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1. The authors of the
communication are Godfried Pohl (first author), his wife, Ingrid Pohl
(second author), Wolfgang Mayer (third author) and Franz Wallmann (fourth
author), all Austrian citizens. They claim to be victims of a violation by
Austria [FN1] of article 26 and, insofar as the fourth author is concerned,
also of article 14, paragraph 1, of the International Covenant on Civil and
Political Rights (the Covenant). They are represented by counsel.
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[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for the State party respectively on 10 December 1978 and 10 March
1988.
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THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 The first and second authors jointly own, and reside on, property
measuring some 1600 square meters located in the community of Aigen (part of
the Municipality of Salzburg). The third author formerly owned a plot of
land of some 2300 square meters, also located in Aigen, adjacent to the plot
owned by the first and second authors. On 15 June 1998, the fourth author
purchased the plot formerly owned by the third author from a company, which
had acquired it at a public auction. As the current owner of the plot, on
which he also resides, the fourth author is contractually obliged to
reimburse the third author for any expenses associated with that plot.
2.2 Both plots of land are designated as "rural areas", in accordance with
the 1998 Salzburg Provincial Zoning Law, which divides real estate located
in the Province of Salzburg into "building land", "traffic/transportation
areas" and "rural areas".
2.3 On 1 December 1998, the Municipality of Salzburg informed the first,
second and third authors of a preliminary assessment of the financial
implications of the construction, in 1997, of a residential sewerage
adjacent to their plots and gave them an opportunity to comment on the
assessment.
2.4 According to Section 11 of the Salzburg Provincial Landowners'
Contributions Act (1976), which regulates financial contributions of
landowners to certain public services in the Municipality of Salzburg,
owners of plots of land located adjacent to a newly constructed sewerage
must contribute to the construction costs; the contribution is calculated
pursuant to a formula based on the square measure of a plot, from which an
abstract "length" is deducted. Contributions of landowners in all other
municipalities of the Province of Salzburg are regulated by the Provincial
Act on Landowners' Contributions to the Construction of Municipal Sewerages
in all Municipalities of the Province of Salzburg with the Exception of the
City of Salzburg (1962), which provides that owners of land, from which
wastewater is dumped into the sewerage, are required to pay contributions
for newly constructed sewerages, calculated on the basis of a formula that
links the construction costs to the living space of the dwellings built on
the plots. The number of "points", calculated on the basis of living space
(in square meters), are multiplied by the amount to be paid per point to
arrive at an individual landowner's contribution.
2.5 In their observations on the preliminary assessment, the authors argued
that the envisaged calculation of their contributions based on the length of
the plot was discriminatory, if compared to the calculation of contributions
of owners of plots in areas designated as "building land", as it disregarded
the special situation of plots in rural areas, which were significantly
larger than average parcels in areas designated as "building land". The
calculation method in all other municipalities in the Province of Salzburg
was therefore based on available living space instead of the abstract length
criterion so as to take such special circumstances into account. The authors
also stated that the existing wastewater disposal facilities were adequate.
2.6 On 22 February 1999, the Municipality of the City of Salzburg issued two
administrative acts, requiring the first and second authors to pay ATS
193,494.20 (� 14,061.77) and the third author to contribute ATS 262,838.70
(� 19,101.23), pursuant to Section 11 of the Landowners' Contribution Act.
It rejected the third author's objection to his treatment as a party to the
proceedings despite the fact that he was no longer the registered owner of
the plot, stating that the owner registered at the time of the construction
of the sewerage was to be considered the obligated party.
2.7 On 11 March 1999, the first, second and third authors appealed the
decisions to the Appeals Commission in Building Matters of the Municipality
of Salzburg. They reiterated that the length criterion for calculating their
contributions was disproportionate and incorrect, given that, pursuant to
the 1998 Zoning Law, no new buildings could be built on plots in "rural
areas". While owners of plots designated as "building land" were free to
demolish existing buildings and construct new and larger ones, the authors,
if they decided to demolish their current dwellings, could only use their
parcels as pastures.
2.8 On 28 May and 2 July 1999, the Appeals Commission dismissed the appeals,
observing that plots designated as "building land" and plots designated
"rural" for which a special building permit had been granted, under previous
versions of the Zoning Law, had to be treated alike to ensure equal
treatment.
2.9 On 29 June and 13 July 1999, the first, second and third authors filed
complaints with the Constitutional Court, claiming that the failure, in the
Landowners' Contributions Act, to differentiate between "rural" and
"building" lots violated their right to equality before the law and the
principle of the rule of law, i.e. the right to be subjected only to
sufficiently precise laws. In particular, they argued that maintenance of
the length criterion failed to take into account the change in the Zoning
Law, which absolutely prohibited the construction of dwellings and other
buildings on parcels designated "rural" since 1 January 1993, while
exceptions to the zoning restrictions were readily granted before that date.
On 10 June 2002, the Constitutional Court dismissed the authors' complaints
for lack of reasonable prospect of success.
2.10 On 14 August 2002, the authors submitted a further complaint to the
Administrative Court, asking it to set aside the impugned administrative
acts of 22 February 1999 and to give their complaint suspensive effect. On 9
October 2002, the Court rejected the motion for suspensive effect. The main
proceedings were still pending before the Administrative Court at the time
of the initial submission of the communication.
THE COMPLAINT
3.1 The authors allege a violation of their rights under article 26 of the
Covenant, claiming that the differentiation between landowners in the
Municipality of Salzburg and elsewhere in the Province of Salzburg, as well
as the lack of differentiation between owners of parcels zoned "rural" and
owners of parcels zoned "building land" within the Municipality of the City
of Salzburg, with respect to the payment of landowners' contributions is
discriminatory.
3.2 The authors argue that the differentiation between landowners in the
City of Salzburg and those residing elsewhere in the Salzburg Province is
neither based on prima facie objective and reasonable criteria nor
proportionate. Thus, the municipalities surrounding Salzburg are equally
and, in some cases, even more residential than the city itself, whereas some
areas of the city, including the authors' plots, are more "rural" than those
of other municipalities and other cities in the vicinity. It was therefore
unjustified to treat landowners in the City of Salzburg less favourably than
landowners elsewhere, [FN2] to whom the more beneficial 1962 Act applied.
The latter required contributions only from landowners dumping wastewater
into the sewerage and calculated their contributions on the basis of the
reasonable criterion of living space of their dwellings. This
differentiation had far-reaching adverse effects, as the authors'
contributions to the construction of the sewerage were three to four times
higher than, for instance, the contributions charged from residents of the
municipality of Koppl, without there being any indication that the
construction of sewerages in the City of Salzburg was three or four times
more expensive than elsewhere in the Province of Salzburg.
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[FN2] The authors submit that the overwhelming majority of Provinces and
municipalities in Austria utilize "living Space" or related criteria as a
basis for calculating landowners' contributions, and cite several examples.
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3.3 The authors submit that article 26 of the Covenant requires that
objectively unequal situations be treated differently. The lack of
differentiation, whether intentional or not [FN3], between owners of plots
designated as "rural" and owners of those designated as "building land",
within the Municipality of the City of Salzburg, was discriminatory, as it
failed to take into account the changes introduced by the 1992 Zoning Law,
which absolutely prohibits any construction on plots designated as "rural",
while owners of plots on "building land" remain free to construct new or
replace old homes, to develop and subdivide their land, and to build a range
of residential or even commercial structures. By basing the assessment of
contributions solely on the criterion of the size of the lot, the
Landowners' Contributions Act (1976) favoured owners of "building" lots,
which can be occupied by a large number of residents using the newly
constructed sewerage, over owners of "rural" lots, usually occupied by only
a few residents living in single-family homes, who must pay the same or even
larger contributions to the construction of sewerages, depending on the size
of the lot. In the absence of an objective and reasonable justification, the
failure to differentiate in the 1976 Act must be considered a "convenient
omission" [FN4] to adjust its provisions to the 1992 Zoning Law.
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[FN3] The authors refer to Communication No. 516/1992, Alina Simunek v. The
Czech Republic, Views of 19 July 1995, at para. 11.7.
[FN4] Counsel refers to the judgment of the European Court of Human Rights
in Larkos v. Cyprus of 18 February 1999.
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3.4 The authors state that the same matter is not being examined under
another procedure of international investigation or settlement. They claim
to have exhausted domestic remedies, despite the proceedings pending before
the Administrative Court, since that Court was not in a position to rectify
the alleged breaches of article 26 of the Covenant, as it was bound to apply
the laws in force, without being competent to review their constitutionality
and legal validity. Even if the Administrative Court was to grant the
authors' motion to initiate a formal procedure before the Constitutional
Court in order to examine the constitutionality of the Landowner's
Contributions Act, the unlikelihood that the Constitutional Court would
overrule its previous decision in the same matter rendered this remedy
ineffective.
STATE PARTY'S OBSERVATIONS ON THE ADMISSIBILITY AND AUTHORS' COMMENTS
THEREON
4.1 On 23 May 2003, the State party challenged the admissibility of the
communication, arguing that it is inadmissible under articles 1 and 5,
paragraph 2 (b) of the Optional Protocol insofar as the fourth author is
concerned.
4.2 The State party submits that the fourth author failed to exhaust
domestic remedies and that he cannot claim to be a directly affected victim
of a violation of any of the rights in the Covenant, since he was never
required to pay a contribution to the construction of the sewerage and was
only contractually liable to reimburse the third author. An author who
essentially asserts the rights of another is not entitled to submit a
communication, in accordance with the Committee's jurisprudence. [FN5] In
the absence of locus standi, the fourth author's communication constitutes
an actio popularis directed against the Austrian legal system as such.
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[FN5] The State party refers to Communication No. 737/1997, Michelle Lamagna
v. Australia, Decision on admissibility of 7 April 1999.
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4.3 As for the other three authors, the State party informs the Committee
that the Administrative Court dismissed their complaint on 28 April 2003.
5.1 In his comments dated 11 June 2003 the fourth author rejects the State
party's admissibility observations and amends his communication to the
effect that he also claims a violation of his rights under article 14,
paragraph 1, of the Covenant.
5.2 The fourth author submits that he is directly affected by the imposition
of landowner's contributions, as property tax liabilities and related fees
and contributions are "attached" to any given plot of land. Thus, if the
third author fails to pay the contributions for the construction of the
sewerage, the public authorities would begin enforcement measures against
the plot of land itself, which was currently owned by the fourth author.
5.3 The fourth author argues that he was legally prevented from exhausting
domestic remedies, as his attempt to be heard, instead of the third author,
in the landowners' contributions assessment proceedings was rejected by the
Municipality of Salzburg, on the basis that it was "impossible to issue
decisions requiring payment of landowners' contributions directly to the
current owner," given that "the date on which a duty to pay contributions
becomes established (in the present case the construction of the main
sewerage line) is decisive for the duty to pay contributions." [FN6]
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[FN6] Decision of the Municipality of Salzburg of 22 February 1999,
addressed to the third author, at p. 3.
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5.4 The fourth author claims that his exclusion from the landowners'
contributions assessment proceedings had the effect of depriving him of the
right to challenge the duty to pay landowners' contributions, as well as the
amount due, in violation of article 14, paragraph 1. Private law proceedings
against the third author would not enable him directly and independently to
object to the existence and/or the extent of such dues. Article 14,
paragraph 1, applied to his monetary claim, involving the obligation to pay
landowner's contributions.
STATE PARTY'S ADDITIONAL OBSERVATIONS ON ADMISSIBILITY AND ON THE MERITS
6.1 On 6 August 2003, the State party made an additional submission on the
admissibility and also commented on the merits of the communication. It
challenges the admissibility on the lack of substantiation and absence of
locus standi (third and fourth authors), as well as ratione materiae (fourth
author). Subsidiarily, it denies violations of articles 14, paragraph 1, and
26.
6.2 On admissibility, the State party submits that no request by the fourth
author to join the landowners' contributions assessment proceedings can be
traced in the administrative files. The fourth author failed to specify, in
his submission of 11 June 2003, when and whether he had paid any
contributions and whether he had been ordered to do so by the authorities.
6.3 The State party argues that the payment order addressed to the third
author did not ex lege pass to the fourth author after the change of
ownership of the plot of land, as no universal succession took place.
Although initially a lien was placed on the third author's plot of land,
pursuant to section 1, paragraph 6, of the Landowners' Contributions Act,
this lien had passed to the highest bid [the proceeds of the execution]
during the compulsory sale of the property, so that the fourth author
purchased the property free from any lien. The mere fact that the fourth
author felt obliged, as a result of the sales contract, to remit the
contribution payments for the construction of the sewer, as well as the
compensation of costs awarded to the City of Salzburg by the Administrative
Court in its decision of 28 April 2003, does not imply that he was legally
obliged to do so, in the absence of an express stipulation to that effect in
the sales contract or in the decision of 12 June 1998 on the distribution of
the amount constituting the highest bid.
6.4 The State party contends that, in the alternative, if the Committee
considers the communication admissible with regard to the fourth author, it
must necessarily declare it inadmissible in relation to the third author,
since his obligations would have been assumed contractually by the fourth
author. In any event, the third author lacked locus standi because the
payment obligation had been fulfilled through the remittance of the charged
amount by the fourth author on 28 October 2002.
6.5 The State party submits that the fourth author's claim under article 14,
paragraph 1, is inadmissible ratione materiae, since proceedings for the
determination of taxes and duties are not as such covered by the scope of
that article.
6.6 On the merits, the State party submits that the "dual system",
subjecting landowners in the City of Salzburg to a different legal regime
than landowners elsewhere in the Province of Salzburg, goes back to the 19th
century, when the sewage system merely consisted of main sewers constructed
in the densely built area of the City of Salzburg through which effluents
were discharged into the river. The construction and management of sewage
disposal plants falls within the competence of the municipalities. In the
municipalities outside the City of Salzburg, the first sewage treatment
plants were constructed in the early 1960s. Under the 1962 Act, such
infrastructural measures had to be paid by the landowners, unlike in the
City of Salzburg, where landowners are not required to contribute in advance
to the costs of water treatment plants, which are rather added to their
obligatory periodical fees for usage of the sewer system, but only to the
construction and extension of the sewerage system for plots of land.
6.7 The State party argues that the provisions of the 1962 Act, applicable
to rural areas, cannot be applied to the City of Salzburg. In particular,
the requirement that a new sewerage system consisting of a network and a
water treatment plant is constructed as a project with a certain capacity
and absorption power, that the catchment area of the respective network is
known, and that all plots of land with or without dwellings are evaluated in
accordance with technical sewage conditions, would not be suitable for the
rapidly developing City of Salzburg, where annexes to existing buildings and
additional constructions are built more frequently than in other parts of
the province, thus requiring a sewerage network that meets these dynamic
developments, which invariably results in higher construction costs.
6.8 Regarding the lack of differentiation between owners of plots designated
as "rural" and owners of plots designated as "building land" within the City
of Salzburg, the State party submits that contributions to the construction
costs for the sewerage network are linked to a plot defined as "building
site", irrespective of whether the building site is situated on "building
land" or "green land". To what extent a plot of land is defined as "building
site" depended on the landowner's request in the proceedings on the
declaration as a building site. The authors would have been free to file a
request that only part of their property be designated as "building site",
which would have resulted in more favourable contributions.
6.9 The State party denies that any construction on "green land" is
absolutely prohibited. Thus, the extension of existing dwellings was
permissible to the extent provided for in the 1998 Regional Planning Act. It
would therefore amount to unjustifiable preferential treatment of owners of
building sites on plots designated as "rural" if they were to be charged no
or a significantly lower contribution for the construction of sewerages than
owners of building sites situated on "building land". Apart from this,
dwellings had already been constructed on the author's plots.
6.10 Lastly, the State party submits that the matter had been examined by
the Constitutional Court on various occasions, without the Court ever having
found a violation of the equality principle. It concludes that, in the
present case, the decisions and judgments based on the Landowners'
Contributions Act were justified by reasonable and objective criteria and
that neither article 26 nor article 14, paragraph 1, were violated.
AUTHOR'S COMMENTS ON STATE PARTY'S OBSERVATIONS ON THE MERITS
7.1 On 13 October 2003, the authors commented on the State party's
submission of 6 August 2003, arguing that the third and fourth authors
should also be considered as victims, and that the imposition of the payment
orders violated their rights under article 26 and, with respect to the
fourth author, under article 14, paragraph 1, of the Covenant.
7.2 The authors reiterate that the State party's contention that either the
third or the fourth author should be rejected as a victim implies that both
authors could per se be accepted as victims. Thus, the third author was a
party to the proceedings and listed as one of the petitioners in the
decision of the Constitutional Court of 10 June 2002. Whether or not the
fourth author ultimately refunded to him the landowners' contributions and
legal fees was immaterial for his locus standi. It was apparent from the
files that the fourth author had requested, and been refused, to join the
assessment proceedings as a party, since the impugned administrative act
addressed the issue of his standing. He also had a procedural and monetary
interest in their outcome, as the deed of sale of the plot of land signed
and executed on 15 June 1998, in conformity with Austrian legal practice,
explicitly stipulated that "taxes and contributions" are transferred to the
buyer. In the absence of any applicable exception, the lien on the property
acquired would have required the fourth author to pay the contribution
irrespective of whether the acquisition amounted to universal succession.
Both authors therefore had locus standi, considering that admissibility
requirements should be applied with a certain degree of flexibility. [FN7]
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[FN7] The authors refer to the jurisprudence of the European Court of Human
Rights, inter alia, in Stögmüller v. Austria, judgment of 10 November 1969,
Series A, No. 9, at para. 11, and Ringeisen v. Austria, judgment of 16 July
1971, Series A, No. 13, at paras. 89 and 92.
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7.3 The authors argue that, although different exigencies justifying a "dual
system" of landowners' contributions applied to the modernization of
wastewater treatment in the City and in the rest of the Province of Salzburg
in the 1960s, such differences had ceased to exist by the end of the 1990s,
when 90 percent of households and businesses in both the City and in the
Province of Salzburg were connected to municipal sewer systems. Relevant
statistics [FN8] showed that population growth and increase of construction
in residential areas are in fact more dynamic in other municipalities in the
Province of Salzburg, especially in the rapidly developing areas in the
vicinity of the City. The State party should have reviewed its legislation
in the light of these factual changes. [FN9] Its argument that, outside the
City, sewerage systems could be constructed based on more stable data no
longer applied and was not supported by statistics, surveys, maps, or zoning
plans in the State party's merits submission.
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[FN8] Detailed statistics are included in the communication.
[FN9] By way of analogy, the authors refer to the Committee's jurisprudence
that the Covenant must be interpreted in the light of changing social
standards and perceptions. See Communication No. 172/1984, S.W.M. Broeks v.
The Netherlands, Views adopted on 9 April 1987, at para. 14; Communication
No. 182/1984, Zwaan-de Vries v. The Netherlands, Views adopted on 9 April
1987, at para. 14.
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7.4 The authors deny that the Landowners' Contributions Act is applied to
their benefit, insofar as landowners are not required to contribute to the
construction costs for new sewage disposal plants, which are rather financed
through periodical usages fees. The City regulations still required them to
pay three to four times higher contributions compared to the rest of the
Province, if the calculation was based on the size of living space of the
dwelling currently existing or under construction on the plot, the only
reasonable and objective criterion, indicative of the number of persons
residing on the property and using the water disposal system.
7.5 Concerning the absence of differentiation between landowners within the
City of Salzburg, the authors submit that the question is not whether they
could have limited their property rights by asking for only a fraction of
their plots of land to be declared a "building site", in order to reduce
their landowners' contributions, but whether the calculation method applied
reasonably or unreasonably differentiated between owners of plots designated
as "rural" and owners of plots designated as "building land". While such a
declaration would have reduced the amount of their contributions, it would
not have changed the way they were calculated, which was at the basis of the
alleged breach of article 26 of the Covenant.
7.6 Lastly, the authors submit that section 24 of the Zoning Law places
exceptionally strict restrictions on the construction of extensions and
additions in "rural" zones, as such additions may not alter the size and
appearance of the existing buildings. Moreover the limitation of the living
space to 250 square meters per floor would render any extension of their
buildings virtually impossible. While subscribing to the legislative aim of
conservation of nature, the authors note that the Landowners' Contributions
Act dos not make adequate provision for cases like theirs, where the
property is particularly large, yet subject to restrictions which prevent
further construction and thereby an increased use of the sewerage lines and
installations.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
8.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
8.2 The Committee notes the State party's uncontested submission that the
fourth author remitted the amount charged to the third author in the
decision of the Municipality of Salzburg of 22 February 1999, as well as the
legal costs awarded to the City of Salzburg in the Administrative Court's
decision of 28 April 2003. It observes that the third author's claim under
article 26 of the Covenant has become moot with the fulfillment of his
payment obligations. The communication is therefore inadmissible, under
article 1 of the Optional Protocol, insofar as the third author is
concerned.
8.3 The Committee notes the State party's argument that the fourth author
has no victim status, as he was not legally obliged to pay the landowners'
contributions charged to the third author, in the absence of an explicit
clause to that effect in the sales contract or in the decision on the
distribution of the amount constituting the highest bid, dated 12 June 1998.
It also notes the State party's contention that he failed to exhaust
domestic remedies, since no request to join the landowners' contributions
assessment proceedings can be traced in the files. It finally notes the
fourth author's objection that he was legally obliged to reimburse the third
author and was prevented from exhausting domestic remedies, because the
Municipality of Salzburg, by decision of 22 February 1999, rejected him as a
party to the assessment proceedings.
8.4 Concerning the fourth author's locus standi under article 1 of the
Optional Protocol, the Committee notes that the deed of the sale of the plot
of land, executed on 16 June 1998 by a notary public, states that, along
with the possession, usufruct and benefits, any risk, taxes and
contributions are passed on to the buyer, the fourth author. [FN10]
Irrespective of the existence of a lien on the acquired property, the
Committee is therefore satisfied that the fourth author has substantiated,
for purposes of admissibility, that he was directly affected by the
imposition of the landowners' contributions originally charged to the third
author and remitted by the fourth author, in fulfillment of his contractual
obligations under the sales contract.
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[FN10] See of the deed of sale of the plot of land, executed on 16 June 1998
by Mr. G. S., public notary, file no. 14526/98, at p. 4.
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8.5 Regarding domestic remedies, the Committee recalls that article 5,
paragraph 2 (b), of the Optional Protocol only requires authors to exhaust
all available domestic remedies and observes that the State party has failed
to describe which legal remedies would have been available to the fourth
author, after the Municipality of Salzburg rejected his request to join the
assessment proceedings as a party.
8.6 However, the Committee considers that the fourth author has failed to
substantiate his claim that this rejection amounted to a denial of his right
to equal access to the courts, in violation of article 14, paragraph 1, of
the Covenant.
8.7 As to the alleged violation of article 26 of the Covenant, the Committee
considers that the authors have sufficiently substantiated their claim, for
purposes of admissibility. It follows that the communication is admissible
to the extent that it appears to raise issues under article 26 of the
Covenant, insofar as the first, second and fourth authors are concerned.
CONSIDERATION OF THE MERITS
9.1 The Committee has considered the merits of the communication in the
light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
9.2 The Committee begins by noting that, pursuant to article 50 of the
Covenant, the delegation of competence for the construction and management
of sewage disposal plants to Austrian provinces and municipalities does not
relieve the State party of its obligations under the Covenant. See, e.g.,
Communications Nos. 298/1988 and 299/1988, Lindgren et al. v. Sweden and
Lindquist et al. v. Sweden, Views adopted on 9 November 1990, at para. 10.4.
[FN11] Accordingly, the State party's responsibility may be engaged by
virtue of the impugned decisions of the Municipality of Salzburg based on
provincial legislation, which have, moreover, been confirmed by the Austrian
courts.
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[FN11] See, e.g., Communications Nos. 298/1988 and 299/1988, Lindgren et al.
v. Sweden and Lindquist et al. v. Sweden, Views adopted on 9 November 1990,
at para. 10.4.
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9.3 The question before the Committee is whether the relevant legislation
regarding the financial contributions of landowners in the Municipality of
Salzburg to the construction of municipal sewerages violates article 26 of
the Covenant by first not distinguishing between plots of an urban character
designated as "building land" and "rural" plots of land with a building
site, and second by using the size of plots of land (so called "length") as
basis for the calculation of the contributions instead of linking them to
the size of living space as is done in all other municipalities of the
Province of Salzburg.
9.4. The Committee recalls that under article 26, discrimination in the
equal protection of the law is prohibited on any grounds such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. [FN12] It notes that an
indirect discrimination may result from a failure to treat different
situations differently, if the negative results of such failure exclusively
or disproportionaly affect persons of a particular race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. [FN13] While the Committee does not exclude
that "residence" may be a "status" that prohibits discrimination, it notes
that the alleged failure to distinguish between "urban" and "rural" plots of
land is not linked to a particular place of residence within the
municipality of Salzburg but depends on their assignment to a particular
zoning area. The Committee also takes note of the State party's explanation
that the degree of contributions for "rural" parcels does depend on how much
of the plot its owner sought to have designated as an area where a building
may be constructed. The Committee concludes that the failure to distinguish
between urban "building land" and "rural" plots of land with a building site
is neither discriminatory by reference to any of the grounds mentioned in
article 26 of the Covenant, nor arbitrary.
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[FN12] Communication No. 196/1983, Gueye v. France, Views adopted on 3 April
1989, at para. 9.4.
[FN13] See, e.g., Communication No. No. 998/2001 Althammer v. Austria, Views
adopted on 8 August 2003, at para. 10.2.
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9.5 With regard to the claim that the different treatment of landowners in
the City of Salzburg and landowners elsewhere in the Province of Salzburg,
concerning the calculation of their landowners' contributions for the
construction of new sewer systems for their plots of land, is not based on
objective and reasonable criteria, as required by article 26 of the
Covenant, the Committee considers that the authors' argument relating to the
perceived more dynamic increases in population and incidence of construction
in other parts of the Province of Salzburg does not exclude that the
construction costs for the sewer network in the more densely populated
Municipality of Salzburg may still be higher than in the rest of the
Province, as claimed by the State party.
9.6 In this connection, the Committee notes that the authors admit that
their landowners' contributions would still be three to four times higher,
if compared to the rest of the Province, even if the calculation was based
on the size of the living space of the dwelling situated on the+ plot of
land. It cannot therefore be concluded that the different levels of
contributions in- and outside the City of Salzburg result exclusively from
the different calculation methods applied under the 1976 Salzburg Provincial
Landowners' Contributions Act and the 1962 Act applicable to the other
municipalities in the Province of Salzburg. The Committee therefore
considers that the authors have failed to demonstrate that their different
treatment was not based on objective and reasonable criteria.
9.7 The Committee, moreover, considers that nothing in the decisions of the
Appeals Commission in Building Matters of the Municipality of the City of
Salzburg, dated 28 May and 2 July 1999, or in the decision of the
Administrative Court of 28 April 2003 indicates that the application by
these tribunals of the relevant provisions of the Landowners' Contributions
Act (1976) was based on manifestly arbitrary considerations.
9.8 The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it do not disclose a violation
of article 26 of the Covenant.
_____________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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