AS TO THE ADMISSIBILITY OF
Application No. 21924/93
by E. F.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 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
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 8 March 1993 by
E. F. against Austira and registered on 26 May 1993 under file
No. 21924/93;
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 facts of the case as submitted by the applicant may be
summarised as follows.
The applicant, born in 1931, is an Austrian national, residing
in Vienna. In the proceedings before the Commission he is represented
by Mr. G. Forsthuber, a lawyer practising in Baden.
On 19 November 1991 the Feldkirch Regional Court (Landesgericht)
convicted the applicant of various offences against property and of tax
offences and sentenced him to six years' imprisonment. In addition it
imposed a fine of AS 4 million. In these and the following proceedings
the applicant was represented by Mr. Forsthuber.
On 28 January 1992 the applicant lodged a plea of nullity and an
appeal (Nichtigkeitsbeschwerde und Berufung) with the Supreme Court
(Oberster Gerichtshof). He stated that the written version of the
Regional Court's judgment had been served on his counsel on
14 January 1992. The Regional Court forwarded the file to the Supreme
Court.
On 11 March 1992 the Supreme Court sent the file back to the
Feldkirch Regional Court and requested it to hear the applicant's
counsel on the results of the inquiries carried out so far on the
question whether the applicant's plea of nullity and appeal had been
lodged in time and to carry out further investigations if necessary.
On 18 March the Feldkirch Public Prosecutor's Office (Staats-
anwaltschaft) requested the Feldkirch Regional Court to order the
Vienna Police Directorate, Economic Police, (Wirtschaftspolizei der
Bundespolizeidirektion) to hear the process servers (Zusteller), W. and
R., the applicant's counsel and his counsel's secretary as regards the
date of service of the judgment of 19 November 1991. The first three
persons should be informed that their statements would be used in
criminal proceedings on suspicion of abuse of authority (Amtsmißbrauch)
to be opened against them.
On 9 April 1992 the Vienna Police Directorate drew up a report
on its inquiries, according to which the process server W., who had
been responsible as of 2 January 1992, had stated that he had taken
over the receipt on delivery on 14 January 1992, but that it was not
him who had served the letter at issue. The process server R., who had
been in charge between 17 and 31 December 1991, had stated that he had
been told by the secretary of the applicant's counsel that letters with
receipt of delivery were usually left in the office, if the lawyer was
not present, and that the receipt on delivery was given back on the
next day. He had asked his superior, who had confirmed that he knew
of this practice. Having regard to the date, on which the letter at
issue was posted, he had delivered it to the office of the applicant's
counsel around 21 December 1991.
On 15 April 1992 the Feldkirch Regional Court rejected the
applicant's plea of nullity for being lodged out of time.
The Court found that the letter containing the judgment had been
posted in Feldkirch on 18 December 1991. On 13 January 1992 the
competent judge noted that the receipt on delivery (Rückschein) had not
been returned. An inquiry by telephone at the office of the
applicant's counsel did not prompt a satisfactory explanation.
Subsequently, the receipt on delivery was returned to the Court, being
dated 14 January 1992 and bearing the signature of the applicant's
counsel. The applicant's plea of nullity had been posted on
28 January 1992.
Further, the Court referred to the report of the Vienna Police
Directorate of 9 April 1992, and in particular to R.'s statement that
he had served the letter at issue around 21 December 1991. It also
noted that the applicant's counsel, upon request, had refused to make
any comments.
On 6 May 1992 the applicant lodged an appeal against the Regional
Court's decision. Eventually, he requested reinstatement into the
proceedings (Wiedereinsetzung in den vorigen Stand) as regards the
time-limit for lodging the plea of nullity against the judgment of
19 November 1991.
The applicant submitted in particular, that neither he nor his
counsel had been heard on the question whether his plea of nullity had
been lodged within the time-limit. Officers of the Economic Police had
met his counsel but had, instead of informing him about the state of
the inquiries relating to the above question, told him that he was to
be questioned as a suspect concerning charges of abuse of authority.
Further, the applicant submitted that his counsel had been on holidays
between 19 December 1991 and 6 January 1992, while his office remained
open on some days and some employees were present. The statements of
the process servers were too vague to conclude that the letter had been
served during the absence of his counsel. Moreover, he claimed that
his counsel had left notice with the post office that some of his
employees and his junior partner were authorised to accept service.
Therefore, assuming the letter had arrived, it should have been served
on them. However, it had only been served on his lawyer on
14 January 1992. The applicant attached an affirmation in lieu of an
oath (eidestattliche Erklärung) by his lawyer to this effect.
As regards his request for reinstatement the applicant submitted
that an eventual failure to comply with the time-limit for lodging his
plea of nullity was neither due to his fault or the fault of his
counsel, who had received the judgment on 14 January 1992.
On 30 June 1992 the Supreme Court dismissed the applicant's
appeal against the rejection of his plea of nullity and also his
request for reinstatement.
The Supreme Court found that, according to the results of the
inquiries, the written version of the judgment of 19 November 1992 had
been served upon an employee of the applicant's counsel on
21 December 1991, or in any case before 31 December 1991, the end of
the period when the process server R. was in charge. The Court relied
on S. 13 para. 4 of the Delivery Act (Zustellgesetz) according to
which, in case the addressee is a lawyer, documents may be served on
any employee being present in his office, if he has not instructed the
post-office in writing that only certain employees are authorised to
receive service. The applicant's counsel had failed to show that he
had given such instructions. The fact that the applicant's counsel had
been on holidays at that time was not relevant, as it was incumbent on
him to provide for his replacement during a period of absence.
As regards the applicant's request for reinstatement into the
proceedings, the Supreme Court noted that such a request had to be
filed within two weeks from the day on which the obstacle preventing
him from lodging his plea of nullity in time, ceased to exist. If the
applicant's counsel had received the judgment on 14 January 1992, he
should, with a view to the date on which it had been posted, have been
aware that the time-limit for filing the plea of nullity had already
started to run. The time-limit for the request for reinstatement
therefore started to run on 14 January 1992. In any case, the
conditions for granting reinstatement were not met, as the applicant's
counsel had acted with fault in that he, in his office, had accepted
a practice of handing over letters with receipt on delivery, which was
contrary to the law.
Finally, the Supreme Court rejected the applicant's appeal as it
had, like the plea of nullity, been lodged out of time.
The Supreme Court's decision was served on the applicant's
counsel on 14 September 1992.
On 14 July 1992 the Wiener Neustadt Regional Court heard the
applicant's counsel and the process servers W. and R. as suspects on
the charge of abuse of authority. On 3 December 1992 the proceedings
against the applicant's counsel were discontinued.
COMPLAINTS
The applicant complains under Article 6 of the Convention about
the court decisions rejecting his plea of nullity for being lodged out
of time, and rejecting his request for reinstatement into the status
quo. He submits in particular that the proceedings which led to these
decisions were unfair, as neither he nor his counsel were heard by the
courts. He further complains that these decisions unduly restricted
his right to access to the appeal court as regards his conviction for
various offences against property and tax offences.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention about the Supreme Court's decision of 30 June 1992 rejecting
his plea of nullity and his appeal as having been lodged out of time
and also rejecting his request for reinstatement. He also complains
about the unfairness of the proceedings concerned.
Article 6 (Art. 6), so far as relevant, reads as follows:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair and public hearing ... ".
The Commission recalls that although Article 6 (Art. 6) of the
Convention does not guarantee an appeal in criminal proceedings, where
the opportunity to lodge an appeal in regard to the determination of
a criminal charge is provided under domestic law, the guarantees of
Article 6 (Art. 6) continue to apply to the appeal proceedings, since
those proceedings form part of the whole proceedings which determine
the criminal charge at issue (No. 12323/86, Dec. 13.7.88, D. R. 57
p. 155).
The Commission further recalls that Article 6 (Art. 6) does not
prevent Contracting States from regulating access to appeal
jurisdictions, especially as far as time limits are concerned, as such
regulations are aimed at ensuring the proper administration of justice
(No. 10857/84, Dec. 15.7.86, D. R. 48 p. 106). However, such
limitations must not restrict or reduce the access left to the
individual in such a way or to such an extent that the very essence of
the right is impaired (Eur. Court H.R., Philis judgment of 27 August
1991, Series A no. 209, p. 20-21, para. 59).
In the present case the Feldkirch Regional Court, referring inter
alia to the inquiries carried out by the Economic Police of the Vienna
Police Directorate, rejected the applicant's plea of nullity for being
lodged out of time. The Supreme Court dismissed the applicant's
appeal, confirming that his plea of nullity had been lodged out of
time. Further, the Supreme Court rejected the applicant's request for
reinstatement, finding that this request, too, had been lodged out of
time and that his counsel had tolerated a practice, according to which
letters were served contrary to the law in his office. The failure to
observe the time-limit for the applicant's plea of nullity and appeal
was, therefore, due to his counsel's fault. Thus, the conditions for
reinstatement were not met.
The Commission finds that there is no indication that the time-
limits as prescribed by Austrian law and their application in the
applicant's case were arbitrary. The applicant's defence counsel could
be reasonably requested to organise the receipt of legal service in his
office in accordance with Austrian law with a view to ensuring the
observance of time-limits in the interests of his clients. The
applicant, although alleging that neither he nor his counsel were heard
by the Regional Court on the question whether his plea of nullity had
been lodged in time, admits that officers of the Economic Police met
his counsel in the course of their inquiries in order to hear him in
this respect. Moreover, the applicant had the possibility to forward
his arguments as regards compliance with the above time-limit in his
appeal to the Supreme Court and in his request for reinstatement. The
Supreme Court's decision to reject these remedies cannot be objected
to under Article 6 (Art. 6).
In these circumstances, the applicant failed to show that his
right to access to an appeal court was restricted in a way that the
very essence of this right would have been impaired contrary to
Article 6 (Art. 6) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
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)
Full & Egal Universal Law Academy