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GURSOY v. AUSTRIA - 20597/04 [2008] ECHR 485 (5 June 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/485.html
Cite as:
[2008] ECHR 485
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FIRST
SECTION
CASE OF GÜRSOY v. AUSTRIA
(Application
no. 20597/04)
JUDGMENT
STRASBOURG
5
June 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gürsoy v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 20597/04) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Turkish national, Ms Ilknur
Gursoy (“the applicant”), on 1 June 2004.
The
applicant was represented by Mr W.L. Weh, a lawyer practising in
Bregenz. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
On
5 September 2006 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1977 and lives in Lustenau. Her father is an
Austrian national of Turkish origin. In February 1998 she entered
Austria on a temporary visa, valid until 30 June 1998.
Following
a report by the Dornbirn Aliens Police (Fremdenpolizei), on 28
January 1999 the Dornbirn District Administrative Authority issued a
provisional penal order (Strafverfügung) of 1,000
Austrian schillings (ATS) – equal to 73 Euros (EUR) and 24
hours' imprisonment in default against the applicant for illegal
sojourn.
Subsequently,
on 11 February 1999, she filed an objection (Einspruch)
against that decision with the Dornbirn District Administrative
Authority.
On
22 March 1999 the applicant, upon the District Administrative
Authority's request, filed a statement in which she specified that
she had entered Austria with a valid visa on 26 February 1998. As
proceedings for a residence permit were underway, she was in her view
allowed to stay until the decision had become final. In addition she
claimed that, according to certain EC directives and the
Constitutional Court's jurisprudence and in line with the ECJ's
constant case-law, she was legally residing in Austria, since her
father had Austrian citizenship.
The
Aliens Police submitted their observations on 16 August 1999, which
were served on the applicant's counsel on 23 August 1999. They stated
that neither European Law nor domestic provisions could justify the
applicant's sojourn in Austria, which was in fact in breach of
section 31 of the Aliens Act.
On
21 December 1999 the applicant filed further observations.
On
1 December 2000 the District Administrative Authority, having regard
to the applicant's objection and the above investigations, maintained
its view and imposed a penal order in the amount of ATS 1,000 with
30 hours' imprisonment in default. It found that although the
applicant had entered with a valid visa, it had expired, following
which her stay in Austria was in breach of the Aliens Act.
On
19 December 2000 the applicant filed an appeal with the Independent
Administrative Panel (IAP). She alleged, inter alia, that the
first-instance decision did not comply with EC law.
Having
held an oral hearing, on 25 June 2001 the IAP , dismissed the
applicant's appeal. It referred to the Aliens Act, which exhaustively
stipulated the conditions under which a foreigner's residence could
be deemed to be legal. Upholding the first-instance decision, it
concluded that the applicant had disregarded her visa's validity
period, following which her sojourn was unlawful.
Subsequently,
on 13 August 2001, the applicant lodged a complaint with the
Administrative Court and the Constitutional Court.
On
10 October 2001 the Constitutional Court declined to deal with the
case on account of its lack of prospects of success and transferred
it to the Administrative Court.
The
IAP submitted its observations to the Administrative Court on
25 October 2001.
On 19 November 2003 the Administrative Court, relying
on section 33a of the Administrative Court Act
(Verwaltungsgerichts-hofgesetz), declined to deal with the
applicant's case, finding that it did not raise important legal
issues. On 1 December 2003 that decision was served on the
applicant's counsel.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 28 January 1999, when
the Dornbirn District Administrative Authority issued a provisional
penal order (Strafverfügung) and ended on 1 December
2003, when the final decision was served on the applicant's counsel.
It thus lasted four years and eleven months.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
applicant maintained that the proceedings had been unreasonably long.
The
Government contested that argument.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
and the conduct of the applicant and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
The
Court finds that the proceedings were not complex, nor did they
require meticulous investigations. Moreover, there were periods of
inactivity at the first instance and before the Administrative Court.
After the first instance had received both parties' observations in
December 1999 it took its decision only one year later in December
2000. Later in the proceedings, the case was pending before the
Administrative Court for more than two years, from 25 October
2001 to 19 November 2003, during which period no decision was
taken other than to decline to deal with the case. Furthermore, the
Court finds that the applicant did not cause any considerable delay.
Having
examined all the material submitted to it, and having regard to its
case-law on the subject (see Yavuz v. Austria, judgment of
27 May 2004, no. 46549/99, and Pélissier and
Sassi, cited above), and in particular what was at stake for the
applicant, the Court considers that in the instant case the length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement. There has accordingly
been a breach of Article 6 § 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
26. The applicant further complained under
Article 6 of the Convention that no prosecuting authority had
participated in the proceedings, including the hearing before the
Independent Administrative Panel, and that therefore the member of
the Panel had acted as both judge and prosecutor.
The Court reiterates that if an
appeal is filed with an 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 panel. Furthermore, the absence of a representative of
that authority from the hearing does not give rise to objectively
justified fears as regards impartiality of the panel (see Weh
and Weh v. Austria (dec.), no.
38544/97, 4 July 2002).
Under the same provision the applicant also complained
about the lack of an oral hearing before the Administrative Court and
that the Independent Administrative Panel did not fully deal with her
submissions.
The Court reiterates that, as far as administrative
criminal proceedings are concerned, the Administrative Court does not
qualify as a tribunal within the meaning of Article 6 of the
Convention as it does not have the required scope of review (see, for
instance, Schmautzer v. Austria, judgment of 23 October 1995,
Series A no. 328 A, p. 15, §§ 34-36). However, a
hearing was held before the Independent Administrative Panel, which,
according to the Court's settled case-law, meets the criteria of a
“tribunal.” Therefore the applicant had her case reviewed
in a public hearing before a tribunal as set out under Article 6 of
the Convention. Moreover, the Independent Administrative Panel
assessed the case and its review did not disclose any arbitrariness.
Lastly,
the applicant complained under Article 2 of Protocol No. 7 about
the lack of a review.
According
to the Court's case-law, the Administrative Court has the competence
to review appeal decisions given by independent administrative
panels. Even if the Administrative Court declines to deal with or
rejects an appeal for lack of important legal issues, that has to be
regarded as a review within the meaning of Article 2 of Protocol No 7
(see Weh and Weh v. Austria, (dec.) no. 38544/97, 4 July
2002, with reference to Hauser v. Austria, no. 26808/95,
Commission decision of 16 January 1996, D.R. 84 A, p. 176).
Having
regard to the above, the Court concludes that these complaints are
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed EUR 12,000 in respect of non-pecuniary damage
and EUR 93 in respect of pecuniary damage for the fine and costs
regarding the fine she had been sentenced to pay.
The
Government contested these claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, on an equitable basis, it awards the applicant a
total amount of EUR 1,000 in respect of non-pecuniary damage, plus
any tax that may be chargeable on this amount.
B. Costs and expenses
The
applicant also claimed EUR 6,300.28, including VAT, for the costs and
expenses incurred in the domestic proceedings and EUR 2,662.66,
including VAT, for those incurred before the Court.
The
Government contested these claims.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings,
because those costs were not incurred in an attempt to accelerate the
proceedings and there is no indication that the length of the
proceedings increased the overall cost of the proceedings (see,
mutatis mutandis, Bouilly v. France, no. 38952/97, §
33, 7 December 1999). As regards the costs before the Court, the
Court considers it reasonable to award the sum of EUR 1,800, plus any
tax that may be chargeable to the applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) plus any tax that may be chargeable, in respect of
non-pecuniary damage, and EUR 1,800 (one thousand eight hundred
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
