Resolution ResDH (2003)175

concerning the judgment of the European Court of Human Rights of 19 December 1994 in the case of Vereinigun g Demokratischer Soldaten Österreichs and Gubi against Austria

(Adopted by the Committee of Ministers on 6 January 2004 at the 863rd meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of Vereinigung Demokratischer Soldaten Österreichs and Gubi delivered on 19 December 1994 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 15153/89) against Austria, lodged with the European Commission of Human Rights on 12 June 1989 under former Article 25 of the Co n vention by Vereinigung Demokratischer Soldaten Österreichs , a private association of soldiers under Austrian law which has its seat in Vienna and by Mr Berthold Gubi , an Austrian national, and that the Commission declared admissible the complaints concerning the refusal by the Federal Ministry of Defence to place the periodical Igel , published by the applicant association, on the list of publications distributed free of charge in army barracks and the prohibition of the applicant, a national serviceman, from distributing it (complaint under Article 10) and the absence of any remedy in this respect (complaints under Article 13);

Recalling that the case was brought before the Court by the Commission on 9 September 1993;

Whereas in its judgment of 19 December 1994 the Court, among other things:

- held, by six votes to three, that there had been a violation of Article 10 of the Convention in respect of the first applicant;

- held, by eight votes to one, that there had been a violation of Article 10 of the Convention in respect of the second applicant;

- held, by six votes to three, that there had been a violation of Article 13 of the Convention in respect of the first applicant;

- held, unanimously, that there had been no violation of Article 13 of the Convention in respect of the second applicant;

- held, unanimously, that the present judgment constituted in itself sufficient just satisfaction for the alleged non-pecuniary damage;

- held, unanimously, that the government of the respondent state was to pay the applicants, within three months, 180 000 Austrian Schillings in respect of costs and expenses;

- dismissed, unanimously, the remainder of the claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11; these rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 19 December 1994, having regard to Austria’s obligation under Article 46, paragraph 1 (former Article 53) of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgment (this information appears in the appendix to this resolution);

Having satisfied itself that on 3 February 1995, within the time-limit set, the government of the respondent state paid the a p plicant the sum provided for in the judgment of 19 December 1994,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exe r cised its functions under Article 46 (former Article 54) of the Convention in this case.

Appendix to Resolution ResDH (2003)175

Information provided by the Government of Austria during the examination of the case Vereinigung Demokratischer Soldaten Österreichs and Gubi

by the Committee of Ministers

As regards the violation of Article 13 of the Convention found by the European Court of Human Rights, the Government recalls that on 1 January 1991, under Article 129a of the Federal Constitution Law (“ Bundesverfassungsgesetz ” novelle 1988), the Independent Administrative Tribunals ( Unabhängige Verwaltungssenate ) were set up. These tribunals are competent to examine the merits of all applications by persons who claim to have suffered an infringement of their rights through the exercise of immediate authority of command or coercion ( unmittelbarer verwaltungsbehördlicher Befehls - und Zwangsgewalt ), excluding only the federal state’s fiscal power and power to impose penalties.

This new procedure went a long way towards ensuring protection against new, similar violations of Articles 10 and 13 of the Convention. However, in order to clarify the application of the new remedy in the military context, a similar procedure was subsequently introduced in Section 54 of the new Military Powers Act, which entered into force on 1 July 2001, (published on 10 August 2000 in the Federal Law Gazette, Part I., 86/2000 as amended subsequently by Federal Law, see Federal Law Gazette, Part I, 102/2002).

According to paragraph 1 of this new section, the Independent Administrative Tribunals decide complaints by persons who allege infringement of their rights through the exercise of immediate authority of command or coercion and in accordance with the provisions of this federal act.

In addition, under paragraph 2, the Independent Administrative Tribunals decide complaints by persons who allege infringement in another way of their rights through the performance of military defence tasks, provided that the infringement did not result from an administrative ruling.

Paragraph 3 provides that complaints under paragraph 1 above, which are directed against the deprivation of personal liberty under the Military Powers Act may, during the period of detention, be filed with the military authority enforcing this measure. This authority shall refer the complaint to the Independent Administrative Tribunal without delay.

According to paragraph 4, complaints under paragraphs 1 and 2 above are decided upon by one of the members of the Independent Administrative Tribunal. Sections 67c to 67g and Section 79a of the General Administrative Code concerning the special provisions on proceedings before the Independent Administrative Tribunal shall apply.

Furthermore, paragraph 5 provides that, if it is relevant for a decision of the Independent Administrative Tribunal under paragraph 2 to establish the lawfulness of the use of data, this authority, except in case of imminent danger, shall

a. stay its proceedings until the Data Protection Commission has decided this preliminary question,

b. at the same time request the Data Protection Commission to take a decision in this regard.

Lastly, according to paragraph 6, the responsibility for the exercise of power under this federal act shall, for the purpose of any proceedings regarding the lawfulness of such exercise of power, lie with the Federal Minister of Defence .

By granting this new complaint option, Austria will fully comply with the requirements enshrined in constitutional and international law providing persons with an “effective remedy before a national authority” within the meaning of Article 13 of the European Convention on Human Rights.

In respect of the violation of Article 10 found by the Court, the government is of the opinion that by setting up the above-mentioned remedy there is no risk of new violations similar to those found by the Court, in particular due to the direct effect given to case-law of the European Court in Austrian law.

The Government of Austria is of the opinion that these measures will prevent the repetition of the violations found in the present case and considers that it has therefore fulfilled its obligations with regard to Article 46, paragraph 1 of the Convention.