AS TO THE ADMISSIBILITY OF
Application No. 15527/89
by H.U.
against Austria
The European Commission of Human Rights sitting in private on
10 May 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 August 1989 by
H.U. against Austria and registered on 20 September 1989 under file No.
15527/89 ;
Having regard to:
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
21 January 1992 and the observations in reply submitted by the
applicant on 20 March 1992 ;
- the submissions of the parties at the oral hearing held on
10 May 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen. He is represented before
the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 16 October 1987 the applicant refused to undergo a
breathalyser test. On the same day he was fined by a penal order
(Straferkenntnis) 10,000 AS for failure to comply with Section 99
(1)(b) of the Road Traffic Act (Straßenverkehrsordnung) of 1960, with
provision for 480 hours' imprisonment in default. The applicant
appealed to the Regional Government (Landesregierung) which, on 19
January 1988, rejected his appeal.
The applicant then made a complaint to the Constitutional Court
(Verfassungsgerichtshof) alleging, inter alia, that the type of
breathalyser used was calibrated in a way which did not comply with the
legal provisions applicable, and that the proceedings involved did not
comply with Article 6 of the Convention. The Constitutional Court
rejected the complaint on 14 October 1988 on the ground that it had no
sufficient prospect of success and that the case was not outside the
competence of the Administrative Court (Verwaltungsgerichtshof). The
Constitutional Court referred to its own case-law on Article 6 of the
Convention in finding that the application had no sufficient prospect
of success.
On 6 December 1988 the applicant requested the Constitutional
Court to refer the complaint to the Administrative Court. The
Administrative Court, by decision of 20 January 1989 (received by the
applicant's representative on 23 February 1989), rejected the complaint
concerning the calibration of the breathalyser. As to Article 6 of the
Convention, the Administrative Court noted that the Constitutional
Court had found the complaint unfounded, and there was no reason to
return the case to the Constitutional Court.
COMPLAINTS
The applicant alleges a violation of Article 6 of the
Convention in that the administrative criminal proceedings brought
against him were determined initially by administrative authorities
which do not constitute independent and impartial tribunals within the
meaning of Article 6 para. 1 of the Convention, and subsequently by the
Constitutional Court and the Administrative Court, the scope of whose
review is not sufficient to comply with Article 6 of the Convention,
and which cannot decide the case for themselves.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 August 1989 and registered
on 20 September 1989.
On 2 September 1991 the Commission decided to request the parties
to submit their written observations on the admissibility and merits
of the application.
The respondent Government submitted their observations, after an
extension of the time-limit, on 21 January 1992 and the applicant
submitted his observations on 20 March 1992.
On 15 February 1993 the Commission decided to hear the parties
on the admissibility and merits of this case and Applications Nos.
15523/89, 15963/90, 16713/90, 16718/90 and 16841/90.
At the hearing, which was held on 10 May 1993, the parties in the
present case were represented as follows:
For the Government:
Ambassador F. Cede Legal Adviser, Federal Ministry for Foreign
Affairs, Agent
Ms. S. Bernegger Federal Chancellery, Adviser
For the applicant:
Mr. W.L. Weh Representative
THE LAW
The applicant alleges a violation of Article 6 (Art. 6) of the
Convention.
The Government submit that the Austrian reservation to Article
5 (Art. 5) of the Convention prevents the Commission from examining
this complaint. They also consider that the applicant has failed to
comply with the six months rule in Article 26 (Art. 26) of the
Convention, as his application to the Administrative Court had so
little chance of success that it cannot count as a remedy for these
purposes.
The Government consider that the absence of an oral public and
direct hearing is covered by the Austrian reservation to Article 6
(Art. 6) of the Convention. They also point out that the applicant did
not make a complaint about the absence of a hearing before the
Administrative Court.
The applicant considers that the Austrian reservation to Article
5 (Art. 5) of the Convention is neither applicable nor valid, and
points out that the Administrative Court in fact dealt with the
substance of his administrative complaint and, indeed, could have
raised questions of constitutionality of the norms at issue before the
Constitutional Court. He considers that the reservation to Article 6
(Art. 6), if valid, is not applicable to the present proceedings.
The Commission notes that the applicant's request to the
Constitutional Court to refer the complaint to the Administrative Court
was granted, and that the Administrative Court dismissed the complaint
in a decision on the merits. Had the Administrative Court accepted the
applicant's contentions, he would no longer have been the victim of an
alleged violation of the Convention. The Commission finds, in the
present case, that the decision of the Administrative Court of 20
January 1989 (received by the applicant's representative on 23 February
1989) must be taken as the final decision for the purposes of Article
26 (Art. 26) of the Convention.
The Commission finds that the complaints raised by the present
application raise complex issues of law under the Convention, including
questions concerning the Austrian reservations to Articles 5 and 6
(Art. 5, 6) of the Convention, the determination of which must be
reserved to an examination of the merits.
The application cannot therefore be declared manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits
of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NORGAARD)
Full & Egal Universal Law Academy