EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 26793/95
Osman Öztürk
against
Austria
REPORT OF THE COMMISSION
(adopted on 21 January 1998)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . .1
PART I : STATEMENT OF THE FACTS. . . . . . . . . . . . . . .2
PART II : SOLUTION REACHED. . . . . . . . . . . . . . . . . .3
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by Mr Osman Öztürk against Austria on
21 December 1992. It was registered on 21 March 1995 under file
No. 26793/95.
2. The applicant was represented by Mr W.L. Weh, a lawyer practising
in Bregenz.
3. The Government of Austria were represented by their Agent,
Mr F. Cede, Ambassador, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
4. On 2 July 1997 the Commission (First Chamber) declared the
application admissible insofar as it concerned the procedural aspects
of the case and inadmissible as to the remainder of the application.
It then proceeded to carry out its task under Article 28 para. 1 of the
Convention which provides as follows:
"In the event of the Commission accepting a petition referred to
it:
a. it shall, with a view to ascertaining the facts, undertake
together with the representatives of the parties an examination
of the petition and, if need be, an investigation, for the
effective conduct of which the States concerned shall furnish all
necessary facilities, after an exchange of views with the
Commission;
b. it shall at the same time place itself at the disposal of
the parties concerned with a view to securing a friendly
settlement of the matter on the basis of respect for Human Rights
as defined in this Convention."
5. The Commission (First Chamber) found that the parties had reached
a friendly settlement of the case and on 21 January 1998 it adopted
this Report, which, in accordance with Article 28 para. 2 of the
Convention, is confined to a brief statement of the facts and of the
solution reached.
6. The following members were present when the Report was adopted:
MM N. BRATZA, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
A. PERENIC
C. BÎRSAN
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
PART I
STATEMENT OF THE FACTS
7. The applicant is a Turkish citizen, born in 1951 and resident in
Lauterach.
8. 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.
9. 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.
10. 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.
11. 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").
12. 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 (Art. 6-1) of the Convention, that
he was refused an interpreter before the initial administrative
authority, in violation of Article 6 para. 3 (a) (Art. 6-3-a) and (e)
(Art. 6-3-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 (Art. 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.
PART II
SOLUTION REACHED
13. Following the decision on the admissibility of the application,
the Commission (First Chamber) placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the parties
to submit any proposals they wished to make.
14. In accordance with the usual practice, the Chamber Secretary,
acting on the Commission's instructions, contacted the parties to
explore the possibilities of reaching a friendly settlement.
15. On 28 December 1997 the applicant and on 9 January 1998 the
Government submitted declarations as to a settlement of the case
whereby the Government agreed to pay to the applicant's representative
a sum of AS 40,000.00 as compensation in respect of any possible claims
relating to the present application. The applicant waived any further
claims relating to the administrative criminal proceedings at issue in
the present application.
16. At its session on 21 January 1998, the Commission noted that the
parties had reached an agreement regarding the terms of a settlement.
It further considered, having regard to Article 28 para. 1 (b) of the
Convention, that the friendly settlement of the case had been secured
on the basis of respect for Human Rights as defined in the Convention.
17. For these reasons, the Commission adopted the present Report.
M.F. BUQUICCHIO N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy