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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21361/93

Pakize Gönengil

against

Austria

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-12) 1

C. The present Report

(paras. 13-17) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-20) 3

III. OPINION OF THE COMMISSION

(paras. 21-29) 4

A. Complaint declared admissible

(para. 21) 4

B. Point at issue

(para. 22) 4

C. As regards Article 6 of the Convention

(paras. 23-29) 4

CONCLUSION

(para. 29) 5

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 6

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1948 and resident in

Feldkirch. She was represented before the Commission by Mr. W. L. Weh, a lawyer

practising in Bregenz.

3. The application is directed against Austria. The respondent Government

were represented by Mr. F. Cede, Agent of the Austrian Federal Government.

4. The case concerns administrative criminal proceedings for visa

irregularities during the period from 22 February 1989 to 19 September 1989.

B. The proceedings

5. The application was introduced on 29 January 1993 and registered on 10

February 1993.

6. On 7 September 1993 the Commission (First Chamber) decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application

to the respondent Government and to invite the parties to submit written

observations on the admissibility and merits of the applicant's complaint under

Article 7 only, and to adjourn the remainder of the application.

7. The Government submitted their observations on 25 November 1993 after an

extension of the time-limit fixed for this purpose. The applicant replied on 29

September 1994.

8. By a letter of 30 November 1995 the Government were requested whether, in

the light of a judgment given by the European Court of Human Rights in the cases

of Schmautzer and others, they wished to waive the possibility of submitting

observations on the admissibility and merits of the applicant's complaint under

Article 6 of the Convention.

9. By a letter of 13 December 1995 the Government informed the Commission

that they did not wish to submit observations on the Article 6 issues.

10. On 17 January 1996 the Commission declared inadmissible the complaint by

which the applicant alleged that she had been convicted of an offence which did

not exist, and declared the remainder of the application admissible.

11. The text of the Commission's decision on admissibility was sent to the

parties on 29 January 1996 and they were invited to submit such further

information or observations on the merits as they wished. No such observations

were submitted.

12. After declaring the case admissible, the Commission, acting in accordance

with Article 28 para. 1 (b) of the Convention, also placed itself at the

disposal of the parties with a view to securing a friendly settlement. In the

light of the parties' reaction, the Commission now finds that there is no basis

on which such a settlement can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission (First Chamber) in

pursuance of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

14. The text of this Report was adopted on 9 April 1997 by the Commission and

is now transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach

by the State concerned of its obligations under the Convention.

16. The Commission's decision on the admissibility of the application is

annexed hereto.

17. The full text of the parties' submissions, together with the documents

lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

18. The applicant was convicted in administrative criminal proceedings of not

having had a valid visa during the period from 22 February 1989 to 19 September

1989. A penal order was issued on 22 November 1990 by the Feldkirch District

Authority by which the applicant was fined AS 700.00 plus costs, with 42 hours'

detention in default.

19. The applicant's appeal to the Vorarlberg Security Directorate was rejected

on 26 June 1991.

20. On 25 November 1991 the Constitutional Court rejected the applicant's

constitutional complaint, and on 9 July 1992 the Administrative Court dismissed

the applicant's administrative complaint. The Administrative Court was not

required to deal with the applicant's complaint that any proceedings should have

been against the applicant's husband rather than against herself, but

nevertheless noted that the cases on which the applicant relied related to

different factual situations.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

21. The Commission has declared admissible the applicant's complaint that her

conviction in administrative criminal proceedings was not accompanied by the

requisite procedural guarantees, in particular that the Administrative Court was

not a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

B. Point at issue

22. The only point at issue is whether there has been a violation of Article 6

para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 (Art. 6) of the Convention

23. 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 ... by an independent and

impartial tribunal ... "

24. The applicant claims that she did not have the benefit of a "tribunal" in

the administrative criminal proceedings against her.

25. The Government, by letter of 13 December 1995, informed the Commission

that they did not wish to make observations on the Article 6 (Art. 6) issues.

26. The Commission recalls that in a series of judgments (Eur. Court HR,

Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria judgments of

23 October 1995, Series A no. 328-A, 328-B and 328-C, and Pramstaller v.

Austria, Palaoro v. Austria and Pfarrmeier v. Austria, Series A no. 329-A, 329-B

and 329-C), the European Court of Human Rights found that the proceedings

determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6-

1) of the Convention, that the Austrian reservation to Article 5 (Art. 5) did

not apply to the criminal administrative proceedings at issue, and that neither

the Constitutional Court (Verfassungsgerichtshof) nor the Administrative Court

(Verwaltungsgerichtshof) had the "full jurisdiction" required by Article 6 (Art.

6) in criminal cases.

27. In the present case, too, the administrative criminal proceedings were

considered by the Constitutional Court and the Administrative Court, and those

courts had the same jurisdiction as they had in the cases of Schmautzer and

others.

28. The Commission therefore finds that the applicant did not have access to a

"tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

29. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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GÖNENGIL v. AUSTRIA

GÖNENGIL v. AUSTRIA

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