D. As to compliance with Article 6 para. 1 of the Convention (paras )... 10

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1 EUROPEAN COMMISSION OF HUMAN RIGHTS Application No /90 Peter Palaoro against Austria REPORT OF THE COMMISSION (adopted on 19 May 1994) TABLE OF CONTENTS Page I. INTRODUCTION (paras. 1-16) A. The application (paras. 2-4) B. The proceedings (paras. 5-11) C. The present Report (paras ) II. ESTABLISHMENT OF THE FACTS (paras ) A. The particular circumstances of the case (paras ) B. Relevant domestic law (paras ) III. OPINION OF THE COMMISSION (paras ) A. Complaint declared admissible (para. 32) B. Points at issue (para. 33) C. As to the applicability of Article 6 of the Convention (paras ) a. The existence of a "criminal charge" (paras ) b. The reservation to Article 5 of the Convention (paras ) D. As to compliance with Article 6 para. 1 of the Convention (paras ) a. The administrative authorities (paras ) b. The scope of review of the decisions of the administrative authorities Seite 1

2 (paras ) CONCLUSION (para. 53) c. The absence of a hearing before the Administrative Court (para. 54) CONCLUSION (para. 55) d. The lack of opportunity to question witnesses (para. 56) CONCLUSION (para. 57) E. Recapitulation (paras ) CONCURRING OPINION OF Mr. F. ERMACORA APPENDIX I : HISTORY OF THE PROCEEDINGS APPENDIX II : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION I. INTRODUCTION 1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission. A. The application 2. The applicant is an Austrian citizen, resident in Vorarlberg. He was represented before the Commission by Mr. W.L. Weh, a lawyer practising in Bregenz. 3. The application is directed against Austria. The respondent Government were represented by their Agent, Ambassador F. Cede, head of the International Law Department at the Federal Ministry for Foreign Affairs. 4. The case concerns administrative criminal proceedings against the applicant before administrative authorities with subsequent review by the Constitutional and Administrative Courts. The applicant invokes Article 6 of the Convention. B. The proceedings 5. The application was introduced on 28 May 1990 and registered on 13 June On 16 October 1991 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 7. The Government's observations were submitted on 21 February The applicant replied on 5 October 1992, after expiry of the timelimit. 8. On 15 February 1993 the Commission decided to hold a hearing of the parties in this case and in Applications Nos /89, 15527/89, 15963/90, 16713/90, and 16841/90. The hearing was held on 10 May Seite 2

3 The Government were represented by Ambassador Cede and Ms. S. Bernegger, of the Federal Chancellery. The applicant was represented by Mr. Weh. 9. On 10 May 1993 the Commission declared the applicant's complaint under Article 4 of Protocol No. 7 to the Convention inadmissible. It declared the remainder of the application admissible. 10. The text of the Commission's decision on admissibility was sent to the parties on 19 May 1991 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 27 May After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected. C. The present Report 12. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present : MM. C.A. NØRGAARD, President A. WEITZEL F. ERMACORA G. JÖRUNDSSON A.S. GÖZÜBÜYÜK H.G. SCHERMERS H. DANELIUS Mrs. G.H. THUNE Mr. C.L. ROZAKIS Mrs. J. LIDDY MM. M.P. PELLONPÄÄ B. MARXER G.B. REFFI M.A. NOWICKI 13. The text of this Report was adopted on 19 May 1994 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention. 14. The purpose of the Report, pursuant to Article 31 of the Convention, is : (i) to establish the facts, and (ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention. 15. A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II. 16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II. ESTABLISHMENT OF THE FACTS A. The particular circumstances of the case 17. On 16 November 1988 the Imst District Authority (Bezirks- Seite 3

4 hauptmannschaft) found the applicant guilty of having committed two speeding offences contrary to the Road Traffic Act (Straßenverkehrsordnung). The first offence involved driving in excess of the maximum speed permitted on motorways (Section 20 (2) of the Road Traffic Act); the second offence involved driving, on a further stretch of the same road, in excess of the speed limit imposed by a road sign (Section 52 (A)(10)(a) of the Act). The applicant was fined AS 6,000 and AS 4,000 respectively, with imprisonment of 10 days and 8 days in default. The applicant's appeal to the Tyrol Regional Government (Landesregierung) was rejected on 22 December 1988, although the penalties were reduced to AS 4,000 and AS 2,000, with the default penalties being reduced to 7 and 4 days. 18. The applicant's complaint to the Constitutional Court (Verfassungsgerichtshof) was rejected on 10 March The Constitutional Court referred to its own case-law on Article 6 of the Convention in finding that the application had no sufficient prospects of success. 19. On 25 October 1989 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant's complaint to it. It recalled that a formal confrontation with a witness is only to be ordered where it is necessary in the case: there is no right to put questions in person to a witness. In any event, the applicant had not shown in what way the evidence brought could have been challenged if the witnesses had been questioned. B. Relevant domestic law The substantive law 20. Section 20 (2) of the Road Traffic Act 1960 (Straßenverkehrsordnung) provides: (German) "... der Lenker eines Fahrzeuges [darf]... auf Autobahnen nicht schneller als 130 km/h... fahren." (Translation) "... the driver of a vehicle... on motorways may not drive in excess of km/h." 21. Section 52 (A)(10)(a) of the Road Traffic Act prohibits driving in excess of a speed limit which is indicated on a road sign. 22. The provisions of Section 20 (2) and Section 52 (A)(10)(a) of the 1960 Act repeated provisions contained in the Traffic Police Act 1948 (Straßenpolizeigesetz). Jurisdiction of the Constitutional and Administrative Courts 23. According to Article 144 of the Austrian Federal Constitution (Bundes-Verfassungsgesetz) an appeal can be filed with the Constitutional Court in which an applicant can allege a violation of his constitutional rights. He can also complain that his rights have been violated on account of an unlawful ordinance, an unconstitutional Act, or an unlawful international treaty. 24. Article 144 para. 2 of the Federal Constitution provides as follows: (German) "Der Verfassungsgerichtshof kann die Behandlung einer Beschwerde bis zur Verhandlung durch Beschluß ablehnen, wenn sie keine hinreichende Aussicht auf Erfolg hat oder von der Entscheidung Seite 4

5 die Klärung einer verfassungsrechtlichen Frage nicht zu erwarten ist. Die Ablehnung der Behandlung ist unzulässig, wenn es sich um einen Fall handelt, der nach Art. 133 von der Zuständigkeit des Verwaltungsgerichtshofes ausgeschlossen ist." (Translation) "The Constitutional Court may refuse to consider a case up to a hearing by way of decision if it has no reasonable prospect of success or it cannot be expected that the decision will shed light on a problem of constitutional law. A refusal to consider is inadmissible if it concerns a case excluded from the jurisdiction of the Administrative Court by Article 133." 25. According to Article 130 para. 1 of the Federal Constitution the Administrative Court will review allegations of unlawfulness of an administrative decision. According to Article 130 para. 2, "no unlawfulness exists where legislation does not establish a binding rule on an administrative authority's conduct, leaving the determination of such conduct to the authority itself, and the authority has made use of this discretion in the spirit of the law" ("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"). The Administrative Court is also competent to deal with complaints that the administrative authority has violated its duty to take a decision (Article 132). 26. Section 41 of the Administrative Court Act (Verwaltungsgerichtshofgesetz) provides, so far as relevant: (German) "(1) Der Verwaltungsgerichtshof hat, soweit er nicht Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder wegen Verletzung von Verfahrensvorschriften gegeben findet ( 42 Abs. 2 Z. 2 und 3)..., den angefochtenen Bescheid auf Grund des von der belangten Behörde angenommenen Sachverhaltes im Rahmen der geltend gemachten Beschwerdepunkte... zu überprüfen. Ist er der Ansicht, dass für die Entscheidung über die Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte... Gründe massgebend sein könnten, die einer Partei bisher nicht bekanntgegeben wurden, so hat er die Parteien darüber zu hören und, wenn nötig, eine Vertagung zu verfügen." (Translation) "(1) In so far as the Administrative Court does not find unlawfulness on account of a lack of jurisdiction of the authority against which the appeal is directed or on account of a violation of procedural provisions (Section 42 para. 2 (2) and (3),..., the Court must examine the contested decision on the basis of the facts as accepted by the authority against which the appeal is directed within the framework of the alleged complaint... If it is of the opinion that reasons would be relevant for the decision on the unlawfulness of the contested decision... which were so far not known to a party, it must hear the parties thereupon and, if necessary, adjourn the proceedings." 27. Section 42 (1) of the Administrative Court Act states that, save as otherwise provided, decisions of the Administrative Court shall either dismiss a complaint as ill-founded or quash the contested decision. Apart from amendments to that part of Section 42 (1) which enumerates those proceedings to which it does not apply (not relevant in the present case) Section 42 (1) has been in force since at least Seite 5

6 28. As regards the decisions of the Administrative Court, Section 42 (2) of the Administrative Court Act provides, so far as relevant: (German) "(2) Der angefochtene Bescheid ist aufzuheben 1. wegen Rechtswidrigkeit seines Inhaltes, 2. wegen Rechtswidrigkeit infolge Unzuständigkeit der belangten Behörde, 3. wegen Rechtswidrigkeit infolge Verletzung von Verfahrensvorschriften, und zwar weil a) der Sachverhalt von der belangten Behörde in einem wesentlichen Punkt aktenwidrig angenommen wurde oder b) der Sachverhalt in einem wesentlichen Punkt einer Ergänzung bedarf oder c) Verfahrensvorschriften ausser acht gelassen wurden, bei deren Einhaltung die belangte Behörde zu einem anderen Bescheid hätte kommen können." (Translation) "(2) The contested decision must be quashed 1. on account of the unlawfulness of its content, 2. on account of unlawfulness due to the lack of jurisdiction of the authority against which the appeal is directed, 3. on account of unlawfulness due to a violation of procedural provisions in particular because a) the authority against which the appeal is directed has determined the facts on an important point contrary to the case-file, or b) the facts require to be supplemented on an important point, or c) procedural provisions have been disregarded which, if taken into consideration by the authority against which the appeal is directed, could have led to a different decision of the authority." Hearings before the Administrative Court 29. Section 39 (1) of the Administrative Court Act provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 (2) provides as follows: (German) "Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn 1. das Verfahren einzustellen ( 33) oder die Beschwerde zurückzuweisen ist ( 34); 2. der angefochtene Bescheid wegen Rechtswidrigkeit infolge Unzuständigkeit der belangten Behörde aufzuheben ist ( 42 Abs. 2 Z. 2); 3. der angefochtene Bescheid wegen Rechtswidrigkeit infolge Verletzung von Verfahrensvorschriften aufzuheben ist ( 42 Abs. 2 Z. 3); 4. der angefochtene Bescheid nach der ständigen Rechtsprechung des Verwaltungsgerichtshofes wegen Rechtswidrigkeit seines Inhaltes aufzuheben ist; 5. weder die belangte Behörde noch etwaige Mitbeteiligte eine Gegenschrift eingebracht haben und der angefochtene Bescheid aufzuheben ist; 6. die Schriftsätze der Parteien des verwaltungsgerichtlichen Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten Seite 6

7 des Verwaltungsverfahrens erkennen lassen, daß die mündliche Erörterung eine weitere Klärung der Rechtssache nicht erwarten läßt." (Translation) "Notwithstanding a party's application, the Administrative Court may decide not to hold a hearing when 1. The proceedings are to be discontinued (Section 33) or the complaint is to be rejected (Section 34); 2. The contested decision is to be quashed for unlawfulness due to lack of jurisdiction on the part of the authority challenged (Section 42 (2) (2)); 3. The contested decision is to be quashed for failure to comply with procedural provisions (Section 42 (2) (3)); 4. The contested decision is to be quashed in accordance with the constant case-law of the Administrative Court for unlawfulness as to its contents; 5. Neither the authority challenged nor any third party has submitted a reply and the contested decision is to be quashed; 6. It is apparent from the written pleadings of the parties to the proceedings before the Administrative Court and from the files relating to the prior proceedings that an oral hearing is not likely to contribute to clarifying the case." 30. Section 39 paras. 2 (1) to 2 (3) were in force in Section 39 (2) (4) and (2) (5) were added in 1964 and Section 39 (2) (6) was added in Article 90 para. 2 of the Federal Constitution provides as follows: (German) "Die Verhandlungen in Zivil- und Strafrechtssachen vor dem erkennenden Gericht sind mündlich und öffentlich. Ausnahmen bestimmt das Gesetz." (Translation) "Hearings in civil and criminal cases by the trial court shall be oral and public. Exceptions may be prescribed by law." III. OPINION OF THE COMMISSION A. Complaint declared admissible 32. The Commission has declared admissible the applicant's complaint that the proceedings in which he was convicted of exceeding two speed limits did not comply with Article 6 (Art. 6) of the Convention. B. Points at issue 33. The issues to be determined are: - whether there has been a violation of the applicant's right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, - whether the absence of a hearing before the Administrative Court violated Article 6 para. 1 (Art. 6-1) of the Convention, and - whether the applicant's lack of opportunity to put questions to witnesses as no oral hearing was held violated Article 6 para. 3(d) (Art. 6-3-d) of the Convention. C. As to the applicability of Article 6 (Art. 6) of the Convention Seite 7

8 a. The existence of a "criminal charge" 34. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far as relevant, as follows: "In the determination of... any criminal charge against him, everyone is entitled to a fair and public hearing... by an independent and impartial tribunal established by law." 35. In the proceedings in the present case, the applicant was convicted of exceeding two separate speed limits. He was fined AS 4,000 and AS 2,000, with 7 and 4 days' detention in default. 36. The applicant considers that the proceedings determined a criminal charge. With reference to the case-law of the Convention organs, the Government do not contest the claim, but point to various features of this type of offence which, in their view, call for a differentiated approach to administrative criminal offences (Verwaltungsstrafsachen) when compared with ordinary, judicial criminal offences. They note, for instance, that criminal records do not make reference to administrative convictions, that administrative criminal law is not directed against the commission of social wrong but serves the purpose of maintaining public order, and that the offences are of a minor and frequently purely formal character (nonregistration for example). 37. The Commission recalls that the European Court of Human Rights has applied the same test for the applicability of Article 6 (Art. 6) to regulatory offences (Ordnungswidrigkeiten) in Germany as to other types of proceedings (Eur. Court H.R., Öztürk judgment of 21 February 1984, Series A no. 73, p. 18, para. 50). The Commission notes that administrative criminal proceedings in Austria are regulated by special legislative provisions which are separate from the ordinary criminal law. The proceedings are, however, expressly referred to as administrative "criminal" proceedings, and the Commission finds that this gives an indication of their nature. The penalty, of AS 4,000 and AS 2,000 with 7 and 4 days' detention in default, cannot be described as negligible. 38. Taking into account the classification as "administrative criminal" of the offence in domestic law, the nature of the offence as the imposition of a penalty for failure to comply with a specific regulation, and the nature of the penalty, which included the possibility of imprisonment, the Commission finds that the proceedings at issue in the present case determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. b. The reservation to Article 5 (Art. 5) of the Convention 39. The Government submit that the Austrian reservation to Article 5 (Art. 5) of the Convention prevents the Commission from entertaining this complaint. This reservation provides as follows: "The provisions of Article 5 (Art. 5) of the Convention shall be so applied that there shall be no interference with measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl. No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution." 40. The applicant points out that the laws on administrative procedure BGBl. No. 172/1950 contain very few criminal offences, and not that at issue in the present case, such that the reservation cannot be relevant. He also points out that the offence in the present case came into being after the reservation was entered in The Government consider that the reservation must be taken to apply not merely to actual measures of detention under Article 5 Seite 8

9 (Art. 5) of the Convention, but also to the proceedings which may lead to such detention, and they refer to Commission case-law to this effect (eg. No. 8998/80, Dec , D.R. 32, p. 150). 41. The Commission recalls that the European Court of Human Rights has recently had occasion to affirm the validity of the Austrian reservation to Article 5 (Art. 5) (Eur. Court H.R., Chorherr judgment of 25 August 1993, Series A no. 266, p. 35, para. 21). In particular, the Court emphasised that the laws referred to in the reservation "lay down rules for the punishment of offences, setting out the punishable acts, the penalties incurred and the procedure to be followed" (p. 34, para. 18). The Court continued that "the provisions to which the reservation applied in [that] case were all in force on 3 September " (ibid). 42. The Commission notes that the prohibitions on exceeding speed limits at issue in the present case are comprised in the Road Traffic Act That Act's predecessor in this respect, the Traffic Police Act 1947, was in force in 1958, but it is not one of the laws referred to in the Austrian reservation to Article 5 (Art. 5) of the Convention. Moreover, the specific amendment by which the applicant was penalised is contained in the 1960 Act. Accordingly, neither the punishable act nor the penalty imposed were included in the laws referred to in the reservation. Finally in this respect, the Commission notes that the Austrian reservation to Article 5 (Art. 5) of the Convention in terms refers to Article 5 (Art. 5) and not to Article 6 (Art. 6) of the Convention. 43. The Commission finds that that reservation cannot be said to apply in the present case. Accordingly, the reservation does not prevent the Commission from examining the complaint under Article 6 (Art. 6) of the Convention. D. As to compliance with Article 6 para. 1 (Art. 6-1) of the Convention a. The administrative authorities 44. The applicant considers that the administrative authorities which considered the case, namely the Imst District Authority (Bezirkshauptmannschaft) and the Tyrol Provincial Government (Landesregierung) are officials following instructions, and in no way independent judges. The Government do not contest this, but point to procedural rules which apply before the administrative authorities. 45. The Commission finds that the administrative authorities which decided the applicant's case at first and second instance were not "independent and impartial tribunals" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A no. 179, p. 22, para. 70; Zumtobel judgment of 21 September 1993, Series A no. 268-A, para. 29). 46. The decisions of the administrative authorities may give rise to appeals to the Constitutional Court (Verfassungsgerichtshof) and the Administrative Court (Verwaltungsgerichtshof), but the proceedings for the consideration of such appeals will be consistent with Article 6 para. 1 (Art. 6-1) only if conducted before "judicial bodies that have full jurisdiction" (above-mentioned Zumtobel judgment, para. 29 with further reference). b. The scope of review of the decisions of the administrative authorities 47. The Commission must therefore examine the scope of review offered by the Austrian judicial authorities in this determination of a criminal charge in order to establish whether the applicant was able to take his case before a tribunal that did offer the guarantees of Article 6 (Art. 6) (above-mentioned Öztürk judgment, p. 22, para. 56). Seite 9

10 48. The applicant considers that where Article 6 (Art. 6) is applicable, the Convention requires a court which can determine all aspects of the case. He points out that new evidence cannot be submitted to the Administrative Court by virtue of Section 41 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), that the Administrative Court does not permit the assessment of the evidence by the administrative authorities to be challenged, and that the Administrative Court can only quash decisions, and cannot substitute its assessment of the facts. He states that he would have wished the Administrative Court to determine by how much he exceeded the relevant speed limits. 49. The Government consider that in minor cases such as the present one, it is permissible for an independent tribunal - they underline that the independence and impartiality of the Administrative and Constitutional Courts are not in doubt - to review the facts as established by the administrative authorities. They point out that the Administrative Court can quash the decision of the administrative authorities where the facts are in contradiction of the file, where a fundamental point of fact needs complementing, or where procedural provisions have been ignored which could have led to a different result. 50. The Commission first finds that the Constitutional Court did not satisfy the requirement of "full jurisdiction". It was able to inquire into the contested proceedings only from the point of view of their conformity with the Constitution (see also the above-mentioned Zumtobel judgment, para. 30). The Government do not contend that the Constitutional Court has sufficient powers to examine all relevant facts. 51. The Convention organs have considered the scope of review by the Administrative and Constitutional Courts of the decisions of Austrian administrative authorities several times (see, for example, the abovementioned Obermeier and Zumtobel judgments, with further references). All previous cases, however, concerned determinations of civil rights or obligations. The Commission recalls that criminal charges, even indisputably minor ones, must be determined by a court which complies with Article 6 (Art. 6), even though it is not inconsistent with the Convention for prosecution and punishment of minor offences to be conferred in the first place on administrative authorities (see the above-mentioned Öztürk judgment, p. 21, para. 56). 52. The Commission finds that whilst in civil matters a somewhat limited review of the decisions of administrative authorities may, in certain circumstances, satisfy the requirements of Article 6 (Art. 6) of the Convention (see, for example, the above-mentioned Zumtobel judgment, and Eur. Court H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263, p. 19, para. 58), criminal cases may require a different approach. In particular, they involve rules directed towards all citizens in their capacity - in the present case as in the Öztürk case - as road users, which prescribe conduct of a certain kind and create sanctions for non-compliance. Whilst the Commission well appreciates the advantages for the prosecution and the defence in dealing with minor criminal offences as expeditiously as possible, it finds that where a defendant desires a court to determine a criminal charge against him, there is no room for limitation on the scope of review required of the decisions of administrative authorities. Accordingly, the applicant in the present case, who wished to have determined by a court at least one question of fact, was entitled to, but did not have the benefit of, a court which could consider all the facts of the case. CONCLUSION 53. The Commission concludes, unanimously, that there has been a Seite 10

11 violation of the applicant's right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. c. The absence of a hearing before the Administrative Court 54. In the light of its above finding that the applicant was denied his right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds that no separate issue arises in connection with the absence of a hearing before the Administrative Court. CONCLUSION 55. The Commission concludes, unanimously, that the absence of a hearing before the Administrative Court raises no separate issue under Article 6 para. 1 (Art. 6-1) of the Convention. d. The lack of opportunity to question witnesses 56. In the light of its above finding that the applicant was denied his right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission finds that no separate issue arises in connection with the lack of opportunity to question witnesses before the Administrative Court or before the earlier administrative authorities. CONCLUSION 57. The Commission concludes, unanimously, that the lack of opportunity to question witnesses raises no separate issue under Article 6 (Art. 6) of the Convention. E. Recapitulation 58. The Commission concludes, unanimously, that there has been a violation of the applicant's right to a tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (para. 53). 59. The Commission concludes, unanimously, that the absence of a hearing before the Administrative Court raises no separate issue under Article 6 para. 1 (Art. 6-1) of the Convention (para. 55). 60. The Commission concludes, unanimously, that the lack of opportunity to question witnesses raises no separate issue under Article 6 (Art. 6) of the Convention (para. 57). Secretary to the Commission (H.C. KRÜGER) President of the Commission (C.A. NØRGAARD) CONCURRING OPINION OF Mr. F. ERMACORA (Or. English) 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 Seite 11

12 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 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 Introduction of application Registration of application Examination of admissibility Commission's decision to communicate the case to the respondent Government and to invite the parties to submit observations on admissibility and merits Government's observations Applicant's observations in reply Commission's decision to hold a hearing Hearing on admissibility and merits, the parties being represented as follows : Government : Applicant : Ambassador Cede Ms. S. Bernegger, Federal Chancellery Mr. W. L. Weh Commission's decision to declare application in part admissible and in part inadmissible Examination of the merits Seite 12

13 Commission's consideration of state of proceedings Commission's consideration of state of proceedings Commission's deliberations on the merits, final vote and consideration of text of the Report Adoption of Report Seite 13