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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> UMLAUFT v. AUSTRIA - 15527/89 [1995] ECHR 41 (23 October 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/41.html
Cite as: [1995] ECHR 41, (1996) 22 EHRR 76, 22 EHRR 76
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In the case of Umlauft 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 32/1994/479/561. 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. 15527/89) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by an Austrian national,
Mr Helmut Umlauft, on 23 August 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 and designated the lawyer who would
represent him (Rule 30).
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 Schmautzer, Gradinger, Pramstaller,
Palaoro and Pfarrmeier v. Austria (1).
_______________
1. Cases nos. 31/1994/478/560, 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 23 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) for the applicant
Mr W.L. Weh, Rechtsanwalt, Counsel.
The Court heard addresses by Mr Weitzel, Mr Weh and Mr Cede.
AS TO THE FACTS
I. Circumstances of the case
6. On 16 October 1987 Mr Helmut Umlauft was stopped by the police
while driving his car. He refused to submit to a breath test. In a
"sentence order" (Straferkenntnis) of the same day the Bregenz district
authority (Bezirkshauptmannschaft) ordered him to pay a fine of 10,000
Austrian schillings (ATS) with 480 hours' imprisonment in default, for
an offence under section 99(1)(b) taken together with section 5(2) of
the Road Traffic Act (Straßenverkehrsordnung - see paragraphs 11 and
12 below).
7. The applicant appealed against that decision to the Vorarlberg
regional government (Amt der Landesregierung), which dismissed the
appeal on 19 January 1988.
8. On 8 March 1988 Mr Umlauft applied to the Constitutional Court
(Verfassungsgerichtshof). As his main submission, he complained of the
unlawfulness of the decree of the Federal Ministry of Trade and
Reconstruction (Verordnung des Bundesministeriums für Handel und
Wiederaufbau) which provided for the use of a certain type of
breathalyser, because its calibre did not in fact conform to the
provisions of the Road Traffic Act. In the alternative, he alleged
that the proceedings in question had not complied with Article 6
para. 1 (art. 6-1) of the Convention.
On 14 October 1988, 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 15 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).
9. At Mr Umlauft's request, it referred the application to the
Administrative Court on 13 December 1988.
10. Reiterating in substance the arguments he had set out before the
Constitutional Court, the applicant said that his refusal to blow into
the breathalyser could not amount to a breach of section 5 of the Road
Traffic Act, since the apparatus did not comply with the applicable
regulations and statutory provisions. He also asked the Administrative
Court to refer the question of the lawfulness of the decree to the
Constitutional Court again for review (Normprüfung), together with the
question whether the proceedings had complied with Article 6 (art. 6)
of the Convention. He did not ask it to hold a hearing.
On 20 January 1989 the Administrative Court dismissed the appeal
on the following grounds:
"In the instant case, however, having regard to the refusal to
submit to a breath test, it is of little relevance to know what
would have been the significance, as regards the seriousness of
the intoxication, of the fact that the colouring had reached or
gone beyond the mark on the tube.
Having regard to the unlawfulness (Unrechtsgehalt) of refusing
to submit to a breath test, which is the offence the applicant
was charged with, the fact that the tube which was to be used to
analyse his exhaled breath did not comply with the aforementioned
decree is not, in administrative criminal law, of such importance
as to require the impugned decision to be set aside.
...
Since it is apparent from the very content of the application
that the contravention of the law alleged by the applicant has
not occurred, the application falls to be dismissed at a private
sitting without further formality under section 35(1) of the
Administrative Court Act."
The court refused to refer the case to the Constitutional Court,
holding that the latter had already ruled on the other two points
raised by the applicant.
II. Relevant domestic law
A. Road traffic legislation
11. Under section 5 of the Road Traffic Act 1960 it is an offence for
any person to drive a vehicle if the proportion of alcohol in his blood
or breath is equal to or higher than 0.8 grams per litre or
0.4 milligrams per litre respectively. The same section also lays down
the conditions for the use of breathalysers and blood tests.
12. In its 1986 version, section 99(1) of the Act provided:
"It shall be an administrative offence (Verwaltungsübertretung),
punishable with a fine of not less than 8,000 and not more than
50,000 schillings or, in default of payment, with one to six
weeks' imprisonment, for any person
...
(b) to refuse to submit to a breath test where the conditions
laid down in section 5 are satisfied;
..."
13. In 1958, at the time when the Austrian Government ratified the
Convention (see paragraph 24 below), section 7 of the Traffic Police
Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under
a duty to pay reasonable heed to other road users and to display the
care and diligence necessary to ensure the maintenance of order, safety
and a proper flow of traffic."
B. Procedure
14. 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
15. 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
16. 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.
17. Section 35(1) of the Administrative Court Act
(Verwaltungsgerichtshofsgesetz) provides:
"Applications from whose content it is apparent that the
contravention of the law alleged by the applicant has not
occurred shall be dismissed, at a private sitting, without
further formality."
18. 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.
19. 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."
20. 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."
21. 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)).
22. 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"
23. 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
24. 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
25. Mr Umlauft applied to the Commission on 23 August 1989. Relying
on Article 6 (art. 6) of the Convention, he complained that he had not
had access to a court with full jurisdiction.
26. On 10 May 1993 the Commission declared the application
(no. 15527/89) admissible.
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-B 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
27. 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
28. 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"
29. In Mr Umlauft's submission, the administrative criminal offence
of which he was accused gave rise to a "criminal charge". This was not
disputed by the Government.
30. 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).
31. 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 12 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
32. 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 Road Traffic Act 1960 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 5 of the Road Traffic 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 section 7 of the Traffic Police
Act 1947 (see paragraph 13 above).
33. 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.
34. 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 Umlauft 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 Road Traffic Act 1960,
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
35. Mr Umlauft 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 20
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.
36. The Government contested this view, whereas the Commission
accepted it.
37. 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 district 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).
38. 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).
39. 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 22 above).
40. 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
41. Mr Umlauft further criticised the Administrative Court for
failing to hold a hearing.
42. Having regard to the conclusion in paragraph 40 above, the Court
does not consider it necessary to examine this complaint.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
43. 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."
44. The Delegate of the Commission left the matter of just
satisfaction to the discretion of the Court.
A. Damage
45. In respect of pecuniary damage, the applicant claimed repayment
of the fine imposed on him, that is to say ATS 12,000. He also claimed
ATS 10,000 for non-pecuniary damage.
46. 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.
47. 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
48. In addition, Mr Umlauft claimed the sum of ATS 188,926 for the
costs and expenses incurred in the proceedings in the domestic courts
and then before the Convention institutions.
49. 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 300,000 in respect of the Umlauft,
Pramstaller, Palaoro and Pfarrmeier cases, the applicants in all these
cases having been represented by the same lawyer.
50. Making an assessment on an equitable basis, having regard to the
information in its possession and its case-law, the Court awards
Mr Umlauft ATS 100,000.
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, 100,000 (one hundred 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 39 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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