DISSENTING OPINION OF MM. C.L. ROZAKIS, E. BUSUTTIL, A. WEITZEL,

J.-C. SOYER, MRS. G.H. THUNE, MRS. J. LIDDY, MM. L. LOUCAIDES,

M.A. NOWICKI, N. BRATZA

      We agree with the majority that Article 6 para. 1 of the

Convention applies to the proceedings before the Constitutional Court.

However, for the following reasons, we find that the applicant's right

under Article 6 para. 1 to a public hearing before this court has been

violated.

      We do not find that the Commission is prevented from examining

this question by the Austrian reservation to Article 6 of the

Convention.  This reservation reads as follows:

      "The provisions of Article 6 of the Convention shall be so

      applied that there shall be no prejudice to the principles

      governing public court hearings laid down in Article 90 of

      the 1929 version of the Federal Constitutional Law."

      The European Court of Human Rights has considered the question

of the compatibility of declarations and reservations with Article 64

of the Convention on several occasions (see for example, Eur. Court

H.R., Belilos judgment of 29 April 1988, Series A no. 132; Weber

judgment of 22 May 1990, Series A no. 177; Chorherr judgment of 25

August 1993, Series A no. 266-B; Gradinger judgment of 23 October 1995,

para. 51, to be published in Series A no. 328-C). The Court has held

that Article 64 para. 1 of the Convention requires "precision and

clarity" and that the requirement set forth in Article 64 para. 2 that

a reservation shall contain a brief statement of the law concerned is

not a "purely formal requirement but a condition of substance" which

"constitutes an evidential factor and contributes to legal certainty"

(Belilos judgment, paras. 55 and 59).

      As regards the compatibility of the Austrian reservation to

Article 6 of the Convention with the above criteria under Article 64

of the Convention, the Commission has found in the Stallinger and Kuso

case (Stallinger and Kuso v. Austria, Comm. Report 7.12.95, para. 61)

as follows:

      "In this respect the Commission notes that the reservation at

      issue does not contain a "brief statement" of the law which is

      said not to conform to Article 6 of the Convention. From the

      wording of the reservation it might be inferred that Austria

      intended to exclude from the scope of Article 6 all proceedings

      in civil and criminal matters before ordinary courts insofar as

      particular laws allowed for non-public hearings. However, a

      reservation which merely refers to a permissive, non-exhaustive,

      provision of the Constitution and which does not refer to, or

      mention, those specific provisions of the Austrian legal order

      which exclude public hearings, does not "afford to a sufficient

      degree 'a guarantee ... that [it] does not go beyond the

      provision expressly excluded' by Austria" (see Gradinger

      judgment, para. 51, Chorherr judgment, para. 20). Accordingly,

      the reservation  does not satisfy the requirements of Article 64

      para. 2 of the Convention.  In such circumstances the Commission

      finds that there is no need also to examine whether the other

      requirements of Article 64 were complied with."

      We find that the above reasoning also applies to the present

case.

      The next question concerns the absence of a public hearing before

the Constitutional Court.  The Regional Education Council and the

Regional Government which decided on the applicant's pension claim were

purely administrative bodies.  Having regard to the specific nature of

the applicant's complaint, namely the allegation that the transitional

provision of the amendment to the Pension Act which reduced his pension

rights were unconstitutional, the Constitutional Court was the only

body which could determine this aspect of the dispute between the

applicant and the pension authorities.  The applicant was therefore in

principle entitled to an oral hearing before the Constitutional Court

as none of the exceptions laid down in the second sentence of Article 6

para. 1 applied (cf. Eur. Court H.R., HÃ¥kansson and Sturesson judgment

of 21 February 1990, Series A no. 171, p. 20 para. 64).

      It is the practice of the Austrian Constitutional Court not to

hear the parties unless one of them expressly requests it to do so.

The Commission has repeatedly found that in such a situation the person

concerned could be expected to ask for a hearing if he found it

important that one be held and that the failure to do so must be deemed

to constitute an unequivocal waiver of the right to a public hearing

(see e.g. above mentioned HÃ¥kansson and Sturesson judgment, pp. 20 et

seq., para. 67; Zumtobel judgment of 21 September 1993, Series A

no. 268, p. 14, para. 34).  However, in dealing with this question the

Court always examined further whether the dispute raised issues of

public importance such as to make a public hearing necessary

notwithstanding the failure of the parties to request one.  In

particular it found that when the dispute concerned highly technical

issues the public interest did not require a public hearing (Eur. Court

H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263,

p. 20, para. 61).  Moreover, the waiver of a procedural right, in order

to be effective, requires minimum guarantees commensurate to its

importance (see Eur. Court H.R., Pfeifer and Plankl judgment of

25 February 1992, Series A no. 227, pp. 16-17, para. 37).

      We note that the applicant did not request the Constitutional

Court to hold a public hearing on his complaint of 11 August 1988.

However in assessing whether the dispute involved any questions of

public interest which could have made a public hearing necessary the

subject matter of the dispute before the Constitutional Court must be

taken into consideration.  The proceedings involved questions of

constitutionality of an Act which was of importance not only for the

applicant but for a larger group of persons and involved issues of

gender discrimination in the field of pension rights.  In such

circumstances the public importance of the dispute required in

principle the holding of a public hearing.  Moreover, we note the

absence of minimum guarantees commensurate to the importance of the

proceedings at issue.

      Therefore, there has, in our opinion, been a violation of

Article 6 para. 1 of the Convention.

                                                        (Or. English)

             PARTIALLY CONCURRING AND PARTIALLY DISSENTING