CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.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. 28634/95                       by Walter SPANNRING                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs. J. LIDDY, President            MM.   M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL            Mrs. M. HION            Mr.   R. NICOLINI              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 September 1995 by Walter SPANNRING against Austria and registered on 21 September 1995 under file No. 28634/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      22 July 1996 and the observations in reply submitted by the      applicant on 25 September 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1926, is an Austrian national and resident in Schladming. Before the Commission he is represented by Mr. A. Morawa, a lawyer residing in Washington D.C.        The facts of the case, as submitted by the parties, may be summarised as follows.        On 17 December 1984 the applicant applied with the Styria Regional Insurance Board (Gebietskrankenkasse) for a declaration that his occupation as a tourist-guide required affiliation to the Social Security and Unemployment Insurance Scheme (Kranken-, Unfall-, Pensions- und Arbeitslosenversicherung).        On 21 April 1986 the Insurance Board, following various enquiries, granted the applicant's request whereupon the employer appealed to the Styria Provincial Governor (Landeshauptmann). Pending the ensuing proceedings, the applicant received pension payments on a provisional basis.        On 22 March 1988 the Provincial Governor dismissed the employer's appeal of 23 May 1986.        On 13 April 1988 the employer appealed to the Federal Ministry for Labour and Social Affairs (Bundesministerium für Arbeit und Soziales) which on 26 June 1990 decided to quash the Provincial Governor's decision.        On 6 August 1990 the applicant appealed against this decision to the Administrative Court (Verwaltungsgerichtshof). On 22 October 1991 the Administrative Court, on procedural grounds, quashed the decision of the Federal Ministry for Labour and Social Affairs of 26 June 1990.        On 9 September 1992 the Federal Ministry for Labour and Social Affairs, in the resumed appeal proceedings, found that the applicant's occupation as a tourist-guide had not required affiliation to the Social Security and Unemployment Insurance Scheme.        On 20 October 1992 the applicant appealed to the Constitutional Court (Verfassungsgerichtshof).        On 15 June 1993 the Constitutional Court refused to entertain the applicant's complaint that his case had not been decided by a tribunal, and in proceedings in conformity with Article 6 para. 1 of the Convention, and referred the applicant's complaint to the Administrative Court.        According to the parties' statements of October 1996 and June 1997, the proceedings before the Administrative Court are still pending.   COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings relating to his request for a declaration that his occupation as a tourist-guide required affiliation to the Social Security and Unemployment Insurance Scheme.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 15 September 1995 and registered on 21 September 1995.        On 12 April 1996 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.        On 22 July 1996, after an extension of the time-limit, the Government submitted their observations. The observations in reply by the applicant were submitted on 25 September 1996.   THE LAW        The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of proceedings concerning the applicability of the Social Security and Unemployment Insurance Scheme to his case.        Article 6 para. 1 (Art. 6-1), so far as relevant, reads as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a ... hearing within reasonable time ..."   a.    The Government maintain that the applicant failed to exhaust the available domestic remedies, as required by Article 26 (Art. 26) of the Convention. They submit that under S. 73 para. 1 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) the authorities are obliged, unless specified otherwise in the administrative rules, to decide on requests by citizens or an appeals without undue delay (ohne unnötigen Aufschub) and in any event not later than six months after an application has been made to them. If the decision (Erkenntnis) is not notified to the parties concerned within that time, the parties may apply to the higher authority, which will thereupon acquire jurisdiction to determine the merits (S. 73 para. 2). Moreover, the applicant could have complained about the length of the proceedings to the Administrative Court, pursuant to Articles 130 para. 1 (b) and 132 of the Federal Constitution (Bundes- verfassungsg-Gesetz).        The applicant submits that the proceedings are pending before the Administrative Court where the remedies mentioned by the Government are to no avail. Moreover, the question whether an applicant made use of procedural means to further the proceedings is to be examined when assessing the reasonableness of the length of the proceedings and not as a preliminary issue under Article 26 (Art. 26) of the Convention.        Under Article 26 (Art. 26) of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.        The Commission recalls that the supervision machinery set up by the Convention is subsidiary to the national human rights protection systems. That principle is reflected in the rule set forth in Article 26 (Art. 26), which "dispenses States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system" (cf., Eur. Court HR, Sadik v. Greece judgment of 15 November 1996, para. 30, to be published in Reports of Judgments and Decisions 1996, with reference to the De Wilde, Ooms and Versyp v. Belgium judgment of 18 June 1971, Series A no. 12, p. 29, para. 50).        Under Article 26 (Art. 26) normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (cf. Eur. Court HR, Akdivar v. Turkey judgment of 16 September 1996, 1996-IV, No. 15, paras. 66-67).        The Commission considers that an application under S. 73 of the General Administrative Procedure Act is an interlocutory application for transfer of jurisdiction to a higher court after the lower authority has failed to take a decision within a period of six months. It cannot give rise to any finding as to the length of the proceedings as a whole, nor can it give rise to redress, for example compensation, for any unreasonable delay to that point. As regards the second remedy referred to by the Government, i.e. the complaint to the Administrative Court, the Commission notes that the applicant's complaint is not limited to the conduct of the administrative proceedings as such, but also extends to the length of several sets of proceedings before the Constitutional Court as well as the Administrative Court where the case is still pending. In this context, the Commission recalls that it has held in previous cases concerning the length of proceedings that measures which are available to an individual which might speed up proceedings are matters which fall to be considered in the context of the merits of the application (cf., No. 11296/84, Dec. 14.4.88, D.R. 56 p. 115).        Accordingly, in the instant case, the remedies relied upon by the respondent Government cannot be regarded as effective remedies for the purposes of Article 26 (Art. 26) of the Convention.   b.    As regards the compliance with Article 6 (Art. 6), the Government submit that the proceedings were extremely complex in fact and in law. The question whether someone has to be considered as an employee within the meaning of S. 4 of the Social Security Scheme, depends on a whole set of criteria, which necessitated extensive taking of evidence and there was no jurisprudence of the Administrative Court on a comparable case. No unreasonable delays were caused by the competent authorities.        The applicant submits that an overall duration of the still pending proceedings of more than eleven years is unreasonable, in particular having regard to the fact that his right to an old-age pension is at stake.        The Commission considers, in the light of the criteria established by the case-law of the Convention institutions on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that a thorough examination of this complaint is required, both as to the law and as to the facts.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.            M.F. BUQUICCHIO                              J. LIDDY         Secretary                                 President    to the First Chamber                      of the First Chamber