Final resolution DH (99) 439

HUMAN RIGHTS

APPLICATION No. 22342/93

DÃœR EROL AGAINST AUSTRIA

(Adopted by the Committee Ministers on 15 July 1999 at the 677th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (97) 223, adopted on 15 May 1997 in the case of Dür Erol against Austria, in which the Committee of Ministers decided that there had been in this case a violation of Article 6, paragraphs 1 and 3. d , of the Convention and to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 5 February 1998;

Whereas at the 626th meeting of the Ministers' Deputies, the Committee of Ministers, agre e ing with the Commission's proposals, held by a decision adopted on 22 April 1998, in accordance with Article 32, paragraph 2, of the Convention, that the Government of the respondent State was to pay the applicant as just satisfaction, within three months, 4 500 Austrian schillings in respect of non-pecuniary damage and 18 000 Austrian schillings in respect of costs and expenses, namely a total sum of 22 500 Austrian schillings, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the Government of the respondent State to inform it of the measures taken following its decisions of 15 May 1997 and 22 April 1998, having regard to Austria's obligation under Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State accordingly gave the Committee information about the measures taken in consequence of the Committee's decisions; this information a p pears in the appendix to this resol u tion;

Whereas the Committee of Ministers satisfied itself that on 19 May 1998, within the time-limit set, the Government of the respondent State had paid the applicant the total sum of 22 500 Austrian schillings as just satisfaction,

Declares, after having taken note of the measures taken by the Government of Austria, that it has exercised its fun c tions under Article 32 of the Convention in this case.

Appendix to Resolution DH (99) 439

Information provided by the Government of Austria during the examination of the Dür Erol case by the Committee of Ministers

The Austrian Federal Ministry for Justice issued on 11 July 1998 a decree No. 435.001 ( Erlass ) directed to the Presidents of the Regional Courts of Appeal (Oberlandesgerichte ) and to the Senior Public Prosecutors ( Oberstaatsanwaltschaften ). This decree summarises the Commission's report, adopted in the present case, according to which it is contrary to Article 6 of the European Convention of Human Rights to consider that a witness is not available to testify ( kein greifbares Beweismittel) and thus to abstain from summoning him before the Court for the sole reason that he is subject to an expulsion order or an entry prohibition.

It is indicated that, in principle, preference should be given to the appearance in person of witnesses before the Court and that the Court should accordingly try to make an interrogation possible by securing a temporary stay of the execution of the expulsion decision (Article 40, paragraph 1, FrG (Fremdengesetz, aliens law) or the residence prohibition.

When this is not possible, use should be made of tape and video recordings made during the pre-trial examination of the case (if respectful of the rights of the defence). Furthermore, if this is not possible, the Court should try to arrange the convocation of the witness from abroad to enable direct interrogation.

The Court has the possibility to summon the witnesses and to explain that the convocation is based on important grounds of public policy ( wichtiger öffentlicher Grund ) (in the sense of Article 41, paragraph 2, FrG ) and that the competent Austrian authorities may thus permit entry into Austria for the purposes of the proceedings (Article 88, paragraph 2, FrG ).

The Government of Austria believes that the above-mentioned measures will prevent the repetition of violations of the kind found in the present case and that therefore Austria has complied with its obligation under Article 32 of the Convention.