The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),
Having regard to the judgment of the European Court of Human Rights in the Schmautzer case delivered on 23 October 1995 and transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application
(No. 15523/89) against Austria, lodged with the European Commission of Human Rights on 26 May 1989 under Article 25 (art. 25) of the Convention by Mr Peter Schmautzer, an Austrian national, and that the Commission declared admissible the complaints relating to the right of access to a court and to a hearing before the Administrative Court;
Recalling that the case was brought before the Court by the Commission on 9 September 1994;
Whereas in its judgment of 23 October 1995 the Court unanimously:
- held that Article 6, paragraph 1 (art. 6-1), of the Convention applied in this case;
- held that there had been a violation of that article as regards access to a court;
- held that it was not necessary to examine the complaint based on the lack of a hearing in the Administrative Court;
- held that the respondent state was to pay the applicant, within three months, 70 000 Austrian schillings in respect of costs and expenses;
- dismissed the remainder of the claim for just satisfaction;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;
Having invited the Government of Austria to inform it of the measures which had been taken in consequence of the judgment
of 23 October 1995, having regard to Austria's obligation under Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this resolution;
Having satisfied itself that on 12 January 1996, within the time-limit set, the Government of Austria paid the applicant the sum provided for in the judgment of 23 October 1995,
Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (96) 153
Information provided by the Government of Austria
during the examination of the Schmautzer case
by the Committee of Ministers
The problems of a general nature raised by the Court's judgment in this case have been remedied by the setting up of independent administrative tribunals (Unabhängige Verwaltungssenate), following an amendment to the Federal Constitution of 1929, the Bundes-Verfassungsgesetz-Novelle 1988, adopted on 29 November 1988 and published in Bundesgesetzblatt
No. 685/1988.
Article I, sections 24 to 26, of this act amends the former Article 129 of the Federal Constitution and introduces the new Articles 129.a and 129.b.
The amended Article 129 sets up independent administrative tribunals in the Länder. These tribunals started to function on
1 January 1991 (see Article IX (1), Bundesgesetzblatt
No. 685/1988). According to the new Article 129.a, the new tribunals are, inter alia, competent in proceedings relating to administrative offences.
The relevant procedural rules are, pursuant to the new
Article 129.b (6), defined in federal legislation (the General Administrative Procedures Act, Allgemeine Verwaltungsverfahrens Gesetz, as amended on 19 January 1991, Bundesgesetzblatt No. 51/1991, and the Administrative Criminal Code, Verwaltungsstrafgesetz, as amended on 19 January 1991, Bundesgesetzblatt No. 52/1991).
The Administrative Criminal Code provides, inter alia, that the cases shall, as a general rule, only be decided after an oral hearing has been held (Article 51.e) and all necessary evidence has been gathered and examined (Article 51.g). Witnesses are in principle heard at the oral hearing (ibidem). The independent administrative tribunal has full competence to determine both the legal and factual issues arising in cases concerning administrative offences and may substitute its own views for those of the administrative authority below and may, accordingly, make any modification to the latter's decision (Article 66 (4) of the General Administrative Procedures Act).
The Government of Austria considers that these amendments will prevent the repetition of the violation found and solve the other problems raised by the case. Austria has, accordingly, fulfilled its obligations under Article 54 (art. 54) of the Convention.
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