RESOLUTION DH (98) 85

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 26 APRIL 1995 IN THE CASE OF FISCHER AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 22 April 1998 at the 626th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of 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 Fischer case delivered on 26 April 1995 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 16922/90) against Austria, lodged with the European Commission of Human Rights on 11 May 1990 under Article 25 of the Convention by Mr Josef Fischer, an Austrian national, and that the Commission declared admissible the complaints concerning his right of access to a court within the meaning of Article 6, paragraph 1, of the Convention as well as to the lack of any oral hearings throughout the administrative proceedings brought by the applicant to oppose the revocation of his tipping licence;

Recalling that the case was brought before the Court by the Commission on 10 December 1993;

Whereas in its judgment of 26 April 1995 the Court:

_ held, by eight votes to one, that there had been no violation of Article 6, paragraph 1, of the Convention as regards the applicant's complaint that he had not been able to bring his case before a "tribunal";

_ held, unanimously, that there had been a violation of Article 6, paragraph 1, of the Convention as regards the lack of an oral public hearing before the Administrative Court;

_ held, unanimously, that the respondent State was to pay the applicant, within three months, the sum of 200 000 Austrian schillings in respect of costs and expenses;

_ rejected, unanimously, the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

Having invited the Government of Austria to inform it of the measures which had been taken in consequence of the judgment of 26 April 1995, having regard to Austria's obligation under Article 53 of the Convention to abide by it;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Austria gave the Committee information about the measures taken, preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 6 July 1995, within the time-limit set, the Government of Austria paid the applicant the sums provided for in the judgment of 26 April 1995,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 54 of the Convention in this case.

Appendix to Resolution DH (98) 85

Information provided by the Government of Austria

during the examination of the Fischer case

by the Committee of Ministers

On 1 September 1997, Article 39 paragraph 2 (6) of the Amended Administrative Court Act No. 88 of 13 August 1997 entered into force. The amended Article reads as follows:

"Notwithstanding a party's application...., the Administrative Court may decide not to hold a hearing where:

(...)

(6) it is apparent to the Court from the pleadings of the parties to the proceedings before it and from the files relating to earlier administrative proceedings, that an oral hearing is not likely to clarify the case further and when this will not be contrary to Article 6 of Convention ".

(7) Furthermore the Court's judgment has been translated and published in the Newsletter " Österreichisches Institut für Menschenrechte " No. 1995/2 pages 87 to 89.

(8) The Government of Austria is of the opinion that the measures adopted will prevent new violations similar to the one found in this case and that therefore, Austria has complied with its obligations under Article 53 of the Convention.