FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61595/00 by Mehmet CETINKAYA against Austria

The European Court of Human Rights (First Section) , sitting on 3 October 2002 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 E. F ribergh , Section Registrar ,

Having regard to the above application lodged on 26 September 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mehmet Cetinkaya, is a Turkish national, who was born in 1965 and lives in Bregenz. 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 applicant , may be summarised as follows.

On 18 May 1993 the Bregenz District Authority ( Bezirkshauptmannschaft ) issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under the relevant provisions of the Aliens Act ( Fremdengesetz ) to pay a fine of ATS 2,000 (approximately € 150). It found that, from 23 February to 4 March 1993, the applicant had facilitated the unlawful stay in Austria of his four years old daughter.

On 3 June 1993 the applicant, assisted by counsel, filed an objection against this decision.

On 7 June 1993 the Bregenz District Authority requested the applicant to submit his defence.

On 28 June 1993 the applicant complied with this request. He claimed in particular that, having regard to the well-being of his child, the impugned behaviour had been justified from a parent’s point of view.

Upon the applicant’s request, the Bregenz District Authority, on 3 August 1993, transmitted to the applicant the information laid against him ( Strafanzeige ) and, again, requested him to submit his defence.

On 21 December 1994 the District Authority issued a penal order against the applicant ( Straferkenntnis ), which confirmed its previous decision and sentenced the applicant to a fine of ATS 2,000 (with two days’ imprisonment in default).

The applicant appealed, claiming that the authority had wrongly applied the law. In particular, he claimed to be exempted from the material provisions of the Aliens Act on account of his daughter’s very young age. The applicant did not request an oral hearing.

On 28 September 1995 the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ), sitting in camera, dismissed the applicant’s appeal.

Subsequently, the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ) and requested the court to hold an oral hearing.

On 11 June 1996 the Constitutional Court, sitting in camera, refused to deal with the applicants’ complaint for lack of prospects of success and referred the case to the Administrative Court ( Verwaltungsgerichtshof ).

On 11 November 1996, upon the Administrative Court’s request, the applicant filed supplementary submissions and requested that an oral hearing be held.

On 10 January 1997 the Vorarlberg Independent Administrative Panel filed its comments on the applicant’s appeal ( Gegenschrift ). As far as the applicant had complained that no oral hearing had been held before the Panel, it noted that the applicant had not requested so even though his appeal had been limited to points of law. It reiterated that, pursuant to section 51e of the Code of Administrative Offences of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), a hearing before the Independent Administrative Panel must only be scheduled in this case, if this is expressly requested.

On 27 January 2000 the Administrative Court refused to deal with the applicants’ complaint pursuant to section 33a of the Administrative Court Act ( Verwaltungsgerichtshofgesetz ) since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake. As to the applicant’s complaint about the lack of a prosecuting authority in the proceedings before the Independent Administrative Panel, it referred to its case-law according to which the Panel qualified as a tribunal within the meaning of Article 6 of the Convention. Insofar as the applicant had complained about the lack of an oral hearing before the Independent Administrative Panel, the court noted that the applicant had not expressly requested the panel to hold a hearing. The decision was served on 28 March 2000.

B. Relevant domestic law

Section 51e of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), as far as rel e vant, reads as follows:

“2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is e x pressly requested in the a p peal.

3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the b e ginning of the hearing. ...”

COMPLAINTS

The applicant complains under Article 6 of the Convention that no prosecuting authority participated in the proceedings and in the hearing before the Vorarlberg Independent Administrative Panel and that therefore the Panel acted both as judge and prosecutor, which allegedly violates the principle of equality of arms . Further, he submits that, throughout the proceedings, he did not have an oral hearing. Finally, he complains about the length of the administrative criminal proceedings against him.

THE LAW

1. The applicant complains that the administrative criminal proceedings at issue were not concluded within a reasonable time as required by Article 6 § 1 of the Convention, the relevant part of which provides 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 [a] ... tribunal ... .”

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant also complains under Article 6 that no prosecuting authority took part in the proceedings and in the hearing before the Independent Administrative Panel and that, therefore, the members of the Panel acted both as a judge and prosecutor. He claims that this constitutes a breach of the principle of equality of arms.

The Court recalls that, according to its established case-law, administrative offences like those at issue in the present case are to be classified as “criminal” for the purposes of Article 6. This provision, therefore, applies to administrative criminal proceedings under Austrian law (see for instance the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328 ‑ A, p. 13, § 28 and as a recent authority Baischer v. Austria, no. 32381/96, 20.12.2001, § 22). Furthermore, the Independent Administrative Panel has to be regarded as a tribunal within the meaning of Article 6 of the Convention (see the Baischer judgment , cited above, § 25).

As to the applicant’s complaint about the alleged lack of a prosecuting authority in the proceedings at issue, t he Court has already found that, if an appeal is filed with the Independent Administrative Panel against a penal order, the authority which issued the impugned decision assumes the function of the prosecuting authority in appeal proceedings before that panel. The applicant has not alleged, and there is no indication in the present case, that any procedural rights are conferred on the prosecution which would put it in a position more favourable than the accused. Thus, there is no appearance of a violation of the principle of equality of arms ( Weh v. Austria (dec.), no. 38544/97, 4.7.2002).

Further, it was found that the absence of a representative of that authority from the hearing does not give rise to objectively justified fears as regards the impartiality of the Independent Administrative Panel and that in this respect too there is no breach of Article 6 (see Weh v. Austria , cited above). The Court sees no reason to reach a different conclusion in the present case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Finally, the applicant complains that neither the Independent Administrative Panel nor the Constitutional Court or the Administrative Court held an oral hearing in his case.

However, the Court recalls that the Independent Administrative Panel has to be regarded as the only instance, which, in proceedings as the ones at issue, qualifies as a tribunal within the meaning of Article 6 of the Convention (see the Baischer judgment , cited above, §§ 25 and 29). Thus, the Court has to examine whether the fact that this body decided on the applicant’s appeal without having held an oral hearing is in conformity with the guarantees set out in Article 6 of the Convention. In this respect, the Court recalls that the right to a hearing can be waived if such waiver is made in an unequivocal manner and does not run counter to any important public interest (Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 19, § 58, and Pauger v. Austria judgment of 28 May 1997, Reports 1997-III, p. 895, § 58).

The Court notes that, under section 51e of the Austrian Code of Administrative, the Independent Administrative Panels may refrain from holding a hearing when the parties’ appeal is limited to points of law and there is no express request for a hearing to be held. In the present case, the applicant, who was assisted by counsel of his own chosing, did not request a hearing before the Independent Administrative Panel. Furthermore, the complaints raised by the applicant in his appeal concerned questions of law only. This was not contested by the applicant.

In these circumstances, the Court finds that the applicant must be deemed to have waived unequivocally his right to a hearing (see the Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A, p. 14, § 34). Moreover, there is no indication that the applicant’s case raised a matter of public interest such as to warrant a public hearing.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings;

Declares the remainder of the application inadmissible.

E rik Fribergh Christos R ozakis Registrar President