ISOP v. AUSTRIA - 808/60 [1962] ECHR 2 (08 March 1962)

[هيثم الفقى]

ISOP v. AUSTRIA - 808/60 [1962] ECHR 2 (08 March 1962)
THE FACTSWhereas the facts of the case may be summarised as follows:1. The Applicant, a farmer, is an Austrian citizen of Sloven origin andliving in the district of Rosegg in Carinthia (Kärnten). He isrepresented by Mr. Anton Andorfer, who is acting for him under a powerof attorney dated 20th July 1960.2. Article 7 of the Austrian State Treaty of 15th May 1955 contains thefollowing provisions:"Rights of the Sloven and Croat Minorities1. Austrian nationals of the Sloven and Croat minorities in Carinthia,Burgenland and Styria shall enjoy the same rights on equal terms as allother Austrian nationals, including the right to their ownorganisations, meetings and press in their own language.2. They are entitled to elementary instruction in the Sloven or Croatlanguage and to a proportional number of their own secondary schools;in this connection school curricula shall be reviewed and a section ofthe Inspectorate of Education shall be established for Sloven and Croatschools.3. In the administrative and judicial districts of Carinthia,Burgenland and Styria, where there are Sloven, Croat or mixedpopulations, the Sloven or Croat language shall be accepted as anofficial language in addition to German. In such districtstopographical terminology and inscriptions shall be in the Sloven orCroat language as well as in German.4. Austrian nationals of the Sloven and Croat minorities in Carinthia,Burgenland and Styria shall participate in the cultural, administrativeand judicial systems in these territories on equal terms with otherAustrian nationals.5. The activity of organisations whose aim is to deprive the Sloven orCroat population of their minority character or rights shall beprohibited."3. On 19th March 1959 the Austrian Parliament passed an Act (No.102/1959) concerning the use of the Sloven language in Courtproceedings in Carinthia. This Act authorised the use of Sloven inspecifically mentioned areas only and Rosegg was not included in anyof these areas.On 26th May 1959 the Supreme Court (Oberster Gerichtshof) in a criminalcase from Burgenland where the defendant claimed the right to use theCroat language in the proceedings rejected this claim on the groundthat Article 7 (3) of the Austrian State Treaty was not a directlyapplicable provision of law and that no law as to its application inBurgenland had been enacted.4. On 17th November 1959 the Applicant's lawyer introduced, inaccordance with the relevant rules of the Austrian Criminal Code, acomplaint (Privatklage) against a certain Mr. Hafner, by which healleged that the latter had used defamatory words against him on theoccasion of a meeting of the municipal council of St. Jacob inRosenthal. The Applicant, representing the Sloven minority party on thecouncil, claimed that Mr. Hafner, who was politically opposed to him,had accused him of being a "traitor" and a "Tito communist".At the Applicant's request, the complaint was drafted in the Slovenlanguage, although his lawyer had drawn his attention to the above Actand the subsequent decision of the Supreme Court. On the same day, twoother members of the minority party introduced similar complaintsagainst Mr. Hafner, drafted in German. The Applicant's claim was lodgedthree days before the expiry of the time-limit of 42 days laid down forthe introduction of such claims.5. On 18th November 1959, the complaint introduced by the Applicant wasrejected by the District Court (Bezirksgericht) of Rosegg on the groundthat as it was written in Sloven the Court was not qualified to dealwith it (zur Verhandlung ungeeignet), as the district of Rosegg was notwithin the jurisdictional limits covered by the provisions of Act102/1959 of 19th March 1959 concerning the use of the Sloven language.On 30th November 1959 the Applicant appealed to the Regional Court(Landesgericht) of Klagenfurt which on 12th January 1960 upheld thedecision of the District Court. This decision was communicated to theApplicant's Counsel on 21st January 1960.6. The defamation cases introduced by the two other members of theSloven Christian Party on the Municipal Council were settled on 25thMay 1960 during a session of the Court of Rosegg held in St. Jacob inRosenthal. During the hearing the Applicant gave evidence in German.At the end of the hearing the defendant, Mr. Hainer, agreed to sign adeclaration in which he retracted all accusations made against the twoplaintiffs as well as against the Applicant in the present case.The allegations made by the Applicant7. Whereas the Applicant's allegations may be summarised as follows:- that the courts have denied him a fair hearing within the meaning ofArticle 6 of the Convention;- that, having regard to Article 14 of the Convention, he has beendeprived of these procedural rights by reason of a discriminationagainst him on grounds of language and of association with a nationalminority;The arguments of the Parties8. Whereas the Applicant's submission made orally and in writing maybe summarised as follows:The Applicant wished to use the Sloven language, his mother tongue, forthe purpose of introducing his complaint against Mr. Hafner, as,although he understood and spoke German, he did not feel that hisknowledge of the latter language, in particular, in the special formin which it is used in the courts, was sufficient for a successfulpursuit of his claim.9. In order to justify his use of the Sloven language he relied on thefollowing legal sources:Article 19 of the Imperial Constitution of 1867, which, according toArticle 149 of the present Federal Constitution, still remains inforce, establishes equality of languages for all public purposes in allbilingual regions.Article 8 of the Austrian Constitution of 1920 implicitly retainsrights for the Sloven minority insofar as recognition of Sloven as anofficial language is concerned: "Without prejudice to the rightsconceded by federal law to linguistic minorities, the German languageis the official language of the Republic".The Peace Treaty of St. Germain-en-Laye of 10th September 1919, Article66, paragraph 1 and Article 62, guaranteed to national minoritiesfacilities for the use of their own languages throughout the entirecountry.The State Treaty of 1955, as quoted above, explicitly guaranteed to theApplicant and other Sloven-speaking persons the right to availthemselves of their mother tongue in mixed areas in the three provincesof Carinthia, Styria and Burgenland.10. Act 102/1959 of 19th March 1959 concerning the use of the Slovenlanguage in Court restricts, however, the use of Sloven to threespecifically mentioned areas and makes no provision for the use of thatlanguage in other areas, although as far as concerns schools and publicadministration, they have been recognised as bilingual areas (such asRosegg). The Act thus violates the provisions of the State Treaty andits application by the Austrian courts in the present case constituteda breach of the Applicant's rights as set forth in Article 7 of theTreaty.According to the State Treaty, Article 7, paragraph (3) andnotwithstanding Act 102/1959, the Court of Rosegg was under theobligation to accept the Applicant's use of Sloven for the purpose ofintroducing a complaint against a private person. The State Treaty isa "self-executing" Treaty and Act 102/1959 is an unnecessaryinterpretation and an unwarranted restriction of the rights directlyguaranteed to the Slovens by the Treaty.The Applicant has referred to an article written by Mr. Ermacora "DerStaatsvertrag und die österreichische Bundesverfassung" (JuristischeBlätter 13/1955, page 319), in which it is said that the Treatyintroduced Sloven as an official language and that this is ipso jureeffective, and to Adamaovich-Spanner; "Handbuch des österreichischenVerfassungsrechts" 1957, page 469 et seq.The reasoning of the two courts of Rosegg and Klagenfurt based on Act102/1959 and on the theory that the State Treaty is not self-executingis contrary to the views expressed in Parliament at the time of theratification of the Treaty. It was stated at that time that noimplementing legislation was necessary in order to put into effect theprotection measures introduced on behalf of national minorities.11. In a decision of 5th December 1956 the Supreme Court (ObersterGerichtshof) had held that the State Treaty was self-executing and thata Croat had thereby a guaranteed right to address a judge in his ownlanguage.The Court of Appeal (Oberlandesgericht) of Vienna, in 1957, implicitlyacknowledged the right of a Croat to use his own language and found theState Treaty to be self-executing.In a decision of 1st October 1959 the Court of Appeal of Graz reverseda decision of the Regional Court of Klagenfurt which had dismissed asimilar case. The Court of Appeal held:"in view of the rights granted to the Sloven and Croat minorities, asubmission in the Sloven language cannot be rejected on the ground thatit is not submitted in German or accompanied by a translation intoGerman".It is thus established that the provisions of the State Treaty, inparticular of Article 7, are directly and immediately applicable to allmixed areas.12. The region of Rosegg is a mixed area as shown by the census of1951, according to which 61 % of the population was German and 39 %Sloven.Under Act 101/1959 of 19th March 1959 concerning schools in Carinthia,the district is bilingual and Sloven schools have been established (seethe State Treaty, Article 7, paragraph 2).According to the Bill of 23rd September 1960 concerning the languagesto be employed in Carinthia for administrative purposes, the Districtis bilingual and Sloven shall be placed on an equal footing with theGerman language for all administrative purposes (see the State Treaty,Article 7, paragraph 3).13. In view of Austria's treaty obligations and according to itsestablished jurisprudence, and in spite of Act 102/1959, the judges ofthe courts at Rosegg and Klagenfurt were obliged to accept documentswritten in a minority language although they might not themselvesunderstand this language. Article 100 of the Code of Criminal Procedureprovides in such circumstances for the interpretation and translationinto a language intelligible to the court.

[هيثم الفقى]

14. The proceedings relating to the Applicant's right to use Sloven
acted as a bar to the main proceedings brought by him against Mr.
Hafner as, even if he had subsequently filed his complaint in German,
the time-limit prescribed by law would have expired, the complaint in
Sloven having been introduced just before the expiry of the time-limit.

15. As to the Convention, the Applicant submitted that Article 6 is
clearly applicable to the proceedings initiated by him as the words
"determination of civil rights" in paragraph (1) cannot be interpreted
so as to exclude proceedings in which a person seeks to defend his
honour or to obtain compensation for the damage done to his reputation
by injurious remarks. It cannot be relevant that according to Austrian
law such proceedings took place before a criminal court. By the refusal
on the part of the judge to accept the complaint he was denied a "fair
trial" such as this term is to be understood in the said Article.

16. Whereas the submissions of the Respondent Government may be
summarised as follows:

The Applicant had failed to exhaust the domestic remedies at his
disposal as he had not invoked in domestic proceedings the rights
guaranteed by the Convention. Nevertheless the Government did not wish
to rely on Article 26 of the Convention. It found, however, that the
proceedings before the District Court of Rosegg and the Regional Court
of Klagenfurt did not violate Article 6 of the Convention. Article 6,
paragraphs (2) and (3) of the Convention are concerned solely with
defendants' rights and thus do not apply to the present case where the
Applicant was not the defendant but the plaintiff. Article 6, paragraph
(1), on the other hand, relates to any person contesting or upholding
his civil rights or obligations or against whom a criminal charge is
brought. It cannot apply, therefore, to a person who filed a suit
against another in a criminal court, in particular, as the suit did not
concern "a civil right or obligation".

17. Even if Article 6, paragraph (1) of the Convention were applicable
to the present case, the Applicant could not complain that he was
refused a fair hearing within the meaning of this Article, since the
right recognised in Article 6, paragraph (1) is not a right to be heard
in one's own language but simply the legal right of a person to be able
to put his own case in a court of law. It may be seen from Article 6,
paragraph (3) (e) that the hearing need not necessarily be in that
person's own language, as that Article simply provides that a person
charged with a criminal offence shall be provided with an interpreter
if he does not understand or speak the language used in court; the
Applicant, however, had not claimed that he was ignorant of the German
language; and during the hearing of the two cases introduced against
Mr. Hafner by the two other members of the Sloven Christian Party on
the Town Council of St. Jacob in Rosenthal, the Applicant chose to
speak German. He was, furthermore, assisted by a German-speaking lawyer
in preparing his initial complaint.

18. The Applicant had been warned by his lawyer that, in view of the
Supreme Court's decision of 26th May 1959, he ran the risk of not being
allowed to present his complaint in Sloven. The two other plaintiffs,
of whom one had the same lawyer as the Applicant, introduced their
complaints in German. The Applicant could not therefore have expected
that his complaint would be received and had deliberately taken the
risk of not being able to introduce a complaint in German within the
applicable legal time-limit.

19. In respect of the allegation that Rosegg was predominantly a Sloven
area, data which had been prepared on the basis of the population
census published by the Central Office of Statistics for the year 1951
and which were to be used for the Federal Act of 19th March 1959 (BGBl.
No. 102) show that the languages spoken in the jurisdictional district
of Rosegg were as follows:

Sloven 656 5.0 %, Sloven-German or Sloven-Vendish (Serbian) 1,278 10.3
%, German-Sloven or Vendish (Serbian)-Sloven 1,717 13,5 %.

The Government had chosen for practical purposes to permit the use in
court of the minority languages only in districts when the linguistic
minorities exceeded 20 %. This was not the case in the district of
Rosegg as shown by the census in 1951 and also that of 1961.

20. The Court proceedings did not violate Article 14 of the Convention.
This Article provides that the enjoyment of the rights and freedoms
defined in the Convention shall be secured to all persons without
discrimination. In order validly to invoke Article 14, the Applicant
would therefore have to show that the Convention gave him the right to
file a criminal suit in the Sloven language and also that this right
was denied him because he belonged to a Sloven minority.

21. The Government also submitted that the Applicant was not a victim
within the meaning of Article 25 of the Convention. At the end of the
hearing on 25th May 1960 Mr. Hafner agreed to signing a declaration in
which he retracted his accusations against the two plaintiffs as well
as the Applicant.

22. Questions concerning the interpretation of the Austrian State
Treaty and whether it should be considered self-executory or not were
not matters for the Commission. The only question before the Commission
was whether the procedure before the Austrian courts in the Applicant's
case fell short of the standards set by Articles 6 and 14 of the
Convention.

The object of the Application

Whereas the Applicant claims the annulment of the court decisions of
18th November 1959 and of 12th January 1960 by an order to the
Attorney-General to introduce a plea of nullity before the Supreme
Court;

THE LAW

Whereas in its written observations of 13th July 1961, the Respondent
Government submitted that the Applicant had not exhausted the domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention,
as he had failed to show that he had invoked before the Austrian courts
the provisions of the Convention, notably Article 6 and 14
(Art. 6, 14);

Whereas, however, the Government added that in the present case it
chose not to rely on Article 26 (Art. 26) of the Convention;

Whereas, in any case, in its decision of 27th June 1960 (B. 469/59/12,
reported in the Yearbook of the European Convention on Human Rights,
Volume 3, page 622) the Austrian Constitutional Court expressly held
that "the lack of precision of certain notions contained in Article 6
(Art. 6) which is to be compared with a detailed judicial system of
civil procedure and criminal procedure, leads to the idea that Article
6 (Art. 6) contains only a declaration of principles which the
Legislator certainly must carry out and respect, but which in
themselves do not constitute immediately applicable rights"; whereas,
consequently, it would in no way have been an effective remedy for the
Applicant to invoke Article 6 (Art. 6) in proceedings before the
Austrian courts; and whereas under Article 26 (Art. 26) of the
Convention he was therefore not so obliged before introducing his
Application before the Commission of Human Rights;

Whereas the Respondent Government has contended that Article 6
(Art. 6) of the Convention does not apply to the present case; whereas
Article 6, paragraph (3) (Art. 6-3) clearly restricts its application
to persons charged with a criminal offence; and whereas it is evident,
as submitted by the Respondent Government, that the Applicant, during
the proceedings before the Court of Rosegg, was not charged with a
criminal offence but on the contrary was attempting to charge his
opponent with a criminal offence; whereas paragraph (3) of Article 6
(Art. 6-3) does not apply; Whereas paragraph (1) of Article 6 (Art.
6-1) stipulates that in the determination of his civil rights and
obligations, everyone is entitled to a fair hearing; whereas it is true
that the complaint lodged by the Applicant was filed in criminal
proceedings; whereas however, the question whether a right or an
obligation is of a civil nature within Article 6, paragraph (1)
(Art. 6-1) of the Convention does not depend on the particular
procedure prescribed by domestic law for its determination but solely
on an appreciation of the claim itself and of the purpose of the
complaint;

Whereas the Applicant alleged that his opponent had defamed his good
name and reputation by the use of highly injurious words and whereas
he intended by the means given to him by Austrian law to seek the
rehabilitation of his honour; whereas the right to enjoy a good
reputation and the right to have determined before a tribunal the
justification of attacks upon such reputation must be considered to be
civil rights within the meaning of Article 6, paragraph (1) (Art. 6-1)
of the Convention;

Whereas it must be concluded that the Applicant in the present case may
validly invoke this paragraph as applicable to the proceedings before
the court of Rosegg;

Whereas the only question that remains to be considered by the
Commission is whether the decisions of the court of Rosegg of 18th
November 1959 and of the court of Klagenfurt of 12th January 1960
rejecting the Applicant's complaint written in the Sloven language
constitute a violation of the rights guaranteed to him by the
Convention in Article 6, paragraph (1) and 14 (Art. 6-1, 14), namely,
that he was entitled to a fair hearing without any discrimination on
the basis of language or association with a national minority; whereas
the Act 102/1959 of 19th March 1959 does not recognise the Sloven
language as an official language in court in the district of Rosegg;
whereas the question whether, on other legal grounds, the Sloven
language ought to be recognised as an official language for court
purposes might, in view of the decision of the Court of Appeal of Graz
of 1st October 1959, give rise to certain doubts as to the actual legal
situation in Austria;

Whereas, nevertheless, the decision of the Court of Rosegg as upheld
on appeal, was based on the above Act of 19th March 1959 and was in
conformity with the Supreme Court decision of 26th May 1959;

Whereas the Applicant's lawyer drew the Applicant's attention to the
risks which, in view of the above legislation and jurisprudence, he
exposed himself in insisting upon the use of Sloven language;

Whereas the Applicant with the assistance of his lawyer had sufficient
linguistic knowledge to permit him to lodge his complaint in the German
language;

Whereas it follows that the refusals by the Courts of Rosegg and
Klagenfurt to accept his complaint in the Sloven language and the
expiry of the time-limit for introducing a similar complaint in the
German language, which occurred during the proceedings concerning his
right to use the Sloven language, do not constitute a violation of the
Applicant's right under Article 6, paragraph (1) (Art. 6-1) that he
should be given a fair hearing;

Whereas, in regard to the complaint that the said refusal constituted
a violation of Article 14 (Art. 14) of the Convention, it is to be
observed that Article, by its express terms, forbids discrimination
only with regard to the enjoyment of the rights and freedoms guaranteed
in the Convention; and whereas the Commission has already held above
that such right is not violated in the present case; whereas it follows
that Article 14 (Art. 14) of the Convention has no application in the
circumstances of the present case;

Whereas, consequently, the Application is manifestly ill-founded and
must be rejected in accordance with Article 27, paragraph (2)
(Art. 27-2) of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.