Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17740/91

by S.B.

against Austria

The European Commission of Human Rights (First Chamber) sitting in

private on 12 January 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 15 January 1991 by S.B.

against Austria and registered on 15 January 1991 under file No. 17740/91;

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 applicant is a Turkish citizen born in 1943 and living in L.,

Austria.

He is represented before the Commission by Mr. L. Weh, a lawyer

practising in Bregenz.

The facts of the present case, as submitted by the parties, may be

summarised as follows.

In February 1988 the applicant contacted Mr. Weh, his present counsel,

asking him to make a request to obtain a residence permit for his son. The

applicant had already been living and working in Austria for a long time

and his son, Tuncer, had subsequently come to join him. The request was

submitted to the competent authorities on 26 March 1988 and meanwhile the

applicant's son was granted a residence permit.

The request prompted the Aliens Office (Fremdenpolizei) to institute

proceedings against the applicant for having contravened the law relating

to aliens.

On 27 April 1988 the applicant was fined 1,500 AS by the District

Security Authority (Bezirkshauptmannschaft) in Dornbirn for having violated

section 7 of the Code of Administrative Offences (VStG) in connection with

section 14 (1) and (2) of the Aliens Police Act (Fremdenpolizeigesetz) in

that he had his twelve-year-old son come to Austria although he had been

refused a visa (Sichtvermerk). The payment order was served on the

applicant personally on 9 May 1988 and became final on 23 May 1988.

On 8 July 1988 the applicant lodged an appeal against this order and

a request for leave to appeal out of time, stating that he had paid the

fine believing that it was a contribution due by him. Had he been informed

in his own language of the true nature of the order, i.e. that it contained

an accusation, he would have immediately lodged an appeal.

This request was rejected by the authorities on 19 October 1988 on the

ground that according to the jurisprudence of the Administrative Court

(Verwaltungsgerichtshof) foreigners did not have a right to be provided

with a translation of orders imposing a fine. Furthermore the applicant

could have reasonably been expected to have the order translated or to

consult a lawyer. There was consequently no unforeseeable or unavoidable

event which had prevented him from lodging an appeal in time.

A further appeal (Berufung) was rejected by the Regional Security

Authority (Sicherheitsdirektion) on 1 March 1989.

The applicant then lodged a constitutional complaint which was

rejected by the Constitutional Court (Verfassungsgerichtshof) as being

clearly ill-founded.

A complaint to the Administrative Court was likewise rejected on 18

June 1990. This Court referred to an earlier decision of 11 January 1989

in which it had held that Article 6 of the Convention did not, on account

of Austria's reservation made under Article 5 of the Convention, apply in

the sphere covered by legislation on administrative proceedings

(Verwaltungsverfahrensgesetze).

Furthermore, section 39a (1) of the Code of General Administrative

Proceedings (AVG) did not provide for the use of foreign languages in

correspondence with administrative authorities.

COMPLAINTS

The applicant submits that the order of 27 April 1988 contained a

criminal charge and that consequently Article 6 of the Convention, mainly

para. 3 (a), (b) and (e), applied and was violated because neither the

order nor the information it contained about his right to appeal was

communicated to him in his mother tongue (Turkish).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 January 1991 and registered on

the same day.

On 2 July 1991 the Commission decided to give notice of the

application to the respondent Government and invite them to submit

observations in writing on its admissibility and merits.

The Government submitted their observations on 21 November 1991. The

applicant's observations in reply were submitted on 23 January 1992.

THE LAW

The applicant complains that, although he was informed about the

imposition of a fine in the language of the competent court only and not in

his own, he was denied leave to appeal out of time. This did, in his

submission, violate his right to a fair trial as guaranteed by Article 6

(Art. 6) of the Convention, in particular his rights under :

- para. 3 (a) (art. 6-3-a), to be informed promptly, in a language

which he understands ... of the nature and cause of the accusation

against him;

- para. 3 (b) (art. 6-3-b), to have adequate time and facilities for

the preparation of his defence ; and

- para. 3 (e) (art. 6-3-e), to have the free assistance of an

interpreter if he cannot understand or speak the language used in

court.

The Commission is not required to decide whether Article 6 (Art. 6)

applies to the fine proceedings in question and whether the applicability

of Article 6 (Art. 6) would be excluded by virtue of the Austrian

reservation concerning Article 5 (Art. 5) of the Convention, as in any

event the particular circumstances of the case do not, for the following

reasons, disclose any appearance of a violation of Article 6 (Art. 6), even

assuming the provision were applicable.

The Commission first observes that it is not competent to examine in

the abstract whether the failure of Austrian law generally to provide for

translation of orders imposing fines on foreigners is as such compatible

with the Convention (Eur. Court H.R., Klass and Others judgment of

6 September 1978, Series A no. 28, p. 18 et seq., para. 33).

The Commission can only examine whether the imposition of the fine in

question and the refusal to grant leave to appeal out of time are

compatible with the rights guaranteed by Article 6 (Art. 6) if this

provision were to apply.

In the present case the applicant failed to appeal within the

time-limit provided for under domestic procedural law against the order

imposing a fine on him. The decisions denying leave to appeal out of time

are not only based on the finding that under Austrian law the applicant had

no right to be provided with a translation but also on the argument that he

could reasonably have been expected to have the fine order translated or to

have consulted a lawyer on it. The Chamber notes that the applicant had

consulted a lawyer on the question of how to obtain a residence permit for

his son. It further notes that the applicant had been living and working

in Austria for a considerable time. He was therefore in a position to take

the necessary measures on time in order to safeguard his right of access to

a court and he could have been expected to do so within the time-limit of

two weeks available to him under Austrian Law (cf. Eur. Court H.R.,

Hennings judgment of 16 December 1992, para. 25). In these particular

circumstances it cannot be found that leave to appeal was arbitrarily

denied and the question of whether the notification of the payment order

can be considered as a notification of an "accusation" within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention can consequently be left

open.

It follows that the application has to be rejected as being manifestly

ill-founded, in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

Menu

S.B. v. AUSTRIA

S.B. v. AUSTRIA

LEXI