European Court of Human Rights

FIRST SECTION

DECISION

Application no. 38412/04
by Pierre MÜLLER
against Austria

The European Court of Human Rights (First Section), sitting on 6 November 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens
Giorgio Malinverni, judges,

and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 8 October 2004,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention),

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pierre Müller, is an Austrian national who was born in 1968 and lives in Vienna. He was represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is the owner and managing director of the M. company. On 12 June 1995 the Vienna municipality (Magistrat) issued a penal order (Straferkenntnis) against the applicant convicting him of illegal employment of foreigners.

On 5 July 1995 the applicant, assisted by counsel, appealed and on 15 May 1997 the Vienna Independent Administrative Panel rejected the appeal.

The written version of the IAP’s decision, dated 3 February 1999, was served on the applicant’s counsel on 20 April 1999.

On 30 April 1999 the applicant filed a complaint with the Constitutional Court against the IAP’s decision.

On 28 February 2000 the Constitutional Court declined to deal with the applicant’s case for lack of prospect of success and transferred the case to the Administrative Court, which dismissed it on 24 March 2004.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length and alleged unfairness of the proceedings. The applicant also referred to Articles 2 and 4 of Protocol No. 7.

THE LAW

On 2 July 2008 the Court received the following declaration from the Government:

“I declare that the Government of Austria offer to pay ex gratia the sum of 6,500 Euros to Mr Pierre Müller with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 30 June 2008 the Court received the following declaration signed by the applicant:

“I note that the Government of Austria are prepared to pay ex gratia the sum of 6,500 Euros to Mr Pierre Müller with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President