[align=left]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the Constitutional Court - was subsequently withdrawn by the Federal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.[/align]