EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 20064/92
Norberta Auracher
against
Austria
REPORT OF THE COMMISSION
(adopted on 9 April 1997)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-16)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-11)1
C.The present Report
(paras. 12-16)2
II.ESTABLISHMENT OF THE FACTS
(paras. 17-19)3
III.OPINION OF THE COMMISSION
(paras. 20-28)4
A.Complaint declared admissible
(para. 20)4
B.Point at issue
(para. 21)4
C.As regards Article 6 of the Convention
(paras. 22-28)4
CONCLUSION
(para. 28)5
APPENDIX :DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION6
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is an Austrian citizen, born in 1959 and resident in
Bregenz. She was represented before the Commission by Mr. W. L. Weh, a lawyer
practising in Bregenz.
3.The application is directed against Austria. The respondent Government
were represented by Mr. F. Cede, Agent of the Austrian Federal Government.
4.The case concerns administrative criminal proceedings for sexual offences.
B.The proceedings
5.The application was introduced on 18 May 1992 and registered on 1 June
1992.
6.On 7 September 1993 the Commission (First Chamber) decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application
to the respondent Government without inviting the parties, at that stage of the
proceedings, to submit written observations on the admissibility and merits of
the application.
7.On 12 October 1994 the Commission (First Chamber) resumed its examination
of the case and decided to request the Government whether, in the light of the
Article 31 Reports adopted on 19 May 1994 in similar cases, they wished to waive
the possibility of submitting observations on the admissibility and merits of
the application and, if they did not, to request the parties to submit their
observations on the admissibility and merits of the Article 6 complaint.
8.The Government submitted their observations on 28 February 1995. The
applicant replied on 16 May 1995.
9.On 17 January 1996 the Commission declared the application admissible.
10.The text of the Commission's decision on admissibility was sent to the
parties on 29 January 1996 and they were invited to submit such further
information or observations on the merits as they wished. No such observations
were submitted, save that on 4 February 1997 the Government informed the
Commission that they did not wish to make further observations.
11.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, also placed itself at the
disposal of the parties with a view to securing a friendly settlement. In the
light of the parties' reaction, the Commission now finds that there is no basis
on which such a settlement can be effected.
C.The present Report
12.The present Report has been drawn up by the Commission (First Chamber) in
pursuance of Article 31 of the Convention and after deliberations and votes, 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
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs.M. HION
Mr.R. NICOLINI
13.The text of this Report was adopted on 9 April 1997 by the Commission and
is now transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
14.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
15.The Commission's decision on the admissibility of the application is
annexed hereto.
16.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
17.The applicant was convicted in administrative criminal proceedings of
having oral sexual intercourse with a man for money. A penal order was issued
on 7 January 1991 by the Bregenz District Authority by which the applicant was
fined a total of AS 22,000.00, with 28 days' detention in default.
18.The applicant's appeal to the Vorarlberg Provincial Government was
rejected on 8 March 1991.
19.The applicant did not apply to the Constitutional Court. On 14 October
1991 the Administrative Court dismissed the applicant's administrative
complaint.
III.OPINION OF THE COMMISSION
A.Complaint declared admissible
20.The Commission has declared admissible the applicant's complaint that her
conviction in administrative criminal proceedings was not accompanied by the
requisite procedural guarantees, in particular that the Administrative Court was
not a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
B.Point at issue
21. The only point at issue is whether there has been a violation of Article 6
para. 1 (Art. 6-1) of the Convention.
C.As regards Article 6 (Art. 6) of the Convention
22.Article 6 (Art. 6) of the Convention provides, so far as relevant, as
follows:
"1.In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an independent and
impartial tribunal ... "
23. The applicant claims that she did not have the benefit of a "tribunal" in
the administrative criminal proceedings against her.
24. The Government, in their observations on admissibility and merits of 28
February 1995, considered that the case did not disclose a violation of the
Convention. On 4 February 1997, they informed the Commission that they did not
wish to submit further observations in the light of the judgments of the
European Court of Human Rights in the Schmautzer and others cases of 23 October
1995.
25. The Commission recalls that in a series of judgments (Eur. Court HR,
Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria judgments of
23 October 1995, Series A no. 328-A, 328-B and 328-C, and Pramstaller v.
Austria, Palaoro v. Austria and Pfarrmeier v. Austria, Series A no. 329-A, 329-B
and 329-C), the European Court of Human Rights found that the proceedings
determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-
1) of the Convention, that the Austrian reservation to Article 5 (Art. 5) did
not apply to the criminal administrative proceedings at issue, and that neither
the Constitutional Court (Verfassungsgerichtshof) nor the Administrative Court
(Verwaltungsgerichtshof) had the "full jurisdiction" required by Article 6 (Art.
6) in criminal cases.
26. In the present case, too, the administrative criminal proceedings were
considered by the Administrative Court, and that court had the same jurisdiction
as it had in the cases of Schmautzer and others.
27. The Commission therefore finds that the applicant did not have access to a
"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
28.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
M.F. BUQUICCHIOJ. LIDDY
SecretaryPresident
to the First Chamberof the First Chamber
Full & Egal Universal Law Academy