AS TO THE ADMISSIBILITY OF
Application No. 17740/91
by S.B.
against Austria
The European Commission of Human Rights (First Chamber) sitting in
private on 12 January 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 15 January 1991 by S.B.
against Austria and registered on 15 January 1991 under file No. 17740/91;
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 Turkish citizen born in 1943 and living in L.,
Austria.
He is represented before the Commission by Mr. L. Weh, a lawyer
practising in Bregenz.
The facts of the present case, as submitted by the parties, may be
summarised as follows.
In February 1988 the applicant contacted Mr. Weh, his present counsel,
asking him to make a request to obtain a residence permit for his son. The
applicant had already been living and working in Austria for a long time
and his son, Tuncer, had subsequently come to join him. The request was
submitted to the competent authorities on 26 March 1988 and meanwhile the
applicant's son was granted a residence permit.
The request prompted the Aliens Office (Fremdenpolizei) to institute
proceedings against the applicant for having contravened the law relating
to aliens.
On 27 April 1988 the applicant was fined 1,500 AS by the District
Security Authority (Bezirkshauptmannschaft) in Dornbirn for having violated
section 7 of the Code of Administrative Offences (VStG) in connection with
section 14 (1) and (2) of the Aliens Police Act (Fremdenpolizeigesetz) in
that he had his twelve-year-old son come to Austria although he had been
refused a visa (Sichtvermerk). The payment order was served on the
applicant personally on 9 May 1988 and became final on 23 May 1988.
On 8 July 1988 the applicant lodged an appeal against this order and
a request for leave to appeal out of time, stating that he had paid the
fine believing that it was a contribution due by him. Had he been informed
in his own language of the true nature of the order, i.e. that it contained
an accusation, he would have immediately lodged an appeal.
This request was rejected by the authorities on 19 October 1988 on the
ground that according to the jurisprudence of the Administrative Court
(Verwaltungsgerichtshof) foreigners did not have a right to be provided
with a translation of orders imposing a fine. Furthermore the applicant
could have reasonably been expected to have the order translated or to
consult a lawyer. There was consequently no unforeseeable or unavoidable
event which had prevented him from lodging an appeal in time.
A further appeal (Berufung) was rejected by the Regional Security
Authority (Sicherheitsdirektion) on 1 March 1989.
The applicant then lodged a constitutional complaint which was
rejected by the Constitutional Court (Verfassungsgerichtshof) as being
clearly ill-founded.
A complaint to the Administrative Court was likewise rejected on 18
June 1990. This Court referred to an earlier decision of 11 January 1989
in which it had held that Article 6 of the Convention did not, on account
of Austria's reservation made under Article 5 of the Convention, apply in
the sphere covered by legislation on administrative proceedings
(Verwaltungsverfahrensgesetze).
Furthermore, section 39a (1) of the Code of General Administrative
Proceedings (AVG) did not provide for the use of foreign languages in
correspondence with administrative authorities.
COMPLAINTS
The applicant submits that the order of 27 April 1988 contained a
criminal charge and that consequently Article 6 of the Convention, mainly
para. 3 (a), (b) and (e), applied and was violated because neither the
order nor the information it contained about his right to appeal was
communicated to him in his mother tongue (Turkish).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 January 1991 and registered on
the same day.
On 2 July 1991 the Commission decided to give notice of the
application to the respondent Government and invite them to submit
observations in writing on its admissibility and merits.
The Government submitted their observations on 21 November 1991. The
applicant's observations in reply were submitted on 23 January 1992.
THE LAW
The applicant complains that, although he was informed about the
imposition of a fine in the language of the competent court only and not in
his own, he was denied leave to appeal out of time. This did, in his
submission, violate his right to a fair trial as guaranteed by Article 6
(Art. 6) of the Convention, in particular his rights under :
- para. 3 (a) (art. 6-3-a), to be informed promptly, in a language
which he understands ... of the nature and cause of the accusation
against him;
- para. 3 (b) (art. 6-3-b), to have adequate time and facilities for
the preparation of his defence ; and
- para. 3 (e) (art. 6-3-e), to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.
The Commission is not required to decide whether Article 6 (Art. 6)
applies to the fine proceedings in question and whether the applicability
of Article 6 (Art. 6) would be excluded by virtue of the Austrian
reservation concerning Article 5 (Art. 5) of the Convention, as in any
event the particular circumstances of the case do not, for the following
reasons, disclose any appearance of a violation of Article 6 (Art. 6), even
assuming the provision were applicable.
The Commission first observes that it is not competent to examine in
the abstract whether the failure of Austrian law generally to provide for
translation of orders imposing fines on foreigners is as such compatible
with the Convention (Eur. Court H.R., Klass and Others judgment of
6 September 1978, Series A no. 28, p. 18 et seq., para. 33).
The Commission can only examine whether the imposition of the fine in
question and the refusal to grant leave to appeal out of time are
compatible with the rights guaranteed by Article 6 (Art. 6) if this
provision were to apply.
In the present case the applicant failed to appeal within the
time-limit provided for under domestic procedural law against the order
imposing a fine on him. The decisions denying leave to appeal out of time
are not only based on the finding that under Austrian law the applicant had
no right to be provided with a translation but also on the argument that he
could reasonably have been expected to have the fine order translated or to
have consulted a lawyer on it. The Chamber notes that the applicant had
consulted a lawyer on the question of how to obtain a residence permit for
his son. It further notes that the applicant had been living and working
in Austria for a considerable time. He was therefore in a position to take
the necessary measures on time in order to safeguard his right of access to
a court and he could have been expected to do so within the time-limit of
two weeks available to him under Austrian Law (cf. Eur. Court H.R.,
Hennings judgment of 16 December 1992, para. 25). In these particular
circumstances it cannot be found that leave to appeal was arbitrarily
denied and the question of whether the notification of the payment order
can be considered as a notification of an "accusation" within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention can consequently be left
open.
It follows that the application has to be rejected as being manifestly
ill-founded, in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy