European Court of Human Rights

FIRST SECTION

DECISION

Application no. 40186/04
by Arnold JENNI
against Austria

The European Court of Human Rights (First Section), sitting on 8 July 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 2 November 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, Arnold Jenni, is an Austrian national who was born in 1951 and lives in Feldkirch. He was represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Tauttmansdorff, 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.

On 27 May 1999 the Feldkirch District Administrative Authority informed the applicant that he was suspected of having breached the Employment of Foreigners Act (Ausländerbeschäftigungsgesetz) in that he had employed a foreign national, although he did not hold a working permit for him.

The District Administrative Authority, on 23 December 1999, imposed a fine on the applicant for breach of the Employment of Foreigners Act.

On 31 August 2000 the Vorarlberg Independent Administrative Panel (IAP) dismissed the applicant’s appeal.

Subsequently, on 28 November 2000, the Constitutional Court declined to deal with the applicant’s complaint for the lack of prospect of success and referred it to the Administrative Court.

On 29 April 2004 the Administrative Court, relying on Article 33a of the Administrative Court Act, declined to deal with the case. The decision was served on the applicant’s counsel on 26 May 2003.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of proceedings. Under the same provision he complained about the Administrative Court’s failure to conduct an oral hearing and that the members of the IAP were not impartial.

Moreover, the applicant complained under Article 7 of the Convention that Section 2 § 4 of the Employment of Foreigners Act was not sufficiently precise to serve as a basis for the fine imposed on him.

THE LAW

On 20 March 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 EUR 3,000 to Arnold Jenni 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 16 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 EUR 3,000 to Arnold Jenni 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.

I accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

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 discontinue the application of Article 29 § 3 and 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