AS TO THE ADMISSIBILITY OF
Application No. 22363/93
by Armin BAMMER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 July 1993 by
Armin BAMMER against Austria and registered on 27 July 1993 under file
No. 22363/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1964, and living
in Vienna. He is represented by Mr. G. Korn, a lawyer practising in
Vienna.
It follows from the applicant's statements and the documents
submitted that on 28 June 1988 the competent Federal Ministry for
Public Economy and Traffic rejected the applicant's request to
recalculate his telephone bill. It is inter alia stated in the
decision that the first instance Telecommunication Authorities had
carried out a control of the applicant's telephone, the telephone wire
and the automatic exchange. The installations had been found to be in
perfect working condition. Also the meter counting the communications
had been controlled between 1 December 1987 to 15 December 1987 and was
found to be in perfect working order. Further controls ex officio
failed to show the existence of any defects that could affect the
meter. Also the photographic documents relating to the meter-reading
at the beginning and the end of an account period had been checked as
well as the accounting but again no defects or miscalculation could be
discovered. Furthermore an expert of the Post and Telecommunications
Directorate for Vienna, Lower Austria and Burgenland stated that the
controls effected had been sufficient to show that there was no defect
influencing the telephone meter and that there were no particular
circumstances that could have caused a miscalculation to the
applicant's disadvantage. The expert pointed out that defects which
could influence the metering of telephone communications remained in
existence until they could be repaired. Therefore a defect which could
have influenced former metering periods would normally be discovered
if a subsequent control was carried out. In the applicant's case no
defects had however been discovered and his objections against his
telephone bill were of a mere theoretical nature, i.e. it relied on
mere hypothesis. The telephone bills had been established under
objective criteria while the applicant's objections were based on the
subjective and unproven allegation that his telephone bill was
excessive. The expert also excluded that the applicant's telephone
line had been tapped by third persons.
The applicant then brought an action before the Administrative
Court (Verwaltungsgerichtshof). In consequence of this action the
Administrative Court requested the Constitutional Court
(Verfassungsgerichtshof) to set aside certain sections of the
Telecommunications Act (Fernmeldegesetz), mainly on the ground that
according to the provisions in question disputes relating to telephone
bills were decided by the Telecommunication Authorities. The
Administrative Court considered that such disputes concerned civil
rights within the meaning of Article 6 para. 1 of the Convention and
should therefore be determined by a tribunal.
On 15 June 1992 the Constitutional Court rejected the
Administrative Court's request on the ground that disputes relating to
telephone bills did not concern a civil right. The fees for telephone
calls were public law contributions.
The Constitutional Court's decision was given without a public
oral hearing.
The Administrative Court then decided the applicant's matter by
judgment of 23 September 1992. The applicant's action was dismissed
as being unfounded.
Insofar as the applicant had argued that it was unconstitutional
to impose on telephone users the risk of undiscoverable defects, the
Court considered that in view of the technical control effected by the
Telecommunication Authorities, the possibility of an undiscoverable
defect had to be excluded.
Insofar as the applicant had complained that he did not have
access to the technical installations and control system, the court
noted that there was nothing in the file to show that the applicant had
made a request to be granted such access.
Insofar as the applicant had complained of the Telecommunications
Authorities' appreciation of available evidence, the court pointed out
that although under the relevant law the authorities had a
discretionary power in assessing and appreciating evidence, the court
could still control whether the facts had been sufficiently
investigated and whether the reasons stated in connection with the
appreciation of evidence were conclusive (schlüssig). Therefore the
decision of an authority had to be set aside if it disclosed important
defects (wesentliche Mängel) as to the fact-finding including the
appreciation of evidence. The decision complained of did not disclose
any such defects. In particular it could not be found that the
telephone bill in question was so much higher than previous bills, in
such a way as to indicate that it could not be correct. In view of the
controls effected by the Telephone Communications Authorities, it was
unobjectionable that they as well as the expert came to the conclusion
that the metering system did not have any defect. There was also
nothing to show that the expert was biased for the sole reason that he
was a civil servant in the Telecommunications Authorities.
Finally the court rejected the applicant's complaint that he
should have been heard personally by the Ministry. The court pointed
out that the applicant had been sent the results of the controls
effected by the Telecommunications Authorities and had been given the
opportunity to comment on them.
The court concluded that in all the circumstances the Austrian
authorities did not violate the law by denying the applicant a
recalculation of his telephone bill.
COMPLAINTS
The applicant complains that the judicial review of the
Constitutional Court and the Administrative Court was limited and
therefore insufficient. He maintains that the dispute relating to his
telephone bill concerns a civil right and that he therefore should have
had access to a civil court to determine the dispute between him and
the Telecommunications Authorities.
THE LAW
The applicant complains that none of the bodies before which his
case came in the impugned proceedings could be regarded as a tribunal
within the meaning of Article 6 para. 1 (Art. 6-1). This applied not
only to the Constitutional Court but in particular to the
Administrative Court.
However, even assuming that Article 6 (Art. 6) applies to the
proceedings in question, the Commission notes that under Article 6
para. 1 (Art. 6-1) of the Convention, it is only necessary that, in the
determination of "civil rights and obligations", decisions taken by
administrative authorities which do not themselves satisfy the
requirements of that Article (Art. 6-1) be subject to subsequent
control by a "judicial body that has full jurisdiction" (Eur. Court
H.R., Fischer judgment of 26 April 1995, Series A no. 312).
It therefore remains to be examined whether, in the circumstances
of the present case, the scope of the competence of the Administrative
Court satisfied the requirements of Article 6 para. 1 (Art. 6-1). In
this respect the Commission first notes that the impugned
administrative decision was based on objective criteria and left
relatively little room for discretion. The authorities had carried out
a technical control and also obtained an expert opinion. The technical
control did not reveal any defects in the telecommunications system
that could have caused a miscalculation of the applicant's telephone
bill. The expert explained that miscalculation due to defects would
be discovered by technical control as defects in the system were never
provisional, in other words if they existed they continued to exist and
would be discovered if and when a control was carried out.
The applicant has not shown that in his particular case the
alleged limited powers of the Administrative Court prevented this court
from examining all the issues raised in his case. Rather it is evident
from the extensive reasoning in the Administrative Court's judgment
that this court considered all the applicant's submissions on their
merits, point by point, without ever having to decline jurisdiction in
replying to them and in ascertaining the facts.
It follows that in the circumstances of this case there is no
appearance of a violation of Article 6 (Art. 6) of the Convention and
consequently the application has to be rejected as being manifestly
ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy