Application No. 15520/89
by Barbara FRIESSNIG
against Austria
The European Commission of Human Rights sitting in private
on 10 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 July 1989
by Barbara FRIESSNIG against Austria and registered on 19 September
1989 under file No. 15520/89;
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, a pharmacist, is an Austrian citizen,
born in 1949 and living in Axams. She is represented by
Mrs. E. Berchtold-Ostermann, a lawyer in Vienna.
The facts agreed between the parties may be summarised
as follows.
In 1982 the applicant was granted a licence to run a pharmacy
in Axams. In 1985 the applicant's ex-husband laid criminal charges
against her, leading to the institution of criminal investigations.
In view of these proceedings another pharmacist was appointed on
1 October 1985 by the Innsbruck authorities to manage the applicant's
pharmacy.
On 1 October 1987, the applicant was partly acquitted and was
convicted by the Innsbruck Regional Court (Landesgericht) of breach of
trust (Untreue) and aggravated professional fraud (gewerbsmässiger
schwerer Betrug). She was sentenced to one year's imprisonment. The
execution of the sentence was suspended on three years' probation. The
judgment became final.
Subsequently, disciplinary proceedings were instituted against
the applicant which are still pending.
On 5 April 1987, the applicant was told that her request to be
readmitted as manager of her pharmacy would not be decided pending
the disciplinary proceedings.
The applicant stated that the Austrian Board of Pharmacists
(Apothekerkammer) informed the competent authorities that the usual
practice in similar cases was not to revoke the licence definitely
before a decision was given in the disciplinary proceedings. However,
the Tirolean Regional Government (Landesregierung) instructed the
District Authorities (Bezirkshauptmannschaft) on 5 April 1988 to
withdraw the applicant's licence and the corresponding order was
issued on 8 April 1988.
The applicant's appeal (Berufung) was rejected on 8 July 1988
by the Tirolean Regional Government.
The applicant then appealed to the Constitutional Court
(Verfassungsgerichtshof) which rejected her appeal on 13 December 1988
(decision served on 30 January 1989).
The Constitutional Court referred the matter to the
Administrative Court (Verwaltungsgerichtshof) which, on 20 April 1989,
granted the applicant's request for suspensive effect (aufschiebende
Wirkung).
COMPLAINTS
The applicant submitted that the proceedings before the
Administrative Court and the Constitutional Court did not conform with
Article 6 para. 1 of the Convention as a public oral hearing was not
provided for under all circumstances, and as these Courts are bound by
the facts as established by the administrative authorities and can
only examine whether or not the administrative act complained of
violates constitutional law or, in the case of the Administrative
Court, other legal provisions. She further invoked Article 1 of
Protocol No. 1 to the Convention which she considered to be violated
because the revocation of her licence deprived her of her means of
existence.
PROCEEDINGS BEFORE THE COMMISSION AND FURTHER DEVELOPMENTS
On 9 November 1989 the Commission decided to communicate the
application to the respondent Government for observations on its
admissibility and merits. On 20 February 1990 the respondent
Government submitted their observations and on 20 April 1990 the
applicant replied. On 10 July 1990 the respondent Government
informed the Commission that the Austrian Administrative Court had,
on 18 June 1990, quashed the administrative decision complained of by
the applicant. On 31 July 1990 the applicant replied that despite the
Administrative Court's judgment she was still a victim of the alleged
violations because the authorities still intended to withdraw her
licence. On 14 November 1990 the applicant wrote that her licence had
been withdrawn again on 23 October 1990. On 18 December 1990 the
applicant informed the Commission that her appeal against the order of
23 October 1990 had been successful and that consequently she wished
to withdraw her application.
REASONS FOR THE DECISION
The applicant has withdrawn the application and there are no
reasons of a general character affecting respect for human rights, as
defined in the Convention, which require the further examination of
the case by virtue of Article 30 para. 1 in fine of the Convention.
For these reasons, the Commission unanimously
DECIDES TO STRIKE THE CASE OFF THE LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy