Stoisits: Police breaks into an apartment while the tenant is on holiday. Who has to pay for the damage?

Police breaks into an apartment while the tenant is on holiday. Who has to pay for the damage?

ORF-Series “Bürgeranwalt“ („Advocate for People“) – Broadcast on October 24th 2009

Mr. S. from Greece is currently enrolled in his doctoral studies in Vienna and lives in an apartment on the raised ground floor. As his apartment already has been burgled once, he decided to keep the lights and radio in his apartment on during his next stay abroad. Before he left, Mr. S. informed his landlady who lives in the same building and gave her a key to his apartment. Some days after his departure another neighbour noticed the lights and the radio and called for the police. For the purpose of inspection, the police called the fire brigade, who forced the door open. On his return, Mr. S. found the door to his apartment provisionally locked and had it repaired as quickly as possible. According to the respective Austrian act (Polizeibefugnis-Entschädigungsgesetz), Mr. S. submitted a request for the compensation of the caused repair costs of € 694,20. His request was dismissed informing him that on the basis of personal negligence the police would not cover the damage. Mr. S. contacted the Austrian Ombudsman Board for help.

In the studio, Mr. Hladik from the Vienna Police Department updated Mr. S. that the notification has been annulled by the Federal Ministry of the Interior. Further investigations will show whether or not personal negligence has been the case. Ombudsperson Stoisits was pleased to hear about this annulment. In her opinion, the notification sent to Mr. S. proved to be unsound. Neither did it include a completed gathering of evidence, nor had there been any hearing of parties. Mr. S. was accused of personal negligence without pursuing any further investigation. The Vienna Police Department reassured that this would also be part of the new investigation.

Ombudsperson Stoisits welcomed the fact that the Ministry finally engaged in proper investigations which would determine whether Mr. S. would be compensated for the damage.

Chronically ill due to infrasound: vibrations interfere with a pensioner’s quality of life

For several years Mrs. R. has suffered from a severe sleeping disorder. While trying to locate the source of the problem she noticed buzzing sounds and vibrations in her apartment. Further investigations showed that these sounds and vibrations were caused by compressors in a SPAR supermarket located in the basement of her building. Mr. Bedar, graduate engineer and professor at the University of Vienna confirms that the sound of a machine can indeed transfer acoustic emissions to the neighbourhood and can then be sensed by specifically sensitive people. The supermarket chain SPAR was cooperative and proved that all machines had been officially approved and certified. An on-site inspection of the engine room as well as of Mrs. R.’s apartment was carried out by various authorities such as the Environmental Department of the City of Vienna and the Labour Regulations Inspectorate. No disturbances could be found. Desperate about her situation Mrs. R. addressed the Austrian Ombudsman Board.

The supermarket chain SPAR as well as the responsible municipal authority, did not send a representative to the TV discussion. Both parties however provided written statements. SPAR re-assured that several improvement measures such as acoustic measurements and sound decoupling had been taken without any success. A written statement from the municipal authority of Vienna declared that none of the investigations provided evidence of the alleged disturbances. Measures could only be taken if the emissions reached an extent which would become unacceptable to a normally sentient being.

In the studio, Ombudsperson Stoisits pointed out that Mrs. R. and her specifically sensitive perception of sounds is by far no exception. Recently more and more people with similar complaints approach the Austrian Ombudsman Board. Unfortunately the hands of the Austrian Ombudsman Board are tied as the use of all machines in question were correctly tested and approved by authorities. However, Ombudsperson Stoisits reiterated that the public must be more aware of this problem. She addressed the authorities to develop a better understanding and to consider it when approving new building projects. She called on the legislative to review the Austrian standards (Ö-Norm) in this regard and – if necessary – even to adapt them accordingly.

Follow-up: Does new four-lane freeway violate the Alpine Convention?

The construction of a four-lane freeway between Carinthia and Styria should shorten the distance from Vienna to Klagenfurt by 30 kilometres. It can be expected that heavy traffic will move to this new transit route, thus severely interfering with the quality of life of the people living in this region. The local population therefore joined forces and founded 60 action groups. In the broadcast of 22 November 2008 Ombudsperson Stoisits criticised the breach of the Traffic Protocol of the Alpine Convention which forbids building new high-level roads for cross-alpine traffic. The Federal Ministry of Traffic, Innovation and Technology however argued that the project constituted a link for the inter-alpine traffic and was therefore not subject to the protocol. During the broadcast all parties involved agreed that it needed to be clarified whether the project was to be categorized as a cross-alpine or inter-alpine freeway.

One year later it became quite obvious that the Ministry of Traffic, Innovation and Technology showed no interest in clarifying this question. The residents themselves took action and assigned an expert from the Vienna University of Technology in order to clarify the situation. His results clearly show that this project has to be categorized as cross-alpine traffic. However, the project is still being pursued by the authorities.
In the studio Mr. Honegger, Head of the ASFINAG planning department, confirmed that proceedings were still under way. He re-assured, that all necessary legal formalities and measures would be taken, especially when it comes to the relocation of the river Mur within a nature protection area. In addition, comprehensive investigations showed that this project was not subject to the Traffic Protocol of the Alpine Convention, as the new S37 road would merely replace the existing B317.
Ombudsperson Stoisits criticised that the authorities showed no action to clarify the problem of the categorisation of the planned road. The residents themselves had to take action. Ombudsperson Stoisits expressed her disappointment about the fact that the Ministry of Traffic, Innovation and Technology still pressed ahead with this project. An investigative proceeding carried out by the Austrian Ombudsman Board clearly proved that building this road would violate the Traffic Protocol of the Alpine Convention. Ombudsperson Stoisits assumed that such statutory violations could never lead to the start of construction works and promised that the Austrian Ombudsman Board would continue to follow up on this case.