CEDH · CASELAW;REPORTS;ENG — 9 avril 1997

.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 } .s23A41E03 { width:36pt; display:inline-block } .s8828C2CA { width:31.28pt; display:inline-block } .s41A29154 { width:6.84pt; display:inline-block } .s9A9585A5 { width:23.34pt; display:inline-block } .s28DAEA75 { width:27.97pt; display:inline-block } .s3BF17DD1 { width:28.07pt; display:inline-block } .s932E7F2A { width:27.5pt; display:inline-block } .s9B2C2C0D { width:18.61pt; display:inline-block } .s79535B21 { width:28.92pt; display:inline-block } .s49A78FE0 { width:26.55pt; display:inline-block } .s7742A756 { width:35.15pt; display:inline-block } .sE23107D { width:24.29pt; display:inline-block } .s69CD3139 { width:17.11pt; display:inline-block } .s9288C869 { width:26.97pt; display:inline-block } .s490C142E { width:28.91pt; display:inline-block } .sECC8F45 { width:24.18pt; display:inline-block } .s44B3A84A { width:19.48pt; display:inline-block } .s7F5ECC96 { width:23.73pt; display:inline-block } .sC54A673A { width:28.45pt; display:inline-block } .s50014358 { width:26.56pt; display:inline-block } .s80F1F894 { width:21.82pt; display:inline-block } .s6CFF9571 { width:25.89pt; display:inline-block } .s6B20963A { width:34.33pt; display:inline-block } .s9683AE69 { width:28.54pt; display:inline-block } .s5B2D21E2 { width:23.44pt; display:inline-block }        EUROPEAN COMMISSION OF HUMAN RIGHTS     FIRST CHAMBER     Application No. 20445/92     Rasim Erdogan     against     Austria     REPORT OF THE COMMISSION     (adopted on 9 April 1997)     TABLE OF CONTENTS       Page   I.   INTRODUCTION     (paras. 1-16)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-11)   1     C.   The present Report     (paras. 12-16)   2   II.   ESTABLISHMENT OF THE FACTS   (paras. 17-19)   3   III.   OPINION OF THE COMMISSION   (paras. 20-28)   4     A.   Complaint declared admissible     (para. 20)   4     B.   Point at issue     (para. 21)   4     C.   As regards Article 6 of the Convention     (paras. 22-28)   4       CONCLUSION     (para. 28)   5   APPENDIX :   DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION   6     I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2.   The applicant is a Turkish citizen, born in 1941 and resident in Höbranz.   He was represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.   3.   The application is directed against Austria.   The respondent Government were represented by Mr. F. Cede, Agent of the Austrian Federal Government.   4.   The case concerns administrative criminal proceedings for refusal by the applicant to permit an examination of a breath sample for analysis on 24 February 1990.   B.   The proceedings   5.   The application was introduced on 27 July 1992 and registered on 5 August 1992.   6.   On 11 May 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government without inviting the parties, at that stage of the proceedings, to submit written observations on the admissibility and merits of the application.   7.   On 12 October 1994 the Commission (First Chamber) resumed its examination of the case and decided to request the Government whether, in the light of the Article 31 Reports adopted on 19 May 1994 in similar cases, they wished to waive the possibility of submitting observations on the admissibility and merits of the application and, if they did not, to request the parties to submit their observations on the admissibility and merits of the Article 6 complaint.   8.   The Government submitted their observations on 1 February 1995. The applicant replied on 17 May 1995.   9.   On 17 January 1996 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 29 January 1996 and they were invited to submit such further information or observations on the merits as they wished.   No such observations were submitted, save that on 4 February 1997 the Government informed the Commission that they did not wish to make further observations.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   12.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         Mrs.   J. LIDDY, President     MM.   M.P. PELLONPÄÄ       E. BUSUTTIL       A. WEITZEL       C.L. ROZAKIS       L. LOUCAIDES       B. MARXER       B. CONFORTI       I. BÉKÉS       G. RESS       A. PERENI?       C. BÎRSAN       K. HERNDL       M. VILA AMIGÓ     Mrs.   M. HION     Mr.   R. NICOLINI     13.   The text of this Report was adopted on 9 April 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   17.   The applicant was convicted in administrative criminal proceedings of refusing to permit an examination of a breath sample for analysis on 24 February 1990.   A penal order was issued on 22 March 1990 by the Bregenz District Authority by which the applicant was fined a total of AS 9,910.00, with 14 days' detention in default.   18.   The applicant's appeal to the Vorarlberg Provincial Government was rejected on 4 April 1991.   19.   On 16 May 1991 the Constitutional Court rejected the applicant's constitutional complaint, and on 18 December 1991 the Administrative Court dismissed the applicant's administrative complaint.   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   20.   The Commission has declared admissible the applicant's complaint that his conviction in administrative criminal proceedings was not accompanied by the requisite procedural guarantees, in particular that the Administrative Court was not a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   B.   Point at issue   21.   The only point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.   As regards Article 6 (Art. 6) of the Convention   22.   Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:       "1.   In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... "   23.   The applicant claims that he did not have the benefit of a "tribunal" in the administrative criminal proceedings against him.   24.   The Government, in their observations on admissibility and merits of 1 February 1995, considered that the case did not disclose a violation of the Convention.   On 4 February 1997, they informed the Commission that they did not wish to submit further observations in the light of the judgments of the European Court of Human Rights in the Schmautzer and others cases of 23 October 1995.   25.   The Commission recalls that in a series of judgments (Eur. Court HR, Schmautzer v. Austria, Umlauft v. Austria and Gradinger v. Austria judgments of 23 October 1995, Series A no. 328-A, 328-B and 328-C, and Pramstaller v. Austria, Palaoro v. Austria and Pfarrmeier v. Austria, Series A no. 329-A, 329-B and 329-C), the European Court of Human Rights found that the proceedings determined a "criminal charge" within the meaning of Article 6 para. 1 (Art. 6- 1) of the Convention, that the Austrian reservation to Article 5 (Art. 5) did not apply to the criminal administrative proceedings at issue, and that neither the Constitutional Court (Verfassungsgerichtshof) nor the Administrative Court (Verwaltungsgerichtshof) had the "full jurisdiction" required by Article 6 (Art. 6) in criminal cases.   26.   In the present case, too, the administrative criminal proceedings were considered by the Constitutional Court and the Administrative Court, and those courts had the same jurisdiction as they had in the cases of Schmautzer and others.   27.   The Commission therefore finds that the applicant did not have access to a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.     CONCLUSION   28.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     M.F. BUQUICCHIO             J. LIDDY      Secretary             President    to the First Chamber         of the First Chamber