BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ABRAHAMIAN v. AUSTRIA
(Application
no. 35354/04)
JUDGMENT
STRASBOURG
10
April 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In
the case of Abrahamian v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section Registrar,
Having
deliberated in private on 20 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35354/04) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Dr. Heidemarie Abrahamian
(“the applicant”), on 20 September 2004.
- The
applicant was represented by Mr G. Witt, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F. Trauttmansdorff, Head of
the International Law Department at the Federal Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that the Administrative Court had
failed to hold an oral hearing on her complaint to that court.
- On
2 May 2006 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant is a medical practitioner, employed by a public hospital in
Vienna and has also a private surgery. She is a member of the Vienna
Medical Association (Ärztekammer), a public law body
established under the Medical Practitioner's Act (Ärztegesetz)
with compulsory membership. As a member of that association she is
also compulsory affiliated to the pension and invalidity fund
(Wohlfahrtsfonds) of that Medical Association under the
relevant provisions of the Medical Practitioner's Act.
- On
28 April 2000 the Administrative Committee (Verwaltungsausschuss)
of the pension and invalidity fund issued an order against the
applicant for payment of compulsory contributions for 1999. It
applied the statutory rate of contribution of 15.8% as fixed in the
statutes of the pension and invalidity fund.
- On
9 May 2000 the applicant appealed. She submitted that the calculation
was incorrect and that the obligation to pay contributions was
unconstitutional.
- On
20 July 2000 the Appeal Committee (Beschwerdeausschuss) of the
Medical Association dismissed the applicant's appeal. It stated that
the calculation had been correct and that the other issues raised by
the applicant were too general or outside the competence of the
Appeal Committee.
- On
1 September 2000 the applicant filed a complaint with the
Constitutional Court. She complained that the decision was arbitrary
and breached her right to peaceful enjoyment of her property. She
submitted that Section 112 of the Medical Practitioners Act, which
allowed for exemption from the liability to pay contributions to the
pension and invalidity fund, did not sufficiently allow for private
initiatives in ensuring an adequate pension. Also the provisions of
the Medical Practitioners Act which provided for compulsory
membership and compulsory affiliation to the pension and invalidity
fund were in breach of EU-law and a preliminary ruling on that issue
should be obtained by the European Court. On 22 May 2002 she
supplemented her complaint.
- On
26 June 2002 the Constitutional Court declined to deal with the
applicant's complaint for lack of prospect of success. It stated
that, at the most, questions of ordinary law could arise in the
applicant's case, but no issues of constitutional law or the law of
the European Union. Insofar as the applicant had alleged that the
ordinary law applied by the administrative authorities was
unconstitutional, the Constitutional Court, referring to its
case-law, considered this allegation unfounded.
- The
applicant filed a request for transfer of the case to the
Administrative Court and, on 21 August 2002, the Constitutional Court
did so.
- On
8 January 2003 the Administrative Court invited the respondent
authority to file observations, which it did on 25 January 2003. On
11 April 2003 the applicant replied.
- On
23 May 2003 the Administrative Court quashed the appeal decision of
20 July 2000 and remitted the case back to the Appeal Committee. It
found that on one point, namely as regards deductible expenses, the
Appeal Committee's decision had not been sufficiently reasoned.
- On
15 October 2003 the Appeal Committee decided again, dismissing the
appeal.
- On
5 December 2003 the applicant filed a further complaint to the
Administrative Court, she also requested that a public hearing be
held and that suspensive effect be granted. However, at this stage of
the proceedings the applicant failed to reiterate her request for
referral to the European Court of Justice.
- On
16 December 2003 the Administrative Court invited the respondent
authority to file observations, which it did so on 6 February 2004.
- On
15 March 2004 the applicant submitted further observations. In her
further observations she reiterated her request to submit for a
preliminary ruling to the European Court the question of the
conformity of the compulsory affiliation to the pension and
invalidity fund with EU-law.
- Meanwhile,
on 27 February 2004 the Administrative Court had dismissed the
applicant's complaint without holding a public hearing. It found that
the Appeal Committee had correctly calculated the amount of the
applicant's contributions. This decision was served on the
applicant's counsel on 23 March 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that no public hearing before the Administrative
Court had taken place. She relied on Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... by [a] ... tribunal...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government argued that in the first set of proceedings before the
Administrative Court the applicant, represented by counsel, failed to
request a hearing and has therefore waived her right thereto. In the
second set of proceedings the Administrative Court had to deal with
exclusively legal issues, i.e. whether the contributions to
the Fund had been fixed correctly on the basis of the established
facts, and could therefore refrain from holding a hearing, even
though the applicant had requested one.
- The
applicant contested the Government's arguments and stated that she
had explicitly requested a hearing in the second set of proceedings,
and was thus entitled to be heard. She emphasised that she did not
have an opportunity to be heard throughout the entire proceedings and
that the facts were not properly assessed.
- The Court recalls that Austria's reservation under
Article 6 was found to be invalid (Eisenstecken v. Austria,
no. 29477/95, §§ 24-30, ECHR 2000-X) and that the
Court is therefore called upon to examine whether the requirements of
this provision were complied with.
- The
Court further reiterates that the applicant was entitled in principle
to have a public hearing (see, for example, the Diennet v. France
judgment of 26 September 1995, Series A no. 325-A, pp. 14–15,
§ 33 and Malhous v. the Czech Republic [GC], no.
33071/96, § 55, 12 July 2001) and notes that
only the Administrative Court could qualify as “tribunal”
(Fischer v. Austria judgment
of 26 April 1995, Series A no. 312, pp. 20-21, § 44, and Pauger
v. Austria judgment of 28 May 1997,
Reports 1997-III).
- The
Court considers that in the course of proceedings in which
exclusively legal or highly technical questions are at stake, the
requirements of Article 6 may be fulfilled even in the absence of an
oral hearing. (Schuler-Zgraggen v. Switzerland judgment of 24
June 1993, Series A no. 263, p. 19, § 58; Varela
Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002;
and Schelling v. Austria, no. 55193/00, § 30, 10 November
2005).
- In
the present case the Court reiterates that the practice of the
Austrian Administrative Court is not to hear the parties unless one
of them asks it to do so. The applicant expressly requested an oral
hearing with the Administrative Court, which was refused without
explicitly giving reasons. There is accordingly no question of the
applicant having waived that right. Furthermore, there do not appear
to have been any exceptional circumstances that might have justified
dispensing with a hearing. The Administrative Court was the first and
only judicial body before which the applicant's case was brought; it
was able to examine the merits of her complaints; the review
addressed not only issues of law but also important factual
questions. This being so, the Court considers that her right to a
“public hearing” included an entitlement to an “oral
hearing” (see Fischer v. Austria, no. 16922/90, judgment
of 26 April 1995 § 44).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention about the
alleged unfairness and length of the above proceedings and that the
Administrative Court had failed to seek a preliminary ruling from the
Court of Justice of the European Communities without giving any
reasons. Moreover, under Article 1 of Protocol No. 1 she complained
that the contribution order violated her property rights.
- In the light of all the material in its possession,
and in so far as the matters complained of are within its competence,
the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the finding of a violation constituted
sufficient reparation in respect of any non-pecuniary damage
suffered.
- The
Court considers that the finding of a violation constitutes
sufficient just satisfaction for any non-pecuniary damage the
applicant may have sustained in the present case (see Brugger v.
Austria, no. 76293/01, 26 January 2006, § 31, with
further references).
B. Costs and expenses
- The
applicant also claimed EUR 8,273.18 for costs and expenses incurred
before the domestic courts and EUR 5,400 for those incurred before
the Court. These sums include value-added tax (VAT).
- The
Government contested the costs and expenses incurred before the
domestic courts. With regard to the costs before the Court they
proposed to merely award costs on an equitable basis.
- The
Court reiterates that an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, it does not appear from the applicant's
submissions that any specific costs were incurred in relation to the
demand for an oral hearing. Therefore no award can be made under this
head.
- The
Court further notes that the applicant, who was represented by
counsel, did not have the benefit of legal aid. Making an assessment
on an equitable basis it awards the sum of EUR 3,000 as regards the
costs and expenses incurred before the Court. This sum includes VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of an
oral hearing admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three
thousand euros) in respect of costs and expenses inclusive of VAT);
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
