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OZTURK v. AUSTRIA

Doc ref: 26793/95 • ECHR ID: 001-45961

Document date: January 21, 1998

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OZTURK v. AUSTRIA

Doc ref: 26793/95 • ECHR ID: 001-45961

Document date: January 21, 1998

Cited paragraphs only

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

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