Auracher v. Austria



AS TO THE ADMISSIBILITY OF

Application No. 20064/92

by Norberta AURACHER

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 18 May 1992 by

Norberta AURACHER against Austria and registered under file

No. 20064/92;

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

28 February 1995, and the observations in reply submitted by the

applicant on 16 May 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian 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 having oral sexual intercourse with a man for money.

A penal order was issued on 7 January 1991 by the Bregenz District

Authority by which the applicant was fined a total of AS 22,000.00,

with 28 days' detention in default.

The applicant's appeal to the Vorarlberg Provincial Government

was rejected on 8 March 1991.

The applicant did not apply to the Constitutional Court. On

14 October 1991 the Administrative Court dismissed the applicant's

administrative complaint.

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.

PROCEEDINGS BEFORE THE COMMISSION

The Government's observations were submitted on 28 February 1995

and the applicant's observations in reply on 16 May 1995.

THE LAW

The applicant alleges a violation of Article 6 (Art. 6) of the

Convention. The Government consider that the applicant has failed to

exhaust domestic remedies because she failed to put her case to the

Constitutional Court. They refer to cases from 1979 in which the

Constitutional Court considered Article 6 para. 2 (Art. 6-1) of the

Convention in the context of administrative criminal offences similar

to those at issue in the present case. They consider that the case

does not disclose a violation of Article 6 (Art. 6) in any event.

As to the Government's contention that the applicant has not

exhausted domestic remedies, the Commission notes that the

Constitutional Court, in the decisions referred to, considered Article

6 para. 2 (Art. 6-2) of the Convention in the context of administrative

criminal proceedings. The Constitutional Court did not, however, give

any hint that it was about to review its established opinion as to the

compatibility with Article 6 (Art. 6) of the Convention of the Austrian

system of criminal administrative law, and in the event it did not

change that opinion. Accordingly, the Commission finds that the

applicant was not required by Article 26 (Art. 26) to make a

constitutional complaint.

The Commission has had regard to the facts of the present case,

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

of Human Rights. It finds that 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 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)