European Court of Human Rights

FIRST SECTION

DECISION

Application no. 40065/05
by Cengiz ÖZTÜRK
against Austria

The European Court of Human Rights (First Section), sitting on 11 September 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 10 November 2005,

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 Cengiz Öztürk, is a Turkish national who was born in 1972 and lives in Linz. He was represented before the Court by Mr R. Gabl, a lawyer practising in Linz. 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 3 November 1999 the Melk District Administrative Authority issued a penal order against the applicant for offences under the Road Traffic Act (Straßenverkehrsordnung) and the Motor Vehicles Act (Kraftfahrzeug-gesetz) and issued a fine in the amount of 508,71 EUR. Following two attempts to serve the decision at an address (Zustellversuch), which the applicant had indicated in the course of a traffic control, the letter was then deposited with the local post office (Hinterlegung) for the statutory period set out under the Official Notifications Act (Zustellgesetz).

On 30 November 1999 the uncollected letter was returned to the Melk District Authority.

On 30 June 2000 the District Authority requested the applicant to serve a sentence in default (Ersatzfreiheitsstrafe). It sent the submission to the applicant’s new address, which had been changed in the register of residents in the meanwhile.

Thereupon the applicant made a payment of the outstanding amount.

By decision of 22 January 2001 the District Administrative Authority dismissed a further request for service of the penal order.

Appeals to the Lower Austria Independent Administrative Panel and the Administrative Court were dismissed by decisions of 1 February 2001 and 4 June 2004 respectively.

On 27 August 2004 the applicant lodged a request with the District Administrative Authority to refund the fine which he had settled before. He claimed in particular that the fine imposed on him had been collected on the basis of proceedings which were incompatible with the procedural standards.

On 11 October 2004 the applicant, repeating his claim of unjustified enrichment, filed an action with the Constitutional Court for reimbursement of EUR 508,71 under Article 137 of the Federal Constitution. He submitted, inter alia, that he had been forced to pay the amount at issue although the Administrative District Authority failed to duly serve the penal order upon him. He requested the Constitutional Court to hold an oral hearing.

On 28 February 2005 the Constitutional Court dismissed the applicant’s claim, rejecting at the same time the applicant’s request for an oral hearing. The judgment was served on the applicant’s counsel on 12 May 2005.

COMPLAINT

The applicant complained under Article 6 of the Convention that the Constitutional Court failed to hold an oral hearing in the proceedings on his action under Article 137 of the Federal Constitution.

THE LAW

On 26 June 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 1,500 to Cengiz Öztürk 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 2 July 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 1,500 to Cengiz Öztürk 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