue in this respect was a claim for compensation under Section 117 of the Water Rights Act, a claim which the applicants deliberately chose not to raise in the present case. On the other hand Article 6 para. 1 (Art. 6-1) of the Convention is not intended to create new substantive rights which have no legal basis in the legal order of the State concerned.   It provides procedural protection only to rights which can be said, at least on arguable grounds, to be recognised in domestic law.   As this is not the case here the Commission accordingly finds that this part of the application must be dismissed as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The foregoing finding implies that Article 14 (Art. 14) is likewise   inapplicable insofar it is invoked in relation to Article 6 (Art. 6) of the Convention.   Even assuming that Article 14 (Art. 14) does apply insofar as it has been invoked in conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1),   the applicants have not shown that their position is comparable to holders of water rights in the sense of Section 12 of the Water Rights Act.        This part of the application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicants finally allege a violation of Article 13 (Art. 13) of the Convention which provides:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        However Article 13 (Art. 13) does not guarantee a remedy whereby a Contracting State's laws as such can be challenged before a national authority on the ground that they are contrary to the Convention or to equivalent domestic legal norms (Eur. Court H.R., James and others judgment of 21 February 1986, Series A No. 98, p. 47 para. 85).        The applicants' allegations of violations of Convention rights are directed at the effect of the Water Rights Act.        It follows that Article 13 (Art. 13) does not entitle the applicants to a remedy for such allegations.        Accordingly there is no appearance of a violation of the Convention in this respect either and this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)