FIRST SECTION
DECISION
Application no. 24883/04
by Servet ULUTAS
against Austria
The European Court of Human Rights (First Section), sitting on 6 December 2007 as a Chamber composed of:
MrC. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr. A. Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 18 June 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Servet Ulutas, is a Turkish national who was born in 1956 and lives in Hard. He was represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 March 2001 the applicant, who has spent the major part of his life in Austria with the exception of a period between 1996 and the beginning of 2001, applied to the Bregenz Labour Market Service (Arbeitsmarktservice) for an extension of his exemption certificate (Befreiungsschein) under the Employment of Aliens Act (EEA, Ausländerbeschäftigungsgesetz).
On 11 October 2001 the Labour Market Service dismissed his request. It noted that the applicant did not fulfil the relevant requirement of continuous legal employment in Austria during the past four years under section 4 (c) (2) of the EAA taken in conjunction with Article 6 (1) (3) of decree no. 1/80 of the Association Council established under the Association Agreement between the European Community and Turkey.
On 14 November 2001 the Vorarlberg Labour Market Service dismissed the applicant’s appeal. Noting the applicant’s voluntary absence from Austria during the past five years, it found that he neither fulfilled the requirements of Article 6 (1) (3) nor Article 7 of decree no. 1/80. It referred in this regard to a judgment of the Court of Justice of the European Communities (ECJ).
On 28 December 2001 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) and submitted that the Labour Market Service’s decision was based on an insufficient establishment of the facts, wrongly applied the law and suffered from procedural deficiencies. He submitted that the cited ECJ judgment was not comparable to his case and requested the Administrative Court to seek a preliminary ruling by the ECJ. He finally requested the Administrative Court to hold a hearing.
On 20 November 2003 the Administrative Court, giving extensive reasons and referring, inter alia, to further case-law of the ECJ, dismissed the applicant’s complaint. Relying on section 39(2) of the Administrative Court Act, it dismissed the applicant’s request for a hearing.
On 22 June 2006 the President of the Chamber decided to communicate the application. The applicant, represented by counsel, submitted his observations together with his just satisfaction claims in German within the time-limit together with a request to be granted the use of the German language. That request was refused by the President of the Chamber. By letter of 12 December 2006 the applicant’s counsel was informed accordingly and was requested to submit the applicant’s observations and just satisfaction claims in one of the Court’s official languages. He did not react.
By 26 September 2007, the applicant’s counsel was warned that in the circumstances the Court might strike the case out of its list of cases. The letter reached the applicant’s counsel on 3 October 2007. He did not react.
COMPLAINT
The applicant complained under Article 6 of the Convention about the lack of a hearing before the Administrative Court. He also complained that the Administrative Court failed to seek a preliminary ruling from the ECJ without giving reasons.
THE LAW
The Court notes that the applicant, represented by counsel, failed to submit his observations in reply in one of the Court’s official languages within the time-limit fixed. Nor did he react to the Court’s letters of 12 December 2006 and 26 September 2007.
The Court reiterates the terms of Article 37 § 1 of the Convention which, in its relevant parts, 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;
...
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.”
Having regard to the circumstances of the case, the Court concludes that the applicant does not intend to pursue his application. The Court finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy