FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46549/99 by Yasar YAVUZ against Austria

The European Court of Human Rights ( First Section) , sitting on 29 April 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application introduced on 29 January 1999,

Having regard to the observations and supplementary observations submitted by the respondent Government and the observations and supplementary observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Yasar Yavuz, is a Turkish national, who was born in 1959 and lives in Turkey. He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 28 April 1993 the Vorarlberg Regional Employment Office ( Landesarbeitsamt ) granted the B. company, whose executive director was the applicant, a preliminary and temporary work permit for A., another Turkish citizen. It further stated that A. would loose his right to work four weeks after the service of a negative decision on the request for a definitive work permit. On 25 May 1993 the Regional Employment Office refused to grant A. a work permit. This decision was served on 26 May 1993. The B. company appealed against it and, referring to A.’s preliminary work permit, requested that its appeal be exceptionally granted suspensive effect. On 20 July 1993 the Constitutional Court ( Verfassungsgerichtshof ) refused this request.

On 28 October 1993 the Bregenz District Administrative Authority ( Bezirkshauptmannschaft ) informed the applicant of its suspicion that he had illegally employed A. between 24 June and 10 August 1993. It invited the applicant either to comment in writing or to make an appointment with the authority for an oral justification within two weeks.

On 29 October 1993 the applicant notified the District Administrative Authority of his representation by counsel. It appears, however, that he did not comment on the above suspicion against him.

On 2 March 1994 the District Administrative Authority informed the applicant about the evidence taken in his case and attached a statement by the Vorarlberg Regional Employment Office. It invited the applicant to comment, within two weeks, either in writing or personally, at the authority’s office.

On 18 March 1994 the applicant submitted that he had originally employed A. on the basis of his preliminary work permit. He argued that he had not acted culpably as, prior to his case, the Constitutional Court had not ruled on the question whether an appeal against the refusal of a work permit could be granted suspensive effect in view of a prior preliminary work permit. Consequently, in such an unclear legal situation, he could not be blamed for a mistake of law either.

On 31 March 1994 the District Administrative Authority imposed a fine of 5,000 Austrian schilling (ATS) on the applicant for breach of Section 28 of the Employment of Foreigners Act ( Ausländerbeschäftigungsgesetz ). It noted that he had illegally employed A. after his right to work had expired on 23 June 1993, i.e. four weeks after the service of the Regional Employment Office’s negative decision of 25 May 1993. It remarked that the B. company’s appeal against the latter decision had no effect on the applicant’s case.

On 11 May 1994 the applicant appealed against this decision, repeating in essence his submissions of 18 March 1994.

On 2 May 1995 the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat, the “IAP”) summoned the applicant and his counsel to an oral hearing scheduled for 26 May 1995. The summons, which indicated that the applicant’s personal presence was required, was addressed to the applicant’s counsel and stated that counsel was obliged to inform the applicant of the date of the hearing. Further, referring to Section 51 f § 2 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), it noted that the hearing would be conducted in his absence if he failed to appear.

On 17 May 1995 counsel requested to postpone the hearing because he planned to attend a conference on that date.

On 18 May 1995 the IAP refused this request on the ground that witnesses had already been summoned and that counsel was free to send a colleague as substitute.

On 26 May 1995 the IAP, in the absence of the applicant and his counsel, held a hearing at which it heard two witnesses, both cousins of the applicant. One of them informed the authority that the applicant was staying in Turkey and had initially asked him to help clarify the case at issue because of his good command of German. The second witness, an employee of the B. company, confirmed that A. had worked and been paid during the period at issue.

On 1 June 1995 the IAP sent the applicant’s counsel the minutes of the hearing and enclosed a letter of the Vorarlberg Regional Employment Office of 4 April 1995, which stated that A. had been covered by compulsory insurance for workers between 6 May and 20 August 1993. The IAP further invited him to comment in writing within one week.

On 7 June 1995 counsel requested to suspend the proceedings until the applicant’s return to Austria in order that he could be heard in person. On the same day, the IAP informed counsel that the decision would be pronounced publicly on 22 June 1995.

On 19 June 1995 counsel, referring to the applicant’s right under Article 6 of the Convention, requested again that the proceedings and the public pronouncement be adjourned until the applicant’s return to Austria.

On 22 June 1995 the IAP confirmed the District Administrative Authority’s decision. It noted that the facts had been sufficiently established by the witnesses. Thus, there was no need to hear the applicant upon his return to Austria. For the same reason the IAP had also refused the request for adjournment of 19 June 1995. Given the applicant’s representation by counsel throughout the proceedings, counsel had the possibility to attend hearings, where he could have forwarded arguments in favour of the applicant and could have examined the witnesses, thereby preserving the applicant’s defence rights. However, counsel had failed to make use of these opportunities. Moreover, since counsel had only forwarded arguments of law in defence and had never explicitly opposed the imputed fact of employment, there was no reason to hear the applicant. The IAP further held that the applicant could not enjoy impunity for having committed a mistake of law, as this only applied in the event an authority, e.g. the Employment Office, had incorrectly informed him. However, the applicant had never sought legal advice by a competent authority.

On 8 August 1995 the applicant lodged a complaint with the Constitutional Court invoking Article 6 of the Convention.

On 26 February 1996 the Constitutional Court declined to deal with the complaint on the ground that it did not raise a question of constitutional law. It noted that Article 6 would only be violated if the IAP had incorrectly applied Section 51 f § 2 of the Code of Administrative Offences and remitted the complaint to the Administrative Court ( Verwaltungsgerichtshof ).

On 23 August 1996 the applicant supplemented his complaint and requested legal aid.

On 13 November 1996 the Administrative Court noted that the applicant had failed to submit the forms for legal aid request within the set time-limit.

On 10 January 1997 the IAP submitted observations in reply, repeating in essence its findings of 22 June 1995.

On 1 July 1998 the Administrative Court, referring to its findings in a similar case, dismissed the complaint. It noted that counsel, without just cause, had not attended the hearing. Therefore the IAP had lawfully continued the hearing in the absence of counsel and the applicant, in accordance with Section 51 f § 2 of the Code of Administrative Offences. Consequently, the applicant’s defence rights as guaranteed under Article 6 of the Convention had not been infringed. The decision was served on the applicant’s counsel on 29 July 1998.

B. Relevant domestic law

Section 51 f § 2 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ) provides that the absence of a party at a hearing, though having been duly summoned, does not impede the holding of the hearing or the decision-taking either.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the unfairness of the administrative criminal proceedings against him, in that he was not heard in person and that he had no opportunity to examine witnesses. He also complains that the overall duration of the proceedings was unreasonably long, mainly caused by two periods of inactivity, of one year by the IAP and of almost one and a half years before the Administrative Court.

THE LAW

The applicant complains under Article 6 § 1 about the length and the alleged unfairness of the administrative criminal proceedings against him. Article 6 § 1, so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

1. As to the complaint about the length of the proceedings, the Government maintain that the case had been dealt with expeditiously by the Austrian authorities and courts. They point out that in 1995 the Independant Administrative Panel, consisting of seven members (six full-time and one half-time employed), examined 1,333 cases, in respect of which it held 610 oral hearings. The overall number of new cases lodged was 1357. Delays had been caused by the applicant, in particular, between 26 August 1996, when he requested legal aid before the Administrative Court, and 13 November 1996, when the latter noted that he had failed to fill the respective forms.

The applicant rejects the Government’s argument and contends that no delays were attributable to him, in particular his request for legal aid had had no suspensive effect on any court activity. Rather, delays had been caused by two periods of inactivity, of one year before the IAP and of one and a half years before the Administrative Court.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complains of unfairness of the proceedings, in particular that he had not been heard in person and that he had no possibility to examine witnesses. Article 6 § 3, as far as relevant, reads as follows:

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The Government, invoking the case of Jancikova v. Austria (dec., no. 56483/00, 4 July 2002, unreported), contend that the applicant had been summoned to the IAP’s hearing on 26 May 1995 by way of a writ addressed to his counsel in accordance with the applicable domestic law and that counsel had failed to complain to the Constitutional Court and the Administrative Court that the applicant be personally summoned. Further, the Government point out that the applicant had already been assisted by counsel before the District Administrative Authority and that, in his appeal of 11 May 1994 against the latter authority’s decision of 31 March 1994, the applicant only complained about questions of law, whereas the facts remained undisputed. Thus, since the IAP only had to deal with questions of law, it could abstain from hearing the applicant in person.

The applicant argues that, whenever the court authorities transmit the summons solely to counsel, the latter will bear the burden and risk of delivery, which, in the applicant’s view, runs counter to Article 6 of the Convention. A request by counsel that the applicant be summoned in person would have been in vain, as the direct service of a writ to an accused, who was assisted by counsel, was not provided for by the Code of Administrative Offences. In any event, the applicant, having made two requests to attend the hearing, was entitled to be heard at least once. In particular, evidence could have been obtained whether or not he had received information on the prolongation of the provisional work permit of A., and, if he had got such information, what kind that was. Furthermore, the applicant had been excluded from examining witnesses.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously declares the application admissible, without prejudicing the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President