Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22413/93

A.G.

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 December 1997)

TABLE OF CONTENTS

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1

PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .3

PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .4

INTRODUCTION

1. This Report relates to the application introduced under

Article 25 of the European Convention for the Protection of Human

Rights and Fundamental Freedoms by Mr A.G. against Austria on

7 May 1993. It was registered on 4 August 1993 under file

No. 22413/93.

2. The applicant was initially represented by Mr L. Kaltenbäck, a

lawyer practising in Graz and is now represented by Mrs E. Simma, a

lawyer practising in Graz.

3. The Government of Austria were represented by their Agent,

Mr F. Cede, Ambassador, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

4. On 27 February 1997 the Commission (First Chamber) declared the

application admissible. It then proceeded to carry out its task

under Article 28 para. 1 of the Convention which provides as follows:

"In the event of the Commission accepting a petition referred to

it:

a. it shall, with a view to ascertaining the facts, undertake

together with the representatives of the parties an examination

of the petition and, if need be, an investigation, for the

effective conduct of which the States concerned shall furnish all

necessary facilities, after an exchange of views with the

Commission;

b. it shall at the same time place itself at the disposal of

the parties concerned with a view to securing a friendly

settlement of the matter on the basis of respect for Human Rights

as defined in this Convention."

5. The Commission (First Chamber) found that the parties had reached

a friendly settlement of the case and on 9 December 1997 it adopted

this Report, which, in accordance with Article 28 para. 2 of the

Convention, is confined to a brief statement of the facts and of the

solution reached.

6. The following members were present when the Report was adopted:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

PART I

STATEMENT OF THE FACTS

7. The applicant is an Austrian citizen, born in 1928. He is a

former politician and was, inter alia, Mayor (Bürgermeister) of a

larger Austrian city. He complains under Article 6 para. 1 of the

Convention about the length of the following proceedings.

8. In 1983 the applicant retired as Mayor and was granted a pension

as former Mayor. In April 1985 his pension rights were reduced,

following the introduction of new legislation, on the ground that he

continued to draw a salary as civil servant. As appeal proceedings

remained unsuccessful, he filed a complaint with the Constitutional

Court (Verfassungsgerichtshof). In March 1987 the Constitutional Court

repealed as being unconstitutional the provision on which the reduction

of the applicant's pension claim was based and quashed the decision

reducing his pension.

9. On the basis of a Federal Constitutional Act of June 1987

permitting legislation reducing pension claims of former politicians,

new legislation reducing pension claims of former politicians was

introduced and in May 1988 the authorities upheld the reduction of the

applicant's pension claim. Thereupon the applicant, in June 1988,

lodged a further complaint with the Constitutional Court. In March 1990

the Constitutional Court repealed a procedural provision which was

applied when adopting the new legislation and quashed the decision

reducing the applicant's pension claim.

10. In May 1991 the reduction of the applicant's pension claim was

upheld by the authorities for the third time and he lodged a further

complaint with the Constitutional Court. In September 1992 the

Constitutional Court refused to entertain this complaint and remitted

the case to the Administrative Court (Verwaltungsgerichtshof). In

September 1996 the Administrative Court applied to the Constitutional

Court for review of the constitutionality of the provision allowing for

the reduction of the applicant's pension claim.

11. In November 1996 the Constitutional Court instituted proceedings

for the review of the constitutionality of the provisions attacked by

the Administrative Court. The case is still pending.

PART II

SOLUTION REACHED

12. Following the decision on the admissibility of the application,

the Commission (First Chamber) placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 para. 1 (b) of the Convention and invited the parties

to submit any proposals they wished to make.

13. In accordance with the usual practice, the Chamber Secretary,

acting on the Commission's instructions, contacted the parties to

explore the possibilities of reaching a friendly settlement.

14. By letter of 1 September 1997 and 26 November 1997 respectively,

the parties submitted the following agreement reached between them:

"Statements of the parties with a view to a friendly settlement

With reference to Article 28 para. 1 (b) of the European

Convention for the Protection of Human Rights and Fundamental Freedoms,

the parties in the proceedings concerning Application No. 22413/93,

lodged by Mr A.G., declare with a view to a friendly settlement,

reached with the assistance of the European Commission of Human

Rights, as follows:

1. The Government of the Republic of Austria will pay to the

applicant a sum of altogether AS 95,000 as compensation in

respect of any possible claims relating to the present

application. This sum includes AS 15,000 in respect of counsel's

fees and expenses incurred in the proceedings before the

Commission.

This amount will be paid to the applicant's bank account ...

2. The applicant declares his application settled.

3. The applicant waives any further claims against the

Republic of Austria relating to the facts underlying the present

application insofar the application has been declared admissible

by the Commission in its Decision of 27 February 1977."

"Erklärungen der Parteien zur gütlichen Regelung

In der Beschwerdesache Nr. 22413/93 des Herrn A.G. einigen sich

die Parteien unter Bezugnahme auf Artikel 28 Abs. 1 lit. b der

Europäischen Konvention zum Schutze der Menschenrechte und

Grundfreiheiten und unter Mitwirkung der Europäischen Kommission für

Menschenrechte auf die nachstehende gütliche Regelung:

1. Die österreichische Regierung zahlt dem Beschwerdeführer

als Ausgleich für sämtliche etwaige Ansprüche im Zusammenhang mit

der vorliegenden Beschwerde einen Gesamtbetrag von öS 95 000.

Dieser Betrag umfaßt öS 15 000 hinsichtlich der Gebühren und

Auslagen, die im Rahmen des Verfahrens vor der Kommission

entstanden sind.

Dieser Betrag wird an den Beschwerdeführer ... überwiesen.

2. Der Beschwerdeführer erklärt seine oben genannte Beschwerde

als erledigt.

3. Der Beschwerdeführer verzichtet auf die Geltendmachung

allfälliger weiterer Forderungen gegen die Republik Österreich

im Zusammenhang mit dem der Beschwerde zugrundeliegenden

Sachverhalt, insoweit diese von der Kommission in Ihrer

Entscheidung vom 27. Februar 1997 für zulässig erklärt wurde."

15. At its session on 9 December 1997, the Commission noted that the

parties had reached an agreement regarding the terms of a settlement.

It further considered, having regard to Article 28 para. 1 (b) of the

Convention, that the friendly settlement of the case had been secured

on the basis of respect for Human Rights as defined in the Convention.

16. For these reasons, the Commission adopted the present Report.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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A.G. v. Austria

A.G. v. Austria

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