SEPARATE OPINION OF JUDGE MARTENS

1.  I concur in the Court's finding that Article 6 (art. 6) has been violated, but cannot agree with its reasoning.

2.  My objections concern paragraph 41 of the judgment, which starts with the statement:

"The powers of the Administrative Court must be assessed in the light of the fact that the court in this case was sitting in proceedings that were of a criminal nature for the purposes of the Convention."

3.   I will refrain from a structural criticism of this paragraph. I cannot help noting, however, that here again the Court finds it necessary to remark that when it is being assessed whether or not the Administrative Court is to be considered a court that affords the safeguards of Article 6 para . 1 (art. 6-1), "regard must be had to the complaints raised in that court". One looks in vain, however, for evidence of this methodological principle being put into practice: there does not follow any analysis of what the applicant argued before the Administrative Court , nor is there any trace of "regard" to these arguments in the assessment of the adequacy of the Administrative Court 's jurisdiction.  For the rest, I refer to the methodological objections to this "test" that I raised in paragraph 18 of my separate opinion in the case of Fischer v. Austria (judgment of 26 April 1995, Series A no. 312).

4.  My main objection to this paragraph is the following.  In the three civil cases discussed in my aforementioned separate opinion, the Court found that the Austrian Administrative Court met the requirements of a tribunal within the meaning of Article 6 para . 1 (art. 6-1).  In the paragraph under discussion, however, it reaches the opposite conclusion, stressing that in this case the Administrative Court was sitting in proceedings of a criminal nature. One cannot but infer that the Court is of the opinion that in a case which under national law is an "administrative" one but under the Convention is a "criminal" one, the safeguards afforded by the tribunal that is to review the final decision of the administrative bodies differ from those required in a case that under national law is an "administrative" one but under the Convention is a "civil" one.  I cannot see any justification for such differentiation, which does not find support in the wording or the p urpose of Article 6 (art. 6) [5] .  Nor does the Court offer one, its decision on this crucial point being unsupported by any argument.  This is the more to be regretted as this differentiation is cont rary to the Court's case-law [6] .

[1] The case is numbered 35/1994/482/564.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Cases nos. 31/1994/478/560, 32/1994/479/561, 33/1994/480/562, 36/1994/483/565 and 37/1994/484/566

[4] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 329-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[5] I refer in this context to footnote 62 of my aforementioned separate opinion in the case of Fischer v. Austria .

[6] See, inter alia, the Le Compte , Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, pp. 23-24, para . 53; the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, p. 17, para . 30; see also the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, pp. 13-14, para . 28.