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AS TO THE ADMISSIBILITY OF

Application No. 22363/93

by Armin BAMMER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 July 1993 by

Armin BAMMER against Austria and registered on 27 July 1993 under file

No. 22363/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1964, and living

in Vienna. He is represented by Mr. G. Korn, a lawyer practising in

Vienna.

It follows from the applicant's statements and the documents

submitted that on 28 June 1988 the competent Federal Ministry for

Public Economy and Traffic rejected the applicant's request to

recalculate his telephone bill. It is inter alia stated in the

decision that the first instance Telecommunication Authorities had

carried out a control of the applicant's telephone, the telephone wire

and the automatic exchange. The installations had been found to be in

perfect working condition. Also the meter counting the communications

had been controlled between 1 December 1987 to 15 December 1987 and was

found to be in perfect working order. Further controls ex officio

failed to show the existence of any defects that could affect the

meter. Also the photographic documents relating to the meter-reading

at the beginning and the end of an account period had been checked as

well as the accounting but again no defects or miscalculation could be

discovered. Furthermore an expert of the Post and Telecommunications

Directorate for Vienna, Lower Austria and Burgenland stated that the

controls effected had been sufficient to show that there was no defect

influencing the telephone meter and that there were no particular

circumstances that could have caused a miscalculation to the

applicant's disadvantage. The expert pointed out that defects which

could influence the metering of telephone communications remained in

existence until they could be repaired. Therefore a defect which could

have influenced former metering periods would normally be discovered

if a subsequent control was carried out. In the applicant's case no

defects had however been discovered and his objections against his

telephone bill were of a mere theoretical nature, i.e. it relied on

mere hypothesis. The telephone bills had been established under

objective criteria while the applicant's objections were based on the

subjective and unproven allegation that his telephone bill was

excessive. The expert also excluded that the applicant's telephone

line had been tapped by third persons.

The applicant then brought an action before the Administrative

Court (Verwaltungsgerichtshof). In consequence of this action the

Administrative Court requested the Constitutional Court

(Verfassungsgerichtshof) to set aside certain sections of the

Telecommunications Act (Fernmeldegesetz), mainly on the ground that

according to the provisions in question disputes relating to telephone

bills were decided by the Telecommunication Authorities. The

Administrative Court considered that such disputes concerned civil

rights within the meaning of Article 6 para. 1 of the Convention and

should therefore be determined by a tribunal.

On 15 June 1992 the Constitutional Court rejected the

Administrative Court's request on the ground that disputes relating to

telephone bills did not concern a civil right. The fees for telephone

calls were public law contributions.

The Constitutional Court's decision was given without a public

oral hearing.

The Administrative Court then decided the applicant's matter by

judgment of 23 September 1992. The applicant's action was dismissed

as being unfounded.

Insofar as the applicant had argued that it was unconstitutional

to impose on telephone users the risk of undiscoverable defects, the

Court considered that in view of the technical control effected by the

Telecommunication Authorities, the possibility of an undiscoverable

defect had to be excluded.

Insofar as the applicant had complained that he did not have

access to the technical installations and control system, the court

noted that there was nothing in the file to show that the applicant had

made a request to be granted such access.

Insofar as the applicant had complained of the Telecommunications

Authorities' appreciation of available evidence, the court pointed out

that although under the relevant law the authorities had a

discretionary power in assessing and appreciating evidence, the court

could still control whether the facts had been sufficiently

investigated and whether the reasons stated in connection with the

appreciation of evidence were conclusive (schlüssig). Therefore the

decision of an authority had to be set aside if it disclosed important

defects (wesentliche Mängel) as to the fact-finding including the

appreciation of evidence. The decision complained of did not disclose

any such defects. In particular it could not be found that the

telephone bill in question was so much higher than previous bills, in

such a way as to indicate that it could not be correct. In view of the

controls effected by the Telephone Communications Authorities, it was

unobjectionable that they as well as the expert came to the conclusion

that the metering system did not have any defect. There was also

nothing to show that the expert was biased for the sole reason that he

was a civil servant in the Telecommunications Authorities.

Finally the court rejected the applicant's complaint that he

should have been heard personally by the Ministry. The court pointed

out that the applicant had been sent the results of the controls

effected by the Telecommunications Authorities and had been given the

opportunity to comment on them.

The court concluded that in all the circumstances the Austrian

authorities did not violate the law by denying the applicant a

recalculation of his telephone bill.

COMPLAINTS

The applicant complains that the judicial review of the

Constitutional Court and the Administrative Court was limited and

therefore insufficient. He maintains that the dispute relating to his

telephone bill concerns a civil right and that he therefore should have

had access to a civil court to determine the dispute between him and

the Telecommunications Authorities.

THE LAW

The applicant complains that none of the bodies before which his

case came in the impugned proceedings could be regarded as a tribunal

within the meaning of Article 6 para. 1 (Art. 6-1). This applied not

only to the Constitutional Court but in particular to the

Administrative Court.

However, even assuming that Article 6 (Art. 6) applies to the

proceedings in question, the Commission notes that under Article 6

para. 1 (Art. 6-1) of the Convention, it is only necessary that, in the

determination of "civil rights and obligations", decisions taken by

administrative authorities which do not themselves satisfy the

requirements of that Article (Art. 6-1) be subject to subsequent

control by a "judicial body that has full jurisdiction" (Eur. Court

H.R., Fischer judgment of 26 April 1995, Series A no. 312).

It therefore remains to be examined whether, in the circumstances

of the present case, the scope of the competence of the Administrative

Court satisfied the requirements of Article 6 para. 1 (Art. 6-1). In

this respect the Commission first notes that the impugned

administrative decision was based on objective criteria and left

relatively little room for discretion. The authorities had carried out

a technical control and also obtained an expert opinion. The technical

control did not reveal any defects in the telecommunications system

that could have caused a miscalculation of the applicant's telephone

bill. The expert explained that miscalculation due to defects would

be discovered by technical control as defects in the system were never

provisional, in other words if they existed they continued to exist and

would be discovered if and when a control was carried out.

The applicant has not shown that in his particular case the

alleged limited powers of the Administrative Court prevented this court

from examining all the issues raised in his case. Rather it is evident

from the extensive reasoning in the Administrative Court's judgment

that this court considered all the applicant's submissions on their

merits, point by point, without ever having to decline jurisdiction in

replying to them and in ascertaining the facts.

It follows that in the circumstances of this case there is no

appearance of a violation of Article 6 (Art. 6) of the Convention and

consequently the application has to be rejected as being manifestly

ill-founded.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BAMMER v. AUSTRIA

BAMMER v. AUSTRIA

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