AS TO THE ADMISSIBILITY OF
Application No. 16487/90
by Frederick BATT
against Austria
The European Commission of Human Rights sitting in private on
8 January 1992, the following members being present:
MM.C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 February 1990
by Frederick Batt against Austria and registered on 23 April 1990 under
file No. 16487/90;
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 a British citizen born in 1964. He lives in
Colchester, Essex. The applicant is represented by Mr. K.H. Klee,
lawyer, of Innsbruck. The facts as they have been submitted by the
parties may be summarised as follows.
On 5 March 1989 the applicant was involved in a skiing accident
in Austria. He was questioned at the local police station on the same
day from 18h15 until 19h30 in the presence of an interpreter.
On 25 May 1989 the applicant received a penal notice
(Strafverfügung) dated 17 May 1989 from the Landeck District Court
(Bezirksgericht). The penal notice was in German, a language which the
applicant does not understand. The penal notice informed the applicant
that he had been found guilty of negligently causing injury
(fahrlässige Körperverletzung) and that a fine of AS 10.000 had been
imposed with the imposition of a prison sentence of 25 days in case of
non-payment. The sentence was suspended for three years. The
applicant, believing that the document related to the accident,
forwarded it to his insurance brokers who, in turn, forwarded it to
their lawyer for a translation. On 1 August 1989 the applicant
discovered that the document was in fact the penal notice referred to
above. The applicant instructed his insurers' solicitors and his
present representative to take all possible steps to challenge the
penal notice. As the 14 day time-limit for entering an objection
(Einspruch) to the penal notice had long since passed, the applicant's
representative on 16 August 1989 applied for leave to file an objection
out of time (Wiedereinsetzung in den vorigen Stand) on the ground that
the 14 day time-limit had been missed through no fault of the
applicant's as he had not understood the penal notice. On 13 September
1989 the Landeck District Court rejected the application on the ground
that, although the applicant had not been able to comply with the 14
day time-limit because he did not have adequate knowledge of German,
it had not been established that the application had been brought
within 14 days of the applicant's actual notice of the contents of the
penal notice. In particular, the court found that a bald statement in
the application that the time-limit had been complied with, coupled
with the fact that on 10 August 1989 the applicant actually knew of the
contents of the notice, was not sufficient to comply with the
requirement that an applicant had to show when he acquired knowledge
of the contents of the notice, Accordingly, it could not be assumed
that the time-limit had been complied with.
The Landeck District Court stated that no appeal lay against its
decision.
On 28 September 1989 the applicant applied, again to the Landeck
District Court, for the penal notice to be re-served with a certified
translation. He referred to Article 6 para. 3 of the Convention. The
Court found, on 3 October 1989, that as Article 6 of the Convention was
not directly applicable in Austria, and as no specific provision
required an English translation of the penal notice, the penal notice
had been validly served. The application was rejected.
The applicant appealed to the Innsbruck Regional Court(Landesgericht). The appeal was rejected on 17 November 1989. The
Regional Court accepted that since 1972 the Supreme Court (Oberster
Gerichtshof) had regarded Article 6 as directly applicable, but found
that Article 6 para. 3 (a) and (e) provided guidelines for the formal
trial, and did not need to be observed at an earlier stage of the
proceedings.
Relevant domestic law
Code of Criminal Procedure
(German)
"S. 364. (1) Wider die Versäumung der Frist zur Anmeldung eines
Rechtsmittels gegen ein Urteil kann das zur Entscheidung über das
Rechtsmittel berufene Gericht dem Beschuldigten die
Wiedereinsetzung in den vorigen Stand erteilen, sofern er:
1. nachzuweisen vermag, dass es ihm durch unabwendbare Umstände
ohne sein oder seines Vertreters Verschulden unmöglich gemacht
wurde, die Frist einzuhalten,
2. um die Wiedereinsetzung innerhalb von vierzehn Tagen nach dem
Aufhören des Hindernisses ansucht und
3. die Anmeldung zugleich anbringt."
(Translation)
"364. (1) An appeal court may grant an application for leave to
file an appeal out of time where an accused:
1. is able to prove that unavoidable circumstances prevented him
from complying with the time-limit and that neither he nor his
representative was at fault;
2. requests leave to file an appeal out of time within fourteen
days after the disability falls away, and
3. files his notice of appeal at the same time."
COMPLAINTS
The applicant complains that the failure to serve a translation
of the penal notice amounts to a violation of Article 6 para. 3 (a) and
(e) of the Convention. He points out that in the case of Can (Eur.
Court H.R., Can judgment of 13 September 1979, Comm. Rep. 12 July 1984,
Series A no. 96, p. 14) the Commission found that Article 6 para. 3 (b)
and (c) applied to investigation proceedings, and he asks how an
accused can possibly be expected to prepare his defence when he does
not understand the allegation.
PROCEEDINGS BEFORE THE COMMISION
The application was introduced on 20 February 1990 and registered
on 23 April 1990.
On 11 October 1990 the Commission decided to give notice of the
application to the Austrian Government and to invite them to submit
observations in writing on the admissibility and merits of the
application.
The Government submitted their observations on 21 December 1990
and the applicant submitted his observations in reply on 5 March 1991.
THE LAW
1.The applicant alleges a violation of Article 6 para. 3 (a) and
(e) (Art. 6-3-a, 6-3-e) of the Convention by virtue of the failure of
the Austrian authorities to serve a translation of the penal notice of
17 May 1989.
The Government consider that the applicant has not exhausted
domestic remedies in two respects. First, they note that the Landeck
District Court rejected the application for leave to file an objection
out of time, not because the applicant had been properly served with
the penal notice, but because he had failed to comply with the
requirement that he show on what date the disability ceased to apply.
Secondly, they point out that the Landeck District Court's statement
that no appeal lay against its decision of 13 September 1989 was in
fact inaccurate and an appeal would have lain to the Innsbruck Regional
Court. They consider that the function of the rule on exhaustion of
domestic remedies is to enable superior courts to remedy inter alia
errors of law by inferior courts, and the Landeck District Court's
statement that no appeal lay was such an error of law.
The applicant replies that, by stating that he brought his
application for leave to file an objection out of time within the
fourteen days' time-limit, together with reference to a date within
fourteen days of the date of submission of the application, he
exercised sufficient care in submitting the application: had any
doubts been raised in the court's mind, it should have asked for
further details. The applicant further considers, notwithstanding a
decision (referred to by the Government) of the Supreme Court to the
contrary, that the Landeck District Court's statement that no appeal
lay against its decision was correct, or at least arguable on the
ordinary wording of the relevant provisions of the Code of Criminal
Procedure. Moreover, he insists that his application of 28 September
1989 for the penal notice to be re-served with a translation - made
within fourteen days of receipt of the decision of 13 September 1989 -
should have been regarded by the Regional Court as an appeal against
the decision of 13 September. The applicant considers that he has
exhausted domestic remedies.
The Commission finds that the question of non-exhaustion of
domestic remedies in connection with the applicant's unsuccessful
application for leave to file an objection out of time is so closely
linked with the substantial complaint relating to acces to court that
it will consider the complaint in that context later. The Commission
also considers that the applicant should not be prejudiced for a
failure to appeal against a statement in a judgment that no appeal lay
against the judgment, regardless of whether the statement was accurate
or not.
2.The Commission has considered the case first in the context of
the question whether the applicant had sufficient access to court.
Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law... "
The Government question whether Article 6 (Art. 6-1) of the
Convention applies at all to proceedings such as those in the present
case, but maintain that, even if it does, Article 6 para. 1 (Art. 6-1)
cannot permit a defendant to remain totally passive. If an objection
can be made within fourteen days, ample opportunity is given to
defendants to have full proceedings before a court complying with
Article 6 (Art. 6) of the Convention. This is the case even where a
defendant, through no fault of his own, cannot comply with the
fourteen-day time-limit, as the courts are ready to give leave to file
an objection out of time provided a defendant shows when the disability
ceased to apply and that he has applied within fourteen days from that
moment.
The applicant considers that the possibility of applying for
leave to file an objection out of time does not answer his complaints
as it leads to considerable complications, as the present case shows.
The Commission recalls that the right of access to court is a
constituent element of the right to a fair trial, as guaranteed in
Article 6 para. 1 (Art. 6-1) of the Convention. This right is,
however, not absolute, but is subject to implied limitations. Criminal
proceedings providing for a waiver of the right to have one's case
dealt with by a tribunal in a full trial have advantages for the
individual concerned as well as for the administration of justice, and
they do not in principle offend against the Convention (c.f. Eur. Court
H.R. 5, Deweer judgment of 27 February 1980, Series A no. 35 p. 25,
para. 49). It may be in an individual's own interests not to stand
trial in public.
The Commission considers that penal order proceedings do not of
themselves affect the right of an accused to a fair hearing before a
court, provided he can effectively object to the penal order and
thereby bring about a normal trial.
Responsibility for the institution and conduct of criminal
proceedings lies in principle with the competent authorities
themselves, and it cannot be expected of a defendant that he contribute
towards his own conviction. Thus, where communication of a penal order
is relevant for the calculation of the time-limit for filing
objections, an issue may arise under Article 6 para. 1 (Art. 6-1) of
the Convention as to access to court. Strict conditions must govern
the service of the penal order on the person concerned. Adequate
safeguards must be provided for persons who, through no fault of their
own, have been prevented from complying with the time-limit (cf.
Hennings v. the Federal Republic of Germany, Comm. Report 30.5.91).
In the present case, the Commission must consider whether the
safeguards provided by the Austrian system in the case of the applicant
were adequate.
The Commission notes that the time-limit under Austrian law for
filing an objection to a duly served penal order is fourteen days. By
virtue of Article 364 of the Code of Criminal Procedure a court can
grant an application for leave to file an objection out of time
provided that an applicant shows that he was unable to comply with the
time-limit through no fault of his own, that he makes his objection
within fourteen days from the moment the disability falls away, and
that he files his objection at the same time.
The applicant in fact brought his application for leave to file
an objection out of time within fourteen days of finding out the nature
of the penal order. However, his Austrian lawyer failed to include in
the application an indication of when the applicant actually received
notice of the meaning of the penal order, and the application was
refused for this reason.
In the circumstances of the present case, given that there are
no objections in principle to the existence of a system of penal
notices provided that adequate safeguards exist, the Commission finds
that the applicant's access to court was not unfairly barred, the
application for leave to file objection out of time having been
rejected for reasons compatible with those adequate safeguards.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3.The applicant also alleges violations of Article 6 para. 3(a) and
(e) (Art. 6-3-a, 6-3-e) of the Convention which provide, so far as
relevant, as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
...
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
As to whether the applicant was informed promptly and in a
language which he understood of the accusation against him, the
Government consider that the interview at the police station on
5 March 1989 must have made abundantly clear to the applicant - in
English - that he was being questioned about the incident. In this
respect the Government also consider that Article 6 para. 3 (e)
(Art. 6-3-e) of the Convention, if applicable, was complied with. In
any event, they consider that Article 6 para. 3 (e) (Art. 6-3-e) is not
relevant in cases where inability to understand a penal notice will be
accepted as a good ground for granting leave to file an objection out
of time.
The applicant considers that he was not properly informed of the
charges against him, and regards the presence of an interpreter at the
police station on 5 March 1989 as irrelevant: he did not receive, from
the Austrian authorities, in English, any information concerning the
penal order itself. There was no reason for the applicant to suppose
that the questioning at the police station would lead to criminal
proceedings - and indeed, the police at the police station did not have
authority to institute those proceedings which were eventually taken
up. Moreover, given that penal notices are very short, it would not
cause too many problems to attach a translation.
The Commission is not required to decide whether or not the facts
alleged by the applicant disclose any appearance of a violation of
these provisions as, under Article 26 (Art. 26) of the Convention, it
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
In the present case the Commission has found that adequate access
to court was provided by the Austrian authorities. If the applicant
had availed himself of this access fully, that is, if he had stated in
his application for leave to file an objection out of time the date on
which he became aware of the contents of the penal notice, he would
have been entitled to proceedings in which Article 6 (Art. 6) would
have been applied. In these proceedings, the applicant could have
raised the question of whether he had been or should have been
furnished with a translation of the penal notice, and indeed, the
applicant may have been acquitted, in which case he could no longer
claim to be a victim of a violation of the Convention. Accordingly,
the applicant has not exhausted the remedies available to him under
Austrian law. Moreover, an examination of the case does not disclose
the existence of any special circumstances which might have absolved
the applicant, according to the generally recognised rules of
international law, from exhausting domestic remedies at his disposal.
In particular, his express request for a translation of the penal
notice does not amount to such a special circumstance because, had the
applicant fully availed himself of the access to court, he may have
been acquitted in any event.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies in this respect, and this
part of the application must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy