European Court of Human Rights

FIRST SECTION

DECISION

Application no. 2029/06
Martin MAIR
against Austria

The European Court of Human Rights (First Section), sitting on 13 December 2011 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and Søren Nielsen, Section Registrar,

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

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

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the decision of 18 May 2010,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Martin Mair, is an Austrian national who was born in 1961 and lives in Marchtrenk. He was represented before the Court by Mr C.J. Schwab, a lawyer practising in Wels. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

The facts of the case may be summarised as follows.

The applicant was tenant of an area of 7,500 square metres with a storage building, a ramp and a container with a shed roof.

The landlord terminated the lease contract on 24 July 2001. On 7 March 2002, the Wels District Court declared the termination of the lease contract lawful and ordered the applicant to clear the premises within fourteen days.

Thereupon, the applicant removed some of the movable goods from the premises within the set time limit, but other items remained.

The landlord applied for execution of the removal order, which was approved on 7 March 2003 by the Wels District Court, and which was finally carried out on 28 February 2005.

On 22 March 2005, the landlord lodged a motion with the Wels District Court for the costs of the removal in the amount of 3,495.60 euros (EUR) to be determined as further execution costs (weitere Exekutionskosten) in relation to the applicant as the debtor, which was granted by the Wels District Court. The applicant appealed against that decision stating that he had not had the opportunity to comment on the request for determining the costs of the removal as further execution costs. Thus, the principle of equality of arms had been violated. Furthermore, and since he had complied with the removal order by removing all moveable goods, he was not obliged to reimburse further costs of removal.

On 29 June 2005, the Wels Regional Court dismissed the applicant’s appeal. That decision was served on the applicant’s lawyer on 22 July 2005.

COMPLAINTS

The applicant complained under Article 6 of the Convention of a violation of the principle of equality of arms because he had not received the minutes of the execution of the removal order and because he had not been given the opportunity to comment on the landlord’s request for determination of further execution costs in the proceedings, before the Wels District Court issued its decision in the first instance. The applicant also submits that due to the lack of possibility to introduce new facts in the appeal proceedings (Neuerungsverbot), the shortcomings of the first instance proceedings could not be remedied in the appeal stage.

THE LAW

On 2 September 2011 the Court received the following declaration from the Government:

“I, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs, declare that the Government of Austria offer to pay, ex gratia to Mr Martin Mair, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 5,419 euros to cover any and all damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision 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 19 September 2011 the Court received the following declaration signed by the applicant:

“I, Christoph J. Schwab, note that the Government of Austria are prepared to pay ex gratia to Mr Martin Mair, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 5,419 euros to cover any and all damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision 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.

Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Austria in respect of the facts giving rise to this application. He declares 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 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 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 Nina Vajić
Registrar President