Resolution CM/ ResDH (2011)188 [1]

Execution of the judgments of the European Court of Human Rights

Achleitner , Brunnthaler , Prischl , Bösch, Geyer and Müller against Austria

(Application No. 53911/00, judgment of 23/10/2003, final on 23/01/2004,

Application No. 45289/99, judgment of 29/06/2006, final on 29/09/2006,

Application No. 2881/04, judgment of 26/04/2007, final on 26/07/2007,

Application No. 17912/05, judgment of 03/05/2007, final on 03/08/2007,

Application No. 69162/01, judgment of 07/07/2005, final on 07/10/2005,

Application No. 12555/03, judgment of 05/10/2006, final on 05/01/2007)

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 concerns the excessive length of civil and criminal proceedings before administrative authorities and courts and, in the case of Bösch , also the lack of holding an oral hearing before the Administrative Court (see details in Appendix) (violation of Article 6 § 1);

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 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;

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;

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)188

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

Achleitner , Brunnthaler , Prischl , Bösch, Geyer and Müller against Austria

Introductory case summary

In the present cases, the Court found a violation of Article 6, paragraph 1 of the Convention.

The following four cases concern the excessive length of proceedings on civil rights and obligations before the administrative authorities and courts:

Achleitner : The period taken into consideration by the Court began in 1976 and the proceedings were still pending at the time of the Court ’ s judgment (almost twenty-seven years in a dispute over a river bed and the effects of regulation works on a well onto a fishing farm).

Brunnthaler : The period taken into consideration by the Court began in 1992 and ended in 1998 (six years and two months concerning a request for an industrial licence for chimney sweeping).

Prischl : The period taken into consideration by the Court began in 1995 and ended in 2003 (almost eight years, concerning land consolidation).

Bösch : The period taken into consideration by the Court began in 2000 and ended in 2004 (four years and nearly two months concerning a request for an exemption permit to build a tool shed on a farm). This case also concerns a violation of Article 6, paragraph 1 of the Convention on account of the lack of holding a public oral hearing before the Administrative Court in October 2004.

The following two cases concern the excessive length of criminal proceedings before the administrative authorities and courts:

Geyer: The period taken into consideration by the Court began in 1994 and ended in 2000 (six years and five months, on the basis of the Tax Offences Act).

Müller : Th e period taken into consideration by the Court began in 1994 and ended in 2002 (eight years and two months, on the basis of the Employment of Aliens Act).

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Achleitner (53911/00)

-

35 000 EUR

5 000 EUR

40 00 EUR

Paid on 19/01/2004

Brunnthaler (45289/99)

-

2 500 EUR

5 686,88 EUR

8 186,90 EUR

Paid on 21/11/2006

Prischl (288/04)

-

5 500 EUR

500 EUR

6 000EUR

Paid on 18/10/2007

Bösch (17912/05)

-

2 500 EUR

2 000 EUR

4 500 EUR

Paid on 25/10/2007

Geyer (69192/01)

-

4 500 EUR

2 000 EUR

6 500 EUR

Paid on 29/12/2005

Müller (12555/03)

-

4 000 EUR

2 001,96 EUR

6 001,96 EUR

Paid on 03/04/2007

b) Individual measures

Excessive length of proceedings:

Achleitner : The authorities have acted to advance the proceedings as far as possible. In July 2006 the Administrative Court set aside the 1982 decision of the first-instance administrative authority ( Bezirkshauptmannschaft ) and referred the case back. On 25 October 2006 the Government Agent sent a letter to the Federal Ministry of Agriculture, Forestry, Environment and Water Supply, which is responsible for the Bezirkshauptmannschaft , firmly recalling the Court ’ s judgment and asking the Ministry to use all possible means to ensure that the case is closed respecting the requirements of the European Convention on Human Rights. An attempt at resolving the dispute by way of mediation failed at the last stage from the applicant ’ s side. As a consequence, the case needed to be taken up by the courts again. On 29 June 2009 the Bezirkshaupmannschaft granted a new permission for the regulation work carried out by the Municipalities of Schalchen and Mattighofen . The applicants also appealed against this decision and requested further examination. The result of an expert study by the Technical University of Vienna was due on 30 November 2011. Depending on the further comments of the parties of the appellate proceedings the proceedings in this case could be concluded.

The proceedings in the remaining cases were concluded.

Lack of holding an oral hearing before the Administrative Court in the case of Bösch :

No information was received as regards a possible request for re-opening of the proceedings.

Excessive length of proceedings:

Legislative measures : As far as the excessive length of proceedings before the administrative authorities and courts is concerned, the cases present similarities to that of G.S., of Morcher and of Alge and Others (see Resolutions ResDH (2004)77, ResDH (2007)112 and ResDH (2007)110 for the measures adopted).

It should be noted that in 2004, the Administrative Court once again managed to reduce the number of cases pending for more than three years. The average time needed for reaching a decision on the merits before this Court in 2003 and 2004 was about 22 months, in 2005 about 21 months, in 2006 about 20 months, in 2007 about 19 months, in 2008 about 20 months and in 2009 about 19 months (see Activity Report 2005 - 2009 of the Administrative Court, available via www.v w gh.gv.at ) .

Awareness-raising measures, publication and dissemination : All judgments of the Court against Austria concerning violations by the Administrative Court are automatically transmitted to the Presidency of that Court. Furthermore, judgments of the Court are accessible to all judges and state attorneys through the internal database of the Austrian Ministry of Justice (RIS). Judgments of the Court concerning Austria are also usually published in a summary version via www.mens c henrechte.ac.at together with a link to the Court ’ s judgments in English. Additionally, the case of B runnthaler was disseminated via the usual Circular Note of the Federal Chancellery of 11/11/2006 and the case of Bösch via Circular Note of 04/08/2009.

Administrative reform: In addition, the authorities 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.konve n t.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 Austrian authorities further indicated that the number of complaints lodged with the Administrative Court has continued to raise. Until the introduction of the Asylum Court in 2008, the Administrative Court was the only judicial instance that could be addressed in administrative matters. The Administrative Court can refuse to deal with complaints to a limited extent, i.e. concerning decisions by the Independent Administrative Panels or Federal Public Contracting Office. In many other fields, the Administrative Court is still the first and only tribunal in the Convention sense entitled to review lawfulness in a comprehensive manner. In all these cases, the Administrative Court must decide on the merits and, in case of a request to that effect, conduct a public oral hearing, which takes some time. The decisions to be adopted shall not only be quick but also of high quality. The Administrative Court has repeatedly drawn attention to its work overload and to the necessity of a structural reform. In its Activity Report of 2002, it stated that there has been a considerable, “notorious and structural” excessive workload. The need for a reform of the administrative jurisdiction is generally recognised.

The establishment of the Asylum Court has somewhat alleviated the burden on the Administrative Court . The number of judges was raised by five members. Since there were no asylum complaints lodged with the Administrative Court , the number of new complaints before that court was reduced in 2009. The relatively high backlog reduction in 2009 primarily concerns old asylum cases, the majority of which could be determined without the formulation of a complete ruling, by way of a rejection. The still remaining asylum cases shall be closed in the course of 2011.The backlog in other areas cannot be reduced so rapidly.

The authorities, even though recognising the problems of regrettable duration of individual proceedings and overburdening of the Administrative Court, added that the number of violations by Austria due to an excessive length was not very high from the overall perspective and that the majority of cases brought before the Administrative Court were still determined within a relatively short time.

In order to resolve the problems in the administrative jurisdiction, a draft has been sent to the pertinent bodies for consultations (available on the homepage of the Austrian Parliament under http://www.parlament.gv.at/PG/DE/XXIV/M E /ME_00129/pmh.s h tml ). Intensive efforts have been made in Austria during more than 20 years to introduce a two-tier administrative judiciary. The draft is based on the above-mentioned work of the Österreich-Konvent and the Special Committee established by the National Council. The aim is an advancement of the legal protection system for accelerating proceedings, providing a better service to citizens and relieving the burden of the Administrative Court . First-instance administrative courts determine cases on the merits and an appeal against their decisions lies to the Administrative Court , which should be invested with far-reaching powers of rejection. The consultation period finished in 2010 and the government intends to submit a draft before the end of 2011.

Failure to hold an oral hearing before the Administrative Court in the case of Bösch :

This issue was examined under the cases 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. Further measures were taken in the context of the case of Schelling and others (Application No. 55193/00, judgment of 10/11/2005) .

Further administrative reform efforts continue to be discussed at the national level. Issues concerning excessive length of administrative proceedings and the existence of effective remedies as well as the issue of the failure to hold oral hearings before the Administrative Court , having undertaken the general measures described above, are 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 Rambauske group (Application No. 45369/07, judgment of 28/01/2010) regarding excessive length of administrative proceedings, and in the context of the Koottummel group (Application No. 49616/06, judgment of 10/12/2009) regarding the failure to hold oral hearings before the Administrative Court.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations 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