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. 21361/93     Pakize Gönengil     against     Austria     REPORT OF THE COMMISSION     (adopted on 9 April 1997)     TABLE OF CONTENTS     Page   I.   INTRODUCTION     (paras. 1-17)   1     A.   The application     (paras. 2-4)   1     B.   The proceedings     (paras. 5-12)   1     C.   The present Report     (paras. 13-17)   2   II.   ESTABLISHMENT OF THE FACTS   (paras. 18-20)   3   III.   OPINION OF THE COMMISSION   (paras. 21-29)   4     A.   Complaint declared admissible     (para. 21)   4     B.   Point at issue     (para. 22)   4     C.   As regards Article 6 of the Convention     (paras. 23-29)   4       CONCLUSION     (para. 29)   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 1948 and resident in Feldkirch.   She 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 visa irregularities during the period from 22 February 1989 to 19 September 1989.   B.   The proceedings   5.   The application was introduced on 29 January 1993 and registered on 10 February 1993.   6.   On 7 September 1993 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 and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 7 only, and to adjourn the remainder of the application.   7.   The Government submitted their observations on 25 November 1993 after an extension of the time-limit fixed for this purpose. The applicant replied on 29 September 1994.   8.   By a letter of 30 November 1995 the Government were requested whether, in the light of a judgment given by the European Court of Human Rights in the cases of Schmautzer and others, they wished to waive the possibility of submitting observations on the admissibility and merits of the applicant's complaint under Article 6 of the Convention.   9.   By a letter of 13 December 1995 the Government informed the Commission that they did not wish to submit observations on the Article 6 issues.      10.   On 17 January 1996 the Commission declared inadmissible the complaint by which the applicant alleged that she had been convicted of an offence which did not exist, and declared the remainder of the application admissible.   11.   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.   12.   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   13.   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     14.   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.   15.   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.   16.   The Commission's decision on the admissibility of the application is annexed hereto.   17.   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   18.   The applicant was convicted in administrative criminal proceedings of not having had a valid visa during the period from 22 February 1989 to 19 September 1989.   A penal order was issued on 22 November 1990 by the Feldkirch District Authority by which the applicant was fined AS 700.00 plus costs, with 42 hours' detention in default.   19.   The applicant's appeal to the Vorarlberg Security Directorate was rejected on 26 June 1991.   20.   On 25 November 1991 the Constitutional Court rejected the applicant's constitutional complaint, and on 9 July 1992 the Administrative Court dismissed the applicant's administrative complaint.   The Administrative Court was not required to deal with the applicant's complaint that any proceedings should have been against the applicant's husband rather than against herself, but nevertheless noted that the cases on which the applicant relied related to different factual situations.   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   21.   The Commission has declared admissible the applicant's complaint that her 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   22.   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   23.   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 ... "   24.   The applicant claims that she did not have the benefit of a "tribunal" in the administrative criminal proceedings against her.   25.   The Government, by letter of 13 December 1995, informed the Commission that they did not wish to make observations on the Article 6 (Art. 6) issues.   26.   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.   27.   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.   28.   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   29.   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