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FIRST
SECTION
CASE OF OTTO v. AUSTRIA
(Application
no. 12702/08)
JUDGMENT
STRASBOURG
22 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Otto v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 1 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12702/08) 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, Ms Anneliese
Margarethe Otto (“the applicant”), on 4 March 2008.
- The
applicant was represented by Mr W.D. Arnold, 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 for European and International Affairs.
- On 2 May 2008 the President of the Chamber decided that
the application should be granted priority under Rule 41 of the Rules
of Court. On 9 June 2008
the President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1928 and lives in Vienna.
- The
applicant's husband was a civil engineer, and affiliated compulsorily
to the Federal Chamber of Architects and Engineer Consultants
(Bundeskammer der Architekten und Ingenieurkonsulenten) and
its pension fund (Versorgungsfonds).
- The
applicant's husband, who had moved out of the marital home in 1985
and lived with another partner, died in 1992.
- The
applicant applied orally for payment of a survivor's pension in 1992,
and was informed that she did not have a claim to a pension since her
husband had been living with another woman. Only the latter was
entitled to claim a survivor's pension.
- At
first, the applicant did not follow up on her application, but by
application dated 22 March 2001 she requested pension payments.
- On
25 June 2001 the Committee of the Welfare Institutions (Kuratorium
der Wohlfahrtseinrichtungen) declined payment of a survivor's
pension since the applicant and her husband had ceased to live in a
common household. Due to changes to the Statutes of the Welfare
Institutions (Statut der Wohlfahrtseinrichtungen) and the
wording of the statutes at the time of the applicant's husband's
death, the partner had the same right to a survivor's pension as the
widow. Since the applicant's husband had lived in a common household
with another partner, the latter was entitled to a survivor's
pension.
- The
applicant appealed and the Board of Directors of the Federal Chamber
of Architects and Engineer Consultants (Vorstand der Bundeskammer
der Architekten und Ingenieurkonsulenten) decided on 11 October
2001 to uphold the decision of the Committee of the Welfare
Institutions.
- The
applicant lodged a complaint with the Constitutional Court
(Verfassungsgerichtshof) on 22 November 2001, which decided to
examine the relevant provisions of the Chamber of Engineers Act
(Ingenieurkammergesetz) and the Statutes of the Welfare
Institutions. On 23 June 2003, it set aside several provisions
of the Chamber of Engineers Act as unconstitutional. Furthermore it
set aside the Statutes of the Welfare Institutions as unlawful and on
the same day decided to refuse to deal with the applicant's
complaint, as the matter was not excluded from the Administrative
Court's jurisdiction.
- Upon
the applicant's request of 18 August 2003 her case was transferred to
the Administrative Court (Verwaltungsgerichtshof). In her
request the applicant had mentioned her old age and the duration of
the proceedings. In the proceedings before the Administrative Court,
the Board of Directors of the Federal Chamber of Architects and
Engineer Consultants submitted their observations on 5 November 2003,
to which the applicant replied on 24 November 2003.
- The
applicant applied again for a survivor's pension on 29 July 2004. The
request was dismissed on 6 December 2004 by the Committee of the
Welfare Institutions as the case was still pending before the
Administrative Court. An appeal was rejected by the Board of
Directors on 7 February 2005. The applicant complained to the
Administrative Court on 21 March 2005. On an unknown date the
Administrative Court decided to join both complaints.
- On
27 November 2007 the Administrative Court set aside the contested
decision, since it was based on a statute the Constitutional Court
had set aside as being unconstitutional.
- By
a decision of 15 April 2008, which was served on the applicant's
counsel on 18 April 2008, the Board of Directors of the Federal
Chamber of Architects and Engineer Consultants awarded the applicant
a survivor's pension from 1 March 2001 onwards. The pension was fixed
at a gross amount of 1,077.03 euros (EUR) per month for 2001. The
applicant was paid all pension arrears in June 2008. The amounts due
for the years 2002 to 2008 were adjusted, apparently to reflect the
increase in prices. In all, the applicant received a net amount of
EUR 104,748.10.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 22 March 2001 and
ended on 18 April 2008. It thus lasted a little more than seven years
at three levels of jurisdiction.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant maintained that the duration of the proceedings was
excessive. She asserted in particular that the proceedings before the
Administrative Court took more than four years.
- For
their part, the Government argued that the case was of some
complexity as it required a review of the lawfulness of the relevant
provisions of the Chamber of Engineers Act and of the Statute of the
Welfare Institutions by the Constitutional Court. The duration of the
proceedings before the Constitutional Court of one year and seven
months had to be regarded as admissible. The duration of the
proceedings before the Administrative Court was explained by the
excessive workload faced by that Court which had already in its
Activity Report 2002 drawn attention to its workload problem, which
it considered to be “notorious and structural”. In that
connection the Government also provided a statistical overview of the
Administrative Court's workload for the relevant period from 2003 to
2007. In sum, the overall duration of the proceedings was still to be
regarded as reasonable.
- The Court reiterates that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the following
criteria: the complexity of the case, the conduct of the applicant
and the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court
observes that the present case concerned the applicant's request for
a survivor's pension and therefore, as a matter of principle, called
for a swift termination of the proceedings (see Lyszczna v.
Germany (dec.), no. 34863/04, 4 January 2008).
- The
Court accepts that the case was of some complexity. On the one hand
it does not discern any particular delays which would be attributable
to the applicant. On the other hand it notes that after the
Constitutional Court had set aside the Statutes of the Welfare
Institutions on which the contested decision had been based, the case
was pending before the Administrative Court from 18 August 2003 to 27
November 2007, thus for more than four years and three months.
- In reply to the Government's argument relating to the
Administrative Court's excessive workload, the Court reiterates its
well established case-law that it is for the Contracting States to
organise their judicial systems in such a way that their courts are
able to guarantee everyone the right to obtain a final decision on
disputes concerning civil rights and obligations within a reasonable
time (see, for instance, Comingersoll S.A. v. Portugal [GC],
no. 35382/97, § 24, ECHR 2000 IV). Since the Administrative
Court had addressed the issue of its excessive workload already in
its Activity Report 2002, and had considered it to be a “notorious
and structural” one, it would have been for the State to adopt
efficient remedial measures.
- Having
regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 26,693.45 euros (EUR) in respect of pecuniary
damage, namely EUR 9,641.12 for the financial loss caused by
inflation, EUR 17,052.33 for loss of interest and EUR 5,000 in
respect of non-pecuniary damage.
- The
Government contested these claims, arguing that the pension payments
the applicant finally received had already been adjusted and that the
applicant could not therefore claim to have suffered any losses due
to inflation. There was no basis for claiming any loss of interest
either. As regards the claims in respect of non-pecuniary damage, the
Government argued that they were excessive.
- The
Court observes that the applicant, when she was granted the pension,
received the pension payments retroactively since the time when she
had first had applied for them in writing. The pension arrears paid
to the applicant included compensation in respect of inflation (see
paragraph 15 above). The Court does not find that the applicant
suffered any pecuniary damage and therefore rejects this claim. As
regards the claim for non-pecuniary damage, the Court considers that
it should award the sum claimed in full, that is EUR 5,000 plus any
tax that may be chargeable to the applicant on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 4,410.48, inclusive of value-added tax
(VAT) for the costs and expenses incurred before the domestic courts
and EUR 4,017, inclusive of VAT, for those incurred before the Court.
- The
Government contested these claims, stating that the costs of the
domestic proceedings were not incurred in order to prevent or redress
the length of the proceedings. The costs claimed in respect of the
Convention proceedings were excessive.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 2,000 for the
proceedings before the Court plus any tax that may be chargeable to
the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) for non-pecuniary damage and EUR 2,000 (two thousand
euros) in respect of costs and expenses plus any tax that may be
chargeable to the applicant on these amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
