Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28634/95

by Walter SPANNRING

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 September 1995

by Walter SPANNRING against Austria and registered on 21 September 1995

under file No. 28634/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

22 July 1996 and the observations in reply submitted by the

applicant on 25 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1926, is an Austrian national and resident

in Schladming. Before the Commission he is represented by

Mr. A. Morawa, a lawyer residing in Washington D.C.

The facts of the case, as submitted by the parties, may be

summarised as follows.

On 17 December 1984 the applicant applied with the Styria

Regional Insurance Board (Gebietskrankenkasse) for a declaration that

his occupation as a tourist-guide required affiliation to the Social

Security and Unemployment Insurance Scheme (Kranken-, Unfall-,

Pensions- und Arbeitslosenversicherung).

On 21 April 1986 the Insurance Board, following various

enquiries, granted the applicant's request whereupon the employer

appealed to the Styria Provincial Governor (Landeshauptmann). Pending

the ensuing proceedings, the applicant received pension payments on a

provisional basis.

On 22 March 1988 the Provincial Governor dismissed the employer's

appeal of 23 May 1986.

On 13 April 1988 the employer appealed to the Federal Ministry

for Labour and Social Affairs (Bundesministerium für Arbeit und

Soziales) which on 26 June 1990 decided to quash the Provincial

Governor's decision.

On 6 August 1990 the applicant appealed against this decision to

the Administrative Court (Verwaltungsgerichtshof). On 22 October 1991

the Administrative Court, on procedural grounds, quashed the decision

of the Federal Ministry for Labour and Social Affairs of 26 June 1990.

On 9 September 1992 the Federal Ministry for Labour and Social

Affairs, in the resumed appeal proceedings, found that the applicant's

occupation as a tourist-guide had not required affiliation to the

Social Security and Unemployment Insurance Scheme.

On 20 October 1992 the applicant appealed to the Constitutional

Court (Verfassungsgerichtshof).

On 15 June 1993 the Constitutional Court refused to entertain the

applicant's complaint that his case had not been decided by a tribunal,

and in proceedings in conformity with Article 6 para. 1 of the

Convention, and referred the applicant's complaint to the

Administrative Court.

According to the parties' statements of October 1996 and

June 1997, the proceedings before the Administrative Court are still

pending.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

about the length of the proceedings relating to his request for a

declaration that his occupation as a tourist-guide required affiliation

to the Social Security and Unemployment Insurance Scheme.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 September 1995 and

registered on 21 September 1995.

On 12 April 1996 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 22 July 1996, after an extension of the time-limit, the

Government submitted their observations. The observations in reply by

the applicant were submitted on 25 September 1996.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of proceedings concerning the applicability

of the Social Security and Unemployment Insurance Scheme to his case.

Article 6 para. 1 (Art. 6-1), so far as relevant, reads as

follows:

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

everyone is entitled to a ... hearing within reasonable time ..."

a. The Government maintain that the applicant failed to exhaust the

available domestic remedies, as required by Article 26 (Art. 26) of the

Convention. They submit that under S. 73 para. 1 of the General

Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz)

the authorities are obliged, unless specified otherwise in the

administrative rules, to decide on requests by citizens or an appeals

without undue delay (ohne unnötigen Aufschub) and in any event not

later than six months after an application has been made to them. If

the decision (Erkenntnis) is not notified to the parties concerned

within that time, the parties may apply to the higher authority, which

will thereupon acquire jurisdiction to determine the merits (S. 73

para. 2). Moreover, the applicant could have complained about the

length of the proceedings to the Administrative Court, pursuant to

Articles 130 para. 1 (b) and 132 of the Federal Constitution (Bundes-

verfassungsg-Gesetz).

The applicant submits that the proceedings are pending before the

Administrative Court where the remedies mentioned by the Government are

to no avail. Moreover, the question whether an applicant made use of

procedural means to further the proceedings is to be examined when

assessing the reasonableness of the length of the proceedings and not

as a preliminary issue under Article 26 (Art. 26) of the Convention.

Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international

law.

The Commission recalls that the supervision machinery set up by

the Convention is subsidiary to the national human rights protection

systems. That principle is reflected in the rule set forth in

Article 26 (Art. 26), which "dispenses States from answering before an

international body for their acts before they have had an opportunity

to put matters right through their own legal system" (cf., Eur. Court

HR, Sadik v. Greece judgment of 15 November 1996, para. 30, to be

published in Reports of Judgments and Decisions 1996, with reference

to the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971,

Series A no. 12, p. 29, para. 50).

Under Article 26 (Art. 26) normal recourse should be had by an

applicant to remedies which are available and sufficient to afford

redress in respect of the breaches alleged. The existence of the

remedies in question must be sufficiently certain not only in theory

but in practice, failing which they will lack the requisite

accessibility and effectiveness (cf. Eur. Court HR, Akdivar v. Turkey

judgment of 16 September 1996, 1996-IV, No. 15, paras. 66-67).

The Commission considers that an application under S. 73 of the

General Administrative Procedure Act is an interlocutory application

for transfer of jurisdiction to a higher court after the lower

authority has failed to take a decision within a period of six months.

It cannot give rise to any finding as to the length of the proceedings

as a whole, nor can it give rise to redress, for example compensation,

for any unreasonable delay to that point. As regards the second remedy

referred to by the Government, i.e. the complaint to the Administrative

Court, the Commission notes that the applicant's complaint is not

limited to the conduct of the administrative proceedings as such, but

also extends to the length of several sets of proceedings before the

Constitutional Court as well as the Administrative Court where the case

is still pending. In this context, the Commission recalls that it has

held in previous cases concerning the length of proceedings that

measures which are available to an individual which might speed up

proceedings are matters which fall to be considered in the context of

the merits of the application (cf., No. 11296/84, Dec. 14.4.88, D.R. 56

p. 115).

Accordingly, in the instant case, the remedies relied upon by the

respondent Government cannot be regarded as effective remedies for the

purposes of Article 26 (Art. 26) of the Convention.

b. As regards the compliance with Article 6 (Art. 6), the Government

submit that the proceedings were extremely complex in fact and in law.

The question whether someone has to be considered as an employee within

the meaning of S. 4 of the Social Security Scheme, depends on a whole

set of criteria, which necessitated extensive taking of evidence and

there was no jurisprudence of the Administrative Court on a comparable

case. No unreasonable delays were caused by the competent authorities.

The applicant submits that an overall duration of the still

pending proceedings of more than eleven years is unreasonable, in

particular having regard to the fact that his right to an old-age

pension is at stake.

The Commission considers, in the light of the criteria

established by the case-law of the Convention institutions on the

question of "reasonable time" (the complexity of the case, the

applicant's conduct and that of the competent authorities), and having

regard to all the information in its possession, that a thorough

examination of this complaint is required, both as to the law and as

to the facts.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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SPANNRING v. AUSTRIA

SPANNRING v. AUSTRIA

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