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KÖZ v. AUSTRIA

Doc ref: 27525/95 • ECHR ID: 001-2392

Document date: October 18, 1995

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Cited paragraphs: 0
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Outbound citations: 3

KÖZ v. AUSTRIA

Doc ref: 27525/95 • ECHR ID: 001-2392

Document date: October 18, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 27525/95

by Serap KÖZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, 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

G.B. REFFI

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 on 2 February 1995

by Serap KÖZ against Austria and registered on 7 June 1995 under file

No. 27525/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant is a Turkish national, born in 1975 and presently

residing in Dornbirn (Austria). Before the Commission she is

represented by Mr. W.L. Weh, a lawyer practising in Bregenz.

On 26 April 1993 the Dornbirn District Administrative Authority

(Bezirkshauptmannschaft) issued a penal order (Strafverfügung) against

the applicant imposing a fine of 2000 AS for unlawfully staying in

Austria as she had no valid residence permit. The order contained the

information that an appeal against the penal order could be lodged

within two weeks. As the applicant did not file an appeal the penal

order entered into force.

On 8 July 1993 the applicant, assisted by counsel, appealed

against the penal order and, as the time limit for filing an appeal had

already elapsed, requested leave to appeal out of time (Wiederein-

setzung in den vorigen Stand). She submitted that she could not speak

German and only now had learned about the contents of the penal order.

On 16 July 1993 the District Administrative Authority rejected

the appeal as being lodged out of time and dismissed the request for

leave to appeal out of time. The Authority found that the reason

invoked by the applicant, namely that she did not speak German, did not

meet the requirements for such a leave to appeal, i.e. that she has

been prevented from filing an appeal in time by an unforeseeable and

insurmountable obstacle. The applicant knew about her language

problems, thus the obstacle was not unforeseeable, and she could have

asked third persons to translate or explain to her the contents of the

penal order, thus the obstacle was not insurmountable.

On 21 July 1993 the applicant appealed to the Vorarlberg

Independent Administrative Senate (Unabhängiger Verwaltungssenat). She

submitted that contrary to Article 6 para. 3 of the Convention the

penal order had neither been in Turkish nor had a Turkish translation

been attached thereto.

On 15 October 1993 the Independent Administrative Senate

dismissed the applicant's appeal. It found that the District

Administrative Authority had correctly refused to grant leave to appeal

out of time and noted further that the penal order of 26 April 1993 had

been served on the applicant personally.

On 16 December 1993 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof).

On 14 June 1994 the Constitutional Court refused to entertain the

applicant's complaint for lack of prospect of success.

COMPLAINTS

The applicant complains under Article 6 of the Convention of a

violation of her right to be informed in a language she understands of

the nature and cause of the accusation against her. She submits that

the penal order should either have been issued in Turkish or a Turkish

translation should have been attached thereto.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention of a violation of her right to be informed in a language she

understands of the nature and cause of the accusation against her. She

submits that the penal order should either have been issued in Turkish

or a Turkish translation should have been attached thereto.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose the appearance of a

violation of Article 6 (Art. 6) of the Convention, as under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law and within a period of six months

from the date on which the final decision was taken.

Domestic remedies have not been exhausted where an appeal is not

admitted because of a procedural mistake by the applicant (see

No. 10785/84, Dec. 18.7.86, D.R. 48, p. 102; No. 12794/87, Dec. 9.7.88,

D.R. 57, p. 251).

The Commission observes that on 16 July 1993 the District

Administrative Authority rejected the applicant's appeal against the

penal order of 26 April 1993 as being lodged out of time and dismissed

the applicant's request for leave to appeal out of time.

The Commission has also examined whether the case discloses the

existence of any special circumstances which might have absolved the

applicant from complying with the requirement of exhaustion of domestic

remedies. In this respect, the Commission notes the applicant's

submission that she could not understand the penal order of

26 April 1993 as she had no command of German.

However, the Commission recalls that a foreigner, who is not

detained and who alleges that he does not understand a judgment and

a notice of appeal which are both in the language of the court, is not

absolved from the duty to exhaust available domestic remedies

(No. 11122/84, Dec. 2.12.85, D.R. 45, p. 246).

The Commission therefore finds that no special circumstances

exist which might have absolved the applicant from complying with the

requirement of exhaustion of domestic remedies under Article 26

(Art. 26) of the Convention.

Accordingly the application must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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