FIFTH SECTION

CASE OF SCHWAB v. AUSTRIA

(Application no. 1068/12)

JUDGMENT

STRASBOURG

8 June 2017

This judgment is final but it may be subject to editorial revision.

In the case of Schwab v. Austria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Erik Møse, President,
	Yonko Grozev,
	Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1068/12) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Wolfgang Schwab (“the applicant”).
2.  On 27 May 2014 the applicant passed away and on 17 February 2017 his wife, Mrs Silvia Schwab, expressed her wish to pursue the application.
3.  The applicant was represented by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.
4.  On 27 November 2014 the complaint concerning the lack of an oral hearing before the Administrative Court was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1954 and died on 27 May 2014. On 24 October 2014 his wife, Mrs Schwab, was established as his heir.
6.  As of 1987 the applicant had intermittently received emergency relief benefits (Notstandshilfe) under the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz).
7.  On 4 February 2008 the Vienna Prandaugasse Labour Market Service (Arbeitsmarktservice) retroactively revoked these benefits in so far as they related to the period from 22 August 2002 to 31 July 2007, and ordered the applicant to refund the payments concerned, holding that he had not been entitled to them as he had been living in a joint household with his wife during that period.
8.  The applicant appealed, claiming that his wife had moved to her parents’ house in September 2000, and that they had been running separate households ever since.
9.  On 8 August 2008 the Vienna Regional Labour Market Service (Arbeitsmarktservice Landesgeschäftsstelle; hereinafter, “the Labour Market Service”) dismissed the appeal. It held that its preliminary investigations had not shown that the applicant and his wife had terminated their joint household during the period in question.
10.  The applicant made a request to the Constitutional Court (Verfassungsgerichtshof) for legal aid to lodge a complaint against this decision. On 6 November 2008 the Constitutional Court dismissed the request for lack of prospects of success.
11.  On 6 November 2008 the applicant complained to the Administrative Court (Verwaltungsgerichtshof) about the Labour Market Service’s decision of 8 August 2008 (see paragraph 9 above), explicitly requesting an oral hearing before the Administrative Court. He contested, inter alia, that he had been living in a joint household with his wife during the period in question.
12.  By decision of 25 May 2011 the Administrative Court, without holding an oral hearing, dismissed the complaint as unfounded. It held that the Labour Market Service had, in view of the evidence established during its preliminary investigations, reasonably assumed that the applicant had been living in a joint household with his wife. The applicant’s request for an oral hearing was not addressed.
13.  The Administrative Court’s decision was served on the applicant’s counsel on 17 June 2011.
Article II.	II.  RELEVANT DOMESTIC LAW
14.  Section 39 § 1 (1) of the Administrative Court Act (Verwaltungsgerichtshofgesetz), as in force at the relevant time, provided that after the completion of the preliminary proceedings, a hearing before the Administrative Court should be held if the complainant had requested a hearing within the time-limit for lodging the complaint. However, paragraph 2 (6) of section 39 provided as follows:
“Notwithstanding a party’s request under § 1 (1), the Administrative Court may refrain from holding a hearing if (...)
6.  it is apparent from the written pleadings of the parties to the proceedings before the Administrative Court, and from the files relating to the administrative proceedings that were submitted to the Administrative Court, that an oral hearing cannot be expected to contribute further to clarifying the case, and if this is not contrary to Article 6 § 1 of the European Convention on Human Rights.”
THE LAW
Article III.	I.  AS TO THE LOCUS STANDI OF MRS SCHWAB
15.  The Court must first address the issue of Mrs Schwab’s entitlement to pursue the application originally introduced by the applicant, who died on 27 May 2014 (see paragraph 5 above).
16.  The Court notes that at the time of lodging this application, the applicant was still alive, that Mrs Schwab was confirmed as his lawful heir after his passing and that she expressed her wish to pursue the application (see paragraphs 2 and 5 above).
17.  The Court reiterates that, where the original applicant has died after lodging an application, the Court normally permits the next-of-kin to pursue the application, provided he or she has a legitimate interest (see Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016, with further references). Having regard to the circumstances of the present case and its case-law on the subject (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII), the Court accepts that Mrs Schwab is entitled to pursue the application.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18.  The applicant complained that no oral hearing before the Administrative Court had been held. He relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
19.  The Government did not submit observations.
Section 4.01	A.  Admissibility
20.  The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Merits
21.  The Court reiterates that the applicant was in principle entitled to have a public hearing (see, for example, Diennet v. France, 26 September 1995, § 33, Series A no. 325-A, and Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001) and notes that only the Administrative Court could qualify as “tribunal” (see, mutatis mutandis, Fischer v. Austria, 26 April 1995, § 44, Series A no. 312; Pauger v. Austria, 28 May 1997, § 59, Reports of Judgments and Decisions 1997-III; and Bakker v. Austria, no. 43454/98, § 29, 10 April 2003).
22.  The Court considers that in the course of proceedings in which exclusively legal or highly technical questions are at stake, the requirements of Article 6 may be fulfilled even in the absence of an oral hearing (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 58, Series A no. 263; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; and Schelling v. Austria, no. 55193/00, § 30, 10 November 2005).
23.  In the present case the Court observes that the applicant expressly requested an oral hearing before the Administrative Court (see paragraph 11 above) and therefore cannot be considered to have waived that right. Moreover, the Court notes that the proceedings before the Administrative Court involved a dispute relating to a crucial question of fact, namely whether or not he had been living in a joint household with his wife during the period in question. Having regard to the circumstances of the present case and its case-law on the subject (see Abrahamian v. Austria, no. 35354/04, § 26, 10 April 2008; see also Denk v. Austria, [committee] no. 23396/09, §§ 16-19, 5 December 2013 and Willroider v. Austria, [committee] no. 22635/09, §§ 16-19, 5 December 2013), the Court considers that the applicant’s right to a “public hearing” included an entitlement to an “oral hearing”.
24.  There has accordingly been a violation of Article 6 § 1 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
25.  Article 41 of the Convention provides:
“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.”
Section 5.01	A.  Damage
26.  The applicant claimed 19,623.80 euros (EUR) in respect of pecuniary damage.
27.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As the applicant made no claim in respect of non-pecuniary damage, the Court does not make an award under this head either.
Section 5.02	B.  Costs and expenses
28.  The applicant also claimed EUR 610.60 for the costs and expenses incurred before the domestic courts, and EUR 2,150.84 for those incurred before the Court.
29.  The Court reiterates that an applicant is entitled to reimbursement of his costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings, as it has not been shown that they were incurred in an attempt to prevent or redress the violation found. In turn, it considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.
Section 5.03	C.  Default interest
30.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Holds that Mrs Schwab has standing to continue the present proceedings in the applicant’s stead;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds
(a)  that the respondent State is to pay Mrs Schwab, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to her, 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 8 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Erik Møse
	Deputy Registrar	President