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FIRST
SECTION
CASE OF BARTENBACH v. AUSTRIA
(Application
no. 39120/03)
JUDGMENT
STRASBOURG
20
March 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bartenbach v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section Registrar,
Having
deliberated in private on 28 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39120/03) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Austrian nationals, Mr Hanno Bartenbach and Mr Helmut
Bartenbach (“the applicants”), on 4 December 2003.
- The
applicants were represented by Mr W.L. Weh, a lawyer practising in
Bregenz. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
- On
5 December 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1959 and lives in Bludenz, the second
applicant was born 1940 and lives in Bürs.
- The
applicants are owners of a painting company in Bürs. The first
applicant is also the sole owner of another company.
- On
15 July 1997 the Bregenz District Administrative Authority informed
the applicants of its suspicion that they had illegally employed C.,
a Turkish citizen, on 19 June 1997. It invited the applicants either
to comment in writing or to make an appointment with the authority
for an oral justification within two weeks.
- On
11 September 1997 the applicants replied to the District
Administrative Authority by referring in essence to the Association
Agreement between the European Community and Turkey (decree no. 1/80
of the Association Council). Stating that C. had therefore been
employed in conformity with European Law standards, they objected to
the allegations made by the Administrative Authority.
- On
4 December 1997 the applicants again filed submissions. Referring to
comments by the Regional Employment Office, they repeated their
position that C.'s employment had been in conformity with EU law at
the relevant time.
- On
22 March 1999 the Bludenz District Administrative Authority imposed a
fine of 15,000 Austrian schilling (ATS), equivalent to 1,090.09 Euro
(EUR), on each of the applicants for breach of the Employment of
Foreigners Act (Ausländerbeschäftigungsgesetz).
- On
23 March 1999 the same authority imposed a further fine (10,000 ATS
equivalent to EUR 727) on the first applicant, after having informed
him about its suspicion on 1 September 1998 that he had illegally
employed C. on 26 August 1998 for the first applicant's company.
- On
6 and 7 April 1999 respectively the applicants filed appeals to the
Vorarlberg Independent Administrative Panel (Unabhängiger
Verwaltungs-senat, IAP), submitting that the District Authority's
decisions were contrary to the mentioned Association Agreement
between the European Community and Turkey and furthermore in breach
of the Employment of Foreigners Act.
- Having held an oral hearing on 17 June 1999, the IAP
dismissed the applicants' appeal on 9 November 1999. It found that C.
did not have a work permit (Arbeitserlaubnis) or an exemption
certificate (Befreiungs-schein) at the relevant dates.
Therefore he was not entitled to work, neither under Austrian nor
under European Law.
- On
17 January 2000 the applicants lodged a complaint with the
Constitutional Court. They submitted, inter alia, that the
wording of the relevant provision of the Association Agreement lacked
sufficient clarity and precision and would therefore be in breach of
Article 7 of the Convention. Moreover they alleged that the IAP would
not meet the criteria of a tribunal within the meaning of Article 6
as its members acted both as judge and prosecutor.
- On
6 March 2000 the Constitutional Court declined to deal with the
applicants' complaint for lack of prospect of success and referred it
to the Administrative Court.
- On
29 June 2000 the latter requested the applicants to supplement their
complaint.
- On
17 August 2000 the applicants made submissions concerning allegedly
inadequate interpretation of law.
- According
to the Government, the Administrative Court invited the IAP to file
observations on each of the three complaints. It appears that the
authority submitted comments, which were sent to the applicants'
counsel on 7 November 2000. According to the applicants, neither the
Administrative Court's invitation, nor the statements made by the IAP
were brought to their knowledge.
- On
24 April 2003 the Administrative Court, holding that the applicants'
submissions were unfounded, dismissed the complaint. Furthermore, it
referred to the Administrative Court Act, which required the
Administrative Court to examine the contested decision on the basis
of the facts found by the respondent authority, and thus did not
allow for the raising of new issues which had not previously been
dealt with by the administrative authorities (Neuerungsverbot).
The judgment was served on the applicants' counsel on 26 May 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 15 July 1997 and
1 September 1998 respectively, when the District Administration
Authority informed the applicants of its suspicion that they had
illegally employed C. and ended on 26 May 2003, when the final
judgment of the Administrative Court was served on the applicants'
counsel. It thus lasted five years and some ten months and four years
and nine months respectively for four levels of jurisdiction. The
proceedings were pending before the Administrative Court for three
years and two months.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government argued that, since the applicants had requested to wait
for the final decision in the proceedings concerning C.'s application
for an exemption certificate, the duration was not solely
attributable to the State. The length of the proceedings may
therefore still be regarded as reasonable.
- The
applicants maintained that the proceedings were unreasonably long,
because the Administrative Court's failure to decide more rapidly in
the proceedings concerning C.'s application for the exemption
certificate could not be counted towards the applicants' conduct.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities (see,
among other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Blum v. Austria, no. 31655/02, judgment of 3
February 2005).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the Convention
concerning the length of proceedings.
II. ALLEGED
VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE
RIGHT TO A FAIR HEARING
- The
applicants further complained that they had
neither been informed about the Administrative Court requesting the
IAP to draft observations in reply, nor given the chance to comment
on these counterstatements. This had been contrary to the right to be
heard as laid down in Article 6 § 1 of the Convention,
which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government argued that the IAP had submitted its counterstatements to
the Administrative Court on 2 November 2000. Subsequently, on 7
November 2000, they were sent to the applicants' counsel according to
the routinely applied process.
- The
applicants contested the Government's argument, because no proof was
submitted to show that the counterstatements were in fact sent to
their counsel. The stamps on the documents only show that they were
sent on 7 November 2000, but not to whom.
- The Court reiterates that
the principle of equality of arms - one of the elements of the
broader concept of fair trial - requires that each party should be
afforded a reasonable opportunity to present his or her case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (Dombo Beheer B.V. v. the
Netherlands, judgment of 27 October 1993, Series A no.
274, p. 19, § 33; Ankerl v. Switzerland, judgment of 23
October 1996, Reports 1996-V, pp. 1567-68, § 38). Each party
must be given the opportunity to have knowledge of and comment on the
observations filed or evidence adduced by the other party (Ruiz
Mateos v. Spain, judgment of 24 June 1993, Series A no. 262, p.
25, § 63; Nideröst-Huber v. Switzerland, judgment of
18 February 1997, Reports 1997-I, p. 108, § 24; Beer v.
Austria, no. 30428/96, 6 February 2001, § 17; Lanz
v. Austria, no. 24430/94, 31 January 2002, § 62-64; and
Josef Fischer v. Austria, no. 33382/96, § 18-22, 17
January 2002).
- In
the present case, the Administrative Court apparently obtained
information from the IAP, which had issued a decision on the same
matter before. As the Court previously held it is an inherent part of
a “fair hearing” in criminal proceedings as guaranteed by
Article 6 § 1 of the Convention that the defendant should be
given an opportunity to comment on evidence obtained in regard to
disputed facts even if the facts relate to a point of procedure
rather than the alleged offence as such (see Kamasinski v.
Austria, judgment of 19 December 1989, Series A no. 168, p. 43, §
102). Although the Court has no reason to doubt that the
Administrative Court, as a rule, forwards observations in order to
obtain counterstatements from the concerned parties, it failed to
submit proof of having done so in the present case.
- There
has therefore also been a violation of Article 6
§ 1 of the Convention on account of the right to a fair
hearing.
III. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The applicants further
complained under Article 6 of the Convention that no prosecuting
authority participated in the proceedings, including the hearing
before the Independent Administrative Panel, and that therefore the
member of the Panel acted both as judge and prosecutor.
- The Court reiterates that if an
appeal is filed with the Independent Administrative Panel against a
penal order, the authority which issued the impugned decision assumes
the function of the prosecuting authority in appeal proceedings
before the Panel. Furthermore, the absence of a representative of
that authority from the hearing does not give rise to objectively
justified fears as regards impartiality of the Panel (see Weh
and Weh v. Austria (dec.), no.
38544/97, 4 July 2002). It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- Moreover the applicants complained under Article 7 of
the Convention in that the legislation on employment of foreigners
lacked sufficient clarity and precision to satisfy the
requirements of the Convention.
38. However, this issue was raised by the applicants for the
first time before the Constitutional Court and the Administrative
Court respectively, which rejected it as the procedural regulations
did not allow for the raising of new issues which had not previously
been dealt with by the administrative authorities (Neuerungsverbot).
Since the domestic appeal has been declared inadmissible on account
of a failure to observe a procedural requirement, the Court finds
that the applicants have not exhausted the domestic remedies and this
complaint is therefore inadmissible pursuant to Article 35 §§
3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed EUR 36,000 in respect of non-pecuniary damage and
EUR 3,197.60 in respect of pecuniary damage for the fines they had
been sentenced to pay.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicants a total amount of EUR 3,600
in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 18,393.89, including VAT, for the costs
and expenses incurred before the domestic courts and EUR 3,687.42,
including VAT, for those incurred before the Court.
-
The Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings, because these
costs have not incurred in an attempt to accelerate the proceedings
and there is no indication that the length of the proceedings
increased the overall costs of the proceedings (see mutatis
mutandis Bouilly v. France, no. 38952/97, § 33, 7
December 1999). As regards the costs before the Court, the Court
considers it reasonable to award the sum of EUR 3,687.42, including
VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the excessive
length of the proceedings and the alleged violation of the
applicants' rights to a fair hearing admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the right to a fair
hearing;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,600
(three thousand six hundred euro) in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount, and EUR 3,687.42
(three thousand six hundred eighty seven euro and forty two cent),
including VAT, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 20 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
