Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16487/90

by Frederick BATT

against Austria

The European Commission of Human Rights sitting in private on

8 January 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 February 1990

by Frederick Batt against Austria and registered on 23 April 1990 under

file No. 16487/90;

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 British citizen born in 1964. He lives in

Colchester, Essex. The applicant is represented by Mr. K.H. Klee,

lawyer, of Innsbruck. The facts as they have been submitted by the

parties may be summarised as follows.

On 5 March 1989 the applicant was involved in a skiing accident

in Austria. He was questioned at the local police station on the same

day from 18h15 until 19h30 in the presence of an interpreter.

On 25 May 1989 the applicant received a penal notice

(Strafverfügung) dated 17 May 1989 from the Landeck District Court

(Bezirksgericht). The penal notice was in German, a language which the

applicant does not understand. The penal notice informed the applicant

that he had been found guilty of negligently causing injury

(fahrlässige Körperverletzung) and that a fine of AS 10.000 had been

imposed with the imposition of a prison sentence of 25 days in case of

non-payment. The sentence was suspended for three years. The

applicant, believing that the document related to the accident,

forwarded it to his insurance brokers who, in turn, forwarded it to

their lawyer for a translation. On 1 August 1989 the applicant

discovered that the document was in fact the penal notice referred to

above. The applicant instructed his insurers' solicitors and his

present representative to take all possible steps to challenge the

penal notice. As the 14 day time-limit for entering an objection

(Einspruch) to the penal notice had long since passed, the applicant's

representative on 16 August 1989 applied for leave to file an objection

out of time (Wiedereinsetzung in den vorigen Stand) on the ground that

the 14 day time-limit had been missed through no fault of the

applicant's as he had not understood the penal notice. On 13 September

1989 the Landeck District Court rejected the application on the ground

that, although the applicant had not been able to comply with the 14

day time-limit because he did not have adequate knowledge of German,

it had not been established that the application had been brought

within 14 days of the applicant's actual notice of the contents of the

penal notice. In particular, the court found that a bald statement in

the application that the time-limit had been complied with, coupled

with the fact that on 10 August 1989 the applicant actually knew of the

contents of the notice, was not sufficient to comply with the

requirement that an applicant had to show when he acquired knowledge

of the contents of the notice, Accordingly, it could not be assumed

that the time-limit had been complied with.

The Landeck District Court stated that no appeal lay against its

decision.

On 28 September 1989 the applicant applied, again to the Landeck

District Court, for the penal notice to be re-served with a certified

translation. He referred to Article 6 para. 3 of the Convention. The

Court found, on 3 October 1989, that as Article 6 of the Convention was

not directly applicable in Austria, and as no specific provision

required an English translation of the penal notice, the penal notice

had been validly served. The application was rejected.

The applicant appealed to the Innsbruck Regional Court(Landesgericht). The appeal was rejected on 17 November 1989. The

Regional Court accepted that since 1972 the Supreme Court (Oberster

Gerichtshof) had regarded Article 6 as directly applicable, but found

that Article 6 para. 3 (a) and (e) provided guidelines for the formal

trial, and did not need to be observed at an earlier stage of the

proceedings.

Relevant domestic law

Code of Criminal Procedure

(German)

"S. 364. (1) Wider die Versäumung der Frist zur Anmeldung eines

Rechtsmittels gegen ein Urteil kann das zur Entscheidung über das

Rechtsmittel berufene Gericht dem Beschuldigten die

Wiedereinsetzung in den vorigen Stand erteilen, sofern er:

1. nachzuweisen vermag, dass es ihm durch unabwendbare Umstände

ohne sein oder seines Vertreters Verschulden unmöglich gemacht

wurde, die Frist einzuhalten,

2. um die Wiedereinsetzung innerhalb von vierzehn Tagen nach dem

Aufhören des Hindernisses ansucht und

3. die Anmeldung zugleich anbringt."

(Translation)

"364. (1) An appeal court may grant an application for leave to

file an appeal out of time where an accused:

1. is able to prove that unavoidable circumstances prevented him

from complying with the time-limit and that neither he nor his

representative was at fault;

2. requests leave to file an appeal out of time within fourteen

days after the disability falls away, and

3. files his notice of appeal at the same time."

COMPLAINTS

The applicant complains that the failure to serve a translation

of the penal notice amounts to a violation of Article 6 para. 3 (a) and

(e) of the Convention. He points out that in the case of Can (Eur.

Court H.R., Can judgment of 13 September 1979, Comm. Rep. 12 July 1984,

Series A no. 96, p. 14) the Commission found that Article 6 para. 3 (b)

and (c) applied to investigation proceedings, and he asks how an

accused can possibly be expected to prepare his defence when he does

not understand the allegation.

PROCEEDINGS BEFORE THE COMMISION

The application was introduced on 20 February 1990 and registered

on 23 April 1990.

On 11 October 1990 the Commission decided to give notice of the

application to the Austrian Government and to invite them to submit

observations in writing on the admissibility and merits of the

application.

The Government submitted their observations on 21 December 1990

and the applicant submitted his observations in reply on 5 March 1991.

THE LAW

1.The applicant alleges a violation of Article 6 para. 3 (a) and

(e) (Art. 6-3-a, 6-3-e) of the Convention by virtue of the failure of

the Austrian authorities to serve a translation of the penal notice of

17 May 1989.

The Government consider that the applicant has not exhausted

domestic remedies in two respects. First, they note that the Landeck

District Court rejected the application for leave to file an objection

out of time, not because the applicant had been properly served with

the penal notice, but because he had failed to comply with the

requirement that he show on what date the disability ceased to apply.

Secondly, they point out that the Landeck District Court's statement

that no appeal lay against its decision of 13 September 1989 was in

fact inaccurate and an appeal would have lain to the Innsbruck Regional

Court. They consider that the function of the rule on exhaustion of

domestic remedies is to enable superior courts to remedy inter alia

errors of law by inferior courts, and the Landeck District Court's

statement that no appeal lay was such an error of law.

The applicant replies that, by stating that he brought his

application for leave to file an objection out of time within the

fourteen days' time-limit, together with reference to a date within

fourteen days of the date of submission of the application, he

exercised sufficient care in submitting the application: had any

doubts been raised in the court's mind, it should have asked for

further details. The applicant further considers, notwithstanding a

decision (referred to by the Government) of the Supreme Court to the

contrary, that the Landeck District Court's statement that no appeal

lay against its decision was correct, or at least arguable on the

ordinary wording of the relevant provisions of the Code of Criminal

Procedure. Moreover, he insists that his application of 28 September

1989 for the penal notice to be re-served with a translation - made

within fourteen days of receipt of the decision of 13 September 1989 -

should have been regarded by the Regional Court as an appeal against

the decision of 13 September. The applicant considers that he has

exhausted domestic remedies.

The Commission finds that the question of non-exhaustion of

domestic remedies in connection with the applicant's unsuccessful

application for leave to file an objection out of time is so closely

linked with the substantial complaint relating to acces to court that

it will consider the complaint in that context later. The Commission

also considers that the applicant should not be prejudiced for a

failure to appeal against a statement in a judgment that no appeal lay

against the judgment, regardless of whether the statement was accurate

or not.

2.The Commission has considered the case first in the context of

the question whether the applicant had sufficient access to court.

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

"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... "

The Government question whether Article 6 (Art. 6-1) of the

Convention applies at all to proceedings such as those in the present

case, but maintain that, even if it does, Article 6 para. 1 (Art. 6-1)

cannot permit a defendant to remain totally passive. If an objection

can be made within fourteen days, ample opportunity is given to

defendants to have full proceedings before a court complying with

Article 6 (Art. 6) of the Convention. This is the case even where a

defendant, through no fault of his own, cannot comply with the

fourteen-day time-limit, as the courts are ready to give leave to file

an objection out of time provided a defendant shows when the disability

ceased to apply and that he has applied within fourteen days from that

moment.

The applicant considers that the possibility of applying for

leave to file an objection out of time does not answer his complaints

as it leads to considerable complications, as the present case shows.

The Commission recalls that the right of access to court is a

constituent element of the right to a fair trial, as guaranteed in

Article 6 para. 1 (Art. 6-1) of the Convention. This right is,

however, not absolute, but is subject to implied limitations. Criminal

proceedings providing for a waiver of the right to have one's case

dealt with by a tribunal in a full trial have advantages for the

individual concerned as well as for the administration of justice, and

they do not in principle offend against the Convention (c.f. Eur. Court

H.R. 5, Deweer judgment of 27 February 1980, Series A no. 35 p. 25,

para. 49). It may be in an individual's own interests not to stand

trial in public.

The Commission considers that penal order proceedings do not of

themselves affect the right of an accused to a fair hearing before a

court, provided he can effectively object to the penal order and

thereby bring about a normal trial.

Responsibility for the institution and conduct of criminal

proceedings lies in principle with the competent authorities

themselves, and it cannot be expected of a defendant that he contribute

towards his own conviction. Thus, where communication of a penal order

is relevant for the calculation of the time-limit for filing

objections, an issue may arise under Article 6 para. 1 (Art. 6-1) of

the Convention as to access to court. Strict conditions must govern

the service of the penal order on the person concerned. Adequate

safeguards must be provided for persons who, through no fault of their

own, have been prevented from complying with the time-limit (cf.

Hennings v. the Federal Republic of Germany, Comm. Report 30.5.91).

In the present case, the Commission must consider whether the

safeguards provided by the Austrian system in the case of the applicant

were adequate.

The Commission notes that the time-limit under Austrian law for

filing an objection to a duly served penal order is fourteen days. By

virtue of Article 364 of the Code of Criminal Procedure a court can

grant an application for leave to file an objection out of time

provided that an applicant shows that he was unable to comply with the

time-limit through no fault of his own, that he makes his objection

within fourteen days from the moment the disability falls away, and

that he files his objection at the same time.

The applicant in fact brought his application for leave to file

an objection out of time within fourteen days of finding out the nature

of the penal order. However, his Austrian lawyer failed to include in

the application an indication of when the applicant actually received

notice of the meaning of the penal order, and the application was

refused for this reason.

In the circumstances of the present case, given that there are

no objections in principle to the existence of a system of penal

notices provided that adequate safeguards exist, the Commission finds

that the applicant's access to court was not unfairly barred, the

application for leave to file objection out of time having been

rejected for reasons compatible with those adequate safeguards.

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.

3.The applicant also alleges violations of Article 6 para. 3(a) and

(e) (Art. 6-3-a, 6-3-e) of the Convention which provide, so far as

relevant, as follows:

"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."

As to whether the applicant was informed promptly and in a

language which he understood of the accusation against him, the

Government consider that the interview at the police station on

5 March 1989 must have made abundantly clear to the applicant - in

English - that he was being questioned about the incident. In this

respect the Government also consider that Article 6 para. 3 (e)

(Art. 6-3-e) of the Convention, if applicable, was complied with. In

any event, they consider that Article 6 para. 3 (e) (Art. 6-3-e) is not

relevant in cases where inability to understand a penal notice will be

accepted as a good ground for granting leave to file an objection out

of time.

The applicant considers that he was not properly informed of the

charges against him, and regards the presence of an interpreter at the

police station on 5 March 1989 as irrelevant: he did not receive, from

the Austrian authorities, in English, any information concerning the

penal order itself. There was no reason for the applicant to suppose

that the questioning at the police station would lead to criminal

proceedings - and indeed, the police at the police station did not have

authority to institute those proceedings which were eventually taken

up. Moreover, given that penal notices are very short, it would not

cause too many problems to attach a translation.

The Commission is not required to decide whether or not the facts

alleged by the applicant disclose any appearance of a violation of

these provisions 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.

In the present case the Commission has found that adequate access

to court was provided by the Austrian authorities. If the applicant

had availed himself of this access fully, that is, if he had stated in

his application for leave to file an objection out of time the date on

which he became aware of the contents of the penal notice, he would

have been entitled to proceedings in which Article 6 (Art. 6) would

have been applied. In these proceedings, the applicant could have

raised the question of whether he had been or should have been

furnished with a translation of the penal notice, and indeed, the

applicant may have been acquitted, in which case he could no longer

claim to be a victim of a violation of the Convention. Accordingly,

the applicant has not exhausted the remedies available to him under

Austrian law. Moreover, an examination of the case does not disclose

the existence of any special circumstances which might have absolved

the applicant, according to the generally recognised rules of

international law, from exhausting domestic remedies at his disposal.

In particular, his express request for a translation of the penal

notice does not amount to such a special circumstance because, had the

applicant fully availed himself of the access to court, he may have

been acquitted in any event.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies in this respect, and this

part of the application must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

BATT v. AUSTRIA

BATT v. AUSTRIA

LEXI