Lexploria

THE FACTS

Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is an Austrian citizen, born in 1941 and, when last heard

of on 4th February, 1965, detained in the prison at Stein/Danube.

From his statements it appears that, on ..., 1964, he was convicted by

the District Administrative Authority (Bezirkshauptmannschaft) at Baden

on charges of having committed several administrative offenses under

Sections 57, paragraph (1), 85, paragraphs (1) and (4), 44, paragraph

(1) and 111 of the Motor Vehicles Act (Kraftfahrgesetz) of 1955 and

Sections 19, paragraph (4), and 99, paragraph (3), sub-paragraph (a),

of the Road Traffic Act (Strassenverkehrsordnung) of 1960, and

sentenced to a fine of 2,500 Schillings or 33 days arrest in case of

non-payment of the fine. On ..., 1964, he lodged an appeal (Berufung)

from this decision with the Provincial Government Office

(Landesregierung) of Lower Austria which was dismissed. The decision

was communicated to the Applicant on ..., 1964.

He states that he intended to lodge a further appeal (Beschwerde) with

the Administrative Court (Verwaltungsgerichtshof) in Vienna but was

prevented from doing so, the 6 weeks time-limit having expired by the

time he had found a lawyer to represent him. He alleges that appeals

to the Administrative Court could only be lodged by a lawyer, that at

the time he was detained on remand on other charges by an order of the

District Court (Kreisgericht) at Wiener Neustadt, that he lodged a

request for free legal aid and assignment of a lawyer with the

Administrative Court but that, by the time a lawyer was assigned to

him, the six weeks time-limit had expired.

The Applicant complains that he was denied the right to a fair hearing

by an independent and impartial tribunal established by law as well as

the right to free legal assistance. He alleges that the six weeks

time-limit was too short for persons detained in prison. He requests

reinstatement in his prior position enabling him to lodge the appeal

and be heard by an independent and impartial tribunal.

He alleges a violation of Articles 5 , paragraph (1), sub-paragraph

(a), and 6, paragraph (1) and paragraph (3) sub-paragraph (c), of the

Convention.

THE LAW

Whereas at the time of its ratification of the Convention the Austrian

Government made the following reservation in respect of the Article

invoked by the Applicant:

"The provisions of Article 5 (Art. 5) of the Convention shall be so

applied that there shall be no interference with the measures for the

deprivation of liberty prescribed in the laws on administrative

procedure, BGBl. No. 172/1950, subject to review by the Administrative

Court or the Constitutional Court as provided for in the Austrian

Federal Constitution";

Whereas it has first to be pointed out that in its original German text

the reservation contains the words "Die in den

Verwaltungsverfahrensgesetzen BGBl. No. 172/1950 vorgesehenen

Massnahmen des Freiheitsentzuges";

Whereas a more exact translation of the word "vorgesehenen" would be

"provided for" and not "prescribed in"; whereas, in order to determine

the exact scope and intention of a reservation, which in this

particular case was deposited in the German language only, regard

should be had to the wording used in the original language and not to

an approximate translation; whereas, consequently, the Commission has

to consider the present Application and, in particular, the alleged

violation of Article 5 (Art. 5) in the light of the original text of

the reservation;

Whereas the Administrative Penal Code (BGBl. 172/1950) in Articles 10

and 11 (Art. 10, 11) provides as follows:

"Penalties

Paragraph 10

(1) The category and extent of the punishment are determined by

administrative regulations.

(2) Where, accordingly, punishment of deprivation of liberty or of a

fine or of confiscation of property is applicable, the provision of

paragraphs 11 to 22 shall apply.

Imprisonment

Paragraph 11

(1) Imprisonment is either close arrest or house arrest.

(2) The minimum duration of imprisonment is six hours.

(3) In the case of a term of imprisonment, one day is equivalent to 24

hours, one week equivalent to seven days, while the duration of a month

is to be determined by the calendar."

Whereas "administrative regulations" within the meaning of paragraph

10 (1) cover any enactments which deal with administrative matters and

which give the administrative authorities the power to impose

imprisonment as a penalty for any offenses against such enactments;

Whereas the Motor Vehicles Act and the Road Traffic Act are properly

to be considered as enactments dealing with administrative matters and

indeed they refer to "administrative offenses"

(Verwaltungsübertretungen), and provide for the penalty of imprisonment

in regard to such offenses;

Whereas, accordingly, the Motor Vehicles Act and the Road Traffic Act

are to be regarded as "administrative regulations" within the meaning

of paragraph 10 (1) of the Administrative Penal Code;

Whereas, in respect of the foregoing, the Commission refers to its

findings in the decision on the admissibility of Applications Nos.

1047/61 (G. v. Austria, Yearbook IV, page 356) and 1452/62 (K. v.

Austria, Yearbook VI, page 268);

Whereas reservations to the Convention are governed by Article 64 (Art.

64), which states:

"(1) Any State may, when signing this Convention, or when depositing

its instrument of ratification, make a reservation in respect of any

particular provision of the Convention to the extent that any law then

in force in its territory is not in conformity with the provision.

Reservations of a general character shall not be permitted under this

Article.

(2) Any reservation made under this Article shall contain a brief

statement of the law concerned."

Whereas Article 64 (Art. 64) by its plain terms permits the making of

a reservation only with respect to laws which were already in force

when the reservation was made; and whereas it is true that the

Commission's jurisprudence referred to above was concerned with the

Road Traffic Act of 1947 and, consequently, with a law enacted prior

to 3rd September, 1958;

Whereas the Commission is aware of the fact that the Road Traffic Act

applied in the Applicant's case was passed in 1960, i.e. subsequent to

the date on which the Austrian Government made the above reservation;

Whereas, the Commission finds, however, that the subject matter covered

by the Road Traffic Act of 1947 and the Road Traffic Act of 1960 is

substantially the same; whereas, therefore, the latter Act does not

have the effect of enlarging, a posteriori, the subject matter which

is excluded from the competence of the Commission by the above

reservation;

Whereas the Commission concludes that it is the real meaning of the

reservation to cover any Act, including one such which was passed after

3rd September, 1958, dealing with "measures for the deprivation of

liberty prescribed in the laws on administrative procedure ...";

Whereas, in this respect, reference is made to the Commission's

findings in the decision on the admissibility of Applications Nos.

1731/62 (X. v Austria, Collection of Decisions, Volume 15, pages 33 to

38) and 1821, 1822/63 (Y. v Austria, Collection of Decisions, Volume

19, pages 56 to 70) concerning the Austrian reservation made in respect

of the State Treaty and laws enacted in execution of that Treaty;

Whereas, therefore, the reservation made by the Austrian Government as

to Article 5 (Art. 5) of the Convention extends to the legislation

which was applied to the Applicant;

Whereas it follows that the Application is, in this respect,

incompatible with the provisions of the Convention in regard to their

application to Austria and must be rejected in accordance with Article

27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the allegations which the Applicant makes in respect of Article

6 (Art. 6) of the Convention relate to the proceedings before the

administrative instances whose decisions are expressly covered by the

above reservation made by the Austrian Government; whereas it is true

that this reservation does not make any express reference to Article

6 (Art. 6) of the Convention;

Whereas, however, the Commission finds that these proceedings must be

viewed as a whole and cannot be considered as comprising separate

stages, to some of which the provisions of the Convention apply and

from some of which the application is excluded by the reservation;

Whereas it was no doubt the intention of the Respondent Government to

exempt from the incidence of the Convention the procedural system set

up in conformity with the laws on administrative procedure; whereas the

Commission, in interpreting the terms of the reservation, has taken

into consideration the clear intention of the Government (see

Application No. 473/59, Yearbook II, page 403); whereas, accordingly,

the above reservation must be extended to cover not only "the measures

for the deprivation of liberty" but also the proceedings leading up to

a decision by which an accused person is deprived of his liberty in

accordance with the Acts mentioned in the reservation; whereas it

follows that in the present case the reservation not only applies to

the deprivation of the Applicant's liberty, but also to the prior

proceedings before the District Administrative Authority at Baden and

the Provincial Government Office; whereas it follows that this part of

the Application is also incompatible with the provisions of the

Convention in respect to their application to Austria and must be

rejected in accordance with Article 27, paragraph (2) (Art. 27-2), of

the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.

Menu

X. v. AUSTRIA

X. v. AUSTRIA

LEXI