AS TO THE ADMISSIBILITY OF
Application No. 26793/95
by Osman ÖZTÜRK
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 21 December 1992
by Osman ÖZTÜRK against Austria and registered on 21 March 1995 under
file No. 26793/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
8 August 1996 and the observations in reply submitted by the
applicant on 7 February 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen born in 1951. He lives in
Lauterach and is represented before the Commission by Mr. W.L. Weh, a
lawyer in Bregenz. The facts of the case, as submitted by the parties,
may be summarised as follows.
On 18 April 1990 the applicant was fined AS 1,000.00 by the
Bregenz District Authority (Bezirkshauptmannschaft) for alleged
contravention of the Passports Act (Paßgesetz). No interpreter was
present. On his application to the Vorarlberg Police Authority
(Sicherheitsdirektion), more precise details were given. In particular,
he was alleged to have been in Austria after expiry of his visa between
17 January 1990 and 6 April 1990, contrary to Sections 14 and 2 of the
Aliens Police Act (Fremdenpolizeigesetz); his formal appeal was
rejected by that authority on 10 August 1990.
The Constitutional Court (Verfassungsgerichtshof) declined to
deal with the applicant's constitutional complaint on 26 November 1990,
and on 20 June 1991 the Administrative Court (Verwaltungsgerichtshof)
dismissed the applicant's administrative appeal in part, and quashed
the part of Police Authority's decision relating to the fine imposed
on the applicant.
A fresh fine of AS 1,000.00 was imposed by the Police Authority
on 29 July 1991, and the Constitutional Court declined to deal with
applicant's constitutional appeal against it on 24 February 1992. On
25 May 1992 the Administrative Court rejected the applicant's
administrative complaint to the extent that he was making a further
challenge to the conviction, and dismissed the remainder. It decided
that a hearing was not necessary.
The applicant's representative's date stamp on the decision shows
that he received the Administrative Court's decision on 30 June 1992.
It also shows "Erl. 30.12.92" ("Erl" is an abbreviation for "erledigt",
"dealt with").
COMPLAINTS
The applicant alleges a violation of Article 6 of the Convention.
He complains that no court was able to consider the facts of his case,
in violation of Article 6 para. 1 of the Convention, that he was
refused an interpreter before the initial administrative authority, in
violation of Article 6 para. 3 (a) and (e), and that he was ultimately
fined for a more serious offence than the one with which he had
initially been charged, in violation of Article 7 of the Convention.
In particular, he claims that the proceedings should have been brought
under the version of the Aliens Police Act which was in force before
18 April 1990, date of entry into force of a 1990 amendment to that
Act. He also claims that the penalty was more severe under the post-
1990 amendment than before it.
PROCEEDINGS BEFORE THE COMMISSION
The application to the Commission is dated 21 December 1992. The
first time the Commission's secretariat became aware of it was on
7 February 1995, when the Commission, in connection with another
application from the applicant's representative (subsequently
registered under Application No. 26794/95 and declared inadmissible on
substantive grounds on 4 September 1996), received a copy of the
representative's post book for 23 December 1992. That copy showed that
the present application and the other application had been posted on
that date.
On 23 February 1995 the applicant's representative submitted a
further copy of the application with an original letter of authority
from the applicant.
The application was registered on 21 March 1995.
On 16 April 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
8 August 1996, after an extension of the time-limit fixed for that
purpose. The time-limit for submission of the applicant's observations
in reply expired on 14 October 1996. On 12 November 1996, the
Commission's secretariat noted that the time-limit for submission of
observations in reply had expired, and drew the applicant's
representative's attention to the provisions of Article 30 para. 1 of
the Convention. The contents of that letter were repeated, by
registered mail, on 24 January 1997. The applicant submitted his
observations in reply on 7 February 1997.
THE LAW
The applicant alleges violation of Article 6 (Art. 6) of the
Convention in two respects. He claims that he was denied a "tribunal"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,
and that he was denied interpretation in violation of Article 6 para.
3 (a) and (e) (Art. 6-3-a, 6-3-e) of the Convention.
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 within a
reasonable time by an independent and impartial tribunal
established by law.
...
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."
The Government note the interval of over two years between the
date of the applicant's first letter to the Commission -
21 December 1992 - and the registration of the application, and suggest
that, in the light of the applicant's representative's inactivity
during that period, the Commission might wish to conclude that the
applicant did not intend to pursue his petition, and therefore to
strike the case off its list of cases.
As to the merits of the case, the Government note the
similarities between this case and the series of cases involving
administrative criminal proceedings which has been considered by the
European Court of Human Rights (Eur. Court HR, Schmautzer v. Austria
judgment of 23 October 1995, Series A no. 328-A and others), and accept
that the legal questions in the present case will have to be answered
in the same way.
The applicant notes that proceedings before the Commission are,
in principle, run by the Commission (Grundsatz der Amtswegigkeit), and
that it would lead to a considerable burden on the Commission's
secretariat if applicants were required continuously to check on the
advancement of their case. Moreover, the applicant knew that his
application was similar to the other cases, and so there was no reason
ask about the case until after the judgments of the Court.
The applicant also notes that the Government accept that the case
is similar to the cases which have been decided by the Court.
The Commission must first determine the date of introduction of
the application, and take a decision pursuant to the Government's
suggestion that the case should be struck out of the Commission's list
of cases.
The Commission generally takes as the date of introduction of an
application the date of the first communication from an applicant
setting out, even summarily, the object of the applicant. It may
nevertheless for good cause decide that a different date should be
considered to be the date of introduction (Rule 44 (4) of the
Commission's Rules of Procedure).
The Commission accepts that the applicant sent his application
form on 21 December 1992. To this date, that form has not arrived at
the Commission's secretariat.
The applicant's representative is well acquainted with the
procedures before the Commission, and must have been aware that he had
not received a reply to his letter of 21 December 1992, and that in the
ordinary course of events he would receive a reply, either by way of
comments or questions from the secretariat, or by way of a letter
informing him that the application had been registered.
The Commission considers, however, that to choose a different
date of introduction from the date of the applicant's first
communication with the Commission's secretariat would be excessively
formalistic in the circumstances of the present case: even if matters
would have been clarified earlier had the applicant's representative
asked why he had not received a reply to his application form of
21 December 1992, the Commission would not be justified in taking a
later date as the date of introduction.
In connection with the proposal to strike the case off the list
of cases, the Commission considers that even though the applicant's
representative's failure to ask about the case between January 1993 and
February 1995 may raise doubts about his interest in the case -
especially given that the time-limit for submission of his observations
had long expired by the time those observations were submitted - it
cannot be concluded from this behaviour by the representative that the
applicant at any stage no longer intended to pursue the petition,
within the meaning of Article 30 para. 1 (a) (Art. 30-1-a) of the
Convention.
As to the substantive matters involved in the case, the
Commission considers, in the light of the parties' submissions, that
this part of the case raises complex issues of law and fact under the
Convention, the determination of which should depend on an examination
of the merits. The Commission concludes, therefore, that this part of
the application is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
2. The applicant also alleges a violation of Article 7 (Art. 7) of
the Convention on the ground that he was ultimately charged with a more
serious offence than the one with which he had initially been charged.
Article 7 (Art. 7) of the Convention provides, so far as
relevant, as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed. ..."
The applicant was convicted under Sections 14 and 2 of the Aliens
Police Act. Whilst those were not the provisions the applicant was
originally alleged to have breached (which were under the Passports
Act), there is no indication whatever in the papers before the
Commission that the charge - being in Austria without a valid visa -
did not exist in the period from 17 January 1990 to 18 April 1990.
Moreover, fact that the maximum sentence for breach was increased from
AS 3,000 to AS 10,000 in the course of 1990 is irrelevant: even if the
applicant was fined under the new provisions, the amount he was fined
was provided for in domestic law when the offence was committed.
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.
For these reasons, the Commission,
by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint concerning the procedural aspects of the
case;
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy