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ÜNLÜ v. AUSTRIA

Doc ref: 20642/92 • ECHR ID: 001-2638

Document date: January 17, 1996

Inbound citations: 1
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Cited paragraphs: 0
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Outbound citations: 1

ÜNLÜ v. AUSTRIA

Doc ref: 20642/92 • ECHR ID: 001-2638

Document date: January 17, 1996

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20642/92

by Aynur ÜNLÜ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 by Aynur ÜNLÜ against

Austria on 9 September 1992 and registered on 16 September 1992 under

file No. 20642/92;

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

1 February 1995, and the observations in reply submitted by the

applicant on 2 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen. She is represented before

the Commission by Mr. Wilfried Ludwig Weh, a lawyer practising in

Bregenz.

The applicant was convicted in administrative criminal

proceedings of being in Austria between 10 August 1990 and

4 September 1990 without a valid visa. A penal order was issued on

6 February 1991 by the Dornbirn District Authority by which the

applicant was fined AS 3,300.00, with 6 days' detention in default.

The applicant's appeal to the Vorarlberg Security Directorate was

rejected on 10 May 1991, although the fine was reduced.

On 16 October 1991 the Constitutional Court rejected the

applicant's constitutional complaint, and on 17 February 1992 the

Administrative Court dismissed the applicant's administrative

complaint. The applicant's representative received the Administrative

Court's decision on 9 March 1992.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in 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 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 September 1992 and registered

on 16 September 1992.

The Government's observations were submitted on 1 February 1995

and the applicant's observations in reply on 2 October 1995.

THE LAW

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

Convention. The Government consider that the application was brought

out of time as the application reached the Commission only on 14

September 1992, that is, more than six months after the final decision

(the Administrative Court's decision of 17 February 1992) was served

on the applicant's representative on 9 March 1992. They consider that

the case does not disclose a violation of Article 6 (Art. 6) in any

event.

As to the Government's contention that the applicant has not

complied with the six months rule contained in Article 26

(Art. 26) of the Convention, the applicant submits, and the Commission

notes, that 9 September 1992 was a Wednesday and 14 September 1992 was

a Monday.

The Commission recalls that the date of a final decision is the

date on which an applicant's representative received the decision (cf.

No. 23860/94, Dec. 29.11.95, to be published in D.R., and the case-law

referred to there). In the present case that date is 9 March 1992.

The Commission further recalls that it generally takes as the

date of introduction of an application the date of a first

communication from an applicant (Rule 44 (4) of the Commission's Rules

of Procedure). That date is 9 September 1992 in the present case,

rather than 14 September 1992, as suggested by the Government, which

is the date of receipt of the first communication. The Commission sees

no reason in the present case to deviate from the general rule, there

being no evidence, or allegation, of manipulation of the date of the

first communication by the applicant's representative. Accordingly,

the Commission is not prevented by the six months rule from dealing

with the case.

The Commission has had regard to the facts of the present case,

to the parties' observations, and to the case-law of the European Court

of Human Rights. It finds that the case raises questions under the

Convention which cannot at this stage be rejected as being manifestly

ill-founded, and which require to be determined on the merits. No

other ground of inadmissibility has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

LEXI

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