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FIRST
SECTION
CASE OF
STROBEL v. AUSTRIA
(Application
no. 25929/05)
JUDGMENT
STRASBOURG
4
June 2009
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 Strobel v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 14 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 25929/05) 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 a German national, Mr Karl Strobel
(“the applicant”), on 22 June 2005.
- The
applicant was represented by Mr F. Zimmermann, a lawyer practising in
Klagenfurt. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry for European and International Affairs.
- On
6 November 2007 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
- The
German Government did not make use of their right to intervene
(Article 36 § 1 of the Convention).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant is a university professor of ancient history and archeology
who was appointed at Klagenfurt University in 1998. Under the terms
of appointment he was entitled to reimbursement of the removal costs
and to a household allowance. In April 2001 the sum of 5,699.21 euros
(EUR) was paid to the applicant.
- On
6 July 2001 the applicant claimed reimbursement of the remaining
removal costs in the sum of EUR 4,684.40 and payment of the household
allowance in the sum of EUR 5,443.70, plus 4.5% interest since
August 1999.
- The
Dean of Klagenfurt University dismissed the applicant's claim on
16 January 2002.
- The
applicant appealed on 29 January 2002 to the Ministry of Education,
Science and Culture (“the Ministry”).
- The
Ministry did not decide within the statutory six-month time-limit
laid down in section 73 § 1 of the General Administrative
Proceedings Act. In August 2002 the applicant brought court
proceedings relating to the claims at issue. A conditional settlement
was reached but was revoked by the applicant in January 2003. The
applicant's action was dismissed in February 2003.
- Meanwhile,
on 18 November 2002, the applicant complained to the Administrative
Court under Article 132 of the Federal Constitution about the
administration's failure to determine his claim. On 29 November 2002
the Administrative Court ordered the Ministry of Education to issue a
decision within three months.
- On
3 March 2003 the Ministry dismissed the applicant's appeal.
- The
applicant lodged a complaint with the Administrative Court on
16 April 2003. The Ministry filed observations in reply on 24
June 2003.
- On
24 February 2006 the Administrative Court quashed the Ministry's
decision as being unlawful.
- By
decision of 25 July 2006 the Ministry referred the case back to the
Dean of Klagenfurt University for a new decision. Meanwhile on
8 May 2006 the applicant supplemented his claims,
apparently requesting reimbursement of costs incurred for travelling
between Klagenfurt and his former place of residence.
- On
16 October 2006 the applicant was summoned to a hearing and two days
later the sum of EUR 4,000 was paid to the applicant with a view to
reaching a settlement.
- The
hearing took place on 20 November 2006. According to the minutes the
hearing served the purpose of establishing the plausibility of the
applicant's claims as submitted on 6 July 2001 and supplemented on
8 May 2006 and to determine their amount with the
participation of the applicant. It is then noted that, in the light
of the explanations given, the costs and interest claimed seemed
plausible. At the close of the hearing the parties concluded a
friendly settlement with the following terms:
“(a) Klagenfurt University thus
declares its willingness to transfer, in addition to the payment
already made of EUR 4,000 and the regulated transport costs in the
amount of EUR 5,699.21, the lump-sum of EUR 10,000 within 14 days to
the account of Professor Strobel.
(b) Professor Strobel, for his part,
withdraws all requests in connection with the proceedings at issue.
As a result, the demands and claims asserted in the present
proceedings are completely settled and complied with.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The
Government asserted that the settlement of 20 November 2006 had
deprived the applicant of victim status within the meaning of
Article 34 of the Convention or, alternatively, resolved the
matter within the meaning of Article 37 § 1 (b) of the
Convention. According to the settlement of 20 November 2006, the
applicant had been granted a lump sum of EUR 14,000. In exchange
he had declared all his claims settled. The Government observed that
the present application had already been introduced when the
settlement was concluded. While the university organs were not aware
of the Convention proceedings at that time, the applicant could have
been expected to refer to them if he intended to exclude them from
the settlement.
- The
applicant contested this position. He argued that the lump-sum
awarded under the settlement only covered part of his claims
submitted on 6 July 2001 and 8 May 2006 plus interest and did
not provide any compensation for non-pecuniary damage caused by the
length of the proceedings, let alone for the costs of the Convention
proceedings he had had to initiate. Moreover, his counsel had not
been summoned to participate at the hearing. Only the claims raised
in the domestic proceedings had been the subject of the negotiations
and thus of the settlement. This was reflected by the text of the
settlement, which explicitly referred to the “proceedings at
issue”.
- The
Court notes that an applicant's status as a victim may depend on
compensation being awarded at domestic level on the basis of the
facts about which he or she complains before the Court and on whether
the domestic authorities have acknowledged, either expressly or in
substance, the breach of the Convention. Only when those two
conditions are satisfied does the subsidiary nature of the protective
mechanism of the Convention preclude examination of an application
(Scordino v. Italy (no. 1) (dec.), no. 36813/97,
ECHR 2003-IV).
- The
Court observes that nothing in the minutes of the hearing of
20 November 2006 or in the text of the settlement (see paragraph
16 above) indicates that the latter was intended to include
compensation for the length of the proceedings. The parties
established the plausibility of the applicant's claims and, on the
basis of that assessment, concluded a settlement providing for the
payment of a lump-sum. In any case the domestic authorities did not
acknowledge either expressly or in substance the alleged breach of
the Convention. The applicant can therefore still claim to be a
victim within the meaning of Article 34 of the Convention of the
alleged violation.
- When
establishing whether the matter has been resolved within the meaning
of Article 37 § 1 (b) the Court examines, firstly, whether the
circumstances complained of directly by the applicant still obtain
and, secondly, whether the effects of a possible violation of the
Convention on account of those circumstances have also been redressed
(see Pisano v. Italy [GC] (striking out), no. 36732/97, §
42, 24 October 2002). As noted above, there is no indication that the
settlement contained any redress for the duration of the proceedings.
Consequently, it cannot be said that the matter has been resolved.
- The
Court notes that the application 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
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 applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
period to be taken into consideration began on 16 January 2002, when
the Dean of Klagenfurt University dismissed the applicant's claim, as
it was at that moment when a “dispute” within the meaning
of Article 6 § 1 arose, the administrative authority's decision
being a necessary preliminary step for bringing the dispute before a
tribunal (see, for instance, Morscher v. Austria, no.
54039/00, § 38, 5 February 2004, with a reference to König
v. Germany, 28 June 1978, § 98, Series A no. 27) and
ended on 20 November 2006 when the parties concluded a settlement.
Therefore, the proceedings, which came before three levels of
jurisdiction, lasted for four years and ten months.
- The
Court finds that the case was of no complexity and that no delays are
attributable to the applicant, while substantial delays are imputable
to the authorities, in particular a period of inactivity of two years
and eight months occurred before the Administrative Court. 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, for instance, Bösch v. Austria, no. 17912/05,
§§ 20-22, 3 August 2007; Gierlinger v. Austria, no.
38032/05, §§ 18-21, 29 February 2008; and Richte v.
Austria, no. 4490/06, §§ 29-31, 18 December 2008).
- 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.
II. 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
applicant claimed 3,000 euros (EUR) in respect of pecuniary damage,
apparently referring to removal costs, and EUR 4,000 for
non-pecuniary damage.
- The
Government maintained that all the applicant's claims had been
settled by the agreement of 20 November 2006. Moreover, there was no
causal link between the alleged violation and the pecuniary damage
claimed. In respect of any non-pecuniary damage the Government
asserted that the finding of a violation would be sufficient.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim.
The Court considers that the applicant must have sustained
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
1,500 under that head.
B. Costs and expenses
- The
applicant also claimed an overall amount of EUR 7,500 including
value-added tax (VAT) for the costs and expenses incurred in the
proceedings before the domestic courts and in the Convention
proceedings.
- The
Government argued that the costs listed in respect of the domestic
proceedings had not been caused by the length of the proceedings. The
costs claimed in respect of the Convention proceedings were
excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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
and considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court. This sum includes 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one thousand
five hundred euros) in respect of non-pecuniary damage and EUR 2,000
(two thousand euros) 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 4 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
