European Court of Human Rights

FIRST SECTION

DECISION

Application no. 43117/05
by Elisabeth BIRNLEITNER
against Austria

The European Court of Human Rights (First Section), sitting on 14 May 2009 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 23 November 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Elisabeth Birnleitner, is an Austrian national who was born in 1936 and lives in Aistersheim. She was represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

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

The applicant owns a landholding of some 150 hectares, which is an approved hunting ground (Eigenjagd). According to the Upper Austria Hunting Act (Oberösterreichisches Jagdgesetz), every six years, the District Authority has to establish the boundaries of the Upper Austrian hunting grounds. In this respect, requests may be filed by landowners to have adjacent land allocated to their hunting grounds where, for the purpose of facilitating the exercise of hunting rights, boundaries need readjustment (Arrondierungsantrag).

On 28 September 1998 the applicant filed such a request for readjustment in respect of the next six years’ hunting period, i.e. from April 1999 to March 2005.

On 10 December 1998 the Grieskirchen District Authority (Bezirkshauptmannschaft) partly granted the applicant’s request and assigned specified plots of third persons to the applicant’s hunting grounds, but dismissed her request concerning some other parcels of land.

On 17 January 2000 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal, modified the impugned decision concerning some of the borders by further limiting the allotted parcels of land to the applicant.

The applicant filed a complaint with the Constitutional Court.

On 13 June 2000 the Constitutional Court declined to deal with the applicant’s complaint and referred the case to the Administrative Court.

On 26 April 2005 the Administrative Court discontinued the proceedings, as it found that once the relevant period for which the border adjustment request had been filed expired, it was prevented from examining the matter further. This decision was served on the applicant’s lawyer on 24 May 2005.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of the proceedings.

She further raised under the same provision certain other issues related to the proceedings before the Administrative Court.

THE LAW

On 15 December 2008 the Court received the following declaration from the Government:

“I declare that the Government of Austria offer to pay ex gratia the sum of EUR 4,500 to Elisabeth Birnleitner with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, 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 2 February 2009 the Court received the following declaration signed by the applicant:

“I note that the Government of Austria are prepared to pay ex gratia the sum of EUR 4,500 to Elisabeth Birnleitner with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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 giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

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

Søren Nielsen Christos Rozakis
Registrar President