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You are here: BAILII >> Databases >> European Court of Human Rights >> SCHMAUTZER v. AUSTRIA - 15523/89 [1995] ECHR 40 (23 October 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/40.html Cite as: 21 EHRR 511, [1995] ECHR 40, (1996) 21 EHRR 511

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In the case of Schmautzer v. Austria (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr S.K. Martens,

Mr I. Foighel,

Mr J.M. Morenilla,

Sir John Freeland,

Mr J. Makarczyk,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 28 April and 28 September 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 31/1994/478/560. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of

Human Rights ("the Commission") on 9 September 1994, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 15523/89) against the Republic of Austria lodged with

the Commission under Article 25 (art. 25) by an Austrian national,

Mr Peter Schmautzer, on 26 May 1989.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Austria recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings; the President gave him leave to

present his own case (Rule 30) and to use the German language (Rule 27

para. 3).

3. On 24 September 1994 the President of the Court decided, under

Rule 21 para. 6 and in the interests of the proper administration of

justice, that a single Chamber should be constituted to consider the

instant case and the cases of Umlauft, Gradinger, Pramstaller, Palaoro

and Pfarrmeier v. Austria (1).

_______________

1. Cases nos. 32/1994/479/561, 33/1994/480/562, 35/1994/482/564,

36/1994/483/565 and 37/1994/484/566.

_______________

The Chamber to be constituted for this purpose included ex

officio Mr F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On the same day, in the

presence of the Registrar, the President drew by lot the names of the

other seven members, namely Mr L.-E. Pettiti, Mr R. Macdonald,

Mr S.K. Martens, Mr I. Foighel, Mr J.M. Morenilla, Sir John Freeland

and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21

para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Austrian Government

("the Government"), the applicant and the Delegate of the Commission

on the organisation of the proceedings (Rules 37 para. 1 and 38).

Pursuant to the order made in consequence, the Registrar received the

Government's memorial on 20 January 1995 and the applicant's memorial

on 30 January 1995. On 3 February the Commission supplied the

Registrar with various documents that he had requested on the

President's instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

26 April 1995. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr F. Cede, Ambassador, Head of the International

Law Department, Federal Ministry of

Foreign Affairs, Agent,

Ms I. Sieß, Constitutional Department,

Federal Chancellery,

Ms E. Bertagnoli, International Law Department,

Federal Ministry of Foreign Affairs, Advisers;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) the applicant

Mr P. Schmautzer, Rechtsanwalt.

The Court heard addresses by Mr Weitzel, Mr Schmautzer and

Mr Cede, and a reply to the question it put.

AS TO THE FACTS

I. Circumstances of the case

6. On 30 April 1986 Mr Peter Schmautzer was stopped by the police

while driving his car. He was not wearing his safety-belt. In a

"sentence order" (Straferkenntnis) of 1 June 1987 the federal police

authority (Bundespolizeidirektion) in Graz imposed on him a fine of

300 Austrian schillings (ATS) with twenty-four hours' imprisonment in

default of payment, for an offence under section III(1) and (5)(a) of

the third amendment to the Motor Vehicles Act (Kraftfahrgesetz - see

paragraph 10 below).

7. The applicant appealed against that decision to the Styria

regional government (Amt der Landesregierung), which upheld the

decision on 2 February 1988 but reduced the fine to ATS 200 and the

penalty in default to fourteen hours' imprisonment.

8. On 6 April 1988 the applicant applied to the Constitutional Court

(Verfassungsgerichtshof). He complained of an infringement of the

principle that all citizens are equal before the law and alleged that

his being sentenced to imprisonment in default by an administrative

authority that was not an "independent and impartial" tribunal breached

Articles 5 and 6 (art. 5, art. 6) of the Convention. He also argued

that the requirement to wear a safety-belt was an interference in his

private life, contrary to Article 8 (art. 8) of the Convention.

On 27 February 1989, at the conclusion of a consideration of the

case in private, the Constitutional Court declined to accept the appeal

for adjudication (Article 144 para. 2 of the Federal Constitution

(Bundes-Verfassungsgesetz) - see paragraph 12 below), since, in view

of its case-law on Article 6 (art. 6) of the Convention, it did not

have sufficient prospects of success; moreover, the case did not lie

outside the jurisdiction of the Administrative Court

(Verwaltungsgerichtshof).

At Mr Schmautzer's request, it also decided to refer the

application to the Administrative Court.

9. On 20 September 1989 the Administrative Court stayed the

proceedings before it as Mr Schmautzer's application did not satisfy

the substantive and formal requirements of section 34(2) of the

Administrative Court Act (Verwaltungsgerichtshofsgesetz - see

paragraph 14 below).

II. Relevant domestic law

A. Road traffic legislation

10. Section III of the 1976 Act as amended in 1984, which amended the

Motor Vehicles Act 1967 (Kraftfahrgesetz), provides:

"1. Where a seat in a motor vehicle is equipped with a

safety-belt as required by the Motor Vehicles Act, the driver and

passengers occupying such a seat must wear the safety-belt in the

conventional manner (bestimmungsgemäß) ...

...

5. It shall be an administrative offence ... punishable, in a

sentence order without a hearing (Organstrafverfügung) pursuant

to section 50 of the Administrative Criminal Justice Act 1950,

with a fine of ATS 100 for

(a) the driver of a motor vehicle or

(b) a passenger in a motor vehicle

not to comply with the requirement in subsection (1), first

sentence. In the event of refusal to pay the ... fine, the

authority may impose a fine of up to ATS 300, with up to

twenty-four hours' imprisonment in default of payment.

..."

B. Procedure

11. Article 90 para. 1 of the Federal Constitution

(Bundes-Verfassungsgesetz) provides:

"Hearings by trial courts in civil and criminal cases shall be

oral and public. Exceptions may be prescribed by law."

1. Proceedings in the Constitutional Court

12. By Article 144 para. 1 of the Federal Constitution the

Constitutional Court, when an application (Beschwerde) is made to it,

has to determine whether an administrative decision (Bescheid) has

infringed a right guaranteed by the Constitution or has applied

regulations (Verordnung) contrary to the law, a law contrary to the

Constitution or an international treaty incompatible with Austrian law.

Article 144 para. 2 provides:

"Up to the time of the hearing the Constitutional Court may by

means of a decision (Beschluß) decline to accept a case for

adjudication if it does not have sufficient prospects of success

or if it cannot be expected that the judgment will clarify an

issue of constitutional law. The court may not decline to accept

for adjudication a case excluded from the jurisdiction of the

Administrative Court by Article 133."

2. Proceedings in the Administrative Court

13. By Article 130 para. 1 of the Federal Constitution, the

Administrative Court has jurisdiction to hear, inter alia, applications

alleging that an administrative decision is unlawful.

14. Section 34(2) of the Administrative Court Act

(Verwaltungsgerichtshofsgesetz) provides:

"Applications which are not barred by any of the circumstances

set out in subsection (1), but fail to satisfy the conditions as

to form and content laid down in sections 23, 24, 28 and 29, must

be adjourned for a brief period to enable their defects to be

remedied (Behebung der Mängel); applications not rectified within

the time-limit shall be deemed to have been withdrawn."

15. Section 39(1) provides, in particular, that at the end of the

preliminary proceedings (Vorverfahren) the Administrative Court must

hold a hearing where the applicant makes a request to that effect.

Section 39(2) reads as follows:

"Notwithstanding a party's application under subsection (1), the

Administrative Court may decide not to hold a hearing where

1. the proceedings must be stayed (section 33) or the

application dismissed (section 34);

2. the impugned decision must be quashed as unlawful because

the respondent authority lacked jurisdiction (section 42(2)(2));

3. the impugned decision must be quashed as unlawful on

account of a breach of procedural rules (section 42(2)(3));

4. the impugned decision must be quashed because its content

is unlawful according to the established case-law of the

Administrative Court;

5. neither the respondent authority nor any other party before

the court has filed pleadings in reply and the impugned decision

is to be quashed;

6. it is apparent to the court from the pleadings of the

parties to the proceedings before it and from the files relating

to the earlier administrative proceedings that a hearing is not

likely to clarify the case further."

Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958;

sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in

1982.

16. Section 41(1) of the Administrative Court Act provides:

"In so far as the Administrative Court does not find any

unlawfulness deriving from the respondent authority's lack of

jurisdiction or from breaches of procedural rules

(section 42(2)(2) and (3)) ..., it must examine the impugned

decision on the basis of the facts found by the respondent

authority and with reference to the complaints put forward ...

If it considers that reasons which have not yet been notified to

one of the parties might be decisive for ruling on [one of these

complaints] ..., it must hear the parties on this point and

adjourn the proceedings if necessary."

17. Section 42(1) of the same Act states that, save as otherwise

provided, the Administrative Court must either dismiss an application

as ill-founded or quash the impugned decision.

By section 42(2),

"The Administrative Court shall quash the impugned decision if

it is unlawful

1. by reason of its content, [or]

2. because the respondent authority lacked jurisdiction, [or]

3. on account of a breach of procedural rules, in that

(a) the respondent authority has made findings of fact which

are, in an important respect, contradicted by the case file, or

(b) the facts require further investigation on an important

point, or

(c) procedural rules have been disregarded, compliance with

which could have led to a different decision by the respondent

authority."

18. If the Administrative Court quashes the impugned decision, "the

administrative authorities [are] under a duty ... to take immediate

steps, using the legal means available to them, to bring about in the

specific case the legal situation which corresponds to the

Administrative Court's view of the law (Rechtsanschauung)"

(section 63(1)).

19. In a judgment of 14 October 1987 (G 181/86) the Constitutional

Court held:

"From the fact that it has been necessary to extend the

reservation in respect of Article 5 (art. 5) of the Convention

to cover the procedural safeguards of Article 6 (art. 6) of the

Convention, because of the connection between those two

provisions (art. 5, art. 6), it follows that, conversely, the

limited review (die (bloß) nachprüfende Kontrolle) carried out

by the Administrative Court or the Constitutional Court is

insufficient in respect of criminal penalties within the meaning

of the Convention that are not covered by the reservation."

3. The "independent administrative tribunals"

20. Pursuant to Article 129 of the Federal Constitution,

administrative courts called "independent administrative tribunals"

(Unabhängige Verwaltungssenate) were set up in the Länder with effect

from 1 January 1991. The functions of these tribunals include

determining both the factual and the legal issues arising in cases

concerning administrative offences (Verwaltungsübertretungen).

III. Austria's reservation in respect of Article 5 (art. 5) of the

Convention

21. The instrument of ratification of the Convention deposited by the

Austrian Government on 3 September 1958 contains, inter alia, a

reservation worded as follows:

"The provisions of Article 5 (art. 5) of the Convention shall be

so applied that there shall be no interference with the measures

for the deprivation of liberty prescribed in the laws on

administrative procedure, BGBl [Federal Official Gazette]

No. 172/1950, subject to review by the Administrative Court or

the Constitutional Court as provided for in the Austrian Federal

Constitution."

PROCEEDINGS BEFORE THE COMMISSION

22. Mr Schmautzer applied to the Commission on 26 May 1989. Relying

on Articles 5 and 6 (art. 5, art. 6) of the Convention, he complained

that in proceedings which could result in his being sentenced to a term

of imprisonment he had not had access to an independent and impartial

tribunal. He also complained of an interference in his private life

on account of the requirement to wear a safety-belt, contrary to

Articles 8 and 14 (art. 8, art. 14) of the Convention.

23. On 10 May 1993 the Commission declared the application

(no. 15523/89) admissible as to the complaint raised under Article 6

(art. 6) and declared it inadmissible as to the remainder.

In its report of 19 May 1994 (Article 31) (art. 31), it expressed

the opinion that there had been a violation of Article 6 para. 1

(art. 6-1) as regards access to a court (unanimously) and that no

separate issue arose under Article 6 para. 1 (art. 6-1) as to the

failure to hold a hearing (unanimously). The full text of the

Commission's opinion and of the concurring opinion contained in the

report is reproduced as an annex to this judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 328-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

24. In their memorial the Government asked the Court to hold that

"Article 6 (art. 6) of the Convention is not applicable in the

present case; or alternatively, that Article 6 (art. 6) of the

Convention was not violated in the administrative criminal

proceedings underlying the application".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

25. The applicant complained of a violation of Article 6 para. 1

(art. 6-1) of the Convention, which provides:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal ..."

He had, he maintained, been denied the right to a "tribunal" and

to a hearing before such a body.

A. Applicability of Article 6 para. 1 (art. 6-1)

1. Whether there was a "criminal charge"

26. In Mr Schmautzer's submission, the administrative criminal

offence of which he was accused gave rise to a "criminal charge". This

was not disputed by the Government.

27. In order to determine whether an offence qualifies as "criminal"

for the purposes of the Convention, it is first necessary to ascertain

whether or not the provision (art. 6-1) defining the offence belongs,

in the legal system of the respondent State, to criminal law; next the

"very nature of the offence" and the degree of severity of the penalty

risked must be considered (see, among other authorities, the Öztürk v.

Germany judgment of 21 February 1984, Series A no. 73, p. 18, para. 50,

and the Demicoli v. Malta judgment of 27 August 1991, Series A no. 210,

pp. 15-17, paras. 31-34).

28. Like the Commission, the Court notes that, although the offences

in issue and the procedures followed in the case fall within the

administrative sphere, they are nevertheless criminal in nature. This

is moreover reflected in the terminology employed. Thus Austrian law

refers to administrative offences (Verwaltungsstraftaten) and

administrative criminal procedure (Verwaltungsstrafverfahren). In

addition, the fine imposed on the applicant was accompanied by an order

for his committal to prison in the event of his defaulting on payment

(see paragraph 10 above).

These considerations are sufficient to establish that the offence

of which the applicant was accused may be classified as "criminal" for

the purposes of the Convention. It follows that Article 6 (art. 6)

applies.

2. Austria's reservation in respect of Article 5 (art. 5) of

the Convention

29. According to the Government, the procedure in question was

covered by Austria's reservation in respect of Article 5 (art. 5) of

the Convention. There could be no doubt that by the reference in that

reservation to "measures for the deprivation of liberty" the Austrian

Government had meant to include proceedings resulting in such measures.

Any other construction would not only lack coherence; it would also run

counter to the authorities' intention, which had been to remove from

the scope of the Convention the whole administrative system, including

the substantive and procedural provisions of administrative criminal

law. That would be so even in a case where, as in this instance, the

accused was merely fined, in so far as default on payment of that fine

would entail committal to prison.

Admittedly, the Motor Vehicles Act 1967 was not one of the four

laws designated in the reservation. However, one of those laws, the

Administrative Criminal Justice Act, stated in section 10 that, except

as otherwise provided, the general administrative laws were to

determine the nature and severity of sanctions. It mattered little in

this respect that section III of the third amended version of the Motor

Vehicles Act, which was applied in the present case, had been enacted

after the reservation had been deposited, because that provision merely

clarified the substance of an existing obligation laid down in the

Motor Vehicles Act 1955.

30. The applicant argued that the reservation could not apply in the

present case. In the first place, it failed to satisfy the

requirements of Article 64 (art. 64) of the Convention, which provides:

"1. Any State may, when signing [the] Convention or when

depositing its instrument of ratification, make a reservation in

respect of any particular provision of the Convention to the

extent that any law then in force in its territory is not in

conformity with the provision. Reservations of a general

character shall not be permitted under this Article (art. 64).

2. Any reservation made under this Article (art. 64) shall

contain a brief statement of the law concerned."

Secondly, on a strict construction, its wording precluded

extending its scope to the procedural sphere, which was in issue here.

31. The Court points out that in the Chorherr v. Austria judgment of

25 August 1993 it held that Austria's reservation in respect of

Article 5 (art. 5) of the Convention was compatible with Article 64

(art. 64) (Series A no. 266-B, p. 35, para. 21). It therefore remains

only to ascertain whether the provisions applied (art. 5, art. 64) in

the present case are covered by that reservation. They differ in

certain essential respects from those in issue in the Chorherr case.

The Court notes that Mr Schmautzer based his complaints on

Article 6 (art. 6) of the Convention, whereas the wording of the

reservation invoked by the Government mentions only Article 5 (art. 5)

and makes express reference solely to measures for the deprivation of

liberty. Moreover, the reservation only comes into play where both

substantive and procedural provisions of one or more of the four

specific laws indicated in it have been applied. Here, however, the

substantive provisions of a different Act, the Motor Vehicles Act 1967,

were applied.

These considerations are a sufficient basis for concluding that

the reservation in question does not apply in the instant case.

B. Compliance with Article 6 para. 1 (art. 6-1)

1. Access to a tribunal

32. Mr Schmautzer contended that none of the bodies that had dealt

with his case in the proceedings in issue could be regarded as a

"tribunal" within the meaning of Article 6 para. 1 (art. 6-1). This

was true not only of the administrative authorities, but also of the

Constitutional Court, whose review was confined to constitutional

issues, and above all of the Administrative Court. The latter was

bound by the administrative authorities' findings of fact, except where

there was a procedural defect within the meaning of section 42(2),

sub-paragraph 3, of the Administrative Court Act (see paragraph 17

above). It was therefore not empowered to take evidence itself, or to

establish the facts, or to take cognisance of new matters. Moreover,

in the event of its quashing an administrative measure, it was not

entitled to substitute its own decision for that of the authority

concerned, but had always to remit the case to that authority. In

short, its review was confined exclusively to questions of law and

therefore could not be regarded as equivalent to that of a body with

full jurisdiction.

33. The Government contested this view, whereas the Commission

accepted it.

34. The Court reiterates that decisions taken by administrative

authorities which do not themselves satisfy the requirements of

Article 6 para. 1 (art. 6-1) of the Convention - as is the case in this

instance with the federal police authority and the regional government

(see paragraphs 6 and 7 above) - must be subject to subsequent control

by a "judicial body that has full jurisdiction" (see, inter alia and

mutatis mutandis, the following judgments: Albert and Le Compte v.

Belgium of 10 February 1983, Series A no. 58, p. 16, para. 29; Öztürk,

previously cited, pp. 21-22, para. 56; and Fischer v. Austria of

26 April 1995, Series A no. 312, p. 17, para. 28).

35. The Constitutional Court is not such a body. In the present case

it could look at the impugned proceedings only from the point of view

of their conformity with the Constitution, and this did not enable it

to examine all the relevant facts. It accordingly lacked the powers

required under Article 6 para. 1 (art. 6-1).

36. The powers of the Administrative Court must be assessed in the

light of the fact that the court in this case was sitting in

proceedings that were of a criminal nature for the purposes of the

Convention. It follows that when the compatibility of those powers

with Article 6 para. 1 (art. 6-1) is being gauged, regard must be had

to the complaints raised in that court by the applicant as well as to

the defining characteristics of a "judicial body that has full

jurisdiction". These include the power to quash in all respects, on

questions of fact and law, the decision of the body below. As the

Administrative Court lacks that power, it cannot be regarded as a

"tribunal" within the meaning of the Convention. Moreover, in a

judgment of 14 October 1987 the Constitutional Court held that in

respect of criminal penalties not covered by the reservation in respect

of Article 5 (art. 5), the limited review carried out by the

Administrative Court or the Constitutional Court was insufficient (see

paragraph 19 above).

37. It follows that the applicant did not have access to a

"tribunal". There has accordingly been a violation of Article 6

para. 1 (art. 6-1) on this point.

2. Lack of a hearing

38. Mr Schmautzer further criticised the Administrative Court for

failing to hold a hearing.

39. Having regard to the conclusion in paragraph 37 above, the Court

does not consider it necessary to examine this complaint.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

40. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

41. The Delegate of the Commission left the matter of just

satisfaction to the discretion of the Court.

A. Damage

42. In respect of pecuniary damage, the applicant claimed repayment

of the fine imposed on him, that is to say ATS 200.

43. The Government contended that the Court had no jurisdiction to

quash convictions pronounced by national courts or to order repayment

of fines. Moreover, it could not, in awarding reparation, speculate

as to what the outcome of the proceedings would have been if the

applicant had had access to a tribunal within the meaning of

Article 6 para. 1 (art. 6-1) of the Convention.

44. The Court agrees. It cannot speculate as to what the outcome of

the proceedings in issue might have been if the violation of the

Convention had not occurred (see the Hauschildt v. Denmark judgment of

24 May 1989, Series A no. 154, p. 24, para. 57; the Saïdi v. France

judgment of 20 September 1993, Series A no. 261-C, p. 58, para. 49; and

the Fischer judgment, previously cited, p. 21, para. 47). It considers

that, in the circumstances of the case, the present judgment affords

the applicant sufficient reparation.

B. Costs and expenses

45. In addition, Mr Schmautzer claimed the sum of ATS 111,217 for the

costs and expenses incurred in the proceedings in the domestic courts

and then before the Convention institutions.

46. The Government expressed the view that only the proceedings in

the Administrative Court - which had given rise to the alleged

violations - and those in Strasbourg could be taken into account. They

also contested the quantum of the costs, but they were prepared to

reimburse a total of ATS 54,900.

47. Making an assessment on an equitable basis, having regard to the

information in its possession and its case-law, the Court awards

Mr Schmautzer ATS 70,000.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 para. 1 (art. 6-1) of the Convention applies

in this case;

2. Holds that there has been a violation of that Article (art. 6-1)

as regards access to a court;

3. Holds that it is not necessary to examine the complaint based on

the lack of a hearing in the Administrative Court;

4. Holds that the respondent State is to pay the applicant, within

three months, 70,000 (seventy thousand) Austrian schillings in

respect of costs and expenses;

5. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 23 October 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the separate

opinion of Mr Martens is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

SEPARATE OPINION OF JUDGE MARTENS

1. I concur in the Court's finding that Article 6 (art. 6) has been

violated, but cannot agree with its reasoning.

2. My objections concern paragraph 36 of the judgment, which starts

with the statement:

"The powers of the Administrative Court must be assessed in the

light of the fact that the court in this case was sitting in

proceedings that were of a criminal nature for the purposes of

the Convention."

3. I will refrain from a structural criticism of this paragraph.

I cannot help noting, however, that here again the Court finds it

necessary to remark that when it is being assessed whether or not the

Administrative Court is to be considered a court that affords the

safeguards of Article 6 para. 1 (art. 6-1), "regard must be had to the

complaints raised in that court". One looks in vain, however, for

evidence of this methodological principle being put into practice:

there does not follow any analysis of what the applicant argued before

the Administrative Court, nor is there any trace of "regard" to these

arguments in the assessment of the adequacy of the Administrative

Court's jurisdiction. For the rest, I refer to the methodological

objections to this "test" that I raised in paragraph 18 of my separate

opinion in the case of Fischer v. Austria (judgment of 26 April 1995,

Series A no. 312).

4. My main objection to this paragraph is the following. In the

three civil cases discussed in my aforementioned separate opinion, the

Court found that the Austrian Administrative Court met the requirements

of a tribunal within the meaning of Article 6 para. 1 (art. 6-1). In

the paragraph under discussion, however, it reaches the opposite

conclusion, stressing that in this case the Administrative Court was

sitting in proceedings of a criminal nature. One cannot but infer that

the Court is of the opinion that in a case which under national law is

an "administrative" one but under the Convention is a "criminal" one,

the safeguards afforded by the tribunal that is to review the final

decision of the administrative bodies differ from those required in a

case that under national law is an "administrative" one but under the

Convention is a "civil" one. I cannot see any justification for such

differentiation, which does not find support in the wording or the

purpose of Article 6 (art. 6) (1). Nor does the Court offer one, its

decision on this crucial point being unsupported by any argument. This

is the more to be regretted as this differentiation is contrary to the

Court's case-law (2).

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1. I refer in this context to footnote 62 of my aforementioned

separate opinion in the case of Fischer v. Austria.

2. See, inter alia, the Le Compte, Van Leuven and De Meyere v. Belgium

judgment of 23 June 1981, Series A no. 43, pp. 23-24, para. 53; the

Albert and Le Compte v. Belgium judgment of 10 February 1983,

Series A no. 58, p. 17, para. 30; see also the Diennet v. France

judgment of 26 September 1995, Series A no. 325-A, pp. 13-14, para. 28.

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