AS TO THE ADMISSIBILITY OF
Application No. 27525/95
by Serap KÖZ
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 2 February 1995
by Serap KÖZ against Austria and registered on 7 June 1995 under file
No. 27525/95;
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 they have been submitted by the
applicant, may be summarised as follows.
The applicant is a Turkish national, born in 1975 and presently
residing in Dornbirn (Austria). Before the Commission she is
represented by Mr. W.L. Weh, a lawyer practising in Bregenz.
On 26 April 1993 the Dornbirn District Administrative Authority
(Bezirkshauptmannschaft) issued a penal order (Strafverfügung) against
the applicant imposing a fine of 2000 AS for unlawfully staying in
Austria as she had no valid residence permit. The order contained the
information that an appeal against the penal order could be lodged
within two weeks. As the applicant did not file an appeal the penal
order entered into force.
On 8 July 1993 the applicant, assisted by counsel, appealed
against the penal order and, as the time limit for filing an appeal had
already elapsed, requested leave to appeal out of time (Wiederein-
setzung in den vorigen Stand). She submitted that she could not speak
German and only now had learned about the contents of the penal order.
On 16 July 1993 the District Administrative Authority rejected
the appeal as being lodged out of time and dismissed the request for
leave to appeal out of time. The Authority found that the reason
invoked by the applicant, namely that she did not speak German, did not
meet the requirements for such a leave to appeal, i.e. that she has
been prevented from filing an appeal in time by an unforeseeable and
insurmountable obstacle. The applicant knew about her language
problems, thus the obstacle was not unforeseeable, and she could have
asked third persons to translate or explain to her the contents of the
penal order, thus the obstacle was not insurmountable.
On 21 July 1993 the applicant appealed to the Vorarlberg
Independent Administrative Senate (Unabhängiger Verwaltungssenat). She
submitted that contrary to Article 6 para. 3 of the Convention the
penal order had neither been in Turkish nor had a Turkish translation
been attached thereto.
On 15 October 1993 the Independent Administrative Senate
dismissed the applicant's appeal. It found that the District
Administrative Authority had correctly refused to grant leave to appeal
out of time and noted further that the penal order of 26 April 1993 had
been served on the applicant personally.
On 16 December 1993 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof).
On 14 June 1994 the Constitutional Court refused to entertain the
applicant's complaint for lack of prospect of success.
COMPLAINTS
The applicant complains under Article 6 of the Convention of a
violation of her right to be informed in a language she understands of
the nature and cause of the accusation against her. She submits that
the penal order should either have been issued in Turkish or a Turkish
translation should have been attached thereto.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention of a violation of her right to be informed in a language she
understands of the nature and cause of the accusation against her. She
submits that the penal order should either have been issued in Turkish
or a Turkish translation should have been attached thereto.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose the appearance of a
violation of Article 6 (Art. 6) of the Convention, 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 and within a period of six months
from the date on which the final decision was taken.
Domestic remedies have not been exhausted where an appeal is not
admitted because of a procedural mistake by the applicant (see
No. 10785/84, Dec. 18.7.86, D.R. 48, p. 102; No. 12794/87, Dec. 9.7.88,
D.R. 57, p. 251).
The Commission observes that on 16 July 1993 the District
Administrative Authority rejected the applicant's appeal against the
penal order of 26 April 1993 as being lodged out of time and dismissed
the applicant's request for leave to appeal out of time.
The Commission has also examined whether the case discloses the
existence of any special circumstances which might have absolved the
applicant from complying with the requirement of exhaustion of domestic
remedies. In this respect, the Commission notes the applicant's
submission that she could not understand the penal order of
26 April 1993 as she had no command of German.
However, the Commission recalls that a foreigner, who is not
detained and who alleges that he does not understand a judgment and
a notice of appeal which are both in the language of the court, is not
absolved from the duty to exhaust available domestic remedies
(No. 11122/84, Dec. 2.12.85, D.R. 45, p. 246).
The Commission therefore finds that no special circumstances
exist which might have absolved the applicant from complying with the
requirement of exhaustion of domestic remedies under Article 26
(Art. 26) of the Convention.
Accordingly the application must be rejected under Article 27
para. 3 (Art. 27-3) 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