RESOLUTION DH (97) 405

CONCERNING THE JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS

OF 23 APRIL 1997

IN THE CASE OF STALLINGER AND KUSO AGAINST AUSTRIA

(Adopted by the Committee of Ministers on 17 September 1997

at the 599th 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 Stallinger and Kuso case delivered on 23 April 1997 and transmitted the same day to the Committee of Ministers ;

Recalling that the case originated in two applications (Nos. 14696/89 and 14697/89) against Austria, lodged with the European Commission of Human Rights on 16 November 1988 under Article 25 of the Convention by four Austrian nationals, Mr Alois Stallinger, Ms Amalia Stallinger, Mr Johann Kuso and Ms Elisabeth Kuso, and that the Commission declared admissible the complaints concerning the absence of public hearing before the administrative Court and the non-respect of their right to an independent and impartial tribunal” ;

Recalling that the case was brought before the Court by the Commission on 26 January 1996 ;

Whereas in its judgment of 23 April 1997 the Court, unanimously:

– held that there had been no violation of Article 6, paragraph 1, of the Convention, as regards the applicants' complaint that they were not able to bring their case before an independent and impartial tribunal ;

– held that there had been a violation of Article 6, paragraph 1, of the Convention, on account of the lack of a public hearing before the Administrative Court ;

– held that the judgment constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage sustained ;

– held that the respondent State was to pay the applicants, within three months, 120 000 Austrian schillings in respect of costs and expenses, and that simple interest at an annual rate of 4% should be payable from the expiry of the above-mentioned three months until settlement ;

– and dismissed the remainder of the applicant's 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 April 1997, 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 in consequence of the judgment, which information appears in the appendix to this resolution ;

Having satisfied itself that on 27 May 1997, within the time-limit set, the Government of Austria paid the applicant the sums provided for in the judgment of 23 April 1997,

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) 405

Information provided by the Government of Austria

during the examination of the Stallinger and Kuso case

by the Committee of Ministers

An amendment to Section 39, paragraph 2 (z, 6) of the Administrative Court Act (BGBI. 1 Nr. 88/1997) entered into force on 1 September 1997.

The relevant parts of the Section henceforth read:

“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, paragraph 1, of the Convention. ”

The Government of Austria is of the opinion that, taking into account the status of the Convention and the case-law of the European Court of Human Rights in Austrian law, the Administrative Court will not fail to adapt its practice to the Court's judgments.

Hence, it considers that these measures will prevent the repetition of the violation of Article 6, paragraph 1, of the Convention, found by the Court and that Austria has accordingly fulfilled its obligations under Article 53 of the Convention.