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FIRST
SECTION
CASE OF KOOTTUMMEL v. AUSTRIA
(Application
no. 49616/06)
JUDGMENT
STRASBOURG
10 December 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Koottummel v.
Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 19 November 2009,
Delivers
the following judgment, which was adopted on that date.
PROCEDURE
- The
case originated in an application (no. 49616/06) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Ms Geethakumari
Koottummel (“the applicant”), on 6 December 2006.
- The
applicant was represented by Mr W.L. Weh, a lawyer practising in
Bregenz. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry for Foreign Affairs.
- The
applicant complained that there had been no oral hearing before the
Administrative Court in the proceedings concerning her request for an
employment permit for an Ayurvedic chef.
- On
23 June 2008 the Court decided to give notice of the application to
the Government. Under the provision of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant who was born in India lives in Lustenau. She runs an Indian
restaurant with Ayurvedic cuisine in Lustenau.
- On
1 October 2004 she lodged a request with the Dornbirn Labour Market
Service (Arbeitsmarktservice – LMS) for the grant of an
employment permit for an Ayurvedic chef from the South of India as a
key worker (Schlüsselarbeitskraft).
- On
2 November 2004 the Dornbirn LMS refused the request in accordance
with section 2(5) of the Aliens’ Employment Act
(Ausländerbeschäftigungsgesetz). It found that the
chef did not fulfil the conditions to be a key worker as defined in
section 2(5).
- The
applicant appealed against the refusal to the Vorarlberg LMS on
17 November 2004. She maintained in substance that the authority
had failed to assess properly the evidence.
- On
15 February 2005 the Vorarlberg LMS dismissed the applicant’s
appeal. It held that the submitted documents did not sufficiently
prove her contention that the proposed chef fulfilled the conditions
required to be a key worker or that the requested employment would
secure existing jobs or create new jobs, as required by section 2(5)
of the Aliens’ Employment Act. His professional skills could
not be seen as specific and extraordinary since any chef could with
further training obtain a certificate in Ayurvedic cuisine.
-
The applicant filed a complaint with the Administrative Court on
31 March 2005 and requested an oral hearing. In her appeal the
applicant maintained that the authorities had failed to assess the
evidence properly and give appropriate reasons. Had they done so they
should have concluded that the person to be employed qualified as a
key worker. On 7 June 2005 the Voralberg LMS submitted its comments.
- On
24 April 2006 the Administrative Court dismissed the applicant’s
complaint. In accordance with section 39(2) of the Administrative
Court Act (Verwaltungsgerichtshofgesetz) it also dismissed the
applicant’s request for an oral hearing as it found that it
would not be likely to contribute to the clarification of the case.
The decision was served on the applicant’s counsel on 6 June
2006.
II. RELEVANT DOMESTIC LAW
- The
Employment of Foreigners Act (Ausländerbeschäftigungs-gesetz)
regulates a foreigner’s access to the Austrian labour market.
Section 2 (5) of this act, as in force at the relevant time,
reads as follows:
“(5) Key
workers are foreigners who have particular training or specific know-
how and professional experience which are requested on the domestic
labour market and who would receive for their employment a monthly
gross salary of at least 60% of the maximum contribution level under
Section 108 para. 3 of the General Social Security Act.
Moreover, at least one of the following conditions must be fulfilled:
1. the
intended employment goes beyond the interest of the employing company
and is of specific relevance for the region or the sector of the
labour market concerned or
2. the
intended employment fosters the creation of new employments and
ensures the protection of existing employments or
3. the
foreigner has a crucial influence on the management of the company
(executive managerial post) or
4. the
intended employment leads to a transfer of capital investment to
Austria or
5. the
foreigner is a university or polytechnics graduate or holds a
certificate proving that he has accomplished a specially recognised
training.”
Further
relevant provisions of that act can be found in the judgments in the
cases of Jurisic and Collegium Mehrerau v. Austria (no. 62539/00,
27 July 2007) and Coorplan-Jenni GmbH and Hascic v. Austria
(no. 10523/02, 27 July 2006).
- Section
39(1) of the Administrative Court Act requires the Administrative
Court to hold a hearing after its preliminary investigation of the
case where the complainant has requested a hearing within the
time-limit. Section 39(2) (6) provides, however, that,
notwithstanding such a request, the Administrative Court may decide
not to hold a hearing if it is apparent from the written pleadings of
the parties and the files relating to the previous proceedings that
an oral hearing would not be likely to contribute to the
clarification of the case and that the lack of a hearing would not be
in breach of Article 6 of the Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that there had been no oral hearing before the
Administrative Court in the proceedings concerning her complaint of
refusal to issue an employment permit. She relied on Article 6 of the
Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- Referring
to the judgments of the Court in the cases of Jurisic and Collegium
Mehrerau v. Austria (no. 62539/00, 27 July 2007) and Coorplan-Jenni
GmbH and Hascic v. Austria (no. 10523/02, 27 July 2007), the
applicant submitted that the lack of an oral hearing before the
Administrative Court had violated her right under Article 6 of the
Convention. In this regard she also referred to a case which had been
decided by the Administrative Court (Collection of decisions
no. 17083 A/2006) and which, in her view, was similar to the
present one. In that case the Administrative Court had actually held
a hearing which had eventually been decisive for the outcome of the
proceedings. In her submission, this clearly showed that an oral
debate was more effective and fruitful than a mere exchange of
written submissions.
- The
Government argued that there had been no breach of the applicant’s
right to an oral hearing before a tribunal as the special features of
the proceedings constituted “exceptional circumstances”
which justified the absence of a hearing. They noted in this regard
that in her submissions to the Administrative Court the applicant had
not substantiated her complaint relating to the fulfilment of the
conditions required for a key worker or made out a valid case in
support of her request for an oral hearing. Furthermore the other
questions at issue had exclusively been questions of law, so that the
Administrative Court had been able adequately to decide the case on
the basis of the case file.
- The
Court notes that the applicant’s case was considered by the
Dornbirn Labour Market Service and the Vorarlberg Labour Market
Service, i.e. purely administrative authorities, and then by the
Administrative Court. The applicant did not contest that the
Administrative Court qualifies as a tribunal, and there is no
indication in the file that the Administrative Court’s scope of
review was insufficient in the circumstances of the case. Thus, the
Administrative Court was the first and only tribunal which examined
the applicant’s case (see mutatis mutandis Schelling v.
Austria, no. 55193/00, § 29, 10 November 2005)
- The
applicant was thus in principle entitled to a public oral hearing
before the first and only tribunal examining her case, unless there
were exceptional circumstances which justified dispensing with such a
hearing. The Court has accepted such exceptional circumstances in
cases where proceedings concerned exclusively legal or highly
technical questions (see Schuler-Zgraggen v. Switzerland,
24 June 1993, § 58, Series A no. 263; Varela Assalino v.
Portugal (dec.), no. 64336/01, 25 April 2002; and Speil v.
Austria (dec.) no. 42057/98, 5 September 2002).
- The
Court cannot find that in the present case the subject matter of the
proceedings before the Administrative Court was of such a nature,
namely a highly technical issue or of mere legal nature, as to
dispense with its obligation to hold a hearing (see Jurisic and
Collegium Mehrerau v. Austria, no.62539/00, 27 July 2007, and
Coorplan-Jenni GmbH and Hascic v. Austria, no. 10523/02, 27 July
2006).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant further complained under Article 6 about the length of the
proceedings concerning her request for an employment permit.
- As
regards the period to be taken into account under Article 6 § 1,
the Court observes that the proceedings started on 2 November 2004,
when the Dornbirn LMS refused the applicant’s request for the
employment permit and ended on 6 June 2006, when the final judgement
of the Administrative Court was served on the applicant’s
counsel. Thus the proceedings lasted approximately one year and eight
months for three jurisdictions, a period which can be regarded as
reasonable.
- It
follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 3,000 euros (EUR) in respect of pecuniary damage on
the grounds that she had had to provide accommodation for the chef
whose employment permit was eventually refused and had suffered loss
of income due to the denial of a work permit for him.
- The
Government contested her claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
B. Costs and expenses
- The
applicant also claimed 3,800 euros (EUR) including value added tax
(VAT) for costs and expenses incurred before the Court. She
furthermore claimed EUR 3,569.14 based on the assumption that if the
Administrative Court had held an oral hearing it would have quashed
the LMS’s decision and awarded her that sum.
- The
Government contested the claim for costs incurred before the Court as
being excessive. As regards the other claim it argued that this sum
was based on mere speculation about the outcome of the domestic
proceedings.
- The
Court reiterates that an applicant is only entitled to the
reimbursement of costs and expenses in so far as they have actually
been incurred. The Court does not find it established that the
applicant incurred, in the domestic proceedings, any costs related to
the violation found. It therefore dismisses the applicant’s
claim under this head.
- As
to the costs of the proceedings before the Court, it notes that the
applicant, who was represented by counsel, did not have the benefit
of legal aid and was only partly successful. It considers it
reasonable, having regard to similar cases, to award her EUR 2,000
under this head, plus any tax that may be chargeable to the applicant
on this amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of an
oral hearing admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
