Hollitzer v. Austria



Application No. 12700/87

by Franz HOLLITZER

against Austria

The European Commission of Human Rights sitting in private

on 12 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

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 16 December 1986

by Franz Hollitzer against Austria and registered on 22 January 1987

under file No. 12700/87;

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 October 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 observations submitted by the respondent Government on

13 January 1989, the observations in reply submitted

by the applicant on 13 March 1989 and his declaration

of 18 January 1990 that he wishes to withdraw the

application;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Austrian citizen born in 1927 who resides

in Vienna, is represented by Rechtsanwalt Dr. Hans Pritz of

Vienna.

He complained of a measure of rent reduction imposed on him as

the landlord of a small apartment in the centre of Vienna.

Under Section 44 of the Rent Act which entered into force on 1

January 1982 (Mietrechtsgesetz, Fed. Law Gazette No. 520/1981) the

tenant of the above apartment requested a reduction of her freely

negotiated rent of AS 2,770 to 150% of the legal square metre rent for

class B apartments (AS 673,20) as from 1 February 1982. The request

was granted by the competent Arbitration Board (Schlichtungsstelle) of

the City of Vienna on 22 April 1983 and subsequently by the District

Court of Vienna City (Bezirksgericht Innere Stadt Wien) on 10 August

1985.

The applicant's appeal (Rekurs) was dismissed by the Vienna

Regional Civil Court (Landesgericht für Zivilrechtssachen) on 17 June

1986 Referring to a Supreme Court (Oberster Gerichtshof) decision of

3 July 1984 (5 Ob 86/83=SZ 57/125) it rejected inter alia the

applicant's submission that Section 44 of the 1981 Rent Act was

unconstitutional.

COMPLAINT

The applicant complained that the rent reduction

violated his right to the peaceful enjoyment of his possessions as

guaranteed by Article 1 of Protocol No. 1 to the Convention.

PROCEEDINGS

The application was introduced on 16 December 1986 and

registered on 22 January 1987.

On 12 October 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 Rules of Procedure, to submit

observations in writing on its admissibility and merits.

The Government submitted their observations on 13 January 1989

and the applicant replied on 13 March 1989.

The case was not further considered by the Commission pending

the European Court of Human Rights judgment in the case of Mellacher

and Others which concerned analogous rent reductions under Section 44

of the 1981 Rent Act. In its judgment of 19 December 1989 (to be

published in Series A no. 169) the Court held that such rent

reductions did not violate Article 1 of Protocol No. 1.

On 20 December 1989 the applicant was informed of this

judgment and invited to state whether he wished to maintain his

application. On 18 January 1990 he replied that he did not wish to

pursue it.

REASONS FOR THE DECISION

Article 30 para. 1 of the Convention reads as follows:

"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 the applicant's declaration that in the

light of the Eur. Court H.R. Mellacher and Others judgment of

19 December 1989 (to be published in Series A no. 169) he does not

wish to pursue his application.

The Commission finds 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)