Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26793/95

by Osman ÖZTÜRK

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the 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 21 December 1992

by Osman ÖZTÜRK against Austria and registered on 21 March 1995 under

file No. 26793/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

8 August 1996 and the observations in reply submitted by the

applicant on 7 February 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen born in 1951. He lives in

Lauterach and is represented before the Commission by Mr. W.L. Weh, a

lawyer in Bregenz. The facts of the case, as submitted by the parties,

may be summarised as follows.

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.

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.

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.

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").

COMPLAINTS

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 of the Convention, that he was

refused an interpreter before the initial administrative authority, in

violation of Article 6 para. 3 (a) and (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 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.

PROCEEDINGS BEFORE THE COMMISSION

The application to the Commission is dated 21 December 1992. The

first time the Commission's secretariat became aware of it was on

7 February 1995, when the Commission, in connection with another

application from the applicant's representative (subsequently

registered under Application No. 26794/95 and declared inadmissible on

substantive grounds on 4 September 1996), received a copy of the

representative's post book for 23 December 1992. That copy showed that

the present application and the other application had been posted on

that date.

On 23 February 1995 the applicant's representative submitted a

further copy of the application with an original letter of authority

from the applicant.

The application was registered on 21 March 1995.

On 16 April 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

8 August 1996, after an extension of the time-limit fixed for that

purpose. The time-limit for submission of the applicant's observations

in reply expired on 14 October 1996. On 12 November 1996, the

Commission's secretariat noted that the time-limit for submission of

observations in reply had expired, and drew the applicant's

representative's attention to the provisions of Article 30 para. 1 of

the Convention. The contents of that letter were repeated, by

registered mail, on 24 January 1997. The applicant submitted his

observations in reply on 7 February 1997.

THE LAW

The applicant alleges violation of Article 6 (Art. 6) of the

Convention in two respects. He claims that he was denied a "tribunal"

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

and that he was denied interpretation in violation of Article 6 para.

3 (a) and (e) (Art. 6-3-a, 6-3-e) of the Convention.

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 within a

reasonable time by an independent and impartial tribunal

established by law.

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

...

e. to have the free assistance of an interpreter if he

cannot understand or speak the language used in court."

The Government note the interval of over two years between the

date of the applicant's first letter to the Commission -

21 December 1992 - and the registration of the application, and suggest

that, in the light of the applicant's representative's inactivity

during that period, the Commission might wish to conclude that the

applicant did not intend to pursue his petition, and therefore to

strike the case off its list of cases.

As to the merits of the case, the Government note the

similarities between this case and the series of cases involving

administrative criminal proceedings which has been considered by the

European Court of Human Rights (Eur. Court HR, Schmautzer v. Austria

judgment of 23 October 1995, Series A no. 328-A and others), and accept

that the legal questions in the present case will have to be answered

in the same way.

The applicant notes that proceedings before the Commission are,

in principle, run by the Commission (Grundsatz der Amtswegigkeit), and

that it would lead to a considerable burden on the Commission's

secretariat if applicants were required continuously to check on the

advancement of their case. Moreover, the applicant knew that his

application was similar to the other cases, and so there was no reason

ask about the case until after the judgments of the Court.

The applicant also notes that the Government accept that the case

is similar to the cases which have been decided by the Court.

The Commission must first determine the date of introduction of

the application, and take a decision pursuant to the Government's

suggestion that the case should be struck out of the Commission's list

of cases.

The Commission generally takes as the date of introduction of an

application the date of the first communication from an applicant

setting out, even summarily, the object of the applicant. It may

nevertheless for good cause decide that a different date should be

considered to be the date of introduction (Rule 44 (4) of the

Commission's Rules of Procedure).

The Commission accepts that the applicant sent his application

form on 21 December 1992. To this date, that form has not arrived at

the Commission's secretariat.

The applicant's representative is well acquainted with the

procedures before the Commission, and must have been aware that he had

not received a reply to his letter of 21 December 1992, and that in the

ordinary course of events he would receive a reply, either by way of

comments or questions from the secretariat, or by way of a letter

informing him that the application had been registered.

The Commission considers, however, that to choose a different

date of introduction from the date of the applicant's first

communication with the Commission's secretariat would be excessively

formalistic in the circumstances of the present case: even if matters

would have been clarified earlier had the applicant's representative

asked why he had not received a reply to his application form of

21 December 1992, the Commission would not be justified in taking a

later date as the date of introduction.

In connection with the proposal to strike the case off the list

of cases, the Commission considers that even though the applicant's

representative's failure to ask about the case between January 1993 and

February 1995 may raise doubts about his interest in the case -

especially given that the time-limit for submission of his observations

had long expired by the time those observations were submitted - it

cannot be concluded from this behaviour by the representative that the

applicant at any stage no longer intended to pursue the petition,

within the meaning of Article 30 para. 1 (a) (Art. 30-1-a) of the

Convention.

As to the substantive matters involved in the case, the

Commission considers, in the light of the parties' submissions, that

this part of the case raises complex issues of law and fact under the

Convention, the determination of which should depend on an examination

of the merits. The Commission concludes, therefore, that this part of

the application is not manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for

declaring it inadmissible have been established.

2. The applicant also alleges a violation of Article 7 (Art. 7) of

the Convention on the ground that he was ultimately charged with a more

serious offence than the one with which he had initially been charged.

Article 7 (Art. 7) of the Convention provides, so far as

relevant, as follows:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed. Nor shall a heavier penalty be imposed

than the one that was applicable at the time the criminal offence

was committed. ..."

The applicant was convicted under Sections 14 and 2 of the Aliens

Police Act. Whilst those were not the provisions the applicant was

originally alleged to have breached (which were under the Passports

Act), there is no indication whatever in the papers before the

Commission that the charge - being in Austria without a valid visa -

did not exist in the period from 17 January 1990 to 18 April 1990.

Moreover, fact that the maximum sentence for breach was increased from

AS 3,000 to AS 10,000 in the course of 1990 is irrelevant: even if the

applicant was fined under the new provisions, the amount he was fined

was provided for in domestic law when the offence was committed.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission,

by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint concerning the procedural aspects of the

case;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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ÖZTÜRK v. AUSTRIA

ÖZTÜRK v. AUSTRIA

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