THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30466/96

by Bülent Serdar YAZICI

against Austria

The European Court of Human Rights ( Third Section) sitting on 29 June 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J-P. Costa,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 July 1995 by Bülent Serdar YAZICI  against Austria and registered on 15 March 1996 under file no. 30466/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1963 and living in Vienna. He is an interpreter and translator (Turkish/German) by profession.

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

A. Particular circumstances of the case

I. Procedure relating to the Vienna Civil Regional Court’s list of registered interpreters

On 5 March 1993 the applicant applied to the President of the Vienna Civil Regional Court ( Landesgericht für Zivilrechtssachen ) to be entered on this court’s list of registered interpreters ( allgemein beeidete Dolmetscher ) for the Turkish language.

On 26 March 1993 the President of the Vienna Civil Regional Court, referring to sections 14 and 4(1) of the Court Experts and Interpreters Act 1975 ( Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher ), dismissed this request on the ground that the applicant was entered on the Feldkirch Regional Court’s list of registered interpreters. The President noted that the decision of the President of the Feldkirch Regional Court dated 24 February 1993, namely to strike the applicant off that court’s list of registered interpreters, had not yet become final.

On 19 May 1993 the applicant again applied with the President of the Vienna Civil Regional Court to be entered on this court’s list of registered interpreters for the Turkish language.

On 24 May 1993 the President of the Vienna Civil Regional Court, referring to sections 14 and 2(2) of the Court Experts and Interpreters Act 1975, dismissed this request on the ground that there was no need for registered interpreters.

On 29 July 1993 the Constitutional Court ( Verfassungsgerichtshof ) granted the applicant’s request for legal aid and counsel was appointed to represent the applicant for the purposes of complaint proceedings. Counsel filed the complaint with the Constitutional Court on 14 September 1993, alleging in particular discrimination and a violation of the freedom to practise a profession.

In his observations of 5 November 1993, the President of the Vienna Civil Regional Court stated that the need for registered interpreters was known to the President keeping the lists concerned due to his regular contacts with the judges of the Regional Court and of the District Courts, and judges of other courts in the respective judicial district. Extensive inquiries were therefore not necessary. No suggestions for more registered interpreters had been made prior to the applicant’s application. Moreover, the keeping and updating of these lists required a considerable amount of administrative work which indicated that not all persons fulfilling the statutory conditions should be entered on the respective lists. The President also noted that a registered interpreter did not have any privileges compared to an unregistered interpreter, as any competent person could be called in concrete proceedings to act as an expert or interpreter. Any person speaking a foreign language could practise as an interpreter without registration, irrespective of whether he or she were appointed, on a case by case basis, by courts or administrative authorities, or were working as a free lance translator. Moreover, the question of registration did not affect the occupation as an employed translator.

In his supplementary observations of 11 April 1994, the applicant submitted that the handling of applications for registrations in 1993 disclosed arbitrariness on the part of the President of the Vienna Civil Regional Court. He further maintained that registered interpreters were given preference upon appointment for court proceedings and that the lack of registration also had repercussions when otherwise practising as interpreter.

On 14 June 1994, pursuant to Article 144 § 2 of the Federal Constitution, the Constitutional Court declined to accept the applicant's complaint.  It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly.  To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court ( Verwaltungsgerichtshof ). At the applicant’s request, it also decided to refer the application to the Administrative Court.

On 23 August 1994 the Administrative Court stayed the proceedings before it as the applicant’s application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ). The applicant’s amended submissions were received at the Administrative Court on 24 October 1994. He also applied for legal aid; his request was to no avail.

On 25 November 1994 the Administrative Court rejected the applicant’s appeal. It observed that, in accordance with Article 130 § 1 of the Federal Constitution, its jurisdiction was limited to applications alleging that a final administrative decision ( letztinstanzlicher Bescheid ) had infringed the complainant’s rights. An administrative decision within the meaning of this provision presupposed that the handling of an administrative matter had involved a legal ruling. This had not been the case for the impugned letter of 24 May 1993 as, under section 4(2), in conjunction with section 14, of the Court Experts and Interpreters Act 1975, persons applying for entry on the list of registered interpreters had no right to registration. The refusal of registration could not, therefore, adversely affect the applicant’s legal status, nor had there been a decision on the applicant’s rights. Rather, the President had sent an informal reply ( formlose Beantwortung ) to the applicant’s application.

This decision was served on 24 May 1995.

II. Procedure concerning the Feldkirch Regional Court’s list of registered interpreters

On 24 August 1993 the applicant, who had been struck off the Feldkirch Regional Court’s list of registered interpreters by the President’s decision of 8 February 1993 as Feldkirch was not his regular place of residence and practice, applied to be restored to the Feldkirch list. In his application, he mentioned that there was a need for registered interpreters for the Turkish language, as, on several occasions, he had been called to act as interpreter, registered interpreters not being available.

On 1 March 1994 the President of the Feldkirch Regional Court dismissed the request.

On 14 June 1994, pursuant to Article 144 § 2 of the Federal Constitution, the Constitutional Court declined to accept the applicant's complaint of 6 April 1994.  It found that the bulk of the complaint related to allegations that the ordinary law had been applied incorrectly.  To the extent that the complaint did touch upon questions of constitutional law, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court. At the applicant’s request, it also decided to refer the application to the Administrative Court.

On 25 October 1994 the Administrative Court stayed the proceedings before it as the applicant’s application did not satisfy the substantive and formal requirements of section 34(2) of the Administrative Court Act. The applicant’s amended submissions were received at the Administrative Court on 12 January 1995.

On 20 October 1995 the Administrative Court rejected the applicant’s appeal for the same reasons as stated in the above-mentioned decision of 25 November 1994.

B. Relevant domestic law

1. Registered interpreters

The qualifications of registered interpreters ( allgemein beeidete gerichtliche Dolmetscher ) are specified in the Court Experts and Interpreters Act 1975 ( Bundesgesetz über den allgemein beeideten gerichtlichen Sachverständigen und Dolmetscher , Bundesgesetzblatt für Österreich No. 137/1975 ).  According to section 14 of this Act, the provisions regarding experts (sections 2 - 12) are also applicable to interpreters, with the exception of section 2(2)(1) b and f (requiring a minimum period of professional experience and Austrian nationality).

Section 2 lays down the conditions for registration in the lists to be kept by the presidents of the courts of first instance (i.e. at the level of the regional courts - section 3). Section 2(2)(1) concerns the personal qualifications such as special knowledge ( Sachkunde ), full capacity to perform legal transactions ( volle Geschäftsfähigkeit ), physical and mental fitness ( körperliche und geistige Eignung ), trustworthiness ( Vertrauenswürdigkeit ), regular residence or place of professional activity ( gewöhnlicher Aufenthalt oder Ort der beruflichen Tätigkeit ) in the judicial district of the court where registration is sought, and financially sound circumstances. According to section 2(2), there must be a need for registered experts (interpreters).

Section 4 governs the registration procedure. The possibility of registration is limited to one list. The candidate has to prove his or her qualifications and the president has to conduct all necessary inquiries and, if necessary, to question the candidate. According to the third sentence of section 4(2), the candidate has no right to be entered on the list.

The oath taken in accordance with section 5(1) has the legal effect that the expert or interpreter, as long as he or she is registered, does not have to take any specific oath when acting in court (section 5(2)).

The respective lists are regularly updated (every two years) and communicated to the president of the superior court of appeal and subsequently to the courts in the judicial district concerned (section 7). Sections 9 to 12 concern the expiration of registration and striking off the list.

2. Procedure before the Constitutional Court and the Administrative Court

By Article 144 § 1 of the Federal Constitution, the Constitutional Court, when an application ( Beschwerde ) is made to it, has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the Constitution or has applied regulations ( Verordnung ) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.

By Article 130 § 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia , applications alleging that an administrative decision is unlawful.

Section 34 (1) of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ) provides inter alia that applications upon which, on account of the Administrative Court's manifest lack of jurisdiction, it is not appropriate to adjudicate, shall be rejected, without further proceedings, by a decision taken in closed sitting.

COMPLAINTS

1. The applicant complains that, in the proceedings concerning his applications to be entered on the respective lists of registered interpreters of the Vienna Civil Regional Court and the Feldkirch Regional Court, he did not have a fair hearing by an independent tribunal established by law, as guaranteed by Article 6 § 1 of the Convention.

2. The applicant further submits that he did not have an effective remedy, as required by Article 13 of the Convention for the review of the alleged violations of his right to the free exercise of his occupation as the Constitutional Court declined to entertain his complaints.

3. The applicant also complains about discrimination in that the Administrative Court refused to examine the merits of his complaint, arguing that there was no right to registration as an interpreter. He submits that the Administrative Court examines complaints about the refusal of residence permits for foreigners although, under the relevant legal provisions, there is generally no right to obtain a residence permit. He invokes Article 14, in conjunction with Article 13, of the Convention.

4. The applicant finally complains about discrimination in that three other interpreters for the Turkish language were entered on the list of registered interpreters of the Vienna Civil Regional Court at about the time when he had unsuccessfully applied. He invokes Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about proceedings concerning his applications to be entered on court lists of registered interpreters for the Turkish language.

Article 6 § 1, as far as relevant, provides:

“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. …”

The Court must first determine whether this provision is applicable.

The Court recalls that Article 6 § 1 extends only to “ contestations ” (disputes) over civil “rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; it does in itself guarantee any particular content for (civil) “rights and obligations” in the substantive law the Contracting States (see the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, § 192; the W v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 32, § 73, H v. Belgium judgment of 30 November 1987, Series A no. 127, pp. 31-32, §§ 37-43; Masson and Van Zoon judgment of 28 September 1995, Series A no. 327-A, p. 17, § 44).

In seeking to be entered on the list of registered interpreters for the Turkish language at the Vienna Civil Regional Court and the Feldkirch Regional Court, respectively, the applicant raised a matter under the Court Experts and Interpreters Act 1975 which mainly related to the terms of acting as interpreter in court, namely whether he could perform without taking a specific oath in each case. Lists of registered interpreters facilitate the functioning of the judiciary when the assistance of an interpreter is necessary, but registration is not a prerequisite for practising as an interpreter or for appointment as an interpreter in court proceedings.

The Court notes that section 2, in conjunction with section 14, of the Court Experts and Interpreters Act 1975 lays down conditions for being entered on the court lists of registered interpreters, which partly relate to the candidates personal qualifications, and partly to the need for registered interpreters. However, section 4(2), third sentence, of the said Act explicitly stipulates that the candidate has no right to be entered on a list. Referring to this provision, the Austrian Administrative Court found that it had no jurisdiction under Article 130 § 1 of the Federal Constitution, as the refusal of registration did not involve any administrative decision.

In these circumstances, the Court finds, having regard to the wording of the relevant legal provisions as applied by the Austrian courts, that the applicant could not arguably maintain that in Austrian law he had the right to be entered on a list of registered interpreters (see the above-mentioned Masson and van Zoon judgment, pp. 19-20, §§ 48-52, and, a contrario , the above-mentioned H v. Belgium judgment, p. 32, §§ 42-43).

The Court accordingly concludes that the Austrian authorities did not have to determine a dispute concerning a civil right within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application must be dismissed as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4.

2. The Court has examined the applicant’s further complaints, as they have been submitted by him, about the absence of an effective remedy, discrimination against him in his access to the Administrative Court and arbitrariness in the registration practice of the President of the Vienna Civil Regional Court.

In the light of all the material in its possession, and in so far as these matters are within its competence, the Court finds that they are unsubstantiated and do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President