AS TO THE ADMISSIBILITY OF
Application No. 26808/95
by Peter HAUSER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 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. 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 1 February 1995
by Peter HAUSER against Austria and registered on 22 March 1995 under
file No. 26808/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1957 and residing
in Salzburg. He is a lawyer by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
On 26 January 1993 the Salzburg Municipality Office (Magistrat)
convicted the applicant under the Salzburg Municipality Parking Fee Act
(Parkgebührengesetz für die Stadt Salzburg) of failure to pay parking
fees and sentenced him to a fine of 500 AS or 20 hours' imprisonment
in default.
Between 3 February 1993 and 3 May 1993 the Municipality Office
convicted the applicant five times under the Salzburg Municipality
Parking Fee Act of failure to comply with instructions of the
Municipality Office to inform them on the person who had used the
applicant's car on specific days (Lenkerauskunft). It imposed in each
case a fine of 600 AS or 21 hours' imprisonment in default.
The applicant appealed in all cases.
On 18 November 1993 the Salzburg Independent Administrative Panel
(unabhängiger Verwaltungssenat), in separate decisions, dismissed the
applicant's appeals against the convictions concerning the failure to
give information to the Municipality Office. On 3 December 1993 it
dismissed the applicant's appeal concerning the conviction for non-
payment of parking fees.
The applicant lodged complaints with the Constitutional Court
(Verfassungsgerichtshof) against the Independent Administrative Panel's
decisions as regards the convictions for failure to give information
to the Municipality Office and a complaint with the Administrative
Court (Verwaltungsgerichtshof) as regards the conviction for non-
payment of parking fees.
On 1 March 1994 the Constitutional Court declined to deal with
the applicant's complaints for lack of prospect of success and referred
the cases to the Administrative Court.
On 14 July 1994 the Administrative Court, relying on Section 33a
of the Administrative Court Act (Verwaltungsgerichtshofgesetz),
declined to deal with all the applicant's complaints. It found that
his cases did not raise important legal issues.
B. Relevant domestic law
1. Articles 129a and 129b in the version of the 1988 Amendment of
the Federal Constitution (Federal Law Gazette No. 1988/685) provided
for the institution of Independent Administrative Panels.
Independent Administrative Panels deal, inter alia, with appeals
against penal orders issued by administrative authorities. Their
members are lawyers, appointed by the Regional Government for a term
of office of at least 6 years. They are independent and must not
receive instructions. They can only be dismissed from office upon a
decision of the Independent Administrative Panel itself.
The Salzburg Regional Act of 4 July 1990 on the Independent
Administrative Panel for Salzburg (Gesetz über den Unabhängigen
Verwaltungssenat des Landes Salzburg, LGBl. 1990/65) repeats to a large
extent the provisions of the Federal Constitution. Section 3 para. 2
of the Act provides that members are initially appointed for a term of
office of six years; any renewal of appointment is for ten years.
2. Section 33a of the Administrative Court Act (Verwaltungs-
gerichtshofgesetz), as in force from 1 January 1991, reads as follows:
"The Administrative Court may decline to deal with a
complaint against a decision of an Independent
Administrative Panel in an administrative criminal case, if
no prison sentence or a fine exceeding AS 10,000 has been
imposed and the Administrative Court's decision would not
involve the determination of a legal question of
fundamental importance. A legal question of fundamental
importance is involved in particular if the challenged
decision of the Independent Administrative Panel is at
variance with the Administrative Court's case-law, if no
such case-law exists or if the legal questions at issue
have not been answered uniformly in the Administrative
Court's case-law."
According to Section 11 of the Administrative Court Act, the
Court decides in administrative criminal cases in chambers of three
judges.
3. The Salzburg Municipality Parking Fees Act (Parkgebührengesetz
für die Stadt Salzburg) regulates parking fees in the city of Salzburg.
Section 7 of the Act provides that the owner of a car has to give
information to the authority on request as to the user of the car at
a specified time. The maximum penalty for non-payment of parking fees
and failure to give information as to the user of a car is a fine of
10.000 AS.
According to Section 16 of the Code of Administrative Criminal
Procedure (Verwaltungsstrafgesetz) the administrative authority which
imposes a fine must at the same time order imprisonment in default.
If the law providing for the fine does not provide otherwise,
imprisonment in default must not exceed two weeks. No minimum duration
of imprisonment by default is provided for.
According to Section 54b of the Code of Administrative Criminal
Procedure imprisonment in default can only be enforced if the
collection of the fine, normally with the assistance of an enforcement
court (Exekutionsgericht) has failed. The mere refusal to pay a fine
is not sufficient to find that a fine is not collectible.
COMPLAINT
The applicant complains that the Administrative Court's refusal
to deal with his complaints violated Article 2 of Protocol No. 7.
THE LAW
The applicant complains that the Administrative Court's refusal
to deal with his complaints violated Article 2 of Protocol No. 7
(P7-2), which, insofar as relevant, reads as follows:
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence
reviewed by a higher tribunal. The exercise of this right,
including the grounds on which it may be exercised, shall
be governed by law.
2. This right may be subject to exceptions in regard to
offences of a minor character, as prescribed by law, ..."
The Commission finds that the applicant was convicted of criminal
offences within the meaning of Article 2 of Protocol No. 7 (P7-2). In
this respect the Commission has had regard to the nature of the
applicant's offences as a failure to comply with a specific regulation,
their qualification under domestic law as administrative criminal
offences and the severity of the punishment involved, which included
the possibility of imprisonment and cannot be described as negligible
(see mutatis mutandis Eur. Court H.R., Öztürk judgment of 21 February
1984, Series A no. 73, p. 18, para. 50; Gradinger judgment of 23
October 1995, Series A no. 328-C, paras. 35-36).
The Commission observes that the Salzburg Municipal Office cannot
be considered as a tribunal within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (see e.g. Eur. Court H.R., Gradinger
judgment of 23 October 1995 loc. cit., para. 42; Schmautzer judgment
of 23 October 1995, Series A no. 328-A, para. 34) and consequently not
as a tribunal for the purpose of Article 2 of Protocol No. 7 (P7-2).
However, having regard to the criteria developed in its case-law by the
Court for the qualification of tribunals under Article 6 para. 1
(Art. 6-1) of the Convention and the relevant domestic provisions on
the institution of Independent Administrative Panels, the Commission
finds that the Salzburg Independent Administrative Panel has to be
regarded as a tribunal within the meaning of Article 2 para. 1 of
Protocol No. 7 (P7-2-1) (see mutatis mutandis Eur. Court H.R.,
Ringeisen judgment of 16 July 1971, Series A no. 13, p.39, para. 95;
Sramek judgment of 22 October 1984, Series A no. 84, pp. 17-18, paras.
36-38; Ettl judgment of 23 April 1987, Series A no. 117, pp. 17-19,
paras. 34-41).
Article 2 of Protocol No. 7 (P7-2) therefore applies to the
applicant's convictions by the Salzburg Independent Administrative
Panel and he was therefore in principle entitled to a review of his
convictions or sentences by a higher tribunal.
The Commission recalls that reference to the grounds for review
being governed by law in the second sentence of paragraph 1 of Article
2 of Protocol No. 7 (P7-2) clearly shows that the Contracting States
have a discretion as to the modalities for the exercise of the right
to review. Thus, different rules govern review by a higher tribunal
in the various Member States of the Council of Europe. In some member
States a person wishing to appeal to the highest tribunal must apply
for leave to appeal. Such a right to apply for leave to appeal to a
higher court can in itself be regarded as a review within the meaning
of Article 2 of Protocol No. 7 (P7-2) (No. 18066/91, Dec. 6.4.94, D.R.
77 p. 37; No. 20087/92, Dec. 26.10.95, D.R. 83).
Under Austrian law the Administrative Court had the competence
to review the appeal decisions given by the Salzburg Independent
Administrative Panel on the applicant's convictions for road traffic
offences. However, the Administrative Court, in applying Section 33a
of the Administrative Court Act, could, and did, decline to deal with
the applicant's complaints.
The Commission finds that the Administrative Court's decisions
given pursuant to Section 33a of the Administrative Court Act may be
equated to decisions given on applications for leave to appeal which
in themselves have to be regarded as a review within the meaning of
Article 2 of Protocol No. 7 (P7-2).
In these circumstances the Commission does not find any
appearance of a violation of the applicant's right under Article 2 of
Protocol No. 7 (P7-2) to a review of his conviction or sentence by a
higher tribunal.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy