WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967]

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WIENER STADTISCHE WECHSELSEITIGE VERSICHERUNGSANSTALT v. AUSTRIA - 2076/63 [1967] ECHR 2 (30 May 1967)
THE FACTSWhereas the original submissions of the Applicant company may besummarised 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 theApplicant company appealed against the Republic of Austria forrestitution 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 therestitution - i.e. the shares of the aforesaid insurance company - isin the ownership of the Republic of Austria, the Act applicable in thiscase is the Second Restitution Act (Zweites Rückstellungsgesetz) whichstipulates that the body competent to decide the matter was not acourt, but an administrative authority - in the first instance the LandDirectorate of Finance (Finanzlandesdirektion), and in second and finalinstance the Federal Ministry of Finance. By decision (Bescheid), dated10th June, 1963, served upon the Applicant company on 14th June, 1963,its claim for restitution was rejected with binding effect afterprotracted proceedings on both sides. The Applicant company lodged aconstitutional appeal (Beschwerde) with the Austrian ConstitutionalCourt (Verfassungsgerichtshof) because - independently of Article 6 ofthe Convention on Human Rights - it considered that the decisionviolated the principles of equity and its right to property guaranteedunder the Constitution. In case the appeal was rejected by theConstitutional Court, the Applicant company applied for its transferto the Administrative Court (Verwaltungsgerichtshof). Examination bythe Constitutional Court is possible only in cases of alleged violationof rights guaranteed by the Constitution. As the Constitutional Courthas declared in numerous decisions, it does not regard Article 6 of theConvention as self-executing i.e. it holds that this Article isapplicable only by virtue of a special implementing act of domesticlaw. So far, no such implementing act has been issued. TheConstitutional Court has also declared that, although Article 83,paragraph (2), of the Federal Constitution (Bundes-Verfassungsgesetz)guarantees the "lawful judge" (gesetzlicher Richter), the legislatoris not forbidden to nominate, at his discretion, the body competent totake decisions. The prescript of Article 6 of the Convention, to wit:"In the determination of his civil rights and obligations or of anycriminal charge against him, everyone is entitled to a fair and publichearing within a reasonable time by an independent and impartialtribunal established by law", hence does not form a provision ofAustrian municipal law. It cannot therefore be invoked as grounds foran 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 remediesmust be considered exhausted in the present case. Since the decisionin question was rendered on 10th June, 1963, the present Applicationwas lodged within the time-limit prescribed by Article 26 of theConvention.The Applicant company alleges a violation of Article 6 of theConvention.II. With regard to the legislation in question, the Applicant companyobserves that the property changes ("Aryanisations") effected duringthe period of the National Socialist tyranny resulted in Austria, asin other European States, in subsequent "restitution laws", theprinciples of the General Civil Code (allgemeines bürgerlichesGesetzbuch) being regarded as inadequate to render null and void suchproperty transfers. The first enactment was the merely declaratoryNullity Act of 1946 - Federal Gazette (Bundesgesetzblatt) No. 106/1946-, which established the principle of the nullity of all acts ofseizure. It was followed, in stages, by the seven Restitution Acts, ofwhich the first three are of special importance.The First Restitution Act was published on 26th July, 1946 (FederalGazette No. 156/1946). It deals with the restitution of seizedproperties which are under the administration of the Federation or theFederal Länder. This Act appeared first because its purpose was theeasiest to determine. With regard to the properties involved, there wasno need to await the registrations ordered under the Act of 10th May,1945 - State Gazette (Staatsgesetzblatt) No. 10/1945 -, because thedetails were clearly apparent from the administrative files of theFederation or Länder. The only properties affected were such as hadeither automatically lapsed to the German Reich by virtue of laws likethe 11th Ordinance issued under the Reich Citizenship Act(Reichsbürgergesetz), or had fallen with its possession by virtue ofa 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 seizedproperties which are in the ownership of the Austrian Republic, i.e.with properties which were first seized (Aryanized) and thenautomatically fell into the ownership of the Republic. The Applicantcompany's claim for the restitution of the shares of theÖsterreichische Volksfürsorge was submitted under the terms of thisAct. The latter, too, stipulates that the restitution authority is inthe first instance the Land Directorate of Finance and in the secondinstance the Federal Ministry of Finance. On 6th February, 1947, alsothe Third Restitution Act (Federal Gazette No. 54/1947) was published.This contains the most comprehensive settlement and deals with allseizures of material assets not falling under the provisions of thefirst two Acts. According to Article 1, paragraph (1), of the ThirdRestitution Act, the provisions of this Act are also applicable torestitution claims under the First or Second Act, in so far as thelatter do not otherwise provide.III. According to Article 1, paragraph (2), of the Third RestitutionAct, Article 3, paragraph (1), of the same Act also applies to claimsunder the Second Act. Article 3, paragraph (1), reads as follows:"Seizures of property (Article 1, paragraph (1)), shall be null andvoid. Unless this Act otherwise provides, the provisions of civil law,in particular those concerning the nullity of contracts on the groundof unjust and well-founded apprehension (ungerechter und begründeterFurcht) shall be applied."This passage is a significant pointer to the nature of a claim forrestitution. It explicitly refers to the provisions of general civillaw: the provisions concerning nullity of contracts on the ground ofunjust and well-founded apprehension are to be found in Articles 870and 877 of the General Civil Code. The consequences of the nullity ofcontracts 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 governedby differing provisions in respect of each cause of nullity, it isstipulated that the existing provisions of Articles 870 and 874 to 877of the Code - which refer to the closely related form of nullity ongrounds of unjust and well-founded apprehension - are applicable tonullity resulting from restitution legislation (on the newly-specifiedground of "seizure").In the prevailing view the nullity of an act of seizure(Entziehungsakt) should be assessed not as absolute but only asrelative nullity (defeasibility). The Supreme Court has thereforeexpressly ruled that a restitution judgment does not have declaratorybut constituent effect and that it is consequently in the discretionof the parties to appeal for nullification or not. A claim forrestitution is regarded as conditio within the meaning of Article 877of the General Civil Code. Thus such a claim is not based on theproperty rights of the injured party, but on the fact of havingreceived 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 inrem, it is primarily, by the terms of Article 3, paragraph (1), of theThird Restitution Act, an obligatory conditio within the meaning ofArticle 877 of the General Civil Code, not presupposing ownership ofthe object furnished."Law writers have established criteria of various kinds for defining theterm "civil right". Sometimes the governing consideration is theinterest protected (individual or collective interest), sometimes itis the relationship of the subjects to one another (equal footing orsuperiority and subordination), or it may well be the existence of theindividual's subjective interest corresponding to the obligation, oragain it may take the form of judicial protection (civil proceedingsor intervention by other authorities, etc.). Seventeen differentcriteria are laid down in the relevant literature. Of the definitionsmentioned 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 decisionover disputed claims under the internal legislation of the variousStates is not, however, a serviceable criterion. The view that "civilrights" in the sense of Article 6 of the Convention means only suchrights as are to be decided by the Courts under the internal laws ofa contracting State, whereas rights to be decided by the administrativeauthorities in virtue of a positive legal provision are not civilrights, would render Article 6 meaningless. It would then be left tothe discretion of each contracting State to get round Article 6 bygranting the power of decision, not to an impartial and independenttribunal, but to an administrative authority, bound by instructions.The concept of "civil rights" in Article 6 must therefore be understoodas 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 rightor an obligation is of a civil nature within Article 6, paragraph (1),of the Convention does not depend on the particular procedureprescribed by domestic law for its determination but solely on anappreciation of the claim itself and of the purpose of the complaint"(Yearbook of the European Convention on Human Rights, Volume 5, page108 [122]).There is no need to enter into a discussion of the various definitionsevolved by the law writers. It is sufficient that a right should existunder the domestic law of the country in which the appeal is lodged -a right approximating to the rights customarily considered in thatcountry as belonging to the category of "civil rights". Notwithstandingall differences of opinion about the criterion serving to distinguishbetween rights, there is far-reaching agreement on the actualclassification 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 GeneralCivil Code are regarded as civil rights in accordance with unanimousAustrian doctrine and jurisprudence. This is expressly stated inArticle 1 of the General Civil Code. As shown above, restitution claimsare conceived on the model of claims submitted under Article 877 of theGeneral Civil Code. They are rights of conditio under civil law. Apartfrom the condition laid down in the Restitution Acts as to theirorigin, they do not differ from rights claimed under the General CivilCode. They govern the relations of subjects of law on an equal footing(see Article 1 of the General Civil Code: "The private rights andobligations of the inhabitants of the State among themselves") and theyare placed in the discretion of the parties.If the nature of restitution rights is thus analyzed according to theirinherent characteristics, it will be seen that they are among therights listed in the General Civil Code. The relevant clauses compriserights which are generally regarded in Austria as "civil rights".Accordingly, the Austrian Constitutional Court has held that claims forrestitution under all existing restitution laws are to be consideredas civil claims (Decision G 2/52-Slg. 2313). Restitution rights aretherefore sufficiently clearly defined to include them under Article6 of the Convention.IV. Although, under both the Second and the Third Restitution Acts,restitution rights are civil rights, the means of asserting them areregulated in an entirely different way.From the standpoint of material law the second Restitution Act bestowsmerely a right to restitution of property which is still existing inthe ownership of the Republic of Austria. Article 5 of the Second Actexcludes any claim for compensation against the Republic or makes suchclaim subject to special legislation. The Third Restitution Act, on theother hand, grants the injured proprietor, in addition to restitutionof the property seized, the right to claim compensation for the damagedone.The differences are more significant when one turns to the aspect offormal law. Here the divergent treatment rests on purely practicalconsideration. Whereas under the Third Act claims are to be heard bythe Courts, i.e. by the Restitution Commissions functioning as specialcourts attached to the Regional Courts, jurisdiction over claimssubmitted under the Second Act is awarded to the administrativeauthorities of the Republic. In the explanatory memorandum by thecompetent Committee of the Nationalrat, this ruling is justified asfollows:[/align]

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"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.

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[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]

[هيثم الفقى]

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.