Resolution CM /ResDH(2007)110 [1]

Execution of the judgment of the European Court of Human Rights

Alge and others (see Appendix) against Austria

(Application No. 38185/97 , judgment of 22 January 2004, final on 22 April 2004,

see Appendix for the others)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 “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 violations of the Convention found by the Court in these cases mainly concern the excessive length of proceedings concerning civil rights and obligations or the determination of criminal charges before Administrative Courts (violations of Article 6, paragraph 1), the European Court having noted that considerable periods of inactivity had occurred before the Administrative Court (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken 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;

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(2007)110

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

Alge and others against Austria

Application

Case

Length of the proceedings at the date of the judgments of the European Court

Beginning of the proceedings

38185/97

Alge , judgment of 22/01/2004, final on 22/04/2004

4 years and 10 months

May 1992

31655/02

Blum , judgment of 03/02/2005, final on 03/05/2005

5 years and 5 months

September 1996

19247/02

Fehr , judgment of 03/02/2005, final on 03/05/2005

5 years and 9 months

February 1996

65665/01+

Schluga , judgment of 19/02/2004, final on 19/05/2004

4 years and 7 years and 1 month

Between 1993 and 1995

54640/00

Sylvester No. 2, judgment of 03/02/2005, final on 03/05/2005

5 years and 1 month

September 1996

46549/99

Yavuz , judgment of 27/05/2004, final on 27/08/2004, rectified on 09/09/2004

4 years and 9 months

March 1994

Introductory case summary

These cases concern the excessive length of proceedings concerning civil rights and obligations or the determination of criminal charges before administrative courts (violations of Article 6, paragraph 1). The European Court noted that considerable periods of inactivity had occurred before the Administrative Court .

The Alge case deals with proceedings brought before the Administrative Court by the applicant to have his land exempted from a protected wetland area. The case also concerns the absence of a hearing before this court, even though the applicant had explicitly requested one. The Administrative Court gave no reason why it considered that no hearing was necessary.

The Schluga case concerns criminal investigations by the administrative authorities against the applicant for prostitution.

The cases of Blum and Fehr concern administrative proceedings concerning the determination of criminal charges.

The Sylvester case concerns proceedings relating to the recognition of a foreign divorce decree. Moreover, the European Court has also indicated that the proceedings at issue were decisive for the applicant ' s marital status and parental rights and therefore required special diligence.

The Yavuz case, in addition to the length, concerns the unfairness of the proceedings on account of the failure by the Independent Administrative P anel, (IA P ) ( Unabhängiger Verwaltungsrat ) to hear the applicant in person and to give him the opportunity to examine witnesses before convicting him and sentencing him to a fine (violation of Articles 6, paragraph 1 and 3(c) and (d)).

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and

Application No

Non-pecuniary damage

Costs and expenses

Total

P aid on

Alge

38185/97

3 000 €

3 000 €

6 000 €

08/07/2004

Blum

31655/02

0

2 000 €

2 000€

Fehr

19247/02

0

3 000 €

3 000 €

Schluga

65665/01+

12 000 €

3 000 €

15 000 €

12/08/2004

Sylvester

54640/00

3 500 €

2 500 €

6 000 €

11/07/2005

Yavuz

46549/99

2 000 €

6981.78 €

8 981.78 €

18/11/2004

b) Individual measures

In all cases, the proceedings have been concluded. Concerning the cases of Alge and Yavuz, according to Article 45, paragraph 1, of the Administrative Court Act 1985, proceedings may be reopened on request by one of the parties on the ground, inter alia , that during the proceedings at issue the provisions concerning the right to be heard were not complied with and if it may be assumed that the judgment could have been different.

II. General measures

In addition, the respondent state informed the Secretariat of the work of the 9th committee of the Österreich ‑ Konvent project, which is examining the possibility of adopting organisational measures to deal with the case ‑ load problem of the Administrative Court . In particular, the Konvent is looking 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.konvent.gv.at . It contains numerous concrete reform proposals. A special sub-committee of the Austria n P arliament is currently discussing these proposals, meant to serve as a basis for a major administrative law reform.

2) Right to a hearing : Legislation in compliance with the Convention was adopted in September 1997 (see Resolution DH(98)59 in the Linsbod case), i. e. during or shortly after the period when the facts of the present cases occurred. Subsequently, a number of awareness-raising measures were taken to ensure that this new legislation is applied in accordance with the requirements of the Convention. Furthermore, the Austria n government has indicated that the Administrative Court must pay any just satisfaction awarded to the applicant out of its own budget, a measure which could contribute towards preventing new, similar violations.

As with all judgments of the European Court against Austria concerning violations at the level of the Administrative Court , the judgments were automatically transmitted to the P residency of that Court. Furthermore, judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austria n Ministry of Justice (RIS). Judgments of the European Court concerning Austria are habitually published in a summary version via www.menschenrechte.ac.at together with a link to the Court ' s judgments in English.

III. Conclusions of the respondent state

The government considers that the measures adopted have remedied as far as possible, or make it possible to remedy the consequences for the applicants of the violationd of the Convention found by the European Court in these cases, that these measures will prevent new, 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 31 October 2007 at the 1007th meeting of the Ministers’ Deputies