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UMLAUFT v. AUSTRIACONCURRING OPINION OF Mr. F. ERMACORA

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Document date: May 19, 1994

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UMLAUFT 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

_________________________________________________________________

23.08.1989 Introduction of application

20.09.1989 Registration of application

Examination of admissibility

02.09.1991 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

21.01.1992 Government's observations

20.03.1992 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 : Mr. W. L. Weh

Commission's decision to declare

application admissible

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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