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FRIESSNIG v. AUSTRIA

Doc ref: 15520/89 • ECHR ID: 001-935

Document date: July 10, 1991

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FRIESSNIG v. AUSTRIA

Doc ref: 15520/89 • ECHR ID: 001-935

Document date: July 10, 1991

Cited paragraphs only



                      Application No. 15520/89

                      by Barbara FRIESSNIG

                      against Austria

        The European Commission of Human Rights sitting in private

on 10 July 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  M.P. PELLONPÄÄ

                  B. MARXER

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 12 July 1989

by Barbara FRIESSNIG against Austria and registered on 19 September

1989 under file No. 15520/89;

        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, a pharmacist, is an Austrian citizen,

born in 1949 and living in Axams.  She is represented by

Mrs.  E. Berchtold-Ostermann, a lawyer in Vienna.

        The facts agreed between the parties may be summarised

as follows.

        In 1982 the applicant was granted a licence to run a pharmacy

in Axams.  In 1985 the applicant's ex-husband laid criminal charges

against her, leading to the institution of criminal investigations.

In view of these proceedings another pharmacist was appointed on

1 October 1985 by the Innsbruck authorities to manage the applicant's

pharmacy.

        On 1 October 1987, the applicant was partly acquitted and was

convicted by the Innsbruck Regional Court (Landesgericht) of breach of

trust (Untreue) and aggravated professional fraud (gewerbsmässiger

schwerer Betrug).  She was sentenced to one year's imprisonment.  The

execution of the sentence was suspended on three years' probation.  The

judgment became final.

        Subsequently, disciplinary proceedings were instituted against

the applicant which are still pending.

        On 5 April 1987, the applicant was told that her request to be

readmitted as manager of her pharmacy would not be decided pending

the disciplinary proceedings.

        The applicant stated that the Austrian Board of Pharmacists

(Apothekerkammer) informed the competent authorities that the usual

practice in similar cases was not to revoke the licence definitely

before a decision was given in the disciplinary proceedings.  However,

the Tirolean Regional Government (Landesregierung) instructed the

District Authorities (Bezirkshauptmannschaft) on 5 April 1988 to

withdraw the applicant's licence and the corresponding order was

issued on 8 April 1988.

        The applicant's appeal (Berufung) was rejected on 8 July 1988

by the Tirolean Regional Government.

        The applicant then appealed to the Constitutional Court

(Verfassungsgerichtshof) which rejected her appeal on 13 December 1988

(decision served on 30 January 1989).

        The Constitutional Court referred the matter to the

Administrative Court (Verwaltungsgerichtshof) which, on 20 April 1989,

granted the applicant's request for suspensive effect (aufschiebende

Wirkung).

COMPLAINTS

        The applicant submitted that the proceedings before the

Administrative Court and the Constitutional Court did not conform with

Article 6 para. 1 of the Convention as a public oral hearing was not

provided for under all circumstances, and as these Courts are bound by

the facts as established by the administrative authorities and can

only examine whether or not the administrative act complained of

violates constitutional law or, in the case of the Administrative

Court, other legal provisions.  She further invoked Article 1 of

Protocol No. 1 to the Convention which she considered to be violated

because the revocation of her licence deprived her of her means of

existence.

PROCEEDINGS BEFORE THE COMMISSION AND FURTHER DEVELOPMENTS

        On 9 November 1989 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits.  On 20 February 1990 the respondent

Government submitted their observations and on 20 April 1990 the

applicant replied.  On 10 July 1990 the respondent Government

informed the Commission that the Austrian Administrative Court had,

on 18 June 1990, quashed the administrative decision complained of by

the applicant.  On 31 July 1990 the applicant replied that despite the

Administrative Court's judgment she was still a victim of the alleged

violations because the authorities still intended to withdraw her

licence.  On 14 November 1990 the applicant wrote that her licence had

been withdrawn again on 23 October 1990.  On 18 December 1990 the

applicant informed the Commission that her appeal against the order of

23 October 1990 had been successful and that consequently she wished

to withdraw her application.

REASONS FOR THE DECISION

        The applicant has withdrawn the application and there are no

reasons of a general character affecting respect for human rights, as

defined in the Convention, which require the further examination of

the case by virtue of Article 30 para. 1 in fine of the Convention.

        For these reasons, the Commission unanimously

        DECIDES TO STRIKE THE CASE OFF THE LIST OF CASES.

Secretary to the Commission               President of the Commission

     (H.C. KRÜGER)                               (C.A. NØRGAARD)

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