RESOLUTION DH (97) 501

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS

OF 23 OCTOBER 1995

IN THE CASE OF GRADINGER AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 29 October 1997

at the 605th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Conven ­ tion 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 Gradinger case delivered on 23 October 1995 and transmitted the same day to the Committee of Ministers ;

Recalling that the case originated in an application (No. 15963/90) against Austria, lodged with the European Commission of Human Rights on 22 May 1989 under Article 25 of the Convention by Mr Josef Gradinger, an Austrian national, and that the Commission declared admissible the complaints relating to the right of access to a court, to the lack of a hearing before the Administrative Court and to the conviction of the applicant in respect of facts which had already been the subject of a previous judicial decision ;

Recalling that the case was brought before the Court by the Commission on  9 September 1994;

Whereas in its judgment of 23 October 1995 the Court unanimously :

– held that Article 6, paragraph 1, of the Convention was applicable in this case ;

– held that there had been a violation of that Article as regards access to a court ;

– held that it was not necessary to examine the complaints based on the lack of a hearing in the Administrative Court and that court's failure to take evidence from witnesses ;

– held that Article 4 of Protocol No. 7 was applicable in this case ;

– held that there had been a violation of that Article ;

– held that the respondent government was to pay the applicant, within three months, 150 000 Austrian shillings in respect of costs and expenses ;

– dismissed 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 23 October 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 accordingly recalled that measures had already been taken to prevent the repetition of the violations relating to the access to a court in administrative matters (see Resolution DH (96) 154, Umlauft v. Austria) and also gave supplementary information, summarised in the appendix to the present resolution, about the measures taken following the judgment in order to prevent the repetition of violations of Article 4 of Protocol No. 7 ;

Having satisfied itself that on 12 January 1996, within the time-limit set, the Government of Austria paid the applicant the sum provided for in the judgment of 23 October 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 (97) 501

Information provided by the Government of Austria

during the examination of the Gradinger case

by the Committee of Ministers

Following the judgment of the European Court of Human Rights, the Austrian Federal Constitutional Court delivered on 5 December 1996 a judgment abrogating the provisions of Article 99.6. c of the Road Traffic Act which were at the origin of the violation of Article 4 of Protocol No. 7. As a result of this abrogation, which became effective on 22 January 1997, the district administrations have lost their competence in cases coming within the jurisdiction of penal courts. Accordingly, as required by Article 4 of Protocol No. 7, the new legislative provisions no longer allow – in a procedure according to the Road Traffic Act – a person to be convicted for the second time by another jurisdiction in respect of facts that have already been the subject of a final judicial decision.

The Government of Austria is of the opinion that the measures adopted will prevent the repetition of new violations similar to those found in this case and that, therefore, Austria has fulfilled its obligations under Article 53 of the Convention.