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SCHMAUTZER v. AUSTRIACONCURRING OPINION OF Mr. F. ERMACORA

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Document date: May 19, 1994

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SCHMAUTZER v. AUSTRIACONCURRING OPINION OF Mr. F. ERMACORA

Doc ref: • ECHR ID:

Document date: May 19, 1994

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CONCURRING OPINION OF Mr. F. ERMACORA

I agree with the Commission that the scope of review

afforded by the Administrative Court does not comply with

Article 6 para. 1 of the Convention. However, the Commission

finds that no separate issue arises in connection with the

absence of a hearing before the Administrative Court.

I consider that a separate issue does arise in this case

because the Austrian reservation to Article 6 has just such a

separate wording and function from the other reservation which

Austria has declared to Article 6 in general.

The difference lies in the fact that the Austrian

reservation does not concern the administrative procedural law

directly but Article 90 para. 2 of the Constitution which states

that "Hearings in civil and criminal cases by the trial court

shall be oral and public. Exceptions may be prescribed by law".

This reservation is not at all applicable to procedures

before the Administrative and Constitutional Courts because

these courts do not deal with cases in civil and criminal cases

but in cases of a public law character. The reservation cannot

be understood in any other way because the meaning of the

reservation at the time it was made must be respected.

In 1958, when the reservation was made, Article 90 of the

Constitution could not have the meaning which the Commission now

gives to the reservation. In 1958 - long before the Ringeisen

case - Article 90 could in no way be applicable to procedures

before the Constitutional Court because Article 90 (2) from a

systematic point of view falls within the chapter of the

Constitution dealing with civil and criminal law before the

ordinary courts and not the part dealing with public law, which

is regulated by Article 137 et seq. of the Constitution.

The Commission should have entered into this question which

shows that the reservation is not at all applicable in the case.

The interpretation of this reservation is contrary to the scope

of the reservation and therefore the Commission should have

applied Article 6 with reference to the misinterpretation of the

said reservation. The Commission should have considered this

fact as a separate issue as to the interpretation of the

Austrian reservation. This brings me to the same result as the

other members, but based rather on a different interpretation of

the reservation.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

___________________________________________________________

26.05.1989 Introduction of application

20.09.1989 Registration of application

Examination of admissibility

11.07.1991 Commission's decision to communicate

the case to the respondent Government

and to invite the parties to submit

observations on admissibility and

merits

08.11.1991 Government's observations

07.01.1992 Applicant's observations in reply

15.02.1993 Commission's decision to hold a hearing

10.05.1993 Hearing on admissibility and merits,

the parties being represented as

follows :

Government : Ambassador Cede

Ms. S. Bernegger,

Federal Chancellery

Applicant : in person

10.05.1993 Commission's decision to declare

application in part admissible and in

part inadmissible

Examination of the merits

16.10.1993 Commission's consideration of state of

proceedings

05.03.1994 Commission's consideration of state of

proceedings

16.05.94 Commission's deliberations on the

merits, final vote and consideration

of text of the Report

19.05.94 Adoption of Report

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