PROCEDURE

The case originated in an application (no. 12555/03) 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, Mr Pierre Müller (“the applicant”), on 3 April 2003.

The applicant was represented by Mr Herbert Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr Ferdinand Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

On 15 September 2005 the Court decided to communicate the complaint concerning the length of the proceedings to the Government. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. The circumstances of the case

The applicant was born in 1968 and lives in Vienna. He is the managing director (Geschäftsführer) of the M company.

On 24 January 1994 an officer of the Vienna Employment Office (Landesarbeitsamt) found Mr S, a Polish national, working on the construction site of the M company without employment or work permit.

Having obtained the applicant's submissions on 11 August 1994, the Vienna municipality (Magistrat), on 10 August 1995, issued a penal order (Straferkenntnis) against the applicant in which it convicted him under ss. 28 and 3 of the Employment of Aliens Act (Ausländerbeschäftigungs-gesetz) of illegal employment of a foreigner and sentenced him to a fine of 10,000 ATS (approximately 700 EUR).

On 28 May 1996 the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat, IAP), having held two public hearings, confirmed this decision. It did not follow the applicant's argument that he was not guilty as he had not known about the illegal employment of Mr S and had ordered a subordinate to observe the legality of the M company's employment policy. The IAP noted that the applicant had failed to set up an effective supervising system and had not shown how and when he had exercised control whether his orders were respected. It concluded that the applicant had not convincingly shown that no fault lay with him within the meaning of section 5 § 1 of the Code of Administrative Offences (Verwaltungsstrafgesetz).

The applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) on 22 July 1996. On the same day he lodged a further complaint against another penal order of the IAP concerning also illegal employment of foreigners. The Constitutional Court joined these proceedings and, on 24 September 1996, granted the applicant's requests for suspensive effect.

At the same time, proceedings concerning complaints lodged by another managing director of the M company and the M company itself were pending before the Constitutional Court which involved the review of the constitutionality of a specific provision of the Employment of Aliens Act.

On 15 October 1998 the Constitutional Court declined to deal with the applicant's complaint for lack of prospect of success. It referred to its decision of 2 October 1997 in which it had found that the Independent Administrative Panels in principle qualified as “tribunals” but that the IAP in this case lacked “independence” as the deciding judge was a former civil servant of the federal authority which had issued the impugned decision and was likely to return after his term of office to the federal authority which had issued the impugned decision. The Constitutional Court noted that in the present case there was no concrete indication of lack of independence of the deciding member of the Vienna IAP. Upon the applicant's request, it transferred the case to the Administrative Court (Verwaltungsgerichtshof).

On 26 March 1999 the applicant submitted his amended complaint and submitted that the IAP's decision was unlawful on account of its content and the breach of procedural rules. The Administrative Court instituted preliminary proceedings on 6 April 1999. On the same date it granted suspensive effect to the applicant's complaint. On 17 May 1999 the Administrative Court obtained the IAP's submissions. On 3 September 2002 it dismissed the applicant's complaint. On the same day it also confirmed the applicant's conviction concerning illegal employment of three other Polish nationals. These decisions were served on the applicant's counsel on 3 October 2002.