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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.[/align]