CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 26793/95                       by Osman ÖZTÜRK                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 21 December 1992 by Osman ÖZTÜRK against Austria and registered on 21 March 1995 under file No. 26793/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       8 August 1996 and the observations in reply submitted by the       applicant on 7 February 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Turkish citizen born in 1951. He lives in Lauterach and is represented before the Commission by Mr. W.L. Weh, a lawyer in Bregenz.   The facts of the case, as submitted by the parties, may be summarised as follows.         On 18 April 1990 the applicant was fined AS 1,000.00 by the Bregenz District Authority (Bezirkshauptmannschaft) for alleged contravention of the Passports Act (Paßgesetz). No interpreter was present. On his application to the Vorarlberg Police Authority (Sicherheitsdirektion), more precise details were given. In particular, he was alleged to have been in Austria after expiry of his visa between 17 January 1990 and 6 April 1990, contrary to Sections 14 and 2 of the Aliens Police Act (Fremdenpolizeigesetz); his formal appeal was rejected by that authority on 10 August 1990.         The Constitutional Court (Verfassungsgerichtshof) declined to deal with the applicant's constitutional complaint on 26 November 1990, and on 20 June 1991 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant's administrative appeal in part, and quashed the part of Police Authority's decision relating to the fine imposed on the applicant.         A fresh fine of AS 1,000.00 was imposed by the Police Authority on 29 July 1991, and the Constitutional Court declined to deal with applicant's constitutional appeal against it on 24 February 1992. On 25 May 1992 the Administrative Court rejected the applicant's administrative complaint to the extent that he was making a further challenge to the conviction, and dismissed the remainder. It decided that a hearing was not necessary.         The applicant's representative's date stamp on the decision shows that he received the Administrative Court's decision on 30 June 1992. It also shows "Erl. 30.12.92" ("Erl" is an abbreviation for "erledigt", "dealt with").   COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention. He complains that no court was able to consider the facts of his case, in violation of Article 6 para. 1 of the Convention, that he was refused an interpreter before the initial administrative authority, in violation of Article 6 para. 3 (a) and (e), and that he was ultimately fined for a more serious offence than the one with which he had initially been charged, in violation of Article 7 of the Convention. In particular, he claims that the proceedings should have been brought under the version of the Aliens Police Act which was in force before 18 April 1990, date of entry into force of a 1990 amendment to that Act. He also claims that the penalty was more severe under the post- 1990 amendment than before it.   PROCEEDINGS BEFORE THE COMMISSION         The application to the Commission is dated 21 December 1992. The first time the Commission's secretariat became aware of it was on 7 February 1995, when the Commission, in connection with another application from the applicant's representative (subsequently registered under Application No. 26794/95 and declared inadmissible on substantive grounds on 4 September 1996), received a copy of the representative's post book for 23 December 1992. That copy showed that the present application and the other application had been posted on that date.         On 23 February 1995 the applicant's representative submitted a further copy of the application with an original letter of authority from the applicant.         The application was registered on 21 March 1995.         On 16 April 1996 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 8 August 1996, after an extension of the time-limit fixed for that purpose. The time-limit for submission of the applicant's observations in reply expired on 14 October 1996. On 12 November 1996, the Commission's secretariat noted that the time-limit for submission of observations in reply had expired, and drew the applicant's representative's attention to the provisions of Article 30 para. 1 of the Convention. The contents of that letter were repeated, by registered mail, on 24 January 1997. The applicant submitted his observations in reply on 7 February 1997.   THE LAW         The applicant alleges violation of Article 6 (Art. 6) of the Convention in two respects. He claims that he was denied a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and that he was denied interpretation in violation of Article 6 para. 3 (a) and (e) (Art. 6-3-a, 6-3-e) of the Convention.         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 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:              a.     to be informed promptly, in a language which he       understands and in detail, of the nature and cause of the       accusation against him;       ...            e.     to have the free assistance of an interpreter if he       cannot understand or speak the language used in court."         The Government note the interval of over two years between the date of the applicant's first letter to the Commission - 21 December 1992 - and the registration of the application, and suggest that, in the light of the applicant's representative's inactivity during that period, the Commission might wish to conclude that the applicant did not intend to pursue his petition, and therefore to strike the case off its list of cases.         As to the merits of the case, the Government note the similarities between this case and the series of cases involving administrative criminal proceedings which has been considered by the European Court of Human Rights (Eur. Court HR, Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328-A and others), and accept that the legal questions in the present case will have to be answered in the same way.       The applicant notes that proceedings before the Commission are, in principle, run by the Commission (Grundsatz der Amtswegigkeit), and that it would lead to a considerable burden on the Commission's secretariat if applicants were required continuously to check on the advancement of their case. Moreover, the applicant knew that his application was similar to the other cases, and so there was no reason ask about the case until after the judgments of the Court.         The applicant also notes that the Government accept that the case is similar to the cases which have been decided by the Court.         The Commission must first determine the date of introduction of the application, and take a decision pursuant to the Government's suggestion that the case should be struck out of the Commission's list of cases.         The Commission generally takes as the date of introduction of an application the date of the first communication from an applicant setting out, even summarily, the object of the applicant. It may nevertheless for good cause decide that a different date should be considered to be the date of introduction (Rule 44 (4) of the Commission's Rules of Procedure).         The Commission accepts that the applicant sent his application form on 21 December 1992. To this date, that form has not arrived at the Commission's secretariat.         The applicant's representative is well acquainted with the procedures before the Commission, and must have been aware that he had not received a reply to his letter of 21 December 1992, and that in the ordinary course of events he would receive a reply, either by way of comments or questions from the secretariat, or by way of a letter informing him that the application had been registered.         The Commission considers, however, that to choose a different date of introduction from the date of the applicant's first communication with the Commission's secretariat would be excessively formalistic in the circumstances of the present case: even if matters would have been clarified earlier had the applicant's representative asked why he had not received a reply to his application form of 21 December 1992, the Commission would not be justified in taking a later date as the date of introduction.         In connection with the proposal to strike the case off the list of cases, the Commission considers that even though the applicant's representative's failure to ask about the case between January 1993 and February 1995 may raise doubts about his interest in the case - especially given that the time-limit for submission of his observations had long expired by the time those observations were submitted - it cannot be concluded from this behaviour by the representative that the applicant at any stage no longer intended to pursue the petition, within the meaning of Article 30 para. 1 (a) (Art. 30-1-a) of the Convention.         As to the substantive matters involved in the case, the Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   2.     The applicant also alleges a violation of Article 7 (Art. 7) of the Convention on the ground that he was ultimately charged with a more serious offence than the one with which he had initially been charged.         Article 7 (Art. 7) of the Convention provides, so far as relevant, as follows:         "1.   No one shall be held guilty of any criminal offence on       account of any act or omission which did not constitute a       criminal offence under national or international law at the time       when it was committed. Nor shall a heavier penalty be imposed       than the one that was applicable at the time the criminal offence       was committed. ..."         The applicant was convicted under Sections 14 and 2 of the Aliens Police Act. Whilst those were not the provisions the applicant was originally alleged to have breached (which were under the Passports Act), there is no indication whatever in the papers before the Commission that the charge - being in Austria without a valid visa - did not exist in the period from 17 January 1990 to 18 April 1990. Moreover, fact that the maximum sentence for breach was increased from AS 3,000 to AS 10,000 in the course of 1990 is irrelevant: even if the applicant was fined under the new provisions, the amount he was fined was provided for in domestic law when the offence was committed.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission,         by a majority,       DECLARES ADMISSIBLE, without prejudging the merits, the       applicant's complaint concerning the procedural aspects of the       case;         unanimously,       DECLARES INADMISSIBLE the remainder of the application.             M.F. BUQUICCHIO                              J. LIDDY          Secretary                                 President    to the First Chamber                      of the First Chamber