CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)