THE FACTS

Whereas the original submissions of the Applicant company may be

summarised as follows:

I. The Applicant, an Austrian company, is represented by Dr. Franz R.

Gugg, a barrister practising in Vienna.

Pursuant to the provisions of the Austrian Restitution Acts the

Applicant company appealed against the Republic of Austria for

restitution of the shares of the Österreichische Volksfürsorge

(formally the Allianz- und Giselaverein), a life insurance company,

which had lapsed to the Austrian Government. Since the object of the

restitution - i.e. the shares of the aforesaid insurance company - is

in the ownership of the Republic of Austria, the Act applicable in this

case is the Second Restitution Act (Zweites Rückstellungsgesetz) which

stipulates that the body competent to decide the matter was not a

court, but an administrative authority - in the first instance the Land

Directorate of Finance (Finanzlandesdirektion), and in second and final

instance the Federal Ministry of Finance. By decision (Bescheid), dated

10th June, 1963, served upon the Applicant company on 14th June, 1963,

its claim for restitution was rejected with binding effect after

protracted proceedings on both sides. The Applicant company lodged a

constitutional appeal (Beschwerde) with the Austrian Constitutional

Court (Verfassungsgerichtshof) because - independently of Article 6 of

the Convention on Human Rights - it considered that the decision

violated the principles of equity and its right to property guaranteed

under the Constitution. In case the appeal was rejected by the

Constitutional Court, the Applicant company applied for its transfer

to the Administrative Court (Verwaltungsgerichtshof). Examination by

the Constitutional Court is possible only in cases of alleged violation

of rights guaranteed by the Constitution. As the Constitutional Court

has declared in numerous decisions, it does not regard Article 6 of the

Convention as self-executing i.e. it holds that this Article is

applicable only by virtue of a special implementing act of domestic

law. So far, no such implementing act has been issued. The

Constitutional Court has also declared that, although Article 83,

paragraph (2), of the Federal Constitution (Bundes-Verfassungsgesetz)

guarantees the "lawful judge" (gesetzlicher Richter), the legislator

is not forbidden to nominate, at his discretion, the body competent to

take decisions. The prescript of Article 6 of the Convention, to wit:

"In the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law", hence does not form a provision of

Austrian municipal law. It cannot therefore be invoked as grounds for

an appeal to the Constitutional or the Administrative Court.

This means that once the decision of the second administrative instance

(the Federal Ministry of Finance) has been taken, the domestic remedies

must be considered exhausted in the present case. Since the decision

in question was rendered on 10th June, 1963, the present Application

was lodged within the time-limit prescribed by Article 26 of the

Convention.

The Applicant company alleges a violation of Article 6 of the

Convention.

II. With regard to the legislation in question, the Applicant company

observes that the property changes ("Aryanisations") effected during

the period of the National Socialist tyranny resulted in Austria, as

in other European States, in subsequent "restitution laws", the

principles of the General Civil Code (allgemeines bürgerliches

Gesetzbuch) being regarded as inadequate to render null and void such

property transfers. The first enactment was the merely declaratory

Nullity Act of 1946 - Federal Gazette (Bundesgesetzblatt) No. 106/1946

-, which established the principle of the nullity of all acts of

seizure. It was followed, in stages, by the seven Restitution Acts, of

which the first three are of special importance.

The First Restitution Act was published on 26th July, 1946 (Federal

Gazette No. 156/1946). It deals with the restitution of seized

properties which are under the administration of the Federation or the

Federal Länder. This Act appeared first because its purpose was the

easiest to determine. With regard to the properties involved, there was

no need to await the registrations ordered under the Act of 10th May,

1945 - State Gazette (Staatsgesetzblatt) No. 10/1945 -, because the

details were clearly apparent from the administrative files of the

Federation or Länder. The only properties affected were such as had

either automatically lapsed to the German Reich by virtue of laws like

the 11th Ordinance issued under the Reich Citizenship Act

(Reichsbürgergesetz), or had fallen with its possession by virtue of

a confiscation decision. In the following year, on 6th February, 1947,

the Second and Third Restitution Acts were promulgated. The Second Act

(Federal Gazette No. 53/1947) deals with the restitution of seized

properties which are in the ownership of the Austrian Republic, i.e.

with properties which were first seized (Aryanized) and then

automatically fell into the ownership of the Republic. The Applicant

company's claim for the restitution of the shares of the

Österreichische Volksfürsorge was submitted under the terms of this

Act. The latter, too, stipulates that the restitution authority is in

the first instance the Land Directorate of Finance and in the second

instance the Federal Ministry of Finance. On 6th February, 1947, also

the Third Restitution Act (Federal Gazette No. 54/1947) was published.

This contains the most comprehensive settlement and deals with all

seizures of material assets not falling under the provisions of the

first two Acts. According to Article 1, paragraph (1), of the Third

Restitution Act, the provisions of this Act are also applicable to

restitution claims under the First or Second Act, in so far as the

latter do not otherwise provide.

III. According to Article 1, paragraph (2), of the Third Restitution

Act, Article 3, paragraph (1), of the same Act also applies to claims

under the Second Act. Article 3, paragraph (1), reads as follows:

"Seizures of property (Article 1, paragraph (1)), shall be null and

void. Unless this Act otherwise provides, the provisions of civil law,

in particular those concerning the nullity of contracts on the ground

of unjust and well-founded apprehension (ungerechter und begründeter

Furcht) shall be applied."

This passage is a significant pointer to the nature of a claim for

restitution. It explicitly refers to the provisions of general civil

law: the provisions concerning nullity of contracts on the ground of

unjust and well-founded apprehension are to be found in Articles 870

and 877 of the General Civil Code. The consequences of the nullity of

contracts concluded under duress are exhaustively set forth therein.

These provisions are expressly repeated in Article 3, paragraph (1),

second sentence, of the Third Restitution Act for the field it covers,

in so far as the Act itself does not stipulate some other measure.

Since under the General Civil Code the nullity of contracts is governed

by differing provisions in respect of each cause of nullity, it is

stipulated that the existing provisions of Articles 870 and 874 to 877

of the Code - which refer to the closely related form of nullity on

grounds of unjust and well-founded apprehension - are applicable to

nullity resulting from restitution legislation (on the newly-specified

ground of "seizure").

In the prevailing view the nullity of an act of seizure

(Entziehungsakt) should be assessed not as absolute but only as

relative nullity (defeasibility). The Supreme Court has therefore

expressly ruled that a restitution judgment does not have declaratory

but constituent effect and that it is consequently in the discretion

of the parties to appeal for nullification or not. A claim for

restitution is regarded as conditio within the meaning of Article 877

of the General Civil Code. Thus such a claim is not based on the

property rights of the injured party, but on the fact of having

received some illegal benefit. The Supreme Restitution Commission

(Oberste Rückstellungskommission) states in fact:

"Even though a claim for restitution may have the effect of a right in

rem, it is primarily, by the terms of Article 3, paragraph (1), of the

Third Restitution Act, an obligatory conditio within the meaning of

Article 877 of the General Civil Code, not presupposing ownership of

the object furnished."

Law writers have established criteria of various kinds for defining the

term "civil right". Sometimes the governing consideration is the

interest protected (individual or collective interest), sometimes it

is the relationship of the subjects to one another (equal footing or

superiority and subordination), or it may well be the existence of the

individual's subjective interest corresponding to the obligation, or

again it may take the form of judicial protection (civil proceedings

or intervention by other authorities, etc.). Seventeen different

criteria are laid down in  the relevant literature. Of the definitions

mentioned above it is the "equal footing" and the "subordination"

criteria which are most frequently found.

The question of which authorities are granted the right of decision

over disputed claims under the internal legislation of the various

States is not, however, a serviceable criterion. The view that "civil

rights" in the sense of Article 6 of the Convention means only such

rights as are to be decided by the Courts under the internal laws of

a contracting State, whereas rights to be decided by the administrative

authorities in virtue of a positive legal provision are not civil

rights, would render Article 6 meaningless. It would then be left to

the discretion of each contracting State to get round Article 6 by

granting the power of decision, not to an impartial and independent

tribunal, but to an administrative authority, bound by instructions.

The concept of "civil rights" in Article 6 must therefore be understood

as a concept of material law.

Reference is made in this respect to the Isop case (Application No.

808/60), where the Commission held that "the question whether a right

or an obligation is of a civil nature within Article 6, paragraph (1),

of the Convention does not depend on the particular procedure

prescribed by domestic law for its determination but solely on an

appreciation of the claim itself and of the purpose of the complaint"

(Yearbook of the European Convention on Human Rights, Volume 5, page

108 [122]).

There is no need to enter into a discussion of the various definitions

evolved by the law writers. It is sufficient that a right should exist

under the domestic law of the country in which the appeal is lodged -

a right approximating to the rights customarily considered in that

country as belonging to the category of "civil rights". Notwithstanding

all differences of opinion about the criterion serving to distinguish

between rights, there is far-reaching agreement on the actual

classification of rights which are part of civil law (or private law)

on the one hand or of public law (sovereign law, administrative law)

on the other. All those rights which are provided for in the General

Civil Code are regarded as civil rights in accordance with unanimous

Austrian doctrine and jurisprudence. This is expressly stated in

Article 1 of the General Civil Code. As shown above, restitution claims

are conceived on the model of claims submitted under Article 877 of the

General Civil Code. They are rights of conditio under civil law. Apart

from the condition laid down in the Restitution Acts as to their

origin, they do not differ from rights claimed under the General Civil

Code. They govern the relations of subjects of law on an equal footing

(see Article 1 of the General Civil Code: "The private rights and

obligations of the inhabitants of the State among themselves") and they

are placed in the discretion of the parties.

If the nature of restitution rights is thus analyzed according to their

inherent characteristics, it will be seen that they are among the

rights listed in the General Civil Code. The relevant clauses comprise

rights which are generally regarded in Austria as "civil rights".

Accordingly, the Austrian Constitutional Court has held that claims for

restitution under all existing restitution laws are to be considered

as civil claims (Decision G 2/52-Slg. 2313). Restitution rights are

therefore sufficiently clearly defined to include them under Article

6 of the Convention.

IV. Although, under both the Second and the Third Restitution Acts,

restitution rights are civil rights, the means of asserting them are

regulated in an entirely different way.

From the standpoint of material law the second Restitution Act bestows

merely a right to restitution of property which is still existing in

the ownership of the Republic of Austria. Article 5 of the Second Act

excludes any claim for compensation against the Republic or makes such

claim subject to special legislation. The Third Restitution Act, on the

other hand, grants the injured proprietor, in addition to restitution

of the property seized, the right to claim compensation for the damage

done.

The differences are more significant when one turns to the aspect of

formal law. Here the divergent treatment rests on purely practical

consideration. Whereas under the Third Act claims are to be heard by

the Courts, i.e. by the Restitution Commissions functioning as special

courts attached to the Regional Courts, jurisdiction over claims

submitted under the Second Act is awarded to the administrative

authorities of the Republic. In the explanatory memorandum by the

competent Committee of the Nationalrat, this ruling is justified as

follows:

"The Government draft of the Second Restitution Act was prepared with

close reference to the First Restitution Act. During the discussions

in the Sub-Committee a further assimilation was made, in that decisions

on restitution claims were made a matter for the Land Directorates of

Finance, since experience gained in the execution of the First Act had

shown that this is a practical method and that the fears that shortage

of staff would prevent these authorities from carrying out the task

were unjustified."

V. The determination of competence laid down in the Second Restitution

Act leads, however, as a result of Austrian civil service

organisation,to a situation in which the deciding authority is given

an unusual dual function: it appears simultaneously as a representative

of one of the parties and as a judge. In other words, it becomes judge

in its own case.

In claims lodged under the Second Restitution Act, the Republic of

Austria is first of all the respondent, that is to say a party to the

proceedings. To that extent claims under the Second Restitution Act

differ not at all from those under the Third. In both cases the

proceedings involve two parties. In the one case the decision is

rendered by an independent and impartial tribunal, but in the other by

an administrative authority bound by instructions. The same authority,

which is representing the Republic of Austria as a party, is thus also

represented as the judge.

Admittedly, the fact that the party and the judge are sitting in the

same seat (the Republic's) is not entirely obvious during the

proceedings of first instance, but it its obvious enough before the

second instance. At this level there intervenes the Federal Ministry

of Finance, by whose instructions the restitution authority of the

first instance, i.e. the Land Directorate of Finance, is bound. The

second instance, the Ministry, has various departments at its service.

One of these is allotted power to decide appeals for restitution by

means of an administrative act of sovereignty (Bescheid), while another

is responsible for the private economic administration of property in

the ownership of the Republic. In all this, however, the organisation

principle of the Austrian Federal Authorities is of decisive

importance. The Federal Ministries are arranged in accordance with the

monocratic, otherwise termed bureaucratic or ministerial system. The

supreme power is exercised by the administrative chief, the Federal

Minister. He, the Minister, is the "Authority", the Federal Ministry

is only his auxiliary apparatus. All departments of the Ministry are

subordinate to the instructions and supervision of the Federal

Minister. Thus in his person are united all the various departments of

a Ministry, forming a single indivisible whole. But this also means

that the will of one man determines the conduct of business throughout

all the departments of the Ministry.

The consequences are clear. The Minister of Finance unites in his own

person the function of the judge, which he exercises in co-operation

with the departments responsible for taking decisions in restitution

questions, and the function of a party to the proceedings, which he

exercises in conjunction with the department responsible for

administering the property of the Austrian Republic. It is obvious that

where such a dual role is played, the principle of judgment by an

independent and impartial Court is not seen to be observed.

Austria's internal legal order does not prohibit such a combination of

the functions of judge and party in one and the same person. The

principle defined in Article 6, paragraph (1), of the Convention is not

immanent in the Austrian legal system. Furthermore, the decision of the

Federal Ministry is not subject to effective control by one of the two

Courts of Justice set up under public law - the Administrative or the

Constitutional Court. Thus it cannot be said that in the final instance

an impartial and independent judge (or college of judges) decides.

An appeal to either of these two Courts depends on very definite

conditions and is permissible only within narrow limits. The

Administrative Court may be appealed to only to investigate alleged

defects of procedure or to make a legal assessment of the matter in

dispute, but not in questions connected with ascertaining the facts

(appreciation of evidence). According to Article 41 of the

Administrative Court Act (Verwaltungsgerichtshof), it is bound, as to

the facts, by the findings of the administrative authority. An appeal

lies to the Constitutional Court, on the other hand, only in respect

of alleged violations of constitutionally guaranteed rights.

Defeasibility before either of these tribunals is no substitute for a

decision by an impartial and independent judge, who appraises the

evidence of disputed facts and makes impartial findings as to the

question at issue.

According to Article 6, paragraph (1), of the Convention everyone is

entitled that his civil rights and obligations are determined

(décidera) by an independent and impartial tribunal. Article 6

therefore provides for a decision in re by the court and not only for

a review by a court with the limited power to rescind the decision of

the administrative authority but with no power to amend. Neither the

Constitutional Court nor the Administrative Court have a jurisdiction

to decide in re i.e. to amend the decision of the administrative

authority. The independent and impartial tribunal provided for in

Article 6 must be free to base its judgment on its own findings of both

fact and law. A court cannot be regarded as determining a civil right

or obligation, if the finding of fact, which is conclusive upon the

court, is solely in the hands of an administrative authority, which is

neither independent nor impartial.

It follows from the foregoing:

(1) that the restitution claim of the Applicant company is a "civil

right" within the meaning of Article 6, paragraph (1), of the

Convention, and

(2) that the authority called upon to render a decision concerning this

civil right, under the Second Restitution Act, is not "an independent

and impartial tribunal".

VI. The proceedings in the present case illustrate how this combination

of judge and party in a single person may stultify any hope of a just

decision.

The right to restitution, which was ceded to the Applicant company by

the injured proprietor, the Assicurazioni Generali, was originally the

subject of proceedings pending before the Restitution Commission

attached to the Regional Court for Civil Cases (Landesgericht für

Zivilrechtssachen) in Vienna pursuant to the Third Restitution Act. The

parties to these proceedings were: plaintiff, the Assicurazioni

Generali; respondent, the "Alte Volksfürsorge Lebensversicherungs AG",

into whose ownership the disputed shares had originally fallen as a

result of Aryanisation (seizure consequent upon qualification of the

Assicurazioni Generali as a "Jewish undertaking").

The Assicurazioni Generali lodged their initial application for

restitution with the competent Court on 20th October, 1952. On 25th

July, 1955, or nearly three years later, the Federal Ministry of

Finance issued a declaratory decision (Feststellungsbescheid) to the

effect that the share capital of the Alte Volksfürsorge

Lebensversicherungs AG had lapsed to the Republic of Austria, because

that insurance company had been an institution of the former "Deutsche

Arbeitsfront", and thus a National-Socialist organisation.

On the basis of this finding the Restitution Commission now declared

itself to be incompetent, because under the provisions of the Second

Restitution Act claims for restitution of property which has lapsed to

the State (i.e. property in the ownership of the Austrian Republic)

come under the jurisdiction of the administrative authority.

It was purely as a result of this circumstance that the proceedings,

which at the outset had rightly been pending before an impartial and

independent Court, came up for decision before an administrative

authority bound by instructions which, in any case, cannot be regarded

as impartial, since it simultaneously functions as a judge and as the

representative of one of the parties to the dispute.

This transfer of competence plainly shows how unrealistic is the

relevant legal provision. There is no means of telling on what grounds

inherent in the case itself the decision has to be taken out of the

hands of the Court previously dealing with it and transferred to an

administrative authority. The fact that the Republic of Austria was now

to be regarded as the owner of the disputed shares (by virtue of the

subsequent notification of their lapsing) is not an objective

motivation. If the Republic had later become the owner, not because the

property had lapsed to it, but only because of some legal act with

constituent effect, the competence of the Court (i.e. the Restitution

Commission) would have continued to hold good; for example, if the

Republic had legally bought the shares from the Alte Volksfürsorge

Lebensversicherungs AG or become their owner under the terms of the

State Treaty. In all these cases the proceedings would have continued

without change before the Restitution Commission.

Transfer of competence from the Court to the administrative authority

led to the situation which is the subject of the present Application.

The Federal Minister of Finance manages property owned by the Republic

of Austria through "Department 2" of his Ministry. In this capacity he

is the legal representative of the respondent in restitution claims,

namely the Austrian Government. Simultaneously, in his sovereign

capacity, the Minister has to decide, through "Department 34" of his

Ministry, in the civil law dispute between the restitution claimant and

the respondent Government. The official who, in disputing our claim,

gives instructions to the Finanzprokuratur as counsel for the private

law person "the Republic of Austria", as well as the official who

decides the claim by means of sovereign procedure - thus exercising the

functions of a judge appointed by law - are acting only on behalf of

the Federal Minister of Finance and signing for him. This fusion of

judge and party in a single person (in other words the fact that

the judge decides in his own cause) has had very strange effects in the

present proceedings.

The original decision of the Land Directorate of Finance (an authority

which is also subject to the instructions of the Federal Minister of

Finance) was based on such defective and contradictory reasoning that

it had quite obviously not been rendered in any striving after realism

or objectivity. Apparently the authorities had been guided by the

intention of rendering a decision in favour of the Republic of Austria,

whatever might be the factual and legal position.

When the Applicant company submitted its appeal to the authority of

second instance (the Federal Ministry of Finance), its representative

spoke with the appropriate official in Department 34,to find out

whether the latter was free to decide to the best of his knowledge and

belief, or whether he was instructed to render the decision in one

particular direction only. The Department chief said that he had no

instructions and that in his opinion there was a clear case of seizure.

He therefore intended to grant the appeal. A similar statement was also

made by the Department chief to the secretary of the Clearing House

(Sammelstelle) set up by law to pursue restitution claims still

pending. This was reported to the Applicant company by the Clearing

House in a letter of 20th December, 1960, in the following words:

"As I have been informed by the Ministry of Finance that your appeal

will be granted ... I shall do nothing further in the matter."

The competent Department chief in the Finance Ministry did in fact

draft the decision granting the appeal from the negative decision of

first instance. He ordered, however, -  a most unusual step - that the

text should not receive its final form until it had been signed by the

Section Head of the Federal Ministry. After the document had been lying

for about a month on the desk of the Section Head concerned, the latter

caused it to be transmitted to Department 2 of the same Ministry. This

could mean only that the case-file prepared by Department 34 (which

acts as the judge) was communicated for an opinion to Department 2,

representing one of the parties to the proceedings. When this procedure

came to the knowledge of the Applicant company it requested immediate

finalisation of the decision on the appeal and protested against the

fore-mentioned transmission of the case-file as improper procedure. In

spite of this protest it was not until another month had elapsed that

the file was returned, and it now bore a note to the effect that in the

opinion of Department 2 no state of seizure existed.

Instead of the decision originally expected, which was to grant the

appeal, the decision of first instance was confirmed by decision

(Berufungsbescheid) of 26th September, 1961. The said decision -

against which the Applicant company lodged a constitutional appeal with

the Constitutional Court - was subsequently withdrawn by the Federal

Ministry itself on the grounds of an application for a fresh hearing

lodged by the Applicant company and supported by additional documents.

As far as its first plea to the Constitutional Court was concerned, the

Applicant company was thus given satisfaction. A fresh decision was

afterwards issued, namely that dated 10th June, 1963, which is the

subject of the present Application. Once again the claim for

restitution was rejected. The documents, which had offered the

authorities themselves a reason for re-opening the proceedings, were

neither mentioned nor discussed in the new decision.

The Applicant company also appealed to the Constitutional Court against

the second decision. It submitted that the administrative authority had

used specious arguments, omitted to mention relevant facts and based

its decision on assumptions without foundation in evidence. The

authority had misapplied the law, violated the rules of logic and

apparently made no effort to be impartial. This was the result of

combining judge and party in a single person, contrary to the inherent

principles of justice and to Article 6, paragraph (1), of the

Convention.

The Constitutional Court heard the case on 16th March, 1964, and

adjourned to hear three officials of the Ministry of Finance as

witnesses. The hearing of the witnesses has not yet taken place.

The Administrative Court will have to deal with the Applicant company's

claim, if and when the Constitutional Court decides to reject the claim

on the ground that no right guaranteed by the Constitution has been

violated.

The Applicant company alleges a violation of Article 6 of the

Convention in the restitution proceedings in that its claim was not

determined by an impartial tribunal within a reasonable time. It points

out with regard to the length of the proceedings that over eight years

elapsed since the claim was submitted by the Assicurazioni Generali to

the Land Directorate of Finance as administrative authority of first

instance on 26th April, 1957.

The Applicant company claims 10,000,000 Austrian schillings as

compensation for the damage suffered.

Proceedings before the Commission

I. On 16th July, 1965, the Commission decided to invite the Respondent

Government to submit its observations on the admissibility of the

Application.

II. In its observations of 16th September, 1965, the Austrian

Government submitted that the Applicant company had failed to exhaust

the remedies available to it under Austrian law and that the

Application was consequently inadmissible under Articles 26 and 27,

paragraph (3), of the Convention. The Government pointed out that the

constitutional appeal lodged by the Applicant company was still pending

before the Constitutional Court and stated in this respect:

Rule 41, paragraph 2 of the Rules of Procedure of the Commission states

that the Applicant shall provide information enabling it to be shown

that the conditions laid down in Article 26 of the Convention have been

satisfied.

Part I of the present Application deals with the question of domestic

applicability of the Convention in Austria. The Applicant company

attempts to explain that the provision of Article 6, paragraph (1), is

not self-executing in Austria and that consequently, in the light of

the practice of the Constitutional Court, any appeal to that Court

because of violation of that provision of the Convention is unlikely

to be successful. It therefore considers the domestic remedies

exhausted by the above-mentioned decision of the Federal Ministry of

Finance.

In this opinion the Applicant company is wrong.

It is true that both the Constitutional Court and the Supreme Court

(Oberster Gerichtshof) hold the view that Article 6 of the Convention

is not self-executing. This does not mean, however, that said provision

of the Convention does not form an integral part of Austria's

legislation. Together with all other provisions the said provision was

incorporated into Austria's national legislation by its publication in

the Federal Gazette according to the principle of general

transformation as contained in Article 49 of the Federal Constitution

and, as clarified under the Federal Constitutional Law of 4th March,

1964 (Federal Gazette No. 59), it has the status of a federal

constitutional law. Since the coming into force of that Federal

Constitutional Law, the Constitutional Court has, therefore, clearly

been in a position to examine, in accordance with Article 140 of the

Federal Constitution, the compatibility of national laws with the

Convention. The Constitutional Court, indeed, examined recently certain

provisions of the Financial Criminal Code as to their compatibility

with Articles 5 and 6 of the Convention.

In its complaint to the Constitutional Court, the Applicant company did

not only contend violation of the constitutional rights to property and

equality before the law. It is also aware of the fact that Article 6

of the Convention forms an integral part of Austria's national

constitutional legislation and that any conflicting provision may be

repealed by the Constitutional Court in accordance with Article 140 of

the Federal Constitution. In its appeal to the Constitutional Court,

the Applicant company emphasised that the competence of finance

authorities and of the Federal Ministry of Finance as the last instance

to decide upon restitution claims under the Second Restitution Act is

in contradiction to Article 6 of the Convention. The Applicant company

further referred to the change in the legal position as a result of the

Federal Constitutional Law of 1964 and pointed out:

"(1) (First premise) Article 6 of the Convention ... forms an integral

part of the Federal Constitution. Since Article 6 is not

self-executing, it has no derogatory effect on conflicting provisions.

However, as a result of Article 6, such conflicting provisions have

become unconstitutional.

(2) (Second premise) Restitution claims are civil rights within the

meaning of Article 6. The Land Directorate of Finance which, under

Article 2, paragraph (1), of the Second Restitution Act, has been

appointed to decide upon such claims is not an independent tribunal

within the meaning of Article 6 of the Convention.

(3) (Conclusion) Article 2, paragraph (1), and Articles 3 and 4 of the

Second Restitution Act are unconstitutional ..."

Thus the Applicant company has, in fact, initiated proceedings to

examine the compatibility with the Constitution of Articles 3 and 4 of

the Second Restitution Act from which the competence of finance

authorities to decide on restitution claims covered by the said Act is

derived.

From a decision given by the Constitutional Court on 11th December,

1964, it appears that the subject of the examination by the Court is

the compatibility of said legal provisions with Article 6 of the

Convention which has the status of a constitutional law in Austria. If,

as a result of that examination, the Constitutional Court should

determine that the rules of Articles 3 and 4 of the Second Restitution

Act were in contradiction to the provisions of Article 6 of the

Convention, it is understood that these provisions would be rescinded

as unconstitutional by the Court in accordance with Article 140 of the

Federal Constitution.

A repeal of Articles 3 and 4 of the Second Restitution Act by the

Constitutional Court, however, would meet the Applicant's claim within

the domestic legal system.

III. In its reply of 29th November, 1965, the Applicant company stated:

The present Application was lodged with the Commission on 6th December,

1963. At the time, in the jurisprudence of the Constitutional Court,

the Convention was not considered either as having constitutional rank

or as being self-executing. Article 6 of the Convention was accordingly

not applicable as a provision of Austrian law, so that there was no

possibility of a successful appeal to the Constitutional Court or the

Administrative Court against a breach of its terms. This meant that in

respect of Article 6 of the Convention domestic remedies were exhausted

with the decision of the Federal Ministry of Finance of 10th June,

1963.It is true, indeed, that the Constitutional Law since passed on 4th

March, 1964, expressly states that the Convention on Human Rights has

the same rank as the Austrian Constitution. This entitled the Applicant

company to appeal to the Constitutional Court against a breach of

Article 6 of the Convention, and an appeal was duly lodged. The legal

position nevertheless remains unchanged.

Moreover, in the view of the Applicant company, an application that is

admissible cannot later become inadmissible, since the legally

established competence of the Commission is not set aside by national

legislation passed subsequently.

Most important of all, however, the Constitutional Court, to which the

Applicant company had appealed under the Constitutional Law of 1964,

stated in a decision given on 14th October, 1965, that the provisions

of the Second Restitution Act of which the Applicant company complained

were not contrary to Article 6 of the Convention and, consequently, not

contrary to the Austrian Constitution. In view of this decision

domestic remedies are now to be regarded as exhausted even from the

standpoint of the Austrian Government itself.

IV. Under cover of a letter dated 29th December, 1965, the Applicant

company submitted a copy of the decision given by the Constitutional

Court on 14th October, 1965. In this decision, the Court confirmed its

earlier finding that restitution rights must be regarded as civil

rights. It further held that the administrative authorities which were

called upon to render a decision on the restitution claim of the

Applicant company, under the Second Restitution Act, could not be

considered "independent and impartial tribunals" within the meaning of

Article 6, paragraph (1), of the Convention. However, both the

Constitutional and the Administrative Court were such tribunals.

Furthermore, their competence to review administrative decisions

satisfied the requirements of this provision. In particular, the

Constitutional Court stated that:

(1) Article 6, paragraph (1), did not require that the decision of

first instance was given by a court. It was sufficient that this

decision, where rendered by an administrative authority, was subject

to review by a court.

(2) It was not contrary to Article 6, paragraph (1), that both the

Constitutional and the Administrative Court were competent only to

confirm or to quash (nur kassatorisch entscheiden) the administrative

decision under review. For, where the decision was quashed, the

administrative authorities were obliged to follow the Court's

interpretation of the law.

(3) The Constitutional Court was not bound by the findings of the

administrative authorities as to the facts. The Administrative Court,

on the other hand, must interpret the provisions of the Administrative

Court Act concerning the establishment of the facts with due regard to

Article 6, paragraph (1), of the Convention.

V. In its observations of 29th December, 1965, the Applicant company

objected to this interpretation of Article 6, paragraph (1), of the

Convention by the Constitutional Court. It submitted that the mere

review of an administrative decision by the Constitutional or the

Administrative Court did not itself constitute a decision within the

meaning of that provision. For in such cases the facts had been

established and the evidence evaluated by the administrative

authorities in a procedure that was in  conformity with the Article.

The Court's power review was limited, in  particular in so far as the

appreciation of evidence was concerned.

The Applicant company also referred to the reservation made by Austria

with respect to Article 5 of the Convention which reads as follows:

"The provisions of Article 5 of the Convention shall be so applied that

there shall be no interference with the measures for the deprivation

of liberty prescribed in the laws on administrative procedure - Federal

Gazette No. 172/1950 - subject to review by the Administrative Court

of the Constitutional Court as provided for in the Austrian Federal

Constitution."

In the opinion of the Applicant company, this reservation would have

been superfluous if the Constitutional Court's above interpretation of

Article 6, paragraph (1), of the Convention were correct.

VI. In its further observations of 21st February, 1966, the Respondent

Government submitted that the Application was inadmissible because, at

the time of its introduction, the domestic remedies had not been

exhausted. The Government also considered that the Application was

directed against the decision of the Federal Ministry of Finance dated

10th June, 1963 although the final decision in this case had been given

by the Constitutional Court on 14th October, 1965.

VII. The Applicant company replied on 4th April, 1966, that, at the

time of the introduction of the Application, the appeal to the

Constitutional Court did not constitute an effective remedy within the

meaning of Article 26 of the Convention. This view had subsequently

been confirmed by the negative decision of the Constitutional Court.

VIII. By the Federal Act of 7th July, 1966 (Federal Gazette No. 126),

the Austrian Nationalrat authorised the Federal Ministry of Finance to

sell the Federal shares in the Österreichische Volksfürsorge (formerly

Allianz und Giselaverein) for the sum of 17,895,000 Austrian

schillings. Subsequently, these shares were sold to the Austrian

Federation of Trade Unions (Österreichischer Gewerkschaftsbund). This

Federation was given special consideration since the shares had formed

part of the assets of the former "Deutsche Arbeitsfront" which, as an

institution of the national socialist regime, had, itself, absorbed the

assets of the trade unions existing at that time.

In pursuance of an agreement of 21st July, 1966, the Austrian

Federation of Trade Unions, for its part, sold 40 % of the shares to

the Applicant company for the sum of 11,500,000 Austrian schillings.

The Applicant company also undertook to withdraw the present

Application.

IX. In a letter of 9th December, 1966, to the Commission, the Applicant

company stated that a settlement had been reached in respect of its

restitution claim against the Republic of Austria and that,

consequently, it did not wish to pursue its Application before the

Commission. In reply, the Commission's Secretary requested information

as to the terms and the legal basis of the settlement. The Applicant

company submitted this information in its letters of 22nd December,

1966, and 2nd March, 1967. It referred, in particular, to the Federal

Act of 7th July, 1966, and to the subsequent transactions described

under VIII above. It further stated that the definite purchase of a

considerable part of the shares of the Österreichische Volksfürsorge

had been considered preferable to long drawn out proceedings of

uncertain outcome.

These declarations of the Applicant company have been communicated to

the Respondent Government.

THE LAW

Whereas the Applicant company states that it wishes to withdraw its

present Application; whereas the Commission has considered this

declaration in the light of its constant jurisprudence in cases of

proposed withdrawal of an application pending before it; whereas it

results from this jurisprudence that in such cases the Commission is

called upon to ascertain whether there are any reasons of a general

character affecting the observance of the Convention which would

necessitate a further examination of the Applicant's complaint; whereas

in this respect reference is made to Application No. 2294/64 (Gericke

v. Federal Republic of Germany), Collection of Decisions of the

Commission, Volume 20, page 95 et seq. (99 - 100) and Application No.

1470/62 (Niekisch v. Federal Republic of Germany), Collection of

Decisions, Volume 21, page 1 et seq. (7);

Whereas, in considering the declaration of withdrawal made by the

present Applicant, the Commission has taken into account the written

observations of the Parties on the admissibility of the Application and

the explanations given by the Applicant company with regard to the

background of the settlement which has now been reached in Austria in

respect of the Applicant company's restitution claim;

Whereas, in particular, the Commission has noted that this settlement

was based on the Federal Act of 7th July, 1966, by which the Austrian

Nationalrat authorised the Federal Ministry of Finance to sell the

shares which formed the subject of the Applicant company's restitution

claim;

Whereas it is true that the present case raises important questions

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

states that, in the determination of his civil rights, everyone is

entitled to a hearing "within a reasonable time" by an "independent and

impartial tribunal";

Whereas, however, the Commission finds that - regardless of the

interpretation to be given to this provision - there are in the

particular circumstances of this case no compelling reasons of a

general character affecting the observance of the Convention which

would necessitate a further examination of the Applicant's complaints.

Now therefore the Commission decides TO STRIKE THIS APPLICATION OFF THE

LIST.