FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54698/00 
by Resul KAYA 
against Austria

The European Court of Human Rights (First Section), sitting on 24 February 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev,  
 Mr D. Spielmann, judges,

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged with the European Court of Human Rights on 26 January 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant, Resul Kaya, is a Turkish national, who was born in 1956 and lives in Turkey. He is represented before the Court by Mr W.L. Weh, a lawyer practising in Bregenz (Austria). The respondent Government are represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 July 1995 the Vorarlberg Federal Police Directorate (Sicherheitsdirektion) issued a residence prohibition against the applicant. On 5 March 1996 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof) and requested the Administrative Court to grant suspensive effect to his complaint. At the same date he filed an application for re-instatement into the proceedings as the legal time-limit for filing a complaint had expired.

Meanwhile, on 29 February 1996 the Bregenz District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order against the applicant, imposing a fine under the Aliens Act, as he had not complied without unreasonable delay with a residence prohibition issued against him on 26 July 1995 and had been unlawfully staying in Austria.

The applicant, assisted by counsel, filed an objection (Einspruch) against this decision.

On 29 April 1996 the District Administrative Authority issued a penal order (Straferkenntnis) confirming its previous decision and imposing a fine of approximately 200 euros on the applicant.

On 15 May 1996 the applicant appealed to the Independent Administrative Panel (Unabhängiger Verwaltungssenat - IAP). He submitted that he had filed a complaint against the residence prohibition with the Administrative Court and had requested that suspensive effect be granted upon this complaint. He argued that until the Administrative Court's decision upon this latter request he was still allowed to stay in Austria. The applicant also requested that an oral hearing be held in which he, his counsel and a representative of the District Administrative Authority should be heard.

On 2 October 1996 the Administrative Court dismissed the applicant's application for re-instatement into the proceedings concerning the residence prohibition and rejected the applicant's complaint as belated.

On 14 February 1997 the applicant was expelled to Turkey.

On 21 May 1997 the IAP summoned the applicant and his counsel to an oral hearing scheduled for the afternoon of 11 June 1997. The summons, which indicated that the applicant could either appear in person or send his counsel, was addressed to the applicant's counsel. It stated that the hearing would be conducted in the applicant's absence if he failed to appear.

In the morning of 11 June 1997 the applicant's counsel informed the IAP that the applicant, in complying with the residence prohibition, had meanwhile moved to Turkey and could therefore not participate in the hearing this afternoon. Referring to the applicant's rights under Article 6 of the Convention he requested that the hearing should be adjourned sine die.

In the afternoon of 11 June 1997 the hearing took place in the absence of the applicant and the presence of his counsel, who informed the IAP that he had not informed the applicant of the hearing as he considered this to be the IAP's task. Referring to the applicant's rights under Article 6 of the Convention, counsel requested again a public hearing in the presence of the applicant.

On 18 July 1997 the IAP quashed the penal order insofar as it concerned the charge of having stayed in Austria without a valid residence permit, but maintained the conviction as regards the offence of not having complied with a residence prohibition without undue delay and reduced the fine to approximately 110 euros. It noted that the applicant was only guilty of the offence of not complying with a residence prohibition because the other offence could only be committed if no residence prohibition had been issued. As regards the request for the adjournment of the hearing, the IAP found that the applicant's interests had been taken care of by his counsel and that his presence had therefore not been necessary, all the more as the appeal concerned questions of law and not of fact.

On 12 August 1997 the applicant lodged a complaint with the Constitutional Court in which he complained that the IAP had convicted him in absentia. He further complained that no prosecuting authority participated in the proceedings and in the hearing before the IAP and that, therefore, the member of the Panel acted both as judge and prosecutor which allegedly violated the principle of equality of arms.

On 27 November 1997 the Constitutional Court declined to deal with the applicant's case for lack of prospect of success and transmitted the case to the Administrative Court.

On 19 May 1998 the applicant supplemented his complaint to the Administrative Court. He submitted that the IAP had breached procedural requirements as it should have heard him in person - in which case he would have stated as defence that he had been promised orally by the Vorarlberg Public Security Authority to tolerate his further stay in Austria - and that the fee for complaints to the Administrative Court constituted an unreasonable barrier for the exercise of the right to court under Article 6 § 1 of the Convention.

On 25 August 1998 the IAP submitted its observations in reply. It stated, inter alia, that in the proceedings before it neither the applicant nor his counsel had ever relied on an undertaking given by the Public Security Authority so that the IAP had no reason to explore this avenue, which moreover, was in contrast to other statements made in the proceedings.

On 1 July 1999 the Administrative Court dismissed the applicant's complaint. As regards the complaint that the IAP had held its hearing in the applicant's absence, the Administrative Court found that it could only quash a decision if an essential procedural defect had occurred. Whether a procedural defect was essential had to be shown by the complainant. The applicant has failed to produce such evidence. In his appeal the applicant had argued that it was common administrative practice that a person who had filed a complaint with the Administrative Court against a residence prohibition and had requested suspensive effect to his complaint is allowed to stay in Austria until the Administrative Court had decided on this latter request. Such an argument did not concern a statement of facts which would make it necessary that its author be heard in person. Moreover there was nothing to show that the applicant could not have instructed his counsel even after having left Austria. Thus, there was no essential procedural defect. This decision was served on the applicant's counsel on 26 July 1999.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the IAP convicted him in absentia and refused to take any evidence. He further complains that no prosecuting authority participated in the proceedings and in the hearing before the Independent Administrative Panel and that, therefore, the member of the Panel acted both as judge and prosecutor, which violates the principle of equality of arms. He also complains that the Administrative Court failed to hold a public hearing in the proceedings on the applicant's complaint and that the court fee for complaints to the Administrative Court in the amount of approximately 180 euros constituted an unreasonable barrier for the exercise of the right to court under Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains under Article 6 of the Convention about the unfairness of the administrative criminal proceedings against him.

Article 6, as far as relevant, provides as follows:

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

3.  Everyone charged with a criminal offence has the following minimum rights:

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ”

a. The applicant complains first that the Independent Administrative Panel convicted him in absentia.

The Government contended that the applicant had been summoned to the Independent Administrative Panel's hearing on 11 June 1997 by way of a writ addressed to his counsel in accordance with the applicable domestic law. Counsel, although informed that the hearing would be conducted in the applicant's absence if he failed to appear, had failed to take any steps in order to secure the applicant's right to be heard in person. In particular, counsel had not informed the applicant of the hearing and had not instituted proceedings for the issuing of a temporary exemption from the residence prohibition so that the applicant could attend a hearing in Austria. Counsel had only requested an adjournment sine die at the very day the hearing was held and had not indicated whether or when the applicant could attend a hearing. The Government argued that, there being no good reasons for the applicant's absence at the hearing, the applicant had to be considered to have waived his right to be heard in person. They further argued that the applicant was not deprived of a fair hearing of his case as his defence before the Independent Administrative Panel was conducted by his lawyer. Furthermore, the applicant had only complained about a question of law, and the matter was of minor significance for the applicant as the IAP, due to the principle prohibiting a “reformatio in peius” could not increase the applicant's sentence. Finally, the applicant could file a complaint with the Administrative Court which reviewed the legal findings of the IAP. In these circumstances the Independent Administrative Panel could abstain from hearing the applicant in person.

The applicant contested the Government's arguments. He submitted that the present case resembles the case Yavuz against Austria (no. 46549/99, 27 May 2004) where the Court had found a violation because of a lack of personal hearing of the applicant before the Independent Administrative Panel. He further argued that when court authorities transmit the summons solely to counsel, the latter will bear the burden and risk of delivery, which, in the applicant's view, runs counter to Article 6 of the Convention. A request by counsel that the applicant be summoned in person would have been in vain, as the direct service of a writ to an accused, who is assisted by counsel, is not provided for in administrative criminal proceedings. The Independent Administrative Panel should have heard the applicant, in particular, as to the question whether he had acted in good faith when staying illegally in Austria. The applicant finally argued that the Independent Administrative Panel, in any way, had not summoned any witnesses for the hearing of 11 June 1997 so that there were no technical difficulties in postponing this hearing.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

b. The applicant next complains that the Independent Administrative Panel did not take the evidence requested by him.

The Court notes, however, that the applicant did not raise this issue in his complaint with the Constitutional Court.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

c. The applicant complains that no prosecuting authority participated in the proceedings and in the hearing before the Independent Administrative Panel and that therefore the member of the Panel acted both as judge and prosecutor, which violates the principle of equality of arms.

The Court notes that if an appeal is filed with the Independent Administrative Panel against a penal order, the authority which issued the impugned decision assumes the function of the prosecuting authority in appeal proceedings before the Independent Administrative Panel. The mere absence of a representative of that authority from the hearing does not give rise to objectively justified fears regards impartiality of the Independent Administrative Panel (see Weh v. Austria (dec.), 38544/97, 4 July 2002).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

d. The applicant complains about the Administrative Court's failure to hold a public hearing.

The Court notes that in the proceedings at issue the Independent Administrative Panel, which in proceedings at the ones at issue has to be regarded as the first and only tribunal within the meaning of Article 6 (Baischer v. Austria, no.32381/96, § 30, 20 December 2001), held a public hearing.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

e. The applicant complains that the court fees for complaints to the Administrative Court of approximately 180 euros constituted an unreasonable barrier for the exercise of the right of access to court under Article 6 § 1. He submits in particular that in his case the amount of the court fee exceeded the fine he was sentenced to by the Independent Administrative Panel.

The Court notes that the “right to a court” under Article 6 § 1 is not absolute but may be subject to various limitations, including financial ones. However, the limitations applied must not restrict or reduce the access afforded to the applicant in such a way or to such an extent that the very essence of that right is impaired. (see, for instances, Kreuz v. Poland, no. 28249/95, §§ 53,54, ECHR 2001-VI). A restriction placed on access to a court or tribunal will not be compatible with Article 6 § 1 unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see, for instance, Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, judgment of 10 July 1998, Reports 1998-IV, p. 1660, § 72).

The Court finds that in the present case the levying of a court fee for access to the highest administrative court serves the good administration of justice, namely in that it discourages prospectless complaints. The Court further notes the limited amount of the fee- 2500 ATS (181. 68 euros) - and the possibility for exemption in the context of a request for legal aid. Accordingly, the Court finds that the requirement to pay a court fee in connection with a complaint with the Administrative Court cannot be regarded as a restriction on the right of access to a court that is incompatible per se with Article 6 of the Convention. Nor can the Court find that in the particular circumstances of the case the fee actually charged constituted a restriction that impaired the very essence of the applicant's right to access to a court. The Court notes in this regard that the applicant actually lodged a complaint which was considered by the Administrative Court. Furthermore, the applicant never submitted that he lacked the necessary means to pay the court fee and, in particular, did not file a request for legal aid in the context of which he would have been exempted from paying the court fees.

In the light of the foregoing, the Court considers that the applicant was not unduly hindered in his right of access to a court.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaint that he has not been heard in person by a tribunal;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

KAYA v. AUSTRIA DECISION


KAYA v. AUSTRIA DECISION