DECISION

AS TO THE ADMISSIBILITY OF

Application No. 35401/97

by Wolfgang MAUER

against Austria

The European Court of Human Rights (Third Section) sitting on 17 November 1998 as a Chamber composed of

Mr N. Bratza, President,

Mr J-P. Costa,

Mr L. Loucaides,

Mr P. Kūris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja, Judges,

With Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 April 1990 by Wolfgang MAUER against Austria and registered on 20 March 1997 under file No. 35401/97;

Having regard to:

- the reports provided for in Rule 49 of the Rules of Court;

- the observations submitted by the respondent Government on 17 February  1998 and the observations in reply submitted by the applicant on 15 April  1998;

Having deliberated,

Decides as follows:

 

THE FACTS

The applicant is an Austrian citizen, born in 1953.  He is represented before the Court by Mr H. Blum, lawyer, of Linz.  The facts of the application, as submitted by the parties, may be summarised as follows.

On 23 March 1988, the applicant was instructed to inform the police who had parked a car belonging to the applicant in the Schlossgasse in Vienna on 18 March 1988 at 5.30pm.  He failed to provide the information, and on 11 October 1988 was fined AS 2,000.00 for the failure, pursuant to Sections 134 and 103 (2) of the Motor Vehicles Act 1967.  The penal notice (Straferkenntnis) was confirmed by the Vienna Regional Government (Amt der Wiener Landesregierung) on 18 May 1989.  On 24 November 1989 a minor error in the penal order was corrected.

The applicant's administrative complaint to the Administrative Court (Verwaltungsgerichtshof) was ultimately dismissed on 24 January 1990.  The Administrative Court found that the correct provisions of the Motor Vehicles Act had been applied, and further confirmed that the reasons given by the applicant for not having supplied the required information were inadequate.  The applicant's representative received the Administrative Court's decision on 28 March 1990.

COMPLAINTS

The applicant alleges a violation of Article 6 § 1 of the Convention in that his case was not determined by an independent tribunal as required by Article 6 § 1 of the Convention.  He refers to his previous cases (see Eur. Court HR, Mauer v. Austria judgment of 18 February 1997, Reports 1997-I, p. 76).

PROCEDURE

The applicant first wrote to the European Commission of Human Rights in connection with the application on 23 April 1990.  In the course of correspondence with the Commission's Secretariat, the applicant was informed that his complaints could be included with the complaints concerning separate proceedings which had already been registered under Application No. 16566/90.  Application No. 16566/90 was dealt with on the basis of the facts set out in the application form in that file, that is, without reference to the complaints made of the present proceedings.  In the course of the proceedings before the Court in Application No. 16566/90, the applicant referred to the present facts, and was informed that the facts did not form part of that application (see Eur. Court HR, Mauer v. Austria judgment of 18 February 1997, Reports 1997-I, p. 82, § 28).

By letter of 29 November 1996 (postmarked 18 December 1996) the applicant's representative wrote to the Commission in connection with the present proceedings.  The application was registered on 20 March 1997.

On 23 October 1997 the Commission decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 17 February 1998, after an extension of the time-limit.  The applicant replied on 15 April 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that the proceedings in which he was convicted of failing to give information as to the driver of a vehicle at a particular time did not comply with Article 6 of the Convention.

Article 6 § 1 of the Convention provides, so far as relevant, as follows:

"In the determination of...any criminal charge against him, everyone is entitled to a fair and public hearing...by an independent and impartial tribunal established by law..."

The Government's only submission is that the application to the European Commission of Human Rights was not made within the six-month time limit in accordance with Article 35 § 1 of the Convention.  They argue that the date of introduction of the application was in fact 3 March 1997, the date of the application form submitted by the applicant's representative.  The Government argue that, if the proceedings in the present case ended with the Administrative Court's decision of 24 January 1990 (received by the applicant's representative on 28 March 1990) and the European Court of Human Rights expressly excluded the present application from the applicant's two previous applications (see the case of Mauer at pp. 82-83, § 27-28), the applicant introduced the present application on 3 March 1997 and is therefore prevented from bringing his complaint by virtue of Article 35 § 1 of the Convention.

The applicant submits that the application was introduced on 23 April 1990, together with his other complaints, and that he was informed by the European Commission of Human Rights that his complaints would be considered together in view of the similarity of the subject matter of the complaints.  However, the present case was not included in the application and his complaint remains outstanding.

The Court recalls that the Rule 47 § 5 of the Rules of Court provides that the date of introduction of an application shall generally be taken to the date on which an applicant first sets out, even summarily, the object of an application.  The Court may, however, for good cause, take a different date as the date of introduction.

In the present case, the applicant's first communication with the  Commission, of 23 April 1990, set out the applicant's complaints in connection with the proceedings, including a complaint that his constitutional right to a fair trial had been violated.

The Court notes that the applicant was informed that, as the case was similar to a separate application, which had already been registered, it could be dealt with together with that other case, Application No. 16566/90.  It is a matter of regret that, as the facts of the present case were not included in the application form for Application No. 16566/90, the facts of the present application were not included in the statement of facts for Application No. 16566/90.  However, it remains the case that the applicant informed the Commission of the facts of the present application by his letter of 23 April 1990, and the Court considers that that date must therefore be taken as the date of introduction of the present application.

It follows that the applicant has not failed to comply with the six months' rule in Article 35 § 1 of the Convention, and the Government's preliminary objection must be rejected.

The Court considers, in the light of the parties' submissions, that the present case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.  The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES  THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

                 S. Dollé                                                                         N. Bratza 

                Registrar                                                                         President 

35401/97 - -


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