RESOLUTION DH (98) 59

HUMAN RIGHTS

APPLICATION No. 17588/90

LINSBOD 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 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 6 September 1994, by the European Commission of Human Rights in accordance with Article 31 of the Convention relating to the application lodged on 23 November 1990 by Mr Ferdinand Linsbod and Ms Maria Linsbod against Austria (Application No. 17588/90);

Whereas on 20 October 1994 the Commission transmitted the said report to the Committee of Ministers; considering, however, that within this time-limit, the applicants seized the Court in accordance with Protocol No. 9 but that the screening panel of the Court decided on 13 September 1995 that this case would not be considered by the Court; whereas the Committee of Ministers is therefore now called upon to take a decision in accordance with Article 32 of the Convention and with Article 48 of the Convention as amended by Article 5 of Protocol No. 9 for those States having ratified the latter;

Whereas in their application, declared admissible by the Commission on 8 September 1993, the applicants complained of the violation of their right of access to a court within the meaning of Article 6, paragraph 1, of the Convention and of the right to a public hearing before the Administrative Court;

Whereas in its report the Commission expressed, by eleven votes to one that there had been no violation of the applicants’ right of access to a tribunal within the meaning of Article 6 paragraph 1, of the Convention and unanimously, the opinion that there had been a violation of Article 6, paragraph 1, of the Convention as far as the absence of an oral hearing before the Administrative Court was concerned;

Whereas, at the 546th 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 decision adopted on 19 October 1995, that there had been no violation of Article 6, paragraph 1, of the Convention as regards the right of access to a tribunal and that there had been in this case a violation of Article 6, paragraph 1, of the Convention as regards the absence of an oral hearing before the Administrative Court;

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 applicants, proposals supplemented by a letter of the President of the Commission dated 19 December 1996;

Whereas, at the 585th meeting of the Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held, by decision adopted on 19 March 1997, in accordance with Article 32, paragraph 2, of the Convention, that the Government of Austria was to pay the applicants as just satisfaction, within three months, the sum of 70 000 Austrian shillings for costs and expenses, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay (in accordance with the decision adopted by the Committee of Ministers at its 599th meeting (17 September 1997) on the general principles regarding the payment of default interest) 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 applicants;

Whereas the Committee of Ministers invited the Government of Austria to inform it of the measures taken following its decisions of 19 October 1995 and 19 March 1997, 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 Austria accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions; this information appears in the appendix to this resolution;

Whereas the Committee of Ministers satisfied itself that on 22 April 1997, within the time-limit set, the Government of Austria paid the applicants the total sum of 70 000 Austrian shillings as just satisfaction,

Declares, having taken note of the measures taken by the Government of Austria, that it has exercised its functions under Article 32 of the Convention in this case;

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

- a_ - CM/Del/Dec(98)626

Appendix 4

Appendix to Resolution DH (98) 59

Information provided by the Government of Austria

during the examination of the Linsbod 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 the 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 ".

Furthermore the Commission’s report has been translated and published in the Newsletter Österreichisches Institut für Menschenrechte No. 1995/2 pages 87 to 89.

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 32 of the Convention.