A A 92 798 COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY of Application No. 1852/63 by X against Austria The European Commission of Human Rights sitting in private on 22nd April, 1965, under the presidency of Mr. S. PETREN and the following members being present: Mr. D. C. BEAUFORT, Mrs. G. JANSSEN-PEVISCHIN, MM. F. CASTBERG, J. E. S. FAWCETT, P. WELTER, T. BALTA, Mr. A. B. McNULTY, Secretary to the Commission (Article 25, in fine of the Rules of Procedure) Having regard to the Application lodged on 15th March, 1963 by X against Austria and registered on 10th April, 1963 under file No. 1852/63; Having regard to the report provided for in Rule 45, paragraph (1), of the Rules of Procedure of the Commission; Having deliberated, 

THE FACTS Whereas the facts presented by the Applicant may be summarised as follows: The Applicant is an Austrian citizen, born in 1921 and living in Vienna. He is the owner of a commercial enterprise. It appears that in the years 1960-1962 the Applicant imported without the required licence 730 pairs of blue jeans from the duty-free area in Tyrol. In the opinion of the Austrian authorities, he thereby violated the provisions of the External Trade Act (Außenhandelsgesetz) of 3rd December, 1956. The relevant provisions are as follows: "Article 1: Export and import of goods across the frontiers of the Austrian customs area is not subject to any restrictions, unless the present Act or special regulations otherwise provide. Article 2 (1): Legal transactions, which have as their object the export or the import of goods listed in the appendices to the present Act or the exchange of goods, are in accordance with the provisions of the present Act subject to the grant of a licence. (1) (6): Export or import of goods is prohibited without the licence required under paragraph (1), except in the case of (c) the dispatch of goods in controlled transactions (bonded warehouse, assignment); (f) the consignment against consideration (entgeltlich), the export or import value of which does not exceed 500 schillings; exceptions from this rule may be made for the protection of domestic production by the Federal Ministries mentioned in Article 3, paragraph (1). (1) The import of blue jeans is subject to licence. 

Article 3: (3) The Ministries mentioned in paragraph (1) may (a) authorise the customs-houses to grant export licences for particular goods; they may furthermore authorise the Provincial Governors to grant export and import licences to private persons and companies having their domicile in the provinces concerned, in respect of which the estimate of the advisory board mentioned in Article 6 is not required; (c) attach to the grant of licences such conditions as are deemed necessary for the general economic interest and in particular for the functioning of international commerce. 

Article 8 (1): Where the act is not punishable under paragraph (2), a person is guilty of an administrative offence. (2) If he acts in violation of a regulation or decree issued in pursuance of Article 3, paragraph (3)(c). The administrative offence is punishable by detention up to eight weeks or by a fine of up to 150,000 schillings. (2) Violations against the provisions of paragraph (1) are punishable before the Courts, as an offence, by detention for a period between three months and two years or by fines of up to 500,000 schillings if the value of the goods, which were exported or imported or to which a regulation or decree in accordance with Article 3, paragraph (3)(c) or a licence is applicable, exceeds 30,000 schillings. 

Article 9: Goods belonging to the offender or his accomplice and illegally exported or imported and being such goods as to which a regulation or decree is applicable in accordance with Article 3, paragraph (c) and as to which an offence has been committed may be declared confiscated if the offence has been committed deliberately. The Applicant imported the 730 pairs of blue jeans in consignments of five pairs. The value was less than 500 schillings per consignment and their import into Austrian customs territory was authorised by the inspector of the duty-free area. The invoices were duly presented to the customs and stamped "free in accordance with Art. 2 (6)(f) of the External Trade Act" (Frei gemäß B2, (6) f AHG). Duty was duly paid by the Applicant on the imported goods. A control was made of the files of certain German firms in the duty-free zone which showed the sale of blue jeans to the Applicant in the period from 11th October, 1960 to 8th February, 1962 as totalling 58,900 Austrian schillings. The Applicant was on 7th March, 1962, indicted on a charge of having imported goods without a licence by making an improper use (missbräuchliche Ausnutzung) of Article 2, para. (6)(f) of the above Act. The Applicant admitted that the blue jeans were imported as stated in the indictment, but he submitted that he had not committed a criminal offence. In particular, he contended that the inspector had consented to their import and that the above Article was ambiguously drafted as it did not lay down any restrictions as to the frequency with which consignments of a value less than 500 schillings could be imported. On 1st June, 1962 the Regional Court (Landesgericht) of Vienna, in pursuance of Article 8, para. (2), convicted the Applicant of the above charge and sentenced him to a fine of 5,000 schillings. It further ordered him, in accordance with Article 9, to reimburse the value of the goods imported. The Court held that it was obvious from the text and the general purpose of the Act that Article 2, para. (6)(f) was an exception from the general rule and that the Applicant must have been aware of this fact. The Applicant lodged an appeal which was rejected on 9th October, 1962 by the Court of Appeal (Oberlandesgericht) of Vienna. The fine imposed upon him was reduced to 3,000 schillings. The Court held that the interpretation given in practice by the Applicant to Article 2, paragraph (6)(f) would render illusory the general principle laid down in para. (1) of the Article and that he had thereby acted in violation of the intention of the Act. In respect of the Applicant's complaints that the Regional Court refused to hear as witnesses the inspector and certain witnesses who could testify that the value of the goods did not exceed 30,000 schillings, the Court held that it was not necessary to hear the inspector, that the refusal had not been prejudicial to the Applicant's defence and that the value of the goods was proved by extracts from the exporter's accounts. On 15th February, 1963 the Applicant lodged a request for a retrial. He referred to certain acquittals in similar cases before the Regional Court of Innsbruck and submitted that the judge of the Regional Court of Vienna was biased against him and had refused to hear witnesses as stated above. At the same time, he requested that the judge of the Regional Court of Vienna should not decide on his request for a retrial. On 5th March, 1963 the President of the Regional Court of Vienna held that there was no proof of bias on the part of the above judge who, on 7th March, 1963, proceeded to reexamine the case and rejected the Applicant's request for a retrial. An appeal to the Court of Appeal of Vienna lodged on 12th March, 1963 as well as a request for pardon addressed on 1st February, 1963 to the President of the Republic, were unsuccessful. 

Whereas the Applicant alleges violations of: Article 6, paragraph (1), in that the judge of the Regional Court of Vienna did not act in an impartial manner but associated himself with the prosecution; Article 6, paragraph (2), in that he was not presumed innocent by the judge; Article 6, paragraph (3)(d), in that certain witnesses for the defence were not heard by the Court; Article 7, paragraph (1), in that he was convicted and sentenced for an action which was not penalised under the External Trade Act but on the contrary was permitted as an exception from the general rule; Article 13, in that he was denied an effective remedy (e.g. rejection of his request for a retrial) before the Austrian courts; Article 14, in that he was subjected to discrimination. 

THE LAW Whereas, in regard to the alleged violations of Articles 6, paragraphs (1), (2) and (3)(d) and 14, of the Convention, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention; whereas it follows that this part of the Application is manifestly ill-founded within the meaning of Article 27, paragraph (2), of the Convention; Whereas the Applicant further alleges that Article 7, paragraph (1), was violated, in that he was convicted and sentenced for an action which was not penalised under the External Trade Act but, on the contrary, was permitted as an exception from the general prohibition of import without licence; whereas, in particular, he alleges that his conviction was obtained by an unwarranted and extensive interpretation of the provisions of the above Act; Whereas Article 7, paragraph (1) stipulates that "no one shall be held guilty of any criminal offence on account of any act ... which did not constitute a criminal offence under national ... law at the time when it was committed"; whereas this paragraph does not merely prohibit - except as provided in paragraph (2) - retroactive application of the criminal law to the detriment of the accused; whereas it also confirms, in a more general way, the principle of the statutory nature of all offences and punishment ("nullum crimen, nulla poena sine lege"); and prohibits, in particular, extension of the application of the criminal law "in malam partem" by analogy; whereas the Commission refers in this respect to its decision on the admissibility of Application No. 1169/61 (D. v. F.R.G. - Collection of Decisions, Vol. 13, p. 1). Whereas, although it is not normally for the Commission to ascertain the proper interpretation of municipal law by national courts (see Application No. 1140/61 - X, v. Austria, Collection of Decisions, Vol. 8, p. 57), the case is otherwise in matters where the Convention expressly refers to municipal law, as it does in Article 7; whereas under Article 7 the application of a provision of municipal penal law to an act not covered by the provision in question directly results in a conflict with the Convention, so that the Commission can and must take cognisance of allegations and of such false interpretation of municipal law; Whereas, however, the Commission points out that it is primarily for the domestic courts to interpret the legislation of the Contracting Parties, even in fields where the nonobservance of such legislation constitutes a violation of the Convention; whereas the Commission exercises in this respect a purely supervisory function and must carry out its task with caution; Whereas, in the present case, the Commission finds that the Austrian Courts, when interpreting the provisions of the External Trade Act and when applying them to the Applicant's case, have in no way exceeded the limits of a reasonable interpretation or of a reasonable application of Articles 2, 3, 8 and 9 of the above Act; whereas, in these circumstances, the requirements of Article 7, paragraph (1), of the Convention appear to have been duly fulfilled. Whereas, therefore, this part of the Application is manifestly ill-founded within the meaning of Article 27, paragraph (2), of the Convention; Whereas, in regard to the Applicant's complaints relating to his claim for a retrial, it is to be observed that the Convention, under the terms of Article 1, guarantees only the rights and freedoms set forth in Section I of the Convention; and whereas, under Article 25, paragraph (1), only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals; whereas, otherwise its examination is outside the competence of the Commission ratione materiae; whereas the right to a retrial is not as such included among the rights and freedoms guaranteed by the Convention; (see Applications Nos. 864/60 M. v. Austria - Collection of Decisions, Vol. 9, p. 17, and 1237/61, T. v. Austria - Yearbook V, p. 96); whereas it follows that this part of the Application is incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2), of the Convention. 

Now therefore the Commission DECLARES THIS APPLICATION.

INADMISSIBLE Secretary to the Commission President of the Commission (A. B. Lemay) (S. Petrén)