INTERIM resolution DH (99) 28

HUMAN RIGHTS

APPLICATION No. 17291/90

HORTOLOMEI AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 18 January 1999 at the 654th 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 the report drawn up on 16 April 1998 by the European Commission of Human Rights in accordance with Article 31 of the Convention relating to the applic a tion lodged on 24 September 1990 by an Austrian national, Mr Rom Hortolomei, against Austria;

Whereas on 5 June 1998 the Commission transmitted the said report to the Committee of Ministers and the case has not been referred to the European Court of Human Rights, either by the Commission or by a State entitled to do so under Article 48 of the Co n vention, within the time-limit of three months from the transmission of the report to the Chairman of the Committee of Ministers; considering, however, that within this time-limit, the applicant seized the Court in accordance with Protocol No. 9 but that the screening panel of the Court decided on 5 October 1998 that this case would not be considered by the Court; whereas the Committee of Ministers is now therefore called upon to take a dec i sion in accordance with Article 32 of the Convention and with Article 48 of the Co n vention as amended by Article 5 of Protocol No. 9 for those States having ratified the latter;

Whereas in his application, declared admissible by the Commission on 21 May 1997, the applicant complained that the quashing on 31 January 1990 by the Supreme Courts of the proceedings that he had brought up to that date amounted to a denial of access to a court; of a lack of independence and impartiality of the Regional Appeals Commission ( Landesberufungskommission ) in the framework of the proceedings brought after 31 January 1990; that no public hearing had been held before the Regional Appeals Commission and the Constitutional Court in the framework of the proceedings brought after 31 January 1990 and that the length of the overall proceedings had been excessive;

Whereas in its report the Commission expressed, unanimously, the opinion that the question of whether there had been a violation of Article 6, paragraph 1, of the Convention in that the Supreme Court's judgment of 31 January 1990 quashed the proceedings up to that date gave rise to no issue separate from those arising in connection with the subsequent administrative proceedings; by fifteen votes to one, the opinion that there had been a violation of Article 6, paragraph 1, of the Convention, as regards the alleged lack of independence and impartiality; unanimously, the opinion that it was not necessary to consider whether there had been a violation of Article 6, paragraph 1, of the Convention in that no public hearing had been held in the renewed administrative proceedings; by fifteen votes to one, the opinion that there had been a violation of Article 6, paragraph 1, of the Convention as regards the length of the proceedings ;

Whereas at the 654th meeting of the Ministers' Deputies, the Committee of Ministers, having voted in accordance with the provisions of Article 32, paragraph 1, of the Convention, and agreed with the opinion expressed by the Commission, held, by a decision adopted on 18 January 1999, that there had been in this case a violation of Article 6, paragraph 1, of the Convention as regards the alleged lack of independence and impartiality and that there had been a violation of Article 6, paragraph 1, of the Convention as regards the length of the proceedings ,

Authorises the publication of the report adopted by the Commission in this case;

Decides to pursue the examination of the present case, in accordance with Art i cle 32 of the Co n vention with a view to adopting the final resolution.