Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13816/88

by Anton MAJEROTTO

against Austria

The European Commission of Human Rights sitting in private on 16

October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 31 December 1987

by Anton Majerotto against Austria and registered on 29 April 1988

under file No. 13816/88;

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

of Procedure of the Commission;

Having regard to:

- the observations submitted by the respondent Government on

7 May 1990 and the observations in reply submitted

by the applicant on 31 July 1990;

- the observations submitted by the parties on 16 October 1991

at the hearing on the admissibility and merits of the

application;

Having deliberated;

Decides as follows:

THE FACTS

The particular facts of the case

The applicant is an Austrian citizen born in 1928. He lives in

Lienz. This is his second application to the Commission. The first,

No. 13159/87, was declared inadmissible on 7 December 1987. His third

and fourth applications, Nos. 16316/90 and 16317/90, were both declared

inadmissible on 9 October 1991. The applicant is represented before

the Commission by Mr. F. Schwank, a lawyer practising in Vienna.

The facts submitted by the parties in the present case, unrelated

to the other cases, may be summarised as follows.

On 26 April 1985 the applicant was served with a penal notice

(Strafverfügung) in respect of road traffic offences under Section 9

(2) (behaviour on approach to a pedestrian crossing) of the Road

Traffic Act 1960 (Strassenverkehrsordnung) and Section 102 (4)

(prohibition on excessive noise) of the Motor Vehicles Act 1967

(Kraftfahrgesetz). Both offences constituted minor administrative

offences (Verwaltungsübertretungen). The notice provided for fines of

700 AS and 400 AS respectively, with substitute sentences of 35 hours

and 13 hours arrest in default. A formal decision (Straferkenntnis)

was taken by the District Authority (Bezirkshauptmannschaft) on 6

February 1986, when the applicant was found to have committed both

offences. Penalties of 600 AS and 200 AS were imposed, with substitute

sentences of 30 hours and 12 hours arrest respectively.

The applicant appealed to the Provincial Governor

(Landeshauptmann) and the Provincial Government (Landesregierung). The

appeal was rejected (Berufungserkenntnis) on 27 November 1986, after

an expert's opinion had been obtained on the matter.

The applicant applied to the Administrative Court

(Verwaltungsgerichtshof) for legal aid for a complaint (Beschwerde).

Legal aid was granted on 10 February 1987. The Administrative Court's

decision referred the applicant to a lawyer (appointed by the local Bar

Association) and informed him that the six weeks time limit for

submitting his complaint would run from the day when a lawyer had been

appointed and informed of the fact (Section 26 (3)

Verwaltungsgerichtshofgesetz). The decision also gave the name of the

lawyer appointed by the Bar Association. The decision was notified to

the lawyer on 17 March 1987. The lawyer, however, was unable to act

because of a conflict of interest, and on 31 March 1987 the Bar

Association appointed a second lawyer. The second lawyer was also

unable to act because of a conflict of interest, and on 3 April 1987

the Bar Association appointed a third lawyer. The third lawyer was

also unable to act because of a conflict of interest, and on 7 April

1987 the Bar Association appointed a fourth lawyer. The fourth lawyer

was also unable to act because of a conflict of interest, and on 17

April 1987 the Bar Association appointed a fifth lawyer, who received

the papers on 21 April 1987. On 22 April 1987 he received a note from

the court that the first legal aid lawyer had been appointed on 17

March 1987.

The fifth lawyer who, in comments printed in a lawyer's journal,

wrote that he had been required to contact the applicant who lived a

considerable distance from the court, to inspect the case-file, also

in Lienz, and to prepare the complaint, submitted the complaint (which

has to be signed by a lawyer) four complete working days later on 29

April 1987, that is, one day after the expiry of the six weeks time

limit which ran from 17 March 1987.

On 27 May 1987 the Administrative Court rejected the complaint

for non-compliance with the time-limit. The applicant's lawyer

received the decision on 12 July 1987.

Relevant domestic law

Section 33 (4) of the Administrative Court Act (Verwaltungs-

gerichtshofsgesetz) provides that any time-limits which are laid down

by law cannot be altered unless express provision is made. No such

express provision is made in the case of the time-limit for submitting

a complaint to the Administrative Court.

Sections 23, 24, 28 and 29 of the Administrative Court Act set

out the formal conditions of a complaint (Beschwerde) to the

Administrative Court. Section 34 (2) of the Administrative Court Act

provides for the return of a complaint in cases where the formal

requirements of Sections 23, 24, 28 and 29 have not been met. A "short"

time-limit must be set.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 December 1987 and registered

on 29 April 1988.

On 13 February 1990 the Commission decided to communicate the

complaint concerning the time-limit for the complaint to the

Administrative Court to the respondent Government and to invite them

to submit written observations on its admissibility and merits.

The observations of the respondent Government were submitted on

7 May 1990 and the observations in reply by the applicant on 31 July

1990. On 27 May 1991 the Commission decided to invite the parties to

an oral hearing on the admissibility and merits of the application. At

the hearing, which was held on 16 October 1991, the parties were

represented as follows:

For the Government

Mr. Wolf OKRESEK, Head of Department, Federal Chancellery, Agent

Mr. Florian HAUG, International Law Department, Federal Ministry

for Foreign Affairs, Adviser

For the applicant

Ms. R. GORBACH, lawyer.

The applicant was also present.

COMPLAINTS

The applicant complains that he has been deprived of a fair trial

because of the rejection for non-compliance with the time limit of his

complaint to the Administrative Court. He did not invoke any specific

provision of the Convention in his original application although in his

submissions of 31 July 1990 the applicant's lawyer referred to Article

6 para. 3 (b) of the Convention.

THE LAW

The applicant complains of the rejection for non-compliance with

the time limit of his complaint to the Administrative Court. Article

6 (Art. 6) of the Convention provides, so far as relevant, as follows:

"1. In the determination of his civil rights and

obligations or 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:

...

(b) to have adequate time and facilities for the

preparation of his defence;...".

The respondent Government, referring to case-law of the

Commission and of the Austrian Constitutional Court, consider that the

Austrian reservation to Article 5 (Art. 5) covers not only legislation

enacted before 3 September 1958 (the date of the reservation) but also

subsequent legislation which does not amount to an extension of the

substance of the prior legislation ("keine Erweiterung [des]

materiell-rechtlichen Bereiches"). They refer to a "systematic

development" of administrative proceedings as they stood at the date

of the reservation. They consider that the provisions of which the

applicant was found guilty did, in effect, exist before the date of

the reservation. Even if the reservation does not apply, the

Government consider that the applicant has not exhausted domestic

remedies in that, through his lawyer, he could have made an incomplete

complaint to the Administrative Court, and the Administrative Court

would then have required the complaint to be submitted properly within

a "short" time limit. This time limit, not being provided for by law,

could have been extended.

As to the substance of the case, the Government consider that the

fifth legal aid lawyer had seven days in which to bring his complaint,

the complaint eventually transpired not to be in any way complicated

and indeed ran to only two pages; they consider that the lawyer need

not have travelled to Lienz as he could have used telephone and telefax

more extensively. They also underline that the lawyer was informed on

22 April 1987 that the time limit ran from 17 March 1987, and that he

could have made an incomplete complaint in order to obtain a "de facto"

extension of time.

The applicant considers that, as he was fined rather than

detained, the Austrian reservation to Article 5 (Art. 5) is inapplicable.

Referring to Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention, the applicant notes that the Austrian Code of Civil

Procedure (Zivilprozessordnung) provides, at Article 73 para. 2, that

time limits for appeals run only from the date of submission of the

papers to the legal aid lawyer. He points out that the position of

the legal aid lawyer is fundamentally different from that of a lawyer

who has been instructed by a private client during the time for

appealing. The applicant considers it unreasonable to require a lawyer

to submit an appeal without first establishing the details of the

case. The applicant notes that four full working days were available,

not seven days. Moreover, the applicant did not know of a telefax

machine in Lienz before 1989, and the lawyer had to meet the applicant

and consult the file at the District Authority. He says that the

lawyer, who had to drive some 3 to 4 hours to arrive at Lienz, did not

know the area.

The Commission finds that the case raises questions of fact and

law, including the question of the possibility of an incomplete

complaint to the Administrative Court, and questions relating to the

Austrian reservation to Article 5 (Art. 5) of the Convention and its

applicability and interpretation in the context of Article 6 (Art. 6),

which are of such complexity that their determination requires an

examination of the merits.

The application cannot therefore be rejected as being manifestly

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

the Convention, and no other ground for declaring it inadmissible has

been established.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MAJEROTTO v. AUSTRIA

MAJEROTTO v. AUSTRIA

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