FIRST SECTION
DECISION
Application no. 29149/07
Andrej BOROTSCHNIK and others
against Austria
The European Court of Human Rights (First Section), sitting on 28 August 2012 as a Chamber composed of:
Nina Vajić, President,
Peer Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 29 June 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicants (see Appendix) are all Austrian nationals living in Loibach/Libuče in Austria. They were represented before the Court by Mr M. Grilc, a lawyer practising in Klagenfurt.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. According to their own submissions, the forty-six applicants currently live in the village of Loibach/Libuče (the municipality of Bleiburg) in Carinthia and belong to the Slovenian linguistic minority.
4. In 2001 the Austrian Constitutional Court partly repealed section 2 of the Ethnic Minorities Act 1976, which provided for the erection of bilingual road signs in municipalities with a Slovenian linguistic minority population of more than 25%, and an ordinance (Verordnung) enacted under section 2 of that Act. The Constitutional Court held that a limit of 10% would be more appropriate, as such a limit was more in line with the spirit of Article 7(3) of the Austrian State Treaty 1955 (“the State Treaty”), which provided for bilingual road signs in districts with Slovene speaking or mixed populations. According to the applicants, more than 10% of the population of Loibach/Libuče belong to the Slovenian linguistic minority.
5. On 14 December 2004 the Constitutional Court dismissed an individual petition (Individualantrag) lodged by the applicants for review of an ordinance providing for monolingual road signs in Loibach/Libuče, which they had claimed was contrary to Article 7(3) of the State Treaty. The Constitutional Court found that Article 7(3) of the State Treaty only constituted an obligation binding on the Republic of Austria under international law to erect bilingual road signs in areas where linguistic minorities live, but did not create a substantive right to such signs that could be enforced by individual members of, or groups of people belonging to, a linguistic minority.
6. On 15 October 2005 the applicants filed another individual petition with the Constitutional Court for review of the constitutionality of the same provision, but this time based their petition on Article 8 of the Convention.
7. On 4 December 2006 the Constitutional Court rejected the applicants’ petition as inadmissible, holding that Article 8 of the Convention did not guarantee the right for the Slovenian linguistic community or a single member thereof to have bilingual road signs erected in the area they were living.
8. In separate proceedings which concerned the lawfulness of a penal order (Straferkenntnis) for speeding in the village of Loibach/Libuče, the Constitutional Court decided of its own motion to examine the lawfulness of the ordinance providing for monolingual road signs in Loibach/Libuče. On 13 December 2006 the Constitutional Court found that the ordinance at issue was unconstitutional and contrary to the provisions of Article 7(3) of the State Treaty, as the Slovenian linguistic minority, according to the census of 2001, amounted to 36.6% of the population of Loibach/Libuče.
9. Following lengthy negotiations in Parliament and the State Diet (Landtag) of Carinthia, an amendment to section 12 of the Ethnic Minorities Act, which deals with road signs in areas where a linguistic minority lives, was enacted by Parliament on 27 July 2011 as a constitutional law and the list of municipalities where bilingual road signs had to be erected was extended. Following the amendment, the list covered Loibach/Libuče. In September 2011 road signs conforming to the amended legislation were erected.
B. Relevant domestic and international law and practice
1. Federal Constitution Act
10. Article 8 of the Federal Constitution Act (B-VG) provides:
“(1) German is the official language of the Republic, without prejudice to the rights provided by Federal law for linguistic minorities.
(2) The Republic (the Federation, Länder and municipalities) is committed to its linguistic and cultural diversity, which has evolved over the course of time and finds its expression in the autochthonous ethnic groups. The language and culture, continued existence and protection of these ethnic groups shall be respected, safeguarded and promoted.
...”
2. State Treaty for the Re-establishment of an Independent and Democratic Austria of 15 May 1955 (“the State Treaty”)
11. Article 7 reads as follows:
Rights of Slovene and Croat Minorities
“(1) Austrian nationals of the Slovene and Croat minorities in Carinthia, Burgenland and Styria shall enjoy the same rights on equal terms as all other Austrian nationals, including the right to their own organizations, meetings, and press in their own language.
(2) They are entitled to elementary instruction in the Slovene or Croat language and to proportional number of their own secondary schools; in this connection school curricula shall be reviewed and a section of the Inspectorate of Education shall be established for Slovene and Croat schools.
(3) In the administrative and judicial districts of Carinthia, Burgenland and Styria, where there are Slovene, Croat or mixed populations, the Slovene or Croat language shall be accepted as an official language in addition to German. In such districts topographical terminology and inscriptions shall be in Slovene or Croat language as well as in German.
(4) Austrian nationals of the Slovene and Croat minorities in Carinthia, Burgenland and Styria shall participate in the cultural, administrative and judicial systems in these territories on equal terms with other Austrian nationals.
(5) The activity of organizations whose aim is to deprive the Croat and Slovene population of their minority character or rights shall be prohibited.”
3. Treaty of St Germain-en-Laye of 10 September 1919
12. The relevant part of Section V provides as follows:
PROTECTION OF MINORITIES
Article 67
“Austrian nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Austrian nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.”
Article 68
“Austria will provide in the public educational system in towns and districts in which a considerable proportion of Austrian nationals of other than German speech are resident adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such Austrian nationals through the medium of their own language. This provision shall not prevent the Austrian Government from making the teaching of the German language obligatory in the said schools.
In towns and districts where there is a considerable proportion of Austrian nationals belonging to racial, religious or linguistic minorities, these minorities shall be assured an equitable share in the enjoyment and application of the sums which may be provided out of public funds under the State, municipal or other budgets for educational, religious or charitable purposes.”
4. Ethnic Minorities Act 1976 and Ordinances
13. The Ethnic Minorities Act (Volksgruppengesetz) of 7 July 1976 regulates issues relating to the protection of ethnic minority groups. The four chapters deal with Advisory Councils for ethnic minorities, government aid for them, use of minority languages as official languages and road signs in the language of linguistic minorities.
14. Section 12 of the Act, as in force until 27 July 2011, provided that in areas where a linguistic minority was living, road signs had to be bilingual. According to section 2 of the Act, an ordinance (Verordnung) had to be adopted in areas in which bilingual road signs had to be erected because “a considerable (a quarter)” part of the population belonged to a linguistic minority. This provision was to be further implemented by a roads ordinance stating the municipalities in which bilingual road signs had to be erected. Following the quashing of parts of section 2 of the Act by the Constitutional Court and of various ordinances enacted under that section, negotiations for a general solution were conducted in Parliament. As a result, section 12 of the Act was amended by Parliament on 27 July 2011 and raised to the level of constitutional law. This provision now refers to an annexed list of localities where bilingual road signs had to be erected without delay.
5. Case-Law of the Constitutional Court concerning road signs
15. In its judgment of 13 December 2001 (G213/01, V 62/01), the Constitutional Court reviewed of its own motion the constitutionality of the Völkermarkt District Administrative Authority’s road signs ordinance. The review was based on the finding that a conviction for speeding had to be based on a properly stated speed limit. A road sign indicating the beginning of the inhabited area of a municipality could also state a speed limit of 50 km/h under the Road Traffic Act (Strassenverkehrsordnung). Such a speed limit was therefore only valid if the road sign itself was lawful. If there was reason to doubt the validity of a road sign, for instance because there was reason to believe that it did not bear the proper name of the municipality or its name in the proper language, that issue automatically had to be examined.
16. The Constitutional Court found that the section 2 of the Ethnic Minorities Act, which provided that road signs had to be installed in areas where a considerable proportion (25%) of the population belonged to a linguistic minority, was contrary to the spirit of Article 7(3) of the State Treaty. It considered that this minimum was too high and a percentage of approximately 10% was more appropriate. Therefore, it also considered that the ordinance providing for the name of the municipality of St Kanzian am Klopenersee/Škocjan v Podjuni was also unconstitutional.
6. Council of Europe Framework Convention for the protection of National Minorities
17. Section II Article 11 § 3 of the Framework Convention for the protection of National Minorities, ETS No. 157, of 10 November 1994, reads as follows:
“In areas traditionally inhabited by substantial numbers of persons belonging to a national minority, the Parties shall endeavour, in the framework of their legal system, including, where appropriate, agreements with other States, and taking into account their specific conditions, to display traditional local names, street names and other topographical indications intended for the public also in the minority language when there is a sufficient demand for such indications.”
COMPLAINTS
18. The applicants complained under Article 8 of the Convention that there had been no road signs in the village of Loibach/Libuče indicating the name of the village in both Slovenian and German, even though there was a substantial Slovenian linguistic minority population living there. In their view, Article 8 of the Convention and Article 7(3) of the State Treaty contained positive obligations that required the Republic of Austria to erect bilingual road signs in order to respect linguistic diversity.
19. Under Article 13 of the Convention, they complained that they had not had an effective remedy at their disposal which allowed for the enforcement of the decision of the Constitutional Court of 13 December 2001 requiring bilingual road signs to be erected.
THE LAW
20. Article 37 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2 The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
21. The applicants complained under Article 8 of the Convention that in the village in which they live, Loibach/Libuče, there had been no bilingual road signs indicating the name of the village in both Slovenian and German. They also complained under Article 13 of the Convention that they had not had an effective remedy at their disposal allowing for the enforcement of a decision of the Constitutional Court requiring such road signs to be erected.
22. The Court observes, however, that in July 2011, after the applicants lodged their application, section 12 of the Ethnic Minorities Act was amended by Parliament and the list of municipalities in which bilingual road signs must be erected now explicitly refers to Loibach/Libuče. In September 2011 bilingual road signs were erected in Loibach/Libuče. The Court therefore considers that the matter about which the applicants complained has been resolved within the meaning of Article 37 § 1 (b) of the Convention.
23. In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the present application.
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 NielsenNina Vajić
RegistrarPresident
APPENDIX
Family name
First name
Date of birth
BOROTSCHNIK
Andrej
15.11.1962
BOROTSCHNIK
Inge
28.07.1964
BOROTSCHNIK
Katharina
21.11.1935
BOROTSCHNIK
Lidija
15.04.1990
ČIK
Angela
29.05.1945
ČIK
Hermann
11.07.1940
ČIK
Stanko
30.10.1943
ČIK-PIPP
Milena
13.01.1949
DANIEL
Anton
19.6.1928
DANIEL
Maria
02.04.1939
FALKE
Johann Friedemann
10.03.1984
FALKE
Renate
18.09.1956
GRILC
Barbara
GRILC
Helmut Franz
GRILC
Miha
17.09.1988
GRILC
Simon
24.06.1987
JELEN
Stanko
05.04.1940
JELEN
Katharina
21.11.1937
KOŠUTNIK
Alexander
19.12.1983
KOŠUTNIK
Carmen
06.10.1984
KOŠUTNIK
Danica
21.01.1952
KOŠUTNIK
Franziska
06.03.1935
KOŠUTNIK
Johannes
26.01.1962
KOŠUTNIK
Manuel
18.07.1980
KOŠUTNIK
Matthias
19.12.1983
KOŠUTNIK
Sonja
08.10.1961
KOŠUTNIK
Stefan
15.12.1930
KREUTZ
Miha
13.09.1963
KREUTZ
Jurij
08.07.1997
KREUTZ
Sonja
16.04.1964
KREUTZ
Tomaž
KULMESCH Mag.
Janko
LIENHARD
Maria
15.01.1926
MANDL
Adrijan
01.04.1977
MANDL
Georg-Jurij
MANDL
Josefine
09.03.1953
MANDL
Katharina
25.11.1932
MANDL
Katja
06.08.1980
MANDL
Rosalia
28.08.1957
MANDL
Vera
14.07.1982
PIKALO
Maria
29.11.1940
STROPNIK
Siegfried
10.01.1945
STROPNIK
Slavka
23.10.1949
TERBUCH
Reinhold
11.12.1968
VERHNJAK
Franz
12.05.1961
VERHNJAK-PIKALO
Eva
10.03.1968
Full & Egal Universal Law Academy