Gönengil v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 21361/93

by Pakize GÖNENGIL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 January 1993

by Pakize GÖNENGIL against Austria and registered under file

No. 21361/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 November 1993, and the observations in reply submitted by the

applicant on 29 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen. She is represented before

the Commission by Mr. Wilfried Ludwig Weh, a lawyer practising in

Bregenz.

The applicant was convicted in administrative criminal

proceedings of not having had a valid visa during the period from

22 February 1989 to 19 September 1989. A penal order was issued on

22 November 1990 by the Feldkirch District Authority by which the

applicant was fined AS 700.00 plus costs, with 42 hours' detention in

default.

The applicant's appeal to the Vorarlberg Security Directorate was

rejected on 26 June 1991.

On 25 November 1991 the Constitutional Court rejected the

applicant's constitutional complaint, and on 9 July 1992 the

Administrative Court dismissed the applicant's administrative

complaint. The Administrative Court was not required to deal with the

applicant's complaint that any proceedings should have been against the

applicant's husband rather than against herself, but nevertheless noted

that the cases on which the applicant relied related to different

factual situations.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in that her conviction in administrative criminal proceedings was not

accompanied by the requisite procedural guarantees, in particular that

the Administrative Court was not a "tribunal" within the meaning of

Article 6 para. 1 of the Convention

She also alleges a violation of Articles 5, 6 and 7 of the

Convention taken together. She considers it incompatible with the

Convention that a person should be convicted for behaviour in

circumstances where he cannot ascertain, even with appropriate advice,

that that behaviour is unlawful.

PROCEEDINGS BEFORE THE COMMISSION

The Government's observations were submitted on 25 November 1993

and the applicant's observations in reply on 29 September 1994.

THE LAW

1 The applicant alleges a violation of Articles 5, 6 and 7

(Art. 5, 6, 7) of the Convention. She considers that there was in

Vorarlberg at the relevant time a practice that administrative

proceedings in respect of visa irregularities would be taken against

the husbands of Turkish women, rather than against the women

themselves. She concludes from this that she was convicted of an

offence which, in domestic practice at the time, was not applicable to

her.

Article 7 (Art. 7) of the Convention provides, so far as

relevant, as follows.

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed ..."

The Government consider that no such practice as alleged by the

applicant existed in Vorarlberg or elsewhere in Austria. The applicant

has submitted a series of decisions which, she says, confirm the

practice. The decisions refer to cases in which the Austrian

authorities accepted that minors should not be visited with

administrative criminal liability as they were still under parental

control, and to cases in which an immigrant was convicted of

facilitating a contravention of administrative criminal law by

permitting his wife and/or children to stay in Austria without a visa.

None of them refers, even indirectly, to husbands being responsible,

to the exoneration of their wives, for administrative offences.

The Commission finds that the applicant has produced no material

to confirm the existence of the practice she alleges. It therefore

finds no substance in her arguments in this connection.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2 The applicant also alleges a violation of Article 6

(Art. 6) of the Convention. The Government consider that the case does

not disclose a violation of Article 6 (Art. 6).

The Commission has had regard to the facts of this complaint, to

the parties' observations, and to the case-law of the European Court

of Human Rights. It finds that this part of the case raises questions

under the Convention which cannot at this stage be rejected as being

manifestly ill-founded, and which require to be determined on the

merits. No other ground of inadmissibility has been established.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the complaint that the applicant was

convicted of an offence which did not exist, and

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)