هيثم الفقى
07-16-2009, 01:01 PM
X. v. AUSTRIA - 2432/65 [1967] ECHR 20 (07 April 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen, born in 1941 and, when last heardof on 4th February, 1965, detained in the prison at Stein/Danube.From his statements it appears that, on ..., 1964, he was convicted bythe District Administrative Authority (Bezirkshauptmannschaft) at Badenon charges of having committed several administrative offenses underSections 57, paragraph (1), 85, paragraphs (1) and (4), 44, paragraph(1) and 111 of the Motor Vehicles Act (Kraftfahrgesetz) of 1955 andSections 19, paragraph (4), and 99, paragraph (3), sub-paragraph (a),of the Road Traffic Act (Strassenverkehrsordnung) of 1960, andsentenced to a fine of 2,500 Schillings or 33 days arrest in case ofnon-payment of the fine. On ..., 1964, he lodged an appeal (Berufung)from this decision with the Provincial Government Office(Landesregierung) of Lower Austria which was dismissed. The decisionwas communicated to the Applicant on ..., 1964.He states that he intended to lodge a further appeal (Beschwerde) withthe Administrative Court (Verwaltungsgerichtshof) in Vienna but wasprevented from doing so, the 6 weeks time-limit having expired by thetime he had found a lawyer to represent him. He alleges that appealsto the Administrative Court could only be lodged by a lawyer, that atthe time he was detained on remand on other charges by an order of theDistrict Court (Kreisgericht) at Wiener Neustadt, that he lodged arequest for free legal aid and assignment of a lawyer with theAdministrative Court but that, by the time a lawyer was assigned tohim, the six weeks time-limit had expired.The Applicant complains that he was denied the right to a fair hearingby an independent and impartial tribunal established by law as well asthe right to free legal assistance. He alleges that the six weekstime-limit was too short for persons detained in prison. He requestsreinstatement in his prior position enabling him to lodge the appealand be heard by an independent and impartial tribunal.He alleges a violation of Articles 5 , paragraph (1), sub-paragraph(a), and 6, paragraph (1) and paragraph (3) sub-paragraph (c), of theConvention.THE LAWWhereas at the time of its ratification of the Convention the AustrianGovernment made the following reservation in respect of the Articleinvoked by the Applicant:"The provisions of Article 5 (Art. 5) of the Convention shall be soapplied that there shall be no interference with the measures for thedeprivation of liberty prescribed in the laws on administrativeprocedure, BGBl. No. 172/1950, subject to review by the AdministrativeCourt or the Constitutional Court as provided for in the AustrianFederal Constitution";Whereas it has first to be pointed out that in its original German textthe reservation contains the words "Die in denVerwaltungsverfahrensgesetzen BGBl. No. 172/1950 vorgesehenenMassnahmen des Freiheitsentzuges";Whereas a more exact translation of the word "vorgesehenen" would be"provided for" and not "prescribed in"; whereas, in order to determinethe exact scope and intention of a reservation, which in thisparticular case was deposited in the German language only, regardshould be had to the wording used in the original language and not toan approximate translation; whereas, consequently, the Commission hasto consider the present Application and, in particular, the allegedviolation of Article 5 (Art. 5) in the light of the original text ofthe reservation;Whereas the Administrative Penal Code (BGBl. 172/1950) in Articles 10and 11 (Art. 10, 11) provides as follows:"PenaltiesParagraph 10(1) The category and extent of the punishment are determined byadministrative regulations.(2) Where, accordingly, punishment of deprivation of liberty or of afine or of confiscation of property is applicable, the provision ofparagraphs 11 to 22 shall apply.ImprisonmentParagraph 11(1) Imprisonment is either close arrest or house arrest.(2) The minimum duration of imprisonment is six hours.(3) In the case of a term of imprisonment, one day is equivalent to 24hours, one week equivalent to seven days, while the duration of a monthis to be determined by the calendar."Whereas "administrative regulations" within the meaning of paragraph10 (1) cover any enactments which deal with administrative matters andwhich give the administrative authorities the power to imposeimprisonment as a penalty for any offenses against such enactments;Whereas the Motor Vehicles Act and the Road Traffic Act are properlyto be considered as enactments dealing with administrative matters andindeed they refer to "administrative offenses"(Verwaltungsübertretungen), and provide for the penalty of imprisonmentin regard to such offenses;Whereas, accordingly, the Motor Vehicles Act and the Road Traffic Actare to be regarded as "administrative regulations" within the meaningof paragraph 10 (1) of the Administrative Penal Code;Whereas, in respect of the foregoing, the Commission refers to itsfindings in the decision on the admissibility of Applications Nos.1047/61 (G. v. Austria, Yearbook IV, page 356) and 1452/62 (K. v.Austria, Yearbook VI, page 268);Whereas reservations to the Convention are governed by Article 64 (Art.64), which states:"(1) Any State may, when signing this Convention, or when depositingits instrument of ratification, make a reservation in respect of anyparticular provision of the Convention to the extent that any law thenin force in its territory is not in conformity with the provision.Reservations of a general character shall not be permitted under thisArticle.(2) Any reservation made under this Article shall contain a briefstatement of the law concerned."Whereas Article 64 (Art. 64) by its plain terms permits the making ofa reservation only with respect to laws which were already in forcewhen the reservation was made; and whereas it is true that theCommission's jurisprudence referred to above was concerned with theRoad Traffic Act of 1947 and, consequently, with a law enacted priorto 3rd September, 1958;Whereas the Commission is aware of the fact that the Road Traffic Actapplied in the Applicant's case was passed in 1960, i.e. subsequent tothe date on which the Austrian Government made the above reservation;Whereas, the Commission finds, however, that the subject matter coveredby the Road Traffic Act of 1947 and the Road Traffic Act of 1960 issubstantially the same; whereas, therefore, the latter Act does nothave the effect of enlarging, a posteriori, the subject matter whichis excluded from the competence of the Commission by the abovereservation;Whereas the Commission concludes that it is the real meaning of thereservation to cover any Act, including one such which was passed after3rd September, 1958, dealing with "measures for the deprivation ofliberty prescribed in the laws on administrative procedure ...";Whereas, in this respect, reference is made to the Commission'sfindings in the decision on the admissibility of Applications Nos.1731/62 (X. v Austria, Collection of Decisions, Volume 15, pages 33 to38) and 1821, 1822/63 (Y. v Austria, Collection of Decisions, Volume19, pages 56 to 70) concerning the Austrian reservation made in respectof the State Treaty and laws enacted in execution of that Treaty;Whereas, therefore, the reservation made by the Austrian Government asto Article 5 (Art. 5) of the Convention extends to the legislationwhich was applied to the Applicant;Whereas it follows that the Application is, in this respect,incompatible with the provisions of the Convention in regard to theirapplication to Austria and must be rejected in accordance with Article27, paragraph (2) (Art. 27-2), of the Convention;Whereas the allegations which the Applicant makes in respect of Article6 (Art. 6) of the Convention relate to the proceedings before theadministrative instances whose decisions are expressly covered by theabove reservation made by the Austrian Government; whereas it is truethat this reservation does not make any express reference to Article6 (Art. 6) of the Convention;Whereas, however, the Commission finds that these proceedings must beviewed as a whole and cannot be considered as comprising separatestages, to some of which the provisions of the Convention apply andfrom some of which the application is excluded by the reservation;Whereas it was no doubt the intention of the Respondent Government toexempt from the incidence of the Convention the procedural system setup in conformity with the laws on administrative procedure; whereas theCommission, in interpreting the terms of the reservation, has takeninto consideration the clear intention of the Government (seeApplication No. 473/59, Yearbook II, page 403); whereas, accordingly,the above reservation must be extended to cover not only "the measuresfor the deprivation of liberty" but also the proceedings leading up toa decision by which an accused person is deprived of his liberty inaccordance with the Acts mentioned in the reservation; whereas itfollows that in the present case the reservation not only applies tothe deprivation of the Applicant's liberty, but also to the priorproceedings before the District Administrative Authority at Baden andthe Provincial Government Office; whereas it follows that this part ofthe Application is also incompatible with the provisions of theConvention in respect to their application to Austria and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2), ofthe Convention;Now therefore the Commission declares this Application INADMISSIBLE.
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is an Austrian citizen, born in 1941 and, when last heardof on 4th February, 1965, detained in the prison at Stein/Danube.From his statements it appears that, on ..., 1964, he was convicted bythe District Administrative Authority (Bezirkshauptmannschaft) at Badenon charges of having committed several administrative offenses underSections 57, paragraph (1), 85, paragraphs (1) and (4), 44, paragraph(1) and 111 of the Motor Vehicles Act (Kraftfahrgesetz) of 1955 andSections 19, paragraph (4), and 99, paragraph (3), sub-paragraph (a),of the Road Traffic Act (Strassenverkehrsordnung) of 1960, andsentenced to a fine of 2,500 Schillings or 33 days arrest in case ofnon-payment of the fine. On ..., 1964, he lodged an appeal (Berufung)from this decision with the Provincial Government Office(Landesregierung) of Lower Austria which was dismissed. The decisionwas communicated to the Applicant on ..., 1964.He states that he intended to lodge a further appeal (Beschwerde) withthe Administrative Court (Verwaltungsgerichtshof) in Vienna but wasprevented from doing so, the 6 weeks time-limit having expired by thetime he had found a lawyer to represent him. He alleges that appealsto the Administrative Court could only be lodged by a lawyer, that atthe time he was detained on remand on other charges by an order of theDistrict Court (Kreisgericht) at Wiener Neustadt, that he lodged arequest for free legal aid and assignment of a lawyer with theAdministrative Court but that, by the time a lawyer was assigned tohim, the six weeks time-limit had expired.The Applicant complains that he was denied the right to a fair hearingby an independent and impartial tribunal established by law as well asthe right to free legal assistance. He alleges that the six weekstime-limit was too short for persons detained in prison. He requestsreinstatement in his prior position enabling him to lodge the appealand be heard by an independent and impartial tribunal.He alleges a violation of Articles 5 , paragraph (1), sub-paragraph(a), and 6, paragraph (1) and paragraph (3) sub-paragraph (c), of theConvention.THE LAWWhereas at the time of its ratification of the Convention the AustrianGovernment made the following reservation in respect of the Articleinvoked by the Applicant:"The provisions of Article 5 (Art. 5) of the Convention shall be soapplied that there shall be no interference with the measures for thedeprivation of liberty prescribed in the laws on administrativeprocedure, BGBl. No. 172/1950, subject to review by the AdministrativeCourt or the Constitutional Court as provided for in the AustrianFederal Constitution";Whereas it has first to be pointed out that in its original German textthe reservation contains the words "Die in denVerwaltungsverfahrensgesetzen BGBl. No. 172/1950 vorgesehenenMassnahmen des Freiheitsentzuges";Whereas a more exact translation of the word "vorgesehenen" would be"provided for" and not "prescribed in"; whereas, in order to determinethe exact scope and intention of a reservation, which in thisparticular case was deposited in the German language only, regardshould be had to the wording used in the original language and not toan approximate translation; whereas, consequently, the Commission hasto consider the present Application and, in particular, the allegedviolation of Article 5 (Art. 5) in the light of the original text ofthe reservation;Whereas the Administrative Penal Code (BGBl. 172/1950) in Articles 10and 11 (Art. 10, 11) provides as follows:"PenaltiesParagraph 10(1) The category and extent of the punishment are determined byadministrative regulations.(2) Where, accordingly, punishment of deprivation of liberty or of afine or of confiscation of property is applicable, the provision ofparagraphs 11 to 22 shall apply.ImprisonmentParagraph 11(1) Imprisonment is either close arrest or house arrest.(2) The minimum duration of imprisonment is six hours.(3) In the case of a term of imprisonment, one day is equivalent to 24hours, one week equivalent to seven days, while the duration of a monthis to be determined by the calendar."Whereas "administrative regulations" within the meaning of paragraph10 (1) cover any enactments which deal with administrative matters andwhich give the administrative authorities the power to imposeimprisonment as a penalty for any offenses against such enactments;Whereas the Motor Vehicles Act and the Road Traffic Act are properlyto be considered as enactments dealing with administrative matters andindeed they refer to "administrative offenses"(Verwaltungsübertretungen), and provide for the penalty of imprisonmentin regard to such offenses;Whereas, accordingly, the Motor Vehicles Act and the Road Traffic Actare to be regarded as "administrative regulations" within the meaningof paragraph 10 (1) of the Administrative Penal Code;Whereas, in respect of the foregoing, the Commission refers to itsfindings in the decision on the admissibility of Applications Nos.1047/61 (G. v. Austria, Yearbook IV, page 356) and 1452/62 (K. v.Austria, Yearbook VI, page 268);Whereas reservations to the Convention are governed by Article 64 (Art.64), which states:"(1) Any State may, when signing this Convention, or when depositingits instrument of ratification, make a reservation in respect of anyparticular provision of the Convention to the extent that any law thenin force in its territory is not in conformity with the provision.Reservations of a general character shall not be permitted under thisArticle.(2) Any reservation made under this Article shall contain a briefstatement of the law concerned."Whereas Article 64 (Art. 64) by its plain terms permits the making ofa reservation only with respect to laws which were already in forcewhen the reservation was made; and whereas it is true that theCommission's jurisprudence referred to above was concerned with theRoad Traffic Act of 1947 and, consequently, with a law enacted priorto 3rd September, 1958;Whereas the Commission is aware of the fact that the Road Traffic Actapplied in the Applicant's case was passed in 1960, i.e. subsequent tothe date on which the Austrian Government made the above reservation;Whereas, the Commission finds, however, that the subject matter coveredby the Road Traffic Act of 1947 and the Road Traffic Act of 1960 issubstantially the same; whereas, therefore, the latter Act does nothave the effect of enlarging, a posteriori, the subject matter whichis excluded from the competence of the Commission by the abovereservation;Whereas the Commission concludes that it is the real meaning of thereservation to cover any Act, including one such which was passed after3rd September, 1958, dealing with "measures for the deprivation ofliberty prescribed in the laws on administrative procedure ...";Whereas, in this respect, reference is made to the Commission'sfindings in the decision on the admissibility of Applications Nos.1731/62 (X. v Austria, Collection of Decisions, Volume 15, pages 33 to38) and 1821, 1822/63 (Y. v Austria, Collection of Decisions, Volume19, pages 56 to 70) concerning the Austrian reservation made in respectof the State Treaty and laws enacted in execution of that Treaty;Whereas, therefore, the reservation made by the Austrian Government asto Article 5 (Art. 5) of the Convention extends to the legislationwhich was applied to the Applicant;Whereas it follows that the Application is, in this respect,incompatible with the provisions of the Convention in regard to theirapplication to Austria and must be rejected in accordance with Article27, paragraph (2) (Art. 27-2), of the Convention;Whereas the allegations which the Applicant makes in respect of Article6 (Art. 6) of the Convention relate to the proceedings before theadministrative instances whose decisions are expressly covered by theabove reservation made by the Austrian Government; whereas it is truethat this reservation does not make any express reference to Article6 (Art. 6) of the Convention;Whereas, however, the Commission finds that these proceedings must beviewed as a whole and cannot be considered as comprising separatestages, to some of which the provisions of the Convention apply andfrom some of which the application is excluded by the reservation;Whereas it was no doubt the intention of the Respondent Government toexempt from the incidence of the Convention the procedural system setup in conformity with the laws on administrative procedure; whereas theCommission, in interpreting the terms of the reservation, has takeninto consideration the clear intention of the Government (seeApplication No. 473/59, Yearbook II, page 403); whereas, accordingly,the above reservation must be extended to cover not only "the measuresfor the deprivation of liberty" but also the proceedings leading up toa decision by which an accused person is deprived of his liberty inaccordance with the Acts mentioned in the reservation; whereas itfollows that in the present case the reservation not only applies tothe deprivation of the Applicant's liberty, but also to the priorproceedings before the District Administrative Authority at Baden andthe Provincial Government Office; whereas it follows that this part ofthe Application is also incompatible with the provisions of theConvention in respect to their application to Austria and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2), ofthe Convention;Now therefore the Commission declares this Application INADMISSIBLE.