CONCURRING OPINION OF JUDGE JAMBREK

I voted with the majority on all four points of the Court ’ s judgment. I am, however, of the opinion, that the principle, laid down in paragraph 33 of the judgment (the European Court should confine itself as far as possible to examining the question raised by the case before it) should neither be phrased nor be applied in too restrictive a way. Accordingly, the European Court should not hesitate also to couch its findings in more general terms. In this respect, I would recall the Court ’ s recent description of the Convention "as a constitutional instrument of European public order ( ordre public)" ( Loizidou v. Turkey judgment of 23 March 1995, Series A no. 310, p. 24, para . 75). It seems to me that reasoning not solely restricted to the scope and the circumstances of the case would contribute better to the quality of the Court ’ s case-law in the service of the Convention as a living constitutional instrument on European public order. In this respect, my own views come close to the methodological objection raised by Judge Martens in paragraph 16 of his separate opinion.

[1] The case is numbered 52/1993/447/526.  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] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 312 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[4] For cases concerning civil rights and obligations, see inter alia: the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58; the O. v. the United Kingdom judgment of 8 July 1987, Series A no. 120-A, pp. 27-28, para . 63; the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 31, para . 70; the Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 15, para . 30; the Obermeier v. Austria judgment of 28 June 1990, Series A no. 179; the Oerlemans v. the Netherlands judgment of 27 November 1991, Series A no. 219, pp. 21-22, paras . 53-56; the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, pp. 62-63, para . 38; for cases concerning criminal charges, see inter alia: the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, and the Bendenoun v. France judgment of 24 February 1994, Series A no. 284.

[5] Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 25-26, para . 55.

[6] See the Le Compte , Van Leuven and De Meyere judgment (cited at paragraph 3 above), p. 23, para . 51 under (a).

[7] This doctrine is, however, consecrated by Article 94 of the Austrian Constitution as construed by the Verfassungsgerichtshof ; in its judgment of 14 October 1987, EuGRZ 1988, pp. 166 et seq., this court held that a strict separation between judiciary and executive is essential for the Austrian Constitution.  It concluded therefrom that the Constitution made it impossible to introduce a system of administrative proceedings at two instances.  On this important judgment, see inter alia: W.L. Weh , EuGRZ 1988, pp. 438 et seq.; Merli , ZaöRV 1988, pp. 251 et seq.; Holoubek , Grund - und Menschenrechte in Österreich , pp. 73 et seq.

[8] In this context the influence of the Court of Justice of the European Communities should also be mentioned; as to the influence of its case-law on national legal thinking and practice, see Schwartze , op. cit. (note 6), pp. 93 et seq.

[9] See inter alia: Ule , Verwaltungsprozeßrecht (Beck, München , 1987), pp. 408 et seq.; The protection of the individual in relation to acts of administrative authorities (Council of Europe, 1975); Frowein , Festschrift für Felix Ermacora (1988), pp. 141 et seq.; Banda, Administratief procesrecht in vergelijkend perspectief ( Tjeenk Willink , Zwolle, 1989); Bok, Rechtsbescherming in Frankrijk en Duitsland ( Kluwer , Deventer, 1992); Schwartze , European Administrative Law (Sweet and Maxwell, London, 1992), pp. 97 et seq.; Banda, Het onderzoek door de rechter , in: Ten Berge et al., Nieuw Bestuursrecht ( Kluwer , Deventer, 1992), pp. 99 et seq.; Klap , Vage normen in het bestuursrecht ( Tjeenk Willink , Zwolle, 1994).

[10] See inter alia: the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 27, para . 89; the Chorherr v. Austria judgment of 25 August 1993, Series A no. 266-B, pp. 35-37, para . 25, and the Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria judgment of 19 December 1994, Series A no. 302, pp. 15-16, para . 31.

[11] Series A nos. 120 and 121.

[12] See for example: Series A no. 120, p. 28, para . 64.

[13] ibid., p. 27, para . 63.

[14] AGOSI v. the United Kingdom judgment of 24 October 1986, Series A no. 108.

[15] Since, in my opinion, it is part of the essence of Article 6 (art. 6) that the "tribunal" should be able to determine all aspects of the matter on the basis of its own investigation of the facts (see notably paragraph 13 below), I am not persuaded by the plea made by the Austrian Verfassungsgerichtshof in its decision referred to in note 4. According to this almost emotional plea, in the category of cases under discussion (see paragraph 3 above) the requirements of Article 6 (art. 6) should be deemed to be fulfilled even if the "tribunal" in question were only competent to exercise a limited control, provided such control would enable it to satisfy itself that, in outcome, the administration's decision was right both as regards questions of law and as regards questions of fact.

[16] See Recommendations Nos. R (77) 31 (28 September 1977), R (80) 2 (11 March 1980) and R (89) 8 (13 September 1989).

[17] Judgment of 26 February 1993, Series A no. 257-E, p. 59, para . 19, and judgment of 24 June 1993, Series A no. 263, p. 17, para . 46.

[18] Judgment of 23 October 1985, Series A no. 97.

[19] I cannot refrain from noting that this reorganisation has lead to the introduction of a completely new and uniform system of administrative procedure based on the notion that the primary function of rules of administrative procedure is to protect the individual: see Daalder , De Groot and Van Breugel , De Parlementaire geschiedenis van de Algemene wet bestuursrecht , Tweede Tranche ( Samsom H.D. Tjeenk Willink , Alphen aan den Rijn, 1994), pp. 174 et seq. ( para . 2.3) and pp. 460 et seq. ( Afd . 8.2.6).

[20] The Contracting States are under the obligation to organise their legal systems so as to ensure compliance with the requirements of Article 6 para . 1 (art. 6-1): see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 20, para . 35.

[21] If the Austrian Verfassungsgerichtshof in its decision referred to in note 4 above was intending to suggest that under the reservation to be discussed in paragraphs 23 et seq. below this cannot be required of Austria , it is mistaken: the reservation is invalid.

[22] See the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 41, para . 78.

[23] See the Le Compte , Van Leuven and De Meyere judgment (paragraph 3 above), p. 23, para . 51.

[24] See the Le Compte, Van Leuven and De Meyere judgment , loc. cit ., and the Albert and Le Compte judgment (note 1 above ), p. 16, para. 29. As the latest authorities for the power to give a binding decision being one of the essential elements of the notion of a tribunal within the meaning of Article 6 (art. 6), see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para . 45; and the Beaumartin v. France judgment of 24 November 1994, Series A no. 296-B, pp. 62-63, para . 38.

[25] See note 19.

[26] Series A no. 52, p. 31, para . 87.

[27] Since it is probably immaterial in the present case, I leave aside the intriguing - and, as far as I know, hitherto unexplored - question whether the basic idea of protection of the individual implies that the "tribunal" should be invested with the power of applying the maxim ius curia novit , and thus of going ex officio into questions of law not raised by the parties.

[28] It is interesting to note that according to Bok (see note 6), pp. 150 and 193 et seq., both the French and the German administrative courts take the view that they have power to control fully the application of vague norms by the authorities without - except in rather special cases - leaving room for discretion.  However, see also Klap (note 6), pp. 125 et seq., and 250.

[29] "For the sake of discussion": obviously the two categories intertwine, since a tribunal lacking the power to take into account other facts than those on which the executive authorities have based themselves can less well control questions of factual assessment even if in principle it is empowered to carry out such control.

[30] Once again I pass over the question whether and to what extent the "tribunal" - in order to compensate the imbalance between the parties and better to protect the individual - should be free or even obliged actively to try to ascertain the relevant facts.  I note, for the rest, that here lies another, rather difficult problem, viz. whether the tribunal should review ex tunc or ex nunc : should it be allowed to take into account new facts or not?  I only note the problem, adding that for the moment I am inclined to think that the requirements of Article 6 para . 1 (art. 6-1) imply the power to review ex nunc .  On the ex tunc /ex nunc problem, see Teunissen in: Ten Berge et al., Nieuw Bestuursrecht ( Kluwer , Deventer, 1992), pp. 111 et seq. (who treats the Article 6 (art. 6) aspect on pp. 126 et seq.); Schueler , Vernietigen en opnieuw voorzien ( Tjeenk Willink , Zwolle, 1994), pp. 215 et seq.

[31] It should be competent to "rectify factual errors": see the Le Compte , Van Leuven and De Meyere judgment (paragraph 3 above).

[32] To that extent - but only to that extent - I agree with the Zumtobel doctrine: see paragraph 32 in fine of the Zumtobel judgment (paragraph 2 above).

[33] According to the consistent case-law of the German Constitutional Court, where the right of freedom of expression is at stake, unacceptable curtailment of that right can only be prevented if factual assessments made by the normal courts are fully reviewable by the Constitutional Court (see Bverfge 43,130 = EUGRZ 1977, pp. 109 et seq.).  The European Court has taken the same approach.  As the latest authority, see the (Grand Chamber) judgment of 23 September 1994 in the case of Jersild v. Denmark (Series A no. 298), pp. 23-24, para . 31. See also my concurring opinion in the case of Schwabe v. Austria (Series A no. 242-B, pp. 40 et seq.) and paragraph 4 of my dissenting opinion in the case of Prager and Oberschlick v. Austria (Series A no. 313).

[34] Silver and Others v. the United Kingdom , judgment of 25 March 1983, Series A no. 61, pp. 33-34, paras . 88-89.

[35] Malone v. the United Kingdom , judgment of 2 August 1984, Series A no. 82, p. 32, para . 67.

[36] Leander v. Sweden , judgment of 26 March 1987, Series A no. 116, p. 23, para . 51.

[37] Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, p. 30, para . 61 under (c).

[38] Chappell v. the United Kingdom , judgment of 30 March 1989, Series A no. 152-A, p. 24, para . 57.

[39] Eriksson v. Sweden , judgment of 22 June 1989, Series A no. 156, pp. 24-25, paras . 59-62.

[40] Kruslin v. France , judgment of 24 April 1990, Series A no. 176-A, pp. 22-25, paras . 30-36.

[41] Herczegfalvy v. Austria , judgment of 24 September 1992, Series A no. 244, p. 27, para . 89.

[42] See the Le Compte , Van Leuven and De Meyere judgment (paragraph 3 above), p. 23, para . 51 in fine.

[43] See paragraph 8 above.

[44] Pudas v. Sweden , judgment of 27 October 1987, Series A no. 125-A, p. 15, para . 34.

[45] Allan Jacobsson v. Sweden, judgment of 25 October 1989, Series A no. 163, p. 20, para . 69.

[46] Mats Jacobsson v. Sweden , judgment of 28 June 1990, Series A no. 180-A, p. 13, para . 32.

[47] Skärby v. Sweden, judgment of 28 June 1990, Series A no. 180-B, p. 37, para . 28.

[48] I am thinking of such principles as, for instance, that of treating like cases alike, that of legal certainty and that of proportionality.

[49] As the latest authority, see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 16, para . 45.  To avoid misunderstanding, I would add that in my opinion this requirement does not imply that the final decision of the "tribunal" should constitute res judicata in the sense that new proceedings on the same issue would be impossible or only possible under exceptional circumstances; it only implies that the final decision should be made by the "tribunal" itself and not by any other authority.

[50] See Robertson- Merills , Human Rights in Europe (Manchester University Press, Manchester and New York, 1993), p. 91.

[51] AGOSI v. the United Kingdom , judgment of 24 October 1986, Series A no. 108, p. 20, para . 58, in conjunction with p. 14, para . 38, last dash.

[52] In this respect the Verwaltungsgerichtshof meets the requirements of Article 6 para . 1 (art. 6-1), since under Article 63 of the Administrative Court Act, when the Verwaltungsgerichtshof has quashed a decision of the administrative authorities, these have to decide again according to the legal opinion of the Verwaltungsgerichtshof and if they fail to do so the Verwaltungsgerichtshof may itself decide (see the decision of the Verfassungsgerichtshof referred to in note 4).

[53] See the Zumtobel judgment (paragraph 2 above), p. 14, para . 32, and paragraph 33 of the present judgment.

[54] See also my concurring opinion in the case of Fey v. Austria , Series A no. 255-A, p. 16, para . 1.

[55] See the Zumtobel judgment (paragraph 2 above), p. 13, para . 31, and paragraph 34 of the present judgment.  It would at least seem questionable whether this first test is adequately formulated, since under Article 130 para . 1 of the Federal Constitution (see paragraph 20 below) the Verwaltungsgerichtshof lacks competence in so far as the authorities have discretion.

[56] Or, since it is to be feared that the Zumtobel doctrine will be applied to administrative courts of other member States, of the law of such States.

[57] That is because the test at least implies that the Court should compare "point by point" the applicant's submissions to the Verwaltungsgerichtshof and the latter's judgment in order to ascertain whether all submissions are really dealt with.

[58] See paragraph 15 of the Court's judgment.

[59] " Rechtswidrigkeit liegt nicht vor , soweit die Gesetzgebung von einer bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und die Bestimmung dieses Verhaltens der Behörde selbst überläßt , die Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch gemacht hat."

[60] See paragraphs 17 and 18 of this judgment.

[61] Neither party quoted L.K. Adamovich and B.-C. Funk, Allgemeines Verwaltungsrecht , (3., neubearb . Aufl . Springer, Wien , New York , 1987) pp. 93-94, 449 and 453.  I mention this book because the first-named author is the President of the Austrian Constitutional Court .  The latter fact makes it significant that the authors write that it is open to doubt ( lassen es zweifelhaft erscheinen ) whether the competence of the Verwaltungsgerichtshof meets the requirements of Article 6 para . 1 (art. 6-1).  They mention notably the principle that the Verwaltungsgerichtshof may only quash a decision, that it has only a limited competence to review the facts ( begrenzte Sachverhaltsprüfung ) and also a limited possibility to review discretionary acts of the executive.  They add that fundamental changes in the system may prove necessary.

[62] K. Ringhofer , Der Sachverhalt im verwaltungsgerichtlichen Bescheidprüfungsverfahren , in: Festschrift zum 100- jährigen Bestehen des österreichischen Verwaltungsgerichtshofes , pp. 351-75.

[63] Ringhofer , loc. cit., pp. 353, 358 and especially 361-62.

[64] Ringhofer , loc. cit., p. 363.  In its decision referred to in note 4 the Austrian Verfassungsgerichtshof essentially confirmed Ringhofer's analysis.  It held: "However, the Constitution does not permit the abandonment of the very system of limited control (das System der nachprüfenden Kontrolle ) or the conferment on the Verwaltungsgerichtshof of the competence to give (at the request of one of the parties) in all administrative matters a binding decision on the dispute on the basis of a completely new investigation of the facts ... The Verwaltungsgerichtshof could not fulfil that task, if only in view of its magnitude."

[65] In a judgment of the same date as its decision referred to in note 4 the Austrian Verfassungsgerichtshof has held that with regard to criminal matters ( im Bereich des Strafrechts ) "the merely limited control (die bloß nachprüfende Kontrolle )" of the Verwaltungsgerichtshof did not meet the requirements of Article 6 para . 1 (art. 6-1).  It is interesting to note (see Merli (note 4), p. 257) that the Verfassungsgerichtshof did so although the Government had relied in this case too on the analysis of Ringhofer (see note 59): apparently, this analysis of its Vice-President impressed the Verfassungsgerichtshof less than it did the European Court of Human Rights!

To my mind this judgment of the Verfassungsgerichtshof with regard to criminal matters is decisive since there is no ground to distinguish between the requirements of a "tribunal" as far as the determination of a criminal charge and that of civil rights and obligations are concerned.  The latter point has been conceded by the Verfassungsgerichtshof : in its later case-law it has applied its doctrine of the insufficiency of the Verwaltungsgerichtshof's jurisdiction to administrative procedures which, in the European Court 's doctrine, concern "civil rights and obligations" within the meaning of Article 6 para . 1 (art. 6-1), be it only if the rights at stake can be said to belong to a special, self-created category of "essentially civil rights" (see Holoubek , note 4).

[66] See paragraph 28 of the present judgment.

[67] For the text of the reservation, see paragraph 36 of the present judgment.

[68] See note 1.

[69] See paragraph 41 of its judgment.

[70] See the Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 40, para . 98, and the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, p. 19, para . 42.

[71] This is also the prevailing opinion in Austria : see C. Grabenwarter , Juristische Blätter , Jg . 116, p. 107, para . 5.