Resolution CM/ResDH(2011)187 [1]

Execution of the judgments of the European Court of Human Rights

Schelling, Birnleitner, Bakker, Abrahamian, Brugger, Emmer-Reissig and Hofbauer (No. 2) against Austria

(Application No. 55193/00, judgment of 10/11/2005, final on 10/02/2006,

Application No. 45203/99, judgment of 24/02/2005, final on 24/05/2005,

Application No. 43454/98, judgment of 10/03/2003, final on 10/07/2003,

Application No. 35354/04, judgment of 10/04/2008, final on 10/07/2008,

Application No. 76293/01, judgment of 26/01/2006, final on 26/04/2006,

Application No. 11032/04, judgment of 10/05/2007, final on 10/08/2007,

Application No. 7401/04, judgment of 10/05/2007, final on 10/08/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concern the failure to hold an oral hearing before the Administrative Court (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Austria ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

Recalling that the Committee of Ministers ’ decisions under Article 46, paragraph 2, of the Convention are entirely without prejudice to the Court ’ s consideration of other cases currently pending before it;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)187

Information about the measures to comply with the judgments in the cases of

Schelling, Birnleitner, Bakker, Abrahamian, Brugger, Emmer-Reissig and

Hofbauer (No. 2) against Austria

Introductory case summary

These cases concern the failure to hold oral hearings before the Administrative Court , as first and only tribunal (violations of Article 6, paragraph 1) in:

- July 1999 in the Schelling case; the proceedings concerned the applications under the Water Act and the Landscape Protection Act for a permission to install a culvert on the applicant ’ s land.

- January 1998 in the Birnleitner case; the proceedings concerned the allocation of plots of land to the applicant ’ s hunting ground.

- in January 1998 in the Bakker case; the proceedings concerned the applicant ’ s request to exercise his profession as a self-employed physiotherapist.

- in February 2004 in the Abrahamian case; the proceedings concerned the applicant ’ s contributions to the pension and invalidity fund of the Vienna Medical Association.

- in March 2001 in the Brugger case; the proceedings concerned an application under the Carinthian Environmental Protection Act for permission to build a tool-shed on the applicant ’ s land.

- in September 2003 in the Emmer-Reissig case; t he proceedings concerned the dispute over whether the applicant ’ s plot of land could be used as agricultural estate .

- in November 2003 in the Hofbauer (No. 2)case; the pro ceedings concerned a dispute as to whether the competent authorities should have issued a removal order of the neighbour ’ s fence (allegedly constructed without permission) and, in that context, had to decide questions of fact, namely, whether the remaining posts constituted a danger for the applicant ’ s land.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Schelling (55193/00)

-

-

3 500 EUR

3 500 EUR

Paid on 04/05/2006

Birnleitner (45203/99)

-

-

3 000 EUR

3 000 EUR

Paid on 08/06/2005

Bakker (43454/98)

-

-

4 500 EUR

4 500 EUR

Paid on 15/09/2003

Abrahamian (35354/04)

-

-

3 000 EUR

3 000 EUR

Paid on 02/10/2008

Brugger (76293/01)

-

-

2 842,74 EUR

Paid on 22/05/2006

Emmer-Reissig (11032/04)

-

-

-

-

Hofbauer No. 2 (43454/98)

-

-

1 331,90 EUR

1 331,90 EUR

Paid on 02/11/2007

b) Individual measures

Article 45 § 1 (4) of the Administrative Court Act 1985 provides the possibility of re-opening of the proceedings upon request by one of the parties when the provision concerning the right to be heard was not complied with and it is to be assumed that the judgment would have been different.

Schelling case: The applicant requested the re-opening of the above-mentioned proceedings. The Administrative Court held that the re-opening was subject to two conditions, namely, a violation of a party ’ s right to be heard in the previous proceedings, and the possibility that there would have been a different outcome of the case if the party had been duly heard. In the present case, the applicant had not specified which arguments he had been prevented from submitting and to what extent these arguments might have lead to a different outcome of the case if there had been a hearing. On 21 February 2006, the Administrative Court refused to re-open the proceedings. The applicant lodged a new application with the European Court (no. 46128/07). He complained about the refusal to re-open the proceedings and invoked a violation of Article 6, paragraph 1, of the Convention. On 16 September 2010, the Court rejected his second application as being incompatible ratione materiae with the provisions of the Convention.

Hofbauer (No. 2) c ase : On 21 September 2007, the Administrative Court rejected the applicant ’ s request for re-opening as submitted outside the statutory time-limit.

In the cases of Birnleitner, Bakker, Abrahamian, Brugger and Emmer-Reissig: No information concerning eventual requests for re-opening was provided.

II. General measures

Legislative measures: These cases present similarities to those of Stallinger and Kuso and of Linsbod against Austria , the examination of which was closed by Resolution DH(97)405 and Resolution DH(98)59, after the adoption of general measures. Following the legislative reform which entered into force on 01/09/1997, Article 39 § 2 (6) of Amended Administrative Court Act No. 88 of 13/08/1997 provides that the Administrative Court may decide not to hold a hearing where it is apparent “from the pleadings of the parties to the proceedings before it and from the files relating to earlier administrative proceedings that an oral hearing is not likely to clarify the case further and when this will not be contrary to Article 6 of the European Convention on Human Rights ”. As a result of the measures taken by Austria , the Administrative Court now conducts hearings in those cases where a decision falls within the scope of Article 6 of the Convention and the hearing was requested by the applicant. It does so unless such a public hearing was already conducted by a subordinate authority to be qualified as a tribunal within the meaning of Article 6 of the Convention. This has resulted in a considerable increase in number of hearings held in the last two years.

Financial measures : The Austrian authorities indicated that the Administrative Court is to pay any just satisfaction awarded to the applicants by the Court from its own budget, a measure which should contribute towards preventing new, similar violations (see the case of Alge against Austria, Resolution DH(2007)110).

Awareness-raising measures, publication and dissemination : All judgments of the Court against Austria concerning a violation at the level of the Administrative Court are automatically transmitted to the Presidency of that Court. The Court ’ s judgments are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). A summary of the ECHR judgments and decisions concerning Austria is regularly prepared by the Federal Chancellery and disseminated widely to the Austrian authorities, including the Parliament and the courts. Judgments of the Court against Austria are usually published in a summary version in German language via www.mensc h e n rechte.ac.at together with a link to the Court ’ s judgments in English. Moreover, t he Austrian authorities stated that the judges of the Austrian Administrative Court are kept constantly informed about the case-law of the Court to ensure that Article 39 of the Administrative Court Act, mentioned above, is applied in full conformity with the Convention.

A summary of the judgment in German in the case of Schelling was published by the Austrian Institute for Human Rights , in the n ewsletter Menschenrechte 2005, p. 277 ( http://www.me n schenrechte.ac.at/docs/05_6/05_6_04 ), in the case of Bakker in the n ewsletter Menschenrechte 2003, p. 88 ( http://www.mens c henrechte.ac.at/docs/03_2/03_2_07 ), in the case of Abrahamian in the n ewsletter Menschenrechte 2008, p. 94-95 ( http://www.me n schenrechte.ac.at/docs/ 0 8_2/08_2_10 ), in the case of Brugger in the n ewsletter Menschenrechte 2006, p. 24 ( http : //www.menschenrechte.ac.at/docs/06_1/06_1_10 ). The cases of A brahamian, Emmer-Reissig, Hofbauer No. 2 were also disseminated via Circular Note of 04/08/2009 of the Federal Chancellery. The Federal Chancellery also addressed a summary translation of the judgment in the Abrahamian case to the Administrative Court , Austrian Medical Chamber and the Austrian Ministry for Health, Family and Youth.

Administrative reform: Further administrative reform efforts continue to be discussed at the national level. The respondent state informed the Committee of the work of the 9th Committee of the Österreich - Konvent project, which examined the possibility of adopting organisational measures to deal with the case-load problem of the Administrative Court . In particular, the Konvent looked into the possibility of introducing a first ‑ instance administrative jurisdiction at the federal and regional levels. The Konvent published its report on 31 January 2005, available under www.konv e nt.gv.at . It contains numerous concrete reform proposals. A special sub-committee of the Austrian Parliament discussed these proposals, meant to serve as a basis for a major administrative-law reform.

The issue of failure to hold oral hearings before the Administrative Court after adopting the general measures described above is highlighted in more recent judgments of the Court. Additional measures taken or envisaged by the Austrian authorities, especially concerning the ongoing administrative reform, are being supervised by the Committee of Ministers in the context of the Koottummel group (Application No. 49616/06, judgment of 10/12/2009).

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies