WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967] ECHR 2 (30 May 1967)

 WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967] ECHR 2 (30 May 1967) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] European Court of Human Rights You are here: BAILII >> Databases >> European Court of Human Rights >> WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967] ECHR 2 (30 May 1967) URL: https://www.bailii.org/eu/cases/ECHR/1967/2076_63.html Cite as: [1967] ECHR 2 [ New search ] [ Contents list ] [ Help ] WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967] ECHR 2 (30 May 1967) THE FACTS Whereas the original submissions of the Applicant company may be summarised as follows: I. The Applicant, an Austrian company, is represented by Dr. Franz R. Gugg, a barrister practising in Vienna. Pursuant to the provisions of the Austrian Restitution Acts the Applicant company appealed against the Republic of Austria for restitution of the shares of the Österreichische Volksfürsorge (formally the Allianz- und Giselaverein), a life insurance company, which had lapsed to the Austrian Government. Since the object of the restitution - i.e. the shares of the aforesaid insurance company - is in the ownership of the Republic of Austria, the Act applicable in this case is the Second Restitution Act (Zweites Rückstellungsgesetz) which stipulates that the body competent to decide the matter was not a court, but an administrative authority - in the first instance the Land Directorate of Finance (Finanzlandesdirektion), and in second and final instance the Federal Ministry of Finance. By decision (Bescheid), dated 10th June, 1963, served upon the Applicant company on 14th June, 1963, its claim for restitution was rejected with binding effect after protracted proceedings on both sides. The Applicant company lodged a constitutional appeal (Beschwerde) with the Austrian Constitutional Court (Verfassungsgerichtshof) because - independently of Article 6 of the Convention on Human Rights - it considered that the decision violated the principles of equity and its right to property guaranteed under the Constitution. In case the appeal was rejected by the Constitutional Court, the Applicant company applied for its transfer to the Administrative Court (Verwaltungsgerichtshof). Examination by the Constitutional Court is possible only in cases of alleged violation of rights guaranteed by the Constitution. As the Constitutional Court has declared in numerous decisions, it does not regard Article 6 of the Convention as self-executing i.e. it holds that this Article is applicable only by virtue of a special implementing act of domestic law. So far, no such implementing act has been issued. The Constitutional Court has also declared that, although Article 83, paragraph (2), of the Federal Constitution (Bundes-Verfassungsgesetz) guarantees the "lawful judge" (gesetzlicher Richter), the legislator is not forbidden to nominate, at his discretion, the body competent to take decisions. The prescript of Article 6 of the Convention, to wit: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law", hence does not form a provision of Austrian municipal law. It cannot therefore be invoked as grounds for an appeal to the Constitutional or the Administrative Court. This means that once the decision of the second administrative instance (the Federal Ministry of Finance) has been taken, the domestic remedies must be considered exhausted in the present case. Since the decision in question was rendered on 10th June, 1963, the present Application was lodged within the time-limit prescribed by Article 26 of the Convention. The Applicant company alleges a violation of Article 6 of the Convention. II. With regard to the legislation in question, the Applicant company observes that the property changes ("Aryanisations") effected during the period of the National Socialist tyranny resulted in Austria, as in other European States, in subsequent "restitution laws", the principles of the General Civil Code (allgemeines bürgerliches Gesetzbuch) being regarded as inadequate to render null and void such property transfers. The first enactment was the merely declaratory Nullity Act of 1946 - Federal Gazette (Bundesgesetzblatt) No. 106/1946 -, which established the principle of the nullity of all acts of seizure. It was followed, in stages, by the seven Restitution Acts, of which the first three are of special importance. The First Restitution Act was published on 26th July, 1946 (Federal Gazette No. 156/1946). It deals with the restitution of seized properties which are under the administration of the Federation or the Federal Länder. This Act appeared first because its purpose was the easiest to determine. With regard to the properties involved, there was no need to await the registrations ordered under the Act of 10th May, 1945 - State Gazette (Staatsgesetzblatt) No. 10/1945 -, because the details were clearly apparent from the administrative files of the Federation or Länder. The only properties affected were such as had either automatically lapsed to the German Reich by virtue of laws like the 11th Ordinance issued under the Reich Citizenship Act (Reichsbürgergesetz), or had fallen with its possession by virtue of a confiscation decision. In the following year, on 6th February, 1947, the Second and Third Restitution Acts were promulgated. The Second Act (Federal Gazette No. 53/1947) deals with the restitution of seized properties which are in the ownership of the Austrian Republic, i.e. with properties which were first seized (Aryanized) and then automatically fell into the ownership of the Republic. The Applicant company's claim for the restitution of the shares of the Österreichische Volksfürsorge was submitted under the terms of this Act. The latter, too, stipulates that the restitution authority is in the first instance the Land Directorate of Finance and in the second instance the Federal Ministry of Finance. On 6th February, 1947, also the Third Restitution Act (Federal Gazette No. 54/1947) was published. This contains the most comprehensive settlement and deals with all seizures of material assets not falling under the provisions of the first two Acts. According to Article 1, paragraph (1), of the Third Restitution Act, the provisions of this Act are also applicable to restitution claims under the First or Second Act, in so far as the latter do not otherwise provide. III. According to Article 1, paragraph (2), of the Third Restitution Act, Article 3, paragraph (1), of the same Act also applies to claims under the Second Act. Article 3, paragraph (1), reads as follows: "Seizures of property (Article 1, paragraph (1)), shall be null and void. Unless this Act otherwise provides, the provisions of civil law, in particular those concerning the nullity of contracts on the ground of unjust and well-founded apprehension (ungerechter und begründeter Furcht) shall be applied." This passage is a significant pointer to the nature of a claim for restitution. It explicitly refers to the provisions of general civil law: the provisions concerning nullity of contracts on the ground of unjust and well-founded apprehension are to be found in Articles 870 and 877 of the General Civil Code. The consequences of the nullity of contracts concluded under duress are exhaustively set forth therein. These provisions are expressly repeated in Article 3, paragraph (1), second sentence, of the Third Restitution Act for the field it covers, in so far as the Act itself does not stipulate some other measure. Since under the General Civil Code the nullity of contracts is governed by differing provisions in respect of each cause of nullity, it is stipulated that the existing provisions of Articles 870 and 874 to 877 of the Code - which refer to the closely related form of nullity on grounds of unjust and well-founded apprehension - are applicable to nullity resulting from restitution legislation (on the newly-specified ground of "seizure"). In the prevailing view the nullity of an act of seizure (Entziehungsakt) should be assessed not as absolute but only as relative nullity (defeasibility). The Supreme Court has therefore expressly ruled that a restitution judgment does not have declaratory but constituent effect and that it is consequently in the discretion of the parties to appeal for nullification or not. A claim for restitution is regarded as conditio within the meaning of Article 877 of the General Civil Code. Thus such a claim is not based on the property rights of the injured party, but on the fact of having received some illegal benefit. The Supreme Restitution Commission (Oberste Rückstellungskommission) states in fact: "Even though a claim for restitution may have the effect of a right in rem, it is primarily, by the terms of Article 3, paragraph (1), of the Third Restitution Act, an obligatory conditio within the meaning of Article 877 of the General Civil Code, not presupposing ownership of the object furnished." Law writers have established criteria of various kinds for defining the term "civil right". Sometimes the governing consideration is the interest protected (individual or collective interest), sometimes it is the relationship of the subjects to one another (equal footing or superiority and subordination), or it may well be the existence of the individual's subjective interest corresponding to the obligation, or again it may take the form of judicial protection (civil proceedings or intervention by other authorities, etc.). Seventeen different criteria are laid down in the relevant literature. Of the definitions mentioned above it is the "equal footing" and the "subordination" criteria which are most frequently found. The question of which authorities are granted the right of decision over disputed claims under the internal legislation of the various States is not, however, a serviceable criterion. The view that "civil rights" in the sense of Article 6 of the Convention means only such rights as are to be decided by the Courts under the internal laws of a contracting State, whereas rights to be decided by the administrative authorities in virtue of a positive legal provision are not civil rights, would render Article 6 meaningless. It would then be left to the discretion of each contracting State to get round Article 6 by granting the power of decision, not to an impartial and independent tribunal, but to an administrative authority, bound by instructions. The concept of "civil rights" in Article 6 must therefore be understood as a concept of material law. Reference is made in this respect to the Isop case (Application No. 808/60), where the Commission held that "the question whether a right or an obligation is of a civil nature within Article 6, paragraph (1), of the Convention does not depend on the particular procedure prescribed by domestic law for its determination but solely on an appreciation of the claim itself and of the purpose of the complaint" (Yearbook of the European Convention on Human Rights, Volume 5, page 108 [122]). There is no need to enter into a discussion of the various definitions evolved by the law writers. It is sufficient that a right should exist under the domestic law of the country in which the appeal is lodged - a right approximating to the rights customarily considered in that country as belonging to the category of "civil rights". Notwithstanding all differences of opinion about the criterion serving to distinguish between rights, there is far-reaching agreement on the actual classification of rights which are part of civil law (or private law) on the one hand or of public law (sovereign law, administrative law) on the other. All those rights which are provided for in the General Civil Code are regarded as civil rights in accordance with unanimous Austrian doctrine and jurisprudence. This is expressly stated in Article 1 of the General Civil Code. As shown above, restitution claims are conceived on the model of claims submitted under Article 877 of the General Civil Code. They are rights of conditio under civil law. Apart from the condition laid down in the Restitution Acts as to their origin, they do not differ from rights claimed under the General Civil Code. They govern the relations of subjects of law on an equal footing (see Article 1 of the General Civil Code: "The private rights and obligations of the inhabitants of the State among themselves") and they are placed in the discretion of the parties. If the nature of restitution rights is thus analyzed according to their inherent characteristics, it will be seen that they are among the rights listed in the General Civil Code. The relevant clauses comprise rights which are generally regarded in Austria as "civil rights". Accordingly, the Austrian Constitutional Court has held that claims for restitution under all existing restitution laws are to be considered as civil claims (Decision G 2/52-Slg. 2313). Restitution rights are therefore sufficiently clearly defined to include them under Article 6 of the Convention. IV. Although, under both the Second and the Third Restitution Acts, restitution rights are civil rights, the means of asserting them are regulated in an entirely different way. From the standpoint of material law the second Restitution Act bestows merely a right to restitution of property which is still existing in the ownership of the Republic of Austria. Article 5 of the Second Act excludes any claim for compensation against the Republic or makes such claim subject to special legislation. The Third Restitution Act, on the other hand, grants the injured proprietor, in addition to restitution of the property seized, the right to claim compensation for the damage done. The differences are more significant when one turns to the aspect of formal law. Here the divergent treatment rests on purely practical consideration. Whereas under the Third Act claims are to be heard by the Courts, i.e. by the Restitution Commissions functioning as special courts attached to the Regional Courts, jurisdiction over claims submitted under the Second Act is awarded to the administrative authorities of the Republic. In the explanatory memorandum by the competent Committee of the Nationalrat, this ruling is justified as follows: "The Government draft of the Second Restitution Act was prepared with close reference to the First Restitution Act. During the discussions in the Sub-Committee a further assimilation was made, in that decisions on restitution claims were made a matter for the Land Directorates of Finance, since experience gained in the execution of the First Act had shown that this is a practical method and that the fears that shortage of staff would prevent these authorities from carrying out the task were unjustified." V. The determination of competence laid down in the Second Restitution Act leads, however, as a result of Austrian civil service organisation,to a situation in which the deciding authority is given an unusual dual function: it appears simultaneously as a representative of one of the parties and as a judge. In other words, it becomes judge in its own case. In claims lodged under the Second Restitution Act, the Republic of Austria is first of all the respondent, that is to say a party to the proceedings. To that extent claims under the Second Restitution Act differ not at all from those under the Third. In both cases the proceedings involve two parties. In the one case the decision is rendered by an independent and impartial tribunal, but in the other by an administrative authority bound by instructions. The same authority, which is representing the Republic of Austria as a party, is thus also represented as the judge. Admittedly, the fact that the party and the judge are sitting in the same seat (the Republic's) is not entirely obvious during the proceedings of first instance, but it its obvious enough before the second instance. At this level there intervenes the Federal Ministry of Finance, by whose instructions the restitution authority of the first instance, i.e. the Land Directorate of Finance, is bound. The second instance, the Ministry, has various departments at its service. One of these is allotted power to decide appeals for restitution by means of an administrative act of sovereignty (Bescheid), while another is responsible for the private economic administration of property in the ownership of the Republic. In all this, however, the organisation principle of the Austrian Federal Authorities is of decisive importance. The Federal Ministries are arranged in accordance with the monocratic, otherwise termed bureaucratic or ministerial system. The supreme power is exercised by the administrative chief, the Federal Minister. He, the Minister, is the "Authority", the Federal Ministry is only his auxiliary apparatus. All departments of the Ministry are subordinate to the instructions and supervision of the Federal Minister. Thus in his person are united all the various departments of a Ministry, forming a single indivisible whole. But this also means that the will of one man determines the conduct of business throughout all the departments of the Ministry. The consequences are clear. The Minister of Finance unites in his own person the function of the judge, which he exercises in co-operation with the departments responsible for taking decisions in restitution questions, and the function of a party to the proceedings, which he exercises in conjunction with the department responsible for administering the property of the Austrian Republic. It is obvious that where such a dual role is played, the principle of judgment by an independent and impartial Court is not seen to be observed. Austria's internal legal order does not prohibit such a combination of the functions of judge and party in one and the same person. The principle defined in Article 6, paragraph (1), of the Convention is not immanent in the Austrian legal system. Furthermore, the decision of the Federal Ministry is not subject to effective control by one of the two Courts of Justice set up under public law - the Administrative or the Constitutional Court. Thus it cannot be said that in the final instance an impartial and independent judge (or college of judges) decides. An appeal to either of these two Courts depends on very definite conditions and is permissible only within narrow limits. The Administrative Court may be appealed to only to investigate alleged defects of procedure or to make a legal assessment of the matter in dispute, but not in questions connected with ascertaining the facts (appreciation of evidence). According to Article 41 of the Administrative Court Act (Verwaltungsgerichtshof), it is bound, as to the facts, by the findings of the administrative authority. An appeal lies to the Constitutional Court, on the other hand, only in respect of alleged violations of constitutionally guaranteed rights. Defeasibility before either of these tribunals is no substitute for a decision by an impartial and independent judge, who appraises the evidence of disputed facts and makes impartial findings as to the question at issue. According to Article 6, paragraph (1), of the Convention everyone is entitled that his civil rights and obligations are determined (décidera) by an independent and impartial tribunal. Article 6 therefore provides for a decision in re by the court and not only for a review by a court with the limited power to rescind the decision of the administrative authority but with no power to amend. Neither the Constitutional Court nor the Administrative Court have a jurisdiction to decide in re i.e. to amend the decision of the administrative authority. The independent and impartial tribunal provided for in Article 6 must be free to base its judgment on its own findings of both fact and law. A court cannot be regarded as determining a civil right or obligation, if the finding of fact, which is conclusive upon the court, is solely in the hands of an administrative authority, which is neither independent nor impartial. It follows from the foregoing: (1) that the restitution claim of the Applicant company is a "civil right" within the meaning of Article 6, paragraph (1), of the Convention, and (2) that the authority called upon to render a decision concerning this civil right, under the Second Restitution Act, is not "an independent and impartial tribunal". VI. The proceedings in the present case illustrate how this combination of judge and party in a single person may stultify any hope of a just decision. The right to restitution, which was ceded to the Applicant company by the injured proprietor, the Assicurazioni Generali, was originally the subject of proceedings pending before the Restitution Commission attached to the Regional Court for Civil Cases (Landesgericht für Zivilrechtssachen) in Vienna pursuant to the Third Restitution Act. The parties to these proceedings were: plaintiff, the Assicurazioni Generali; respondent, the "Alte Volksfürsorge Lebensversicherungs AG", into whose ownership the disputed shares had originally fallen as a result of Aryanisation (seizure consequent upon qualification of the Assicurazioni Generali as a "Jewish undertaking"). The Assicurazioni Generali lodged their initial application for restitution with the competent Court on 20th October, 1952. On 25th July, 1955, or nearly three years later, the Federal Ministry of Finance issued a declaratory decision (Feststellungsbescheid) to the effect that the share capital of the Alte Volksfürsorge Lebensversicherungs AG had lapsed to the Republic of Austria, because that insurance company had been an institution of the former "Deutsche Arbeitsfront", and thus a National-Socialist organisation. On the basis of this finding the Restitution Commission now declared itself to be incompetent, because under the provisions of the Second Restitution Act claims for restitution of property which has lapsed to the State (i.e. property in the ownership of the Austrian Republic) come under the jurisdiction of the administrative authority. It was purely as a result of this circumstance that the proceedings, which at the outset had rightly been pending before an impartial and independent Court, came up for decision before an administrative authority bound by instructions which, in any case, cannot be regarded as impartial, since it simultaneously functions as a judge and as the representative of one of the parties to the dispute. This transfer of competence plainly shows how unrealistic is the relevant legal provision. There is no means of telling on what grounds inherent in the case itself the decision has to be taken out of the hands of the Court previously dealing with it and transferred to an administrative authority. The fact that the Republic of Austria was now to be regarded as the owner of the disputed shares (by virtue of the subsequent notification of their lapsing) is not an objective motivation. If the Republic had later become the owner, not because the property had lapsed to it, but only because of some legal act with constituent effect, the competence of the Court (i.e. the Restitution Commission) would have continued to hold good; for example, if the Republic had legally bought the shares from the Alte Volksfürsorge Lebensversicherungs AG or become their owner under the terms of the State Treaty. In all these cases the proceedings would have continued without change before the Restitution Commission. Transfer of competence from the Court to the administrative authority led to the situation which is the subject of the present Application. The Federal Minister of Finance manages property owned by the Republic of Austria through "Department 2" of his Ministry. In this capacity he is the legal representative of the respondent in restitution claims, namely the Austrian Government. Simultaneously, in his sovereign capacity, the Minister has to decide, through "Department 34" of his Ministry, in the civil law dispute between the restitution claimant and the respondent Government. The official who, in disputing our claim, gives instructions to the Finanzprokuratur as counsel for the private law person "the Republic of Austria", as well as the official who decides the claim by means of sovereign procedure - thus exercising the functions of a judge appointed by law - are acting only on behalf of the Federal Minister of Finance and signing for him. This fusion of judge and party in a single person (in other words the fact that the judge decides in his own cause) has had very strange effects in the present proceedings. The original decision of the Land Directorate of Finance (an authority which is also subject to the instructions of the Federal Minister of Finance) was based on such defective and contradictory reasoning that it had quite obviously not been rendered in any striving after realism or objectivity. Apparently the authorities had been guided by the intention of rendering a decision in favour of the Republic of Austria, whatever might be the factual and legal position. When the Applicant company submitted its appeal to the authority of second instance (the Federal Ministry of Finance), its representative spoke with the appropriate official in Department 34,to find out whether the latter was free to decide to the best of his knowledge and belief, or whether he was instructed to render the decision in one particular direction only. The Department chief said that he had no instructions and that in his opinion there was a clear case of seizure. He therefore intended to grant the appeal. A similar statement was also made by the Department chief to the secretary of the Clearing House (Sammelstelle) set up by law to pursue restitution claims still pending. This was reported to the Applicant company by the Clearing House in a letter of 20th December, 1960, in the following words: "As I have been informed by the Ministry of Finance that your appeal will be granted ... I shall do nothing further in the matter." The competent Department chief in the Finance Ministry did in fact draft the decision granting the appeal from the negative decision of first instance. He ordered, however, - a most unusual step - that the text should not receive its final form until it had been signed by the Section Head of the Federal Ministry. After the document had been lying for about a month on the desk of the Section Head concerned, the latter caused it to be transmitted to Department 2 of the same Ministry. This could mean only that the case-file prepared by Department 34 (which acts as the judge) was communicated for an opinion to Department 2, representing one of the parties to the proceedings. When this procedure came to the knowledge of the Applicant company it requested immediate finalisation of the decision on the appeal and protested against the fore-mentioned transmission of the case-file as improper procedure. In spite of this protest it was not until another month had elapsed that the file was returned, and it now bore a note to the effect that in the opinion of Department 2 no state of seizure existed. Instead of the decision originally expected, which was to grant the appeal, the decision of first instance was confirmed by decision (Berufungsbescheid) of 26th September, 1961. The said decision - against which the Applicant company lodged a constitutional appeal with the Constitutional Court - was subsequently withdrawn by the Federal Ministry itself on the grounds of an application for a fresh hearing lodged by the Applicant company and supported by additional documents. As far as its first plea to the Constitutional Court was concerned, the Applicant company was thus given satisfaction. A fresh decision was afterwards issued, namely that dated 10th June, 1963, which is the subject of the present Application. Once again the claim for restitution was rejected. The documents, which had offered the authorities themselves a reason for re-opening the proceedings, were neither mentioned nor discussed in the new decision. The Applicant company also appealed to the Constitutional Court against the second decision. It submitted that the administrative authority had used specious arguments, omitted to mention relevant facts and based its decision on assumptions without foundation in evidence. The authority had misapplied the law, violated the rules of logic and apparently made no effort to be impartial. This was the result of combining judge and party in a single person, contrary to the inherent principles of justice and to Article 6, paragraph (1), of the Convention. The Constitutional Court heard the case on 16th March, 1964, and adjourned to hear three officials of the Ministry of Finance as witnesses. The hearing of the witnesses has not yet taken place. The Administrative Court will have to deal with the Applicant company's claim, if and when the Constitutional Court decides to reject the claim on the ground that no right guaranteed by the Constitution has been violated. The Applicant company alleges a violation of Article 6 of the Convention in the restitution proceedings in that its claim was not determined by an impartial tribunal within a reasonable time. It points out with regard to the length of the proceedings that over eight years elapsed since the claim was submitted by the Assicurazioni Generali to the Land Directorate of Finance as administrative authority of first instance on 26th April, 1957. The Applicant company claims 10,000,000 Austrian schillings as compensation for the damage suffered. Proceedings before the Commission I. On 16th July, 1965, the Commission decided to invite the Respondent Government to submit its observations on the admissibility of the Application. II. In its observations of 16th September, 1965, the Austrian Government submitted that the Applicant company had failed to exhaust the remedies available to it under Austrian law and that the Application was consequently inadmissible under Articles 26 and 27, paragraph (3), of the Convention. The Government pointed out that the constitutional appeal lodged by the Applicant company was still pending before the Constitutional Court and stated in this respect: Rule 41, paragraph 2 of the Rules of Procedure of the Commission states that the Applicant shall provide information enabling it to be shown that the conditions laid down in Article 26 of the Convention have been satisfied. Part I of the present Application deals with the question of domestic applicability of the Convention in Austria. The Applicant company attempts to explain that the provision of Article 6, paragraph (1), is not self-executing in Austria and that consequently, in the light of the practice of the Constitutional Court, any appeal to that Court because of violation of that provision of the Convention is unlikely to be successful. It therefore considers the domestic remedies exhausted by the above-mentioned decision of the Federal Ministry of Finance. In this opinion the Applicant company is wrong. It is true that both the Constitutional Court and the Supreme Court (Oberster Gerichtshof) hold the view that Article 6 of the Convention is not self-executing. This does not mean, however, that said provision of the Convention does not form an integral part of Austria's legislation. Together with all other provisions the said provision was incorporated into Austria's national legislation by its publication in the Federal Gazette according to the principle of general transformation as contained in Article 49 of the Federal Constitution and, as clarified under the Federal Constitutional Law of 4th March, 1964 (Federal Gazette No. 59), it has the status of a federal constitutional law. Since the coming into force of that Federal Constitutional Law, the Constitutional Court has, therefore, clearly been in a position to examine, in accordance with Article 140 of the Federal Constitution, the compatibility of national laws with the Convention. The Constitutional Court, indeed, examined recently certain provisions of the Financial Criminal Code as to their compatibility with Articles 5 and 6 of the Convention. In its complaint to the Constitutional Court, the Applicant company did not only contend violation of the constitutional rights to property and equality before the law. It is also aware of the fact that Article 6 of the Convention forms an integral part of Austria's national constitutional legislation and that any conflicting provision may be repealed by the Constitutional Court in accordance with Article 140 of the Federal Constitution. In its appeal to the Constitutional Court, the Applicant company emphasised that the competence of finance authorities and of the Federal Ministry of Finance as the last instance to decide upon restitution claims under the Second Restitution Act is in contradiction to Article 6 of the Convention. The Applicant company further referred to the change in the legal position as a result of the Federal Constitutional Law of 1964 and pointed out: "(1) (First premise) Article 6 of the Convention ... forms an integral part of the Federal Constitution. Since Article 6 is not self-executing, it has no derogatory effect on conflicting provisions. However, as a result of Article 6, such conflicting provisions have become unconstitutional. (2) (Second premise) Restitution claims are civil rights within the meaning of Article 6. The Land Directorate of Finance which, under Article 2, paragraph (1), of the Second Restitution Act, has been appointed to decide upon such claims is not an independent tribunal within the meaning of Article 6 of the Convention. (3) (Conclusion) Article 2, paragraph (1), and Articles 3 and 4 of the Second Restitution Act are unconstitutional ..." Thus the Applicant company has, in fact, initiated proceedings to examine the compatibility with the Constitution of Articles 3 and 4 of the Second Restitution Act from which the competence of finance authorities to decide on restitution claims covered by the said Act is derived. From a decision given by the Constitutional Court on 11th December, 1964, it appears that the subject of the examination by the Court is the compatibility of said legal provisions with Article 6 of the Convention which has the status of a constitutional law in Austria. If, as a result of that examination, the Constitutional Court should determine that the rules of Articles 3 and 4 of the Second Restitution Act were in contradiction to the provisions of Article 6 of the Convention, it is understood that these provisions would be rescinded as unconstitutional by the Court in accordance with Article 140 of the Federal Constitution. A repeal of Articles 3 and 4 of the Second Restitution Act by the Constitutional Court, however, would meet the Applicant's claim within the domestic legal system. III. In its reply of 29th November, 1965, the Applicant company stated: The present Application was lodged with the Commission on 6th December, 1963. At the time, in the jurisprudence of the Constitutional Court, the Convention was not considered either as having constitutional rank or as being self-executing. Article 6 of the Convention was accordingly not applicable as a provision of Austrian law, so that there was no possibility of a successful appeal to the Constitutional Court or the Administrative Court against a breach of its terms. This meant that in respect of Article 6 of the Convention domestic remedies were exhausted with the decision of the Federal Ministry of Finance of 10th June, 1963. It is true, indeed, that the Constitutional Law since passed on 4th March, 1964, expressly states that the Convention on Human Rights has the same rank as the Austrian Constitution. This entitled the Applicant company to appeal to the Constitutional Court against a breach of Article 6 of the Convention, and an appeal was duly lodged. The legal position nevertheless remains unchanged. Moreover, in the view of the Applicant company, an application that is admissible cannot later become inadmissible, since the legally established competence of the Commission is not set aside by national legislation passed subsequently. Most important of all, however, the Constitutional Court, to which the Applicant company had appealed under the Constitutional Law of 1964, stated in a decision given on 14th October, 1965, that the provisions of the Second Restitution Act of which the Applicant company complained were not contrary to Article 6 of the Convention and, consequently, not contrary to the Austrian Constitution. In view of this decision domestic remedies are now to be regarded as exhausted even from the standpoint of the Austrian Government itself. IV. Under cover of a letter dated 29th December, 1965, the Applicant company submitted a copy of the decision given by the Constitutional Court on 14th October, 1965. In this decision, the Court confirmed its earlier finding that restitution rights must be regarded as civil rights. It further held that the administrative authorities which were called upon to render a decision on the restitution claim of the Applicant company, under the Second Restitution Act, could not be considered "independent and impartial tribunals" within the meaning of Article 6, paragraph (1), of the Convention. However, both the Constitutional and the Administrative Court were such tribunals. Furthermore, their competence to review administrative decisions satisfied the requirements of this provision. In particular, the Constitutional Court stated that: (1) Article 6, paragraph (1), did not require that the decision of first instance was given by a court. It was sufficient that this decision, where rendered by an administrative authority, was subject to review by a court. (2) It was not contrary to Article 6, paragraph (1), that both the Constitutional and the Administrative Court were competent only to confirm or to quash (nur kassatorisch entscheiden) the administrative decision under review. For, where the decision was quashed, the administrative authorities were obliged to follow the Court's interpretation of the law. (3) The Constitutional Court was not bound by the findings of the administrative authorities as to the facts. The Administrative Court, on the other hand, must interpret the provisions of the Administrative Court Act concerning the establishment of the facts with due regard to Article 6, paragraph (1), of the Convention. V. In its observations of 29th December, 1965, the Applicant company objected to this interpretation of Article 6, paragraph (1), of the Convention by the Constitutional Court. It submitted that the mere review of an administrative decision by the Constitutional or the Administrative Court did not itself constitute a decision within the meaning of that provision. For in such cases the facts had been established and the evidence evaluated by the administrative authorities in a procedure that was in conformity with the Article. The Court's power review was limited, in particular in so far as the appreciation of evidence was concerned. The Applicant company also referred to the reservation made by Austria with respect to Article 5 of the Convention which reads as follows: "The provisions of Article 5 of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure - Federal Gazette No. 172/1950 - subject to review by the Administrative Court of the Constitutional Court as provided for in the Austrian Federal Constitution." In the opinion of the Applicant company, this reservation would have been superfluous if the Constitutional Court's above interpretation of Article 6, paragraph (1), of the Convention were correct. VI. In its further observations of 21st February, 1966, the Respondent Government submitted that the Application was inadmissible because, at the time of its introduction, the domestic remedies had not been exhausted. The Government also considered that the Application was directed against the decision of the Federal Ministry of Finance dated 10th June, 1963 although the final decision in this case had been given by the Constitutional Court on 14th October, 1965. VII. The Applicant company replied on 4th April, 1966, that, at the time of the introduction of the Application, the appeal to the Constitutional Court did not constitute an effective remedy within the meaning of Article 26 of the Convention. This view had subsequently been confirmed by the negative decision of the Constitutional Court. VIII. By the Federal Act of 7th July, 1966 (Federal Gazette No. 126), the Austrian Nationalrat authorised the Federal Ministry of Finance to sell the Federal shares in the Österreichische Volksfürsorge (formerly Allianz und Giselaverein) for the sum of 17,895,000 Austrian schillings. Subsequently, these shares were sold to the Austrian Federation of Trade Unions (Österreichischer Gewerkschaftsbund). This Federation was given special consideration since the shares had formed part of the assets of the former "Deutsche Arbeitsfront" which, as an institution of the national socialist regime, had, itself, absorbed the assets of the trade unions existing at that time. In pursuance of an agreement of 21st July, 1966, the Austrian Federation of Trade Unions, for its part, sold 40 % of the shares to the Applicant company for the sum of 11,500,000 Austrian schillings. The Applicant company also undertook to withdraw the present Application. IX. In a letter of 9th December, 1966, to the Commission, the Applicant company stated that a settlement had been reached in respect of its restitution claim against the Republic of Austria and that, consequently, it did not wish to pursue its Application before the Commission. In reply, the Commission's Secretary requested information as to the terms and the legal basis of the settlement. The Applicant company submitted this information in its letters of 22nd December, 1966, and 2nd March, 1967. It referred, in particular, to the Federal Act of 7th July, 1966, and to the subsequent transactions described under VIII above. It further stated that the definite purchase of a considerable part of the shares of the Österreichische Volksfürsorge had been considered preferable to long drawn out proceedings of uncertain outcome. These declarations of the Applicant company have been communicated to the Respondent Government. THE LAW Whereas the Applicant company states that it wishes to withdraw its present Application; whereas the Commission has considered this declaration in the light of its constant jurisprudence in cases of proposed withdrawal of an application pending before it; whereas it results from this jurisprudence that in such cases the Commission is called upon to ascertain whether there are any reasons of a general character affecting the observance of the Convention which would necessitate a further examination of the Applicant's complaint; whereas in this respect reference is made to Application No. 2294/64 (Gericke v. Federal Republic of Germany), Collection of Decisions of the Commission, Volume 20, page 95 et seq. (99 - 100) and Application No. 1470/62 (Niekisch v. Federal Republic of Germany), Collection of Decisions, Volume 21, page 1 et seq. (7); Whereas, in considering the declaration of withdrawal made by the present Applicant, the Commission has taken into account the written observations of the Parties on the admissibility of the Application and the explanations given by the Applicant company with regard to the background of the settlement which has now been reached in Austria in respect of the Applicant company's restitution claim; Whereas, in particular, the Commission has noted that this settlement was based on the Federal Act of 7th July, 1966, by which the Austrian Nationalrat authorised the Federal Ministry of Finance to sell the shares which formed the subject of the Applicant company's restitution claim; Whereas it is true that the present case raises important questions under Article 6, paragraph (1) (Art. 6-1), of the Convention which states that, in the determination of his civil rights, everyone is entitled to a hearing "within a reasonable time" by an "independent and impartial tribunal"; Whereas, however, the Commission finds that - regardless of the interpretation to be given to this provision - there are in the particular circumstances of this case no compelling reasons of a general character affecting the observance of the Convention which would necessitate a further examination of the Applicant's complaints. Now therefore the Commission decides TO STRIKE THIS APPLICATION OFF THE LIST. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/eu/cases/ECHR/1967/2076_63.html