FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56483/00 by Helena JANCIKOVA against Austria

The European Court of Human Rights (First Section) , sitting on 4 July 2002 as a Chamber composed of

Mr C.L. Rozakis , President ,

Mrs F. Tulkens , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova ,

Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 28 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs. Helena Jancikova, is a Austrian national, who was born in 1961 and lives in Vienna. She is represented before the Court by Mr. Hahmann, a lawyer practising in Vienna.

A. The circumstances of the case

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

The applicant is the owner of a parcel of land in Vienna. At the time of the events she was building a house on her land.

On 16 October 1992 officers of the Regional Vienna Labour Office ( Landesarbeitsamt ) inspected the construction site and found four persons of Czech nationality who were carrying out plaster works. The four workers had no permit to work in Austria. When questioned by the officers they stated that they were working for the applicant.

On 21 October 1992 the Labour Office submitted a report to the Vienna Municipal Office ( Magistrat ) in which it stated that the applicant had illegally employed four foreigners for construction works on her land. Thereupon, the Vienna Municipal Office opened administrative criminal proceedings against the applicant under the Aliens’ Employment Act ( Ausländerbeschäftigungsgesetz ).

On 29 December 1992 the Municipal Office invited the applicant to comment on the charge against her ( Aufforderung zur Stellungnahme ). As the applicant was on holiday, this letter did not reach her.

On 20 January 1993 the Municipal Office convicted the applicant of an offence under the Aliens’ Employment Act and sentenced her to a fine of ATS 66,000. It found that the applicant had employed four foreigners who had no employment permit.

On 4 February 1993 this order was served on the applicant. According to the applicant this was the first time that she came to know that proceedings had been instituted against her.

On 11 February 1993 the applicant, assisted by counsel, filed a request for reinstatement into the first instance proceedings ( Wiedereinsetzungsantrag ) and an appeal against the order of 20 January 1993. In her appeal she argued that she had not concluded work contracts with the foreigners and requested to hear them as witnesses at the hearing. Further she requested that S. be heard, the neighbour of the applicant and two officers of the Labour Office (W.B. and W).

On 19 February 1993 the Municipal Office rejected the request for reinstatement into the proceedings. It found that the applicant’s absence on holiday could not be considered an unforeseeable or insurmountable obstacle as required by the law.

On 25 March 1993 the applicant filed an appeal against this decision and claimed that the letter of 29 December 1992 had not been properly served on her.

On 14 February 1995 the Independent Administrative Panel ( Unabhängiger Verwaltungssenat , IAP) summoned the parties to a hearing scheduled for 21 March 1995. This summon was served on the applicant’s counsel. On the same day she was asked to comment on the charge.

On 3 March 1995 the applicant filed her comments.

On 21 March 1995 the IAP, after having held a hearing on her appeal of 25 March 1993, dismissed the applicant’s appeal. It found that the request to comment on the charge of 29 December 1992 had been served in accordance with the provisions of the Official Notifications Act ( Zustellgesetz ) and that therefore the Municipal Office’s decision of 19 February 1993 to refuse reinstatement into the proceedings was lawful.

On the same day the IAP held another hearing on the applicant’s appeal of 11 February 1993. The applicant’s counsel attended the hearing. The IAP heard M.B. , the officer who had written the Labour Office’s report. The IAP adjourned the hearing and summoned the applicant’s counsel to attend the oral pronouncement of the decision in the same afternoon. However, he stated that, in view of the short notice, he could not attend the pronouncement. The IAP pronounced the decision in his absence. The applicant’s appeal was dismissed.

On 17 May 1995 the written version of the IAP’s decision on the dismissal of the request for the reinstatement, which had been orally pronounced in the first hearing of 21 March 1995, was served on the applicant.

On 21 June 1995 the applicant filed a complaint with the Administrative Court against this decision.

On 7 September 1995 the Administrative Court dismissed the applicant’s complaint and found that the requirements to grant reinstatement had not been fulfilled.

On 23 August 1996 the IAP issued the written version of its decision on the applicant’s appeal of 11 February 1993. It found that the applicant had concluded work contracts with foreigners which required a valid work permit under the Aliens’ Employment Act. As regards the request to hear further witnesses it found that the four foreigners, and S were unavailable witnesses as their addresses were unknown and moreover that it was not possible to file letters rogatory ( Rechtshilfeersuchen ) as there existed no legal assistance treaties ( Rechtshilfeabkommen ) concerning administrative proceedings with the Czech Republic and Slovakia where these persons probably lived. As regards the request to hear W.B. and W it found that the applicant had not substantiated that these persons could make any relevant statement. The IAP stated that the Labour Office’s report was sufficient evidence and that the applicant failed to submit any evidence that other persons than the four foreigners had effected the construction works on her land or that they had not worked for the applicant. This decision was served on 29 November 1996.

On 19 December 1996 the applicant filed a complaint with the Constitutional Court.

On 30 September 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. This decision was served on 9 December 1997.

On 9 April 1998 the IAP commented on the applicant’s complaint and on 20 May 1998 the applicant replied on this submissions.

On 13 September 1999 the Administrative Court dismissed the applicant’s complaint. In found that the applicant’s request to hear further witnesses had not been formulated properly and therefore the applicant’s complaint about the failure to hear further witnesses was unfounded. As to the complaint that only the applicant’s counsel was summoned to the hearing on 21 March 1995 the court found that an additional summon was not necessary under the applicable law. As to the complaint that the decision was taken after the period of prescription had expired, the court found that the decision was taken on 21 March 1995 and therefore the IAP has taken the decision before the period of prescription had expired.

This decision was served on 30 September 1999.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the criminal proceedings.

She also complains that the criminal proceedings against her had been unfair. She had not been given the opportunity to participate in the first instance proceedings, she had not been summoned to the IAP’s hearing and therefore had no possibility to put forward her defence. Moreover the IAP had refused her request to hear further witnesses and she was convicted although the period of prescription had already expired.

She also complains that the presumption of innocence as guaranteed by Article 6 § 2 of the Convention has been violated in that the authorities had applied a reversal of the burden of proof .

The applicant also invokes Article 13.

THE LAW

1. The applicant complains that the administrative criminal proceedings instituted against her were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.

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 it to the respondent Government.

2. The applicant also complains under Article 6 of the Convention about her conviction and the alleged unfairness of the proceedings leading thereto.

Article 6 of the Convention, insofar as relevant, reads as follows:

“1. In the determination of  ... any criminal charge against him, everyone is entitled to a fair ... hearing ...

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 Court observes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1. For this reason, it considers it appropriate to examine this complaint under the two provisions taken together ( Artner v. Austria judgment of 28 August 1992, Series A no. 242-A, p. 10, § 19; Pullar v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, § 45).

a. The applicant submits that she had not been given the opportunity to participate in the first instance proceedings conducted before the Municipal Office.

However, the Court finds that the applicant had ample possibility to put forward her defence before the IAP, the only instance which, according to the Court’s case law, qualified as a tribunal within the meaning of Article 6 of the Convention ( Baischer v. Austria , no. 32381/96, § 25, 20 December 2001).

b. The applicant submits that she was not summoned to the IAP’s hearing and that she had no possibility to defend herself.

However, the Court observes that the applicant was assisted by counsel of her own choice and that the summon was duly served on him. The counsel, who attended the hearing before the IAP did not request that the applicant be summoned personally. In such circumstances the Court finds that the applicant’s rights under Article 6 of the Convention were not infringed in this respect.

c. The applicant submits that the IAP refused to hear further witnesses.

The Court recalls, however, that as a general rule it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d), in principle, leaves to them the assessment whether it is appropriate to call witnesses. The Convention does not require the attendance and examination of every witness on the accused’s behalf ( Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33).

The Court observes that the IAP rejected the applicant’s requests for evidence, explaining why such evidence was either irrelevant, unnecessary or unavailable. The Administrative Court carefully examined the explanations and found that the IAP had acted correctly in its refusal.

The Court finds no reason to conclude that the refusal to take the evidence requested by the applicant was incompatible with Article 6.

d. The applicant complains that the IAP imposed a fine although the period of prescription had expired.

However, the Court observes that the Administrative Court found that the decision was taken on 21 March 1995 and that the period of prescription had not expired at that date. The Court recalls that it is not called upon to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).

It follows that 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.

3. The applicant complains that her rights under Article 6 § 2 of the Convention were violated in that she was subjected to a reversal of the burden of proof as the IAP requested her to produce evidence to disprove the charges of the Labour Office.

Article 6 § 2 of the Convention reads as follows:

“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

The Court recalls that presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law (see for instance the Salabiaku v. France judgment of 7 October 1988, Series A no. 141-A, pp. 15-16, § 28).

In the present case the Labour Office in the proceedings had shown that its officers had met four foreigners, who had no employment permit, working on the applicant’s construction site.

The Court does not consider it unreasonable that the IAP concluded that the Labour Office had established a prima facie case against the applicant which called for an explanation by her (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 52, § 47).

The Court finds that the Austrian courts exercised their power of assessment on the basis of the evidence adduced by the parties before them and that they remained in doing so within the limits set out by Article 6 § 2.

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.

4. Finally, the applicant, without specifying her complaint further, invokes Article 13 of the Convention. Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Insofar the applicant complains under Article 13 of the Convention about the lack of an effective remedy in respect of her complaint about the length of the proceedings, 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 it to the respondent Government.

Insofar the applicant complains under Article 13 of the Convention about the alleged unfairness of the proceedings and a breach of the principle of presumption of innocence, the Court recalls that Article 13 requires a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention ( Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, § 31).

However, the Court has found above that the applicant’s complaints under Article 6 of the Convention about the alleged unfairness of the proceedings and a breach of the principle of presumption of innocence are inadmissible. Thus, the applicant has not made out an “arguable claim” of a violation of these provisions with respect to Article 13 of the Convention.

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 the administrative criminal proceedings and the complaint that, in this respect, he did not have an effective domestic remedy;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President