THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is an Austrian citizen, born in 1897 and at present

residing in Vienna. His application, which is supported by numerous

documents, deals with the applicant's claim for a disability pension

under the Austrian Victims of War Maintenance Act 1957

[Kriegsopferversorgungsgesetz 1957 (hereinafter quoted as the 1957

Act)]. The applicant alleges, in this respect, that he was denied a

fair and public hearing by the Austrian authorities, namely by the

Administrative Court.

The applicant served between 1939 and 1945 in the German army and it

appears that he was injured several times. At the end of the war he was

captured by the Russian Army. He was released in July 1945, and alleges

that, since that time, he has suffered from several diseases as a

consequence of the war. Apparently this forced the applicant to sell

his food store as he was incapable of standing the whole day. The

applicant then changed his profession but it appears that he was

permanently disabled thereafter.

In 1949 the applicant instituted proceedings with the Provincial

Invalids' Agency of Vienna (Landesinvalidenamt). He maintained that his

diseases were a consequence of his military service and that he was

thus entitled to draw a pension under the above Act. The applicant

indicated that he was suffering from a stomach disease, sclerosis and

a foot disease (Senkspreizfüsse).

On .. June 1950, the Provincial Invalids' Agency decided to reject the

applicant's claim for a pension for insufficient proof that the

sclerosis was caused by the applicant's military service. As regards

the stomach disease, the Agency stated that this had already been

cured. The applicant was, however, granted an allowance for his foot

disease as the Agency had established that this was in part caused by

the military service and that it reduced the applicant's earning

capacity.

On the applicant's appeal, the Arbitration Commission of the Provincial

Invalids' Agency (Schiedskommission beim Landesinvalidenamt) confirmed

this decision on .. March 1951. In the course of the further

proceedings the applicant put numerous claims that his dental disease,

his permanent bronchitis and an emphysema of the lungs should also be

taken into consideration, but the above Arbitration Commission

apparently did not allow them.

Subsequently, the applicant appealed against these decisions to the

Minister of Social Administration and to the Administrative Court

(Verwaltungsgerichtshof) and, after lengthy proceedings which lasted

more than 12 years and in the course of which numerous experts were

heard, the Administrative Court gave four judgments in favour of the

applicant. The Arbitration Commission decided again on .. September

1965, and recognised that the applicant's feet and teeth diseases were

at least in part caused by his military service and granted him a

disability allowance. As regards the other disease, the Commission held

that they were not the result of The applicant's service in the German

army and he was therefore not granted a pension.

The applicant again lodged an appeal against this decision with the

Administrative Court which once more quashed parts of the Commission's

decision, namely the refusal to recognise the sclerosis and to admit

only parts of the foot disease as being caused by the war. The Court

held that procedural rules had been disregarded by the Arbitration

Commission. This judgment was served on the Arbitration Commission on

.. July 1966.

On 23 December 1966 the applicant requested the Minister of Social

Administration to decide upon his request for a pension under the 1957

Act, as the Arbitration Commission had not decided within the statutory

delay of 6 months. The applicant repeated this request on 22 May, 15

June, 21 June and 13 July 1967. By decision of .. August 1967, the

Minister of Social Administration dismissed the applicant's request for

a disability pension under the 1957 Act and stated that the applicant's

sclerosis was not to be taken into consideration since it was not

caused by the applicant's military service. The Minister furthermore

declared that the applicant's foot disease was in part a consequence

of the war.

The Minister based the decision on several expert opinions which had

been previously given in this case by several specialists and on two

recent opinions of other experts. From the latter it followed that the

reasons for the sclerosis were still generally unknown, but it was

almost certain that this disease was not caused by circumstances

which rested outside the person of the applicant. As regards the

pension, the Minister held that only such persons whose earning

capacity was reduced by 25% as a result of their military service were

entitled to a pension under the 1957 Act. As the applicant's foot

disease only diminished his earning capacity by 10% and the loss of his

teeth not being taken into consideration as they did not affect his

ability to work, the Minister refused the granting of a pension.

On 21 September 1967, the applicant lodged a further appeal with the

Administrative Court. He complained that the Minister of Social

Administration had given his decision on the basis of a report drawn

up by the Arbitration Commission and that he had thus not acted

independently. The applicant also complained that the Minister had

wrongly established the facts of his case and that the two recent

expert opinions could not be followed. The applicant's principal

complaint concerned the statement of the Minister that his sclerosis

was not caused by the war. In his appeal the applicant explicitly

requested that the Court should hear the parties in a public oral

hearing.

By judgment of .. September 1968, the Administration Court quashed the

Minister's decision insofar as it concerned the foot disease and the

disability pension under the 1957 Act. As regards the sclerosis, the

court held that the Minister's decision was lawful and that no

procedural errors whatsoever had been committed. The applicant's

request for a public oral hearing was not dealt with in this decision

but it appears that the Court did not hear the parties.

The applicant now complains that the Administration Court decided this

appeal in camera without having heard the parties as requested by him.

He alleges a violation of Article 6 of the Convention.

THE LAW

Whereas the applicant complains that the Austrian Administrative Court

failed to hear the parties when deciding the applicant's claim for a

disability pension under the Maintenance of Victims of War Act 1957

(Kriegsopferversorgungsgesetz); whereas the applicant claims that he

was thus denied a public hearing of his case within the meaning of

Article 6, paragraph (1) (Art. 6-1), of the Convention which provides

that "... In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law ...";

Whereas the question arises whether a claim by a private individual

against a state for a pension by reason of his being permanently

disabled as a consequence of his military service during the war is to

be considered as a "civil right" within the meaning of this provision.

Whereas the Commission has pointed out in a number of previous

decisions (see e.g. Application No. 3159/67, Collection of Decisions,

Vol. 27, p. 115) that in this connection it is not decisive whether the

right claimed by the applicant constitutes a "civil right" in the

country concerned and that the term "civil rights and obligations"

cannot be construed as a mere reference to the domestic law of the High

Contracting Party concerned; that, on the contrary, it relates to an

autonomous concept which must be interpreted independently, although

the general principles of the domestic laws of the High Contracting

Parties must necessarily be taken into consideration in any such

interpretation;

Whereas the applicant claimed a war disability pension under the

Austrian legislation which provides such pension for persons who, as

a result of their service in the armed forces during the last war, are

entirely, or to a great part, disabled and thus unfit, wholly or

partly, to earn their livelihood; whereas these pensions are granted

by the State in the execution of its aim to take care of the individual

well-being of its citizens and especially for those who served in its

armed forces; whereas, as a result, a claim such as that of the present

applicant is entirely based on public law; whereas, accordingly, the

proceedings in question concerned the exercise of duties and powers

imposed under public law on the Government in the implementation of the

above aim and also concerned the rights of the applicant arising out

of this relationship; whereas it follows that the proceedings before

the Administrative Court were not concerned with the determination of

the applicant's "civil rights or obligations" and therefore fall

outside the competence of the Commission ratione materiae;

Whereas, consequently, this application is incompatible with the

provisions of the Convention within the meaning of Article 27,

paragraph (2) (Art. 27-2), of the Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE