(Application no. 12555/03)
5 October 2006
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 Müller v. Austria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on that date:
I. The circumstances of the case
II. RELEVANT DOMESTIC LAW
“It is the task of the Independent Administrative Panels in the regions and the Administrative Court in Vienna to ensure the lawfulness of the entire public administration.”
“(1) Independent Administrative Panels are composed of a president, a deputy president and a sufficient number of further members. Its members are appointed by the Regional Government for a period of at least six years. ...
(2) In fulfilling their tasks under Articles 129a and 129b the members of the Independent Administrative Panel are not bound by any instructions. The court business shall be distributed among the members in advance for the period provided for in the regional legislation. A matter which according to such a schedule is the business of one member may only be withdrawn from him or her in case of impediment by a decision of the president.
(3) Before the end of their term of office members of Independent Administrative Panels may only be removed from office in the cases specified by the law and upon a decision of the Independent Administrative Panel itself.
“Unless a provision of administrative law states otherwise, negligent behaviour is sufficient to establish guilt. Negligence is to be assumed in the case of failure to observe a prohibition or a prescription where damage or danger is not an element of the administrative offence, and the defendant does not convincingly show that no fault lies with him for the contravention of the provision of administrative law.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal...”
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
As regards the complaint under Article 2 of Protocol no. 7, the Court recalls that the Contracting States may limit the scope of the review by a higher tribunal by virtue of the reference in § 1 of this Article to national law. In several Member States of the Council of Europe such a review is limited to questions of law or may require the person wishing to appeal to apply for leave to do so (see Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000 I (extracts)). In the present case, there is no indication that the scope of review of the Administrative Court was insufficient for the purposes of Article 2 of Protocol no. 7.
35. It follows that also 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
“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.”
B. Costs and expenses
42. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for instance, Alge v. Austria, no. 38185/97, § 39, 22 January 2004). In the present case, it does not appear from the applicant's submissions that any specific costs were incurred in an attempt to accelerate the proceedings. Therefore, no award can be made under the head of the costs of the domestic proceedings.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 4,000 (four thousand euros) in respect of non-pecuniary damage and EUR 2,001.96 (two thousand and one euros and ninety six cents) 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;
Done in English, and notified in writing on 5 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis