European Court of Human Rights

THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is an Austrian citizen, born in 1941 and, when last heard
of on 4th February, 1965, detained in the prison at Stein/Danube.

From his statements it appears that, on ..., 1964, he was convicted by
the District Administrative Authority (Bezirkshauptmannschaft) at Baden
on charges of having committed several administrative offenses under
Sections 57, paragraph (1), 85, paragraphs (1) and (4), 44, paragraph
(1) and 111 of the Motor Vehicles Act (Kraftfahrgesetz) of 1955 and
Sections 19, paragraph (4), and 99, paragraph (3), sub-paragraph (a),
of the Road Traffic Act (Strassenverkehrsordnung) of 1960, and
sentenced to a fine of 2,500 Schillings or 33 days arrest in case of
non-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 decision
was communicated to the Applicant on ..., 1964.

He states that he intended to lodge a further appeal (Beschwerde) with
the Administrative Court (Verwaltungsgerichtshof) in Vienna but was
prevented from doing so, the 6 weeks time-limit having expired by the
time he had found a lawyer to represent him. He alleges that appeals
to the Administrative Court could only be lodged by a lawyer, that at
the time he was detained on remand on other charges by an order of the
District Court (Kreisgericht) at Wiener Neustadt, that he lodged a
request for free legal aid and assignment of a lawyer with the
Administrative Court but that, by the time a lawyer was assigned to
him, the six weeks time-limit had expired.

The Applicant complains that he was denied the right to a fair hearing
by an independent and impartial tribunal established by law as well as
the right to free legal assistance. He alleges that the six weeks
time-limit was too short for persons detained in prison. He requests
reinstatement in his prior position enabling him to lodge the appeal
and 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 the
Convention.

THE LAW

Whereas at the time of its ratification of the Convention the Austrian
Government made the following reservation in respect of the Article
invoked by the Applicant:

"The provisions of Article 5 (Art. 5) of the Convention shall be so
applied that there shall be no interference with the measures for the
deprivation of liberty prescribed in the laws on administrative
procedure, BGBl. No. 172/1950, subject to review by the Administrative
Court or the Constitutional Court as provided for in the Austrian
Federal Constitution";

Whereas it has first to be pointed out that in its original German text
the reservation contains the words "Die in den
Verwaltungsverfahrensgesetzen BGBl. No. 172/1950 vorgesehenen
Massnahmen des Freiheitsentzuges";

Whereas a more exact translation of the word "vorgesehenen" would be
"provided for" and not "prescribed in"; whereas, in order to determine
the exact scope and intention of a reservation, which in this
particular case was deposited in the German language only, regard
should be had to the wording used in the original language and not to
an approximate translation; whereas, consequently, the Commission has
to consider the present Application and, in particular, the alleged
violation of Article 5 (Art. 5) in the light of the original text of
the reservation;

Whereas the Administrative Penal Code (BGBl. 172/1950) in Articles 10
and 11 (Art. 10, 11) provides as follows:

"Penalties

Paragraph 10
(1) The category and extent of the punishment are determined by
administrative regulations.

(2) Where, accordingly, punishment of deprivation of liberty or of a
fine or of confiscation of property is applicable, the provision of
paragraphs 11 to 22 shall apply.

Imprisonment

Paragraph 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 24
hours, one week equivalent to seven days, while the duration of a month
is to be determined by the calendar."

Whereas "administrative regulations" within the meaning of paragraph
10 (1) cover any enactments which deal with administrative matters and
which give the administrative authorities the power to impose
imprisonment as a penalty for any offenses against such enactments;

Whereas the Motor Vehicles Act and the Road Traffic Act are properly
to be considered as enactments dealing with administrative matters and
indeed they refer to "administrative offenses"
(Verwaltungsübertretungen), and provide for the penalty of imprisonment
in regard to such offenses;

Whereas, accordingly, the Motor Vehicles Act and the Road Traffic Act
are to be regarded as "administrative regulations" within the meaning
of paragraph 10 (1) of the Administrative Penal Code;

Whereas, in respect of the foregoing, the Commission refers to its
findings 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 depositing
its instrument of ratification, make a reservation in respect of any
particular provision of the Convention to the extent that any law then
in force in its territory is not in conformity with the provision.
Reservations of a general character shall not be permitted under this
Article.

(2) Any reservation made under this Article shall contain a brief
statement of the law concerned."

Whereas Article 64 (Art. 64) by its plain terms permits the making of
a reservation only with respect to laws which were already in force
when the reservation was made; and whereas it is true that the
Commission's jurisprudence referred to above was concerned with the
Road Traffic Act of 1947 and, consequently, with a law enacted prior
to 3rd September, 1958;

Whereas the Commission is aware of the fact that the Road Traffic Act
applied in the Applicant's case was passed in 1960, i.e. subsequent to
the date on which the Austrian Government made the above reservation;

Whereas, the Commission finds, however, that the subject matter covered
by the Road Traffic Act of 1947 and the Road Traffic Act of 1960 is
substantially the same; whereas, therefore, the latter Act does not
have the effect of enlarging, a posteriori, the subject matter which
is excluded from the competence of the Commission by the above
reservation;

Whereas the Commission concludes that it is the real meaning of the
reservation to cover any Act, including one such which was passed after
3rd September, 1958, dealing with "measures for the deprivation of
liberty prescribed in the laws on administrative procedure ...";

Whereas, in this respect, reference is made to the Commission's
findings in the decision on the admissibility of Applications Nos.
1731/62 (X. v Austria, Collection of Decisions, Volume 15, pages 33 to
38) and 1821, 1822/63 (Y. v Austria, Collection of Decisions, Volume
19, pages 56 to 70) concerning the Austrian reservation made in respect
of the State Treaty and laws enacted in execution of that Treaty;

Whereas, therefore, the reservation made by the Austrian Government as
to Article 5 (Art. 5) of the Convention extends to the legislation
which 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 their
application to Austria and must be rejected in accordance with Article
27, paragraph (2) (Art. 27-2), of the Convention;

Whereas the allegations which the Applicant makes in respect of Article
6 (Art. 6) of the Convention relate to the proceedings before the
administrative instances whose decisions are expressly covered by the
above reservation made by the Austrian Government; whereas it is true
that this reservation does not make any express reference to Article
6 (Art. 6) of the Convention;

Whereas, however, the Commission finds that these proceedings must be
viewed as a whole and cannot be considered as comprising separate
stages, to some of which the provisions of the Convention apply and
from some of which the application is excluded by the reservation;

Whereas it was no doubt the intention of the Respondent Government to
exempt from the incidence of the Convention the procedural system set
up in conformity with the laws on administrative procedure; whereas the
Commission, in interpreting the terms of the reservation, has taken
into consideration the clear intention of the Government (see
Application No. 473/59, Yearbook II, page 403); whereas, accordingly,
the above reservation must be extended to cover not only "the measures
for the deprivation of liberty" but also the proceedings leading up to
a decision by which an accused person is deprived of his liberty in
accordance with the Acts mentioned in the reservation; whereas it
follows that in the present case the reservation not only applies to
the deprivation of the Applicant's liberty, but also to the prior
proceedings before the District Administrative Authority at Baden and
the Provincial Government Office; whereas it follows that this part of
the Application is also incompatible with the provisions of the
Convention in respect to their application to Austria 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.