CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 22363/93                       by Armin BAMMER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 15 July 1993 by Armin BAMMER against Austria and registered on 27 July 1993 under file No. 22363/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen, born in 1964, and living in Vienna.   He is represented by Mr. G. Korn, a lawyer practising in Vienna.        It follows from the applicant's statements and the documents submitted that on 28 June 1988 the competent Federal Ministry for Public Economy and Traffic rejected the applicant's request to recalculate his telephone bill.   It is inter alia stated in the decision that the first instance Telecommunication Authorities had carried out a control of the applicant's telephone, the telephone wire and the automatic exchange.   The installations had been found to be in perfect working condition.   Also the meter counting the communications had been controlled between 1 December 1987 to 15 December 1987 and was found to be in perfect working order.   Further controls ex officio failed to show the existence of any defects that could affect the meter.   Also the photographic documents relating to the meter-reading at the beginning and the end of an account period had been checked as well as the accounting but again no defects or miscalculation could be discovered.   Furthermore an expert of the Post and Telecommunications Directorate for Vienna, Lower Austria and Burgenland stated that the controls effected had been sufficient to show that there was no defect influencing the telephone meter and that there were no particular circumstances that could have caused a miscalculation to the applicant's disadvantage.   The expert pointed out that defects which could influence the metering of telephone communications remained in existence until they could be repaired.   Therefore a defect which could have influenced former metering periods would normally be discovered if a subsequent control was carried out.   In the applicant's case no defects had however been discovered and his objections against his telephone bill were of a mere theoretical nature, i.e. it relied on mere hypothesis.   The telephone bills had been established under objective criteria while the applicant's objections were based on the subjective and unproven allegation that his telephone bill was excessive.   The expert also excluded that the applicant's telephone line had been tapped by third persons.        The applicant then brought an action before the Administrative Court (Verwaltungsgerichtshof).   In consequence of this action the Administrative Court requested the Constitutional Court (Verfassungsgerichtshof) to set aside certain sections of the Telecommunications Act (Fernmeldegesetz), mainly on the ground that according to the provisions in question disputes relating to telephone bills were decided by the Telecommunication Authorities.   The Administrative Court considered that such disputes concerned civil rights within the meaning of Article 6 para. 1 of the Convention and should therefore be determined by a tribunal.        On 15 June 1992 the Constitutional Court rejected the Administrative Court's request on the ground that disputes relating to telephone bills did not concern a civil right.   The fees for telephone calls were public law contributions.        The Constitutional Court's decision was given without a public oral hearing.        The Administrative Court then decided the applicant's matter by judgment of 23 September 1992.   The applicant's action was dismissed as being unfounded.        Insofar as the applicant had argued that it was unconstitutional to impose on telephone users the risk of undiscoverable defects, the Court considered that in view of the technical control effected   by the Telecommunication Authorities, the possibility of an undiscoverable defect had to be excluded.        Insofar as the applicant had complained that he did not have access to the technical installations and control system, the court noted that there was nothing in the file to show that the applicant had made a request to be granted such access.        Insofar as the applicant had complained of the Telecommunications Authorities' appreciation of available evidence, the court pointed out that although under the relevant law the authorities had a discretionary power in assessing and appreciating evidence, the court could still control whether the facts had been sufficiently investigated and whether the reasons stated in connection with the appreciation of evidence were conclusive (schlüssig).   Therefore the decision of an authority had to be set aside if it disclosed important defects (wesentliche Mängel) as to the fact-finding including the appreciation of evidence.   The decision complained of did not disclose any such defects.   In particular it could not be found that the telephone bill in question was so much higher than previous bills, in such a way as to indicate that it could not be correct.   In view of the controls effected by the Telephone Communications Authorities, it was unobjectionable that they as well as the expert came to the conclusion that the metering system did not have any defect.   There was also nothing to show that the expert was biased for the sole reason that he was a civil servant in the Telecommunications Authorities.        Finally the court rejected the applicant's complaint that he should have been heard personally by the Ministry.   The court pointed out that the applicant had been sent the results of the controls effected by the Telecommunications Authorities and had been given the opportunity to comment on them.        The court concluded that in all the circumstances the Austrian authorities did not violate the law by denying the applicant a recalculation of his telephone bill.   COMPLAINTS        The applicant complains that the judicial review of the Constitutional Court and the Administrative Court was limited and therefore insufficient.   He maintains that the dispute relating to his telephone bill concerns a civil right and that he therefore should have had access to a civil court to determine the dispute between him and the Telecommunications Authorities.   THE LAW        The applicant complains that none of the bodies before which his case came in the impugned proceedings could be regarded as a tribunal within the meaning of Article 6 para. 1 (Art. 6-1).   This applied not only to the Constitutional Court but in particular to the Administrative Court.        However, even assuming that Article 6 (Art. 6) applies to the proceedings in question, the Commission notes that under Article 6 para. 1 (Art. 6-1) of the Convention, it is only necessary that, in the determination of "civil rights and obligations", decisions taken by administrative authorities which do not themselves satisfy the requirements of that Article (Art. 6-1) be subject to subsequent control by a "judicial body that has full jurisdiction" (Eur. Court H.R., Fischer judgment of 26 April 1995, Series A no. 312).        It therefore remains to be examined whether, in the circumstances of the present case, the scope of the competence of the Administrative Court satisfied the requirements of Article 6 para. 1 (Art. 6-1).   In this respect the Commission first notes that the impugned administrative decision was based on objective criteria and left relatively little room for discretion.   The authorities had carried out a technical control and also obtained an expert opinion.   The technical control did not reveal any defects in the telecommunications system that could have caused a miscalculation of the applicant's telephone bill.   The expert explained that miscalculation due to defects would be discovered by technical control as defects in the system were never provisional, in other words if they existed they continued to exist and would be discovered if and when a control was carried out.        The applicant has not shown that in his particular case the alleged limited powers of the Administrative Court prevented this court from examining all the issues raised in his case.   Rather it is evident from the extensive reasoning in the Administrative Court's judgment that this court considered all the applicant's submissions on their merits, point by point, without ever having to decline jurisdiction in replying to them and in ascertaining the facts.        It follows that in the circumstances of this case there is no appearance of a violation of Article 6 (Art. 6) of the Convention and consequently the application has to be rejected as being manifestly ill-founded.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)