FIRST SECTION
DECISION
Application no. 14308/03
by Engin ÖZDEMIR
against Austria
The European Court of Human Rights (First Section), sitting on 8 December 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrA. Kovler,
MrsE. Steiner,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 8 April 2003,
Having regard to the decision to communicate the complaint about the length of the proceedings, to apply Article 29 § 3 of the Convention and to examine the admissibility and merits of the case together.
Having regard to the formal declarations accepting a friendly settlement of the case.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Engin Özdemir, is a Turkish national who was born in 1972 and lives in Hard. He was represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. The Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 September 1997 criminal proceedings under the Aliens Act for failure to comply with a residence prohibition were opened against the applicant by the Bregenz District Administrative Authority. It issued a penal order on 26 November 1997.
By decision of 14 January 1999, the Vorarlberg Independent Administrative Panel dismissed the applicant’s appeal.
The Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success on 7 June 1999 and, subsequently, transferred the case to the Administrative Court.
On 5 September 2002 the Administrative Court dismissed the applicant’s complaint. This decision was served on 9 October 2002.
COMPLAINTS
The applicant raised complaints under Article 6 of the Convention. Firstly, he complained about the length of the proceedings. Secondly, he alleged that the Independent Administrative Panel did not qualify as a “tribunal” and, thirdly, he complained about the lack of a hearing before the Administrative Court.
THE LAW
On 19 October 2005 the Court received the following declaration from the Government:
“I, Ingrid Siess-Scherz, Head of the Division for International Affairs at the Federal Chancellery, declare that the Government of Austria offer to pay 4,000 euros to Mr Engin Özdemir with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
Also on 19 October 2005 the Court received the following declaration from the applicant:
“I, Mr Wilfried Weh, counsel for the applicant, note that the Government of Austria are prepared to pay the sum of 4,000 euros to Mr Engin Özdemir with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:
“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; ...
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.”
The Court takes note of the agreement reached between the parties and considers that the applicant no longer intends to pursue his application and that the matter has been resolved. Furthermore, 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 examination of the application to be continued. Accordingly, the application of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list in accordance with Article 37 § 1 (a) and (b) of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.
Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy