THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45289/99
by Martin BRUNNTHALER
against Austria
The European Court of Human Rights (Third Section), sitting on
28 February 2002 as a Chamber composed of
MrG. Ress, President,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrJ. Hedigan,
MrsH.S. Greve
MrsE. Steiner, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 3 November 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Martin Brunnthaler, is an Austrian national, who was born in 1949 and lives in Linz. He is a chimney sweeper by profession. Before the Court he is represented by Mr Helmut Blum, a lawyer practising in Linz.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 August 1988 the applicant filed a request for an industrial licence (Konzession) to start chimney sweep activity in a specified administrative territory for chimney sweeping (Kehrgebiet). It does not appear that any decision was taken in this regard.
Following a new regulation concerning the division of those administrative areas which entered into force in December 1991, the applicant, on 14 January 1992, modified his request.
As the Upper Austria Regional Governor (Landeshauptmann) did not decide on his request, the applicant, on 20 June 1992, filed a request for transfer of jurisdiction (Devolutionsantrag) with the Federal Minister of Economic Affairs (Bundesminister für wirtschaftliche Angelegenheiten).
On 3 June 1993 the Federal Minister of Economic Affairs allowed his request for transfer but dismissed his application for the industrial licence.
The applicant filed a complaint with the Administrative Court.
On 20 December 1994 the Administrative Court quashed the decision on procedural grounds.
Subsequently, on 3 February 1995 the Federal Ministry rejected the applicant’s request for a transfer of jurisdiction, finding that, according to the amended Trade Act (Gewerbeordnung), the authority now competent for applications of the applicant’s kind was the Administrative District Authority, namely the Linz Municipal Office (Magistrat).
On 19 December 1995 the Administrative Court confirmed this decision.
As the Municipal Office did not decide on his request, the applicant, on
7 March and on 2 April 1996, filed requests for transfer of jurisdiction with the Regional Governor.
On 10 May 1996 the Regional Governor rejected the applicant’s request.
Following the instructions as to further remedies (Rechtsmittelbelehrung), the applicant filed a complaint with the Constitutional Court against this decision.
On 30 September 1997 the Constitutional Court rejected his complaint for lack of prospect of success and, upon the applicant’s request, transferred the case to the Administrative Court.
On 17 April 1998 the Administrative Court rejected the applicant’s complaint for non-exhaustion of domestic remedies, reasoning that he had failed to raise an appeal with the Federal Minister for Economic Affairs.
Referring to the erroneous instructions as to further remedies of the decision of the Regional Governor of 10 May 1996, the applicant filed a request for proceedings to be reinstituted (Wiedereinsetzungsantrag) and, at the same time, filed an appeal against that decision with the Federal Minister for Economic Affairs.
On 1 July 1998 the Regional Governor allowed the reinstitution into proceedings.
Meanwhile, however, the Linz Municipal Office, on 23 January 1997, dismissed the applicant’s request for an industrial licence.
On 21 July 1997 the Regional Governor confirmed this decision.
In December 1997 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospect of success and, upon the applicant’s request of 29 December 1997, transferred the case to the Administrative Court.
On 12 March 1998 the applicant, in compliance with the Administrative Court’s order for remedying of procedural effects, filed further submissions.
On 9 September 1998 the Administrative Court dismissed his complaint as being unfounded.
COMPLAINTS
The applicant complains under Article 6 of the Convention about the unreasonable length of the administrative proceedings relating to his request for an industrial licence. Further, he complains that his matter was not decided by an independent and impartial tribunal, as the Administrative Court cannot be regarded as a tribunal within the meaning of that article because it did not have full jurisdiction.
THE LAW
1. The applicant complains that the administrative proceedings against him were not concluded within a reasonable time as required by
Article 6 § 1 of the Convention.
The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.
2. The applicant complains under Article 6 of the Convention that the Administrative Court is no tribunal within the meaning of that article, as it has no full jurisdiction.
Article 6 of the Convention, insofar as relevant reads as follows:
“1. In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing ...by an independent and impartial tribunal established by law.”
However, the Court observes that the scope of the Administrative Court’s review has been considered as being sufficient to satisfy the requirements of Article 6 of the Convention in previous applications unless it declines jurisdiction (see for example Zumtobel v. Austria judgment of 12 September 1993, Series A no. 268-A, p. 13-14, §§ 31-32, Müller and Others v. Austria, no. 26507/95, decision of 23.11.99). In the present case, there is no indication that the Administrative Court considered itself incompetent to decide on the merits of the applicant’s complaint.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint about the length of the proceedings;
Declares inadmissible the remainder of the application.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy