Application No. 15135/89, 15136/89
and 15137/89
by J.P., K.R. and G.H.
against Austria
The European Commission of Human Rights sitting in private
on 5 September 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 applications introduced on 30 May 1989
by J.P., K.R. and G.H. against Austria and registered on 16 June
1989 under files Nos. 15135/89, 15136/86 and 15137/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant P. (Application No. 15135/89) is an Austrian
citizen, born in 1941 and practising as a lawyer in Vienna. The
applicants H. (Application No. 15137/89) and R. (Application
No. 15136/89) are likewise Austrian citizens, born in 1944 and 1945
and both living in Vienna. They are represented by Mr. P.
All three applicants complain that under Austrian law, namely
Sec. 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz = KFG), the
registered owner of a car (Zulassungsbesitzer) is obliged to inform
the authorities at their request as to who has last driven or parked
the car and that they were fined for not having conformed with this
obligation.
The applicant P. was imposed two fines of 2,000 AS each
or four days of detention for each unpaid fine.
The applicant H. was fined 1,000 AS or 60 hours of
detention. The applicant R. was fined 600 AS or 36 hours of
detention.
Mr. P.'s appeal against the two fines was rejected by
the competent Land authority (Amt der Wiener Landesregierung) on
6 November 1987. It is stated in the decision that the applicant had
been named by the registered owner, a leasing company, to be
responsible for two cars which on two different occasions were found
wrongly parked in Vienna. He was therefore obliged under the relevant
law to indicate the person who had parked the cars. As he did not
furnish this information within the time-limit of two weeks he had to
be fined in accordance with the law.
The appeals of the two other applicants were rejected on
22 September 1987 and 29 March 1988.
The applicants then lodged constitutional complaints in which
they requested that the Constitutional Court (Verfassungsgerichtshof)
annul as being incompatible with the Constitution the relevant
provisions in Secs. 103 (2) and 103a (1) KFG of 1986. Similar
provisions in the previous versions of Sec. 103 (2) had already been
quashed twice by the Constitutional Court on the ground that they were
unconstitutional because they involved an element of self-
incrimination (Collection of Constitutional Court Decisions No.
9950/1984 and No. 10394/1985). In the present case the Constitutional
Court again instituted norm control proceedings, but in a decision of
29 September 1988 (G 72/88) pointed out that the ultimate sentence in
Sec. 103 (2) KFG had now been enacted as a provision of constitutional
rank (Verfassungsnorm). It provided that no right to refuse to give
the information (Auskunftverweigerungsrecht) requested in accordance
with Sec. 103 (2) KFG could be invoked vis-à-vis the authorities.
Thereby the body competent to legislate on the constitutional level
(Verfassungsgesetzgeber) intended to create, for reasons of legal
policy, an exception from the general rule that nobody should be
obliged under threat of punishment to confess having committed a
punishable offence. As this exception did not violate any predominant
principles of constitutional law the Constitutional Court could not
review this constitutional norm as to its compatibility with other
constitutional provisions, including the internal law aspect of
Article 6 of the Convention.
On 29 November 1988 the Constitutional Court rejected the
applicants' constitutional complaints against the decisions rejecting
their appeals against the fines imposed on them.
The applicants allege a violation of Article 6 of the
Convention. In particular they refer to the principle of equality of
arms which they consider violated because Sec. 103 (2) KFG obliges the
registered car owner to confess having committed an offence.
THE LAW
1. The applicants' complaints are analogous. The Commission
therefore finds it convenient to join the applications under Rule 29
of its Rules of Procedure.
2. The applicants complain of having been fined because they had
refused to indicate to the competent authorities who last drove or
parked a car which was found wrongly parked in Vienna and belonged to
them or had been entrusted to them. They invoke Article 6 para. 1
(Art. 6-1) of the Convention which guarantees the right to a fair trial.
However, even assuming that Article 6 (Art. 6) applies to the
proceedings in question it cannot be found that the obligation in
question violated this right or the principle of presumption of
innocence as guaranteed by Article 6 para. 2 (Art. 6-2).
The Contracting States are free to define the constituent
elements of an offence. Furthermore, the Convention does not
prohibit, in principle, the use of legal presumptions in criminal law
(Eur. Court H.R., Salabiaku case, judgment of 7.10.88, Series A no.
143, p. 15 paras. 27-28). The Commission has already found that
criminal liability of a car owner whose car was found wrongly parked
without his being able or willing to name the driver or to establish
that the car had been used against his will did not violate Article 6
(Art. 6) of the Convention (No. 6170/73, Dec. 26.5.75, unpublished).
The regulation here in question is based on a similar principle,
in that it obliges a car owner, or other person named by the owner as
the driver of the car, to assume the responsibility for the use or to
name the actual driver.
Thereby the person concerned is not under all circumstances
obliged to incriminate himself/herself or a close relative, but may,
according to the circumstances, also show that he/she is not connected
with the offence committed by the driver. For example, a car may have
been used by other known or unknown persons with or without the
consent of the owner of the car.
It follows that the regulation in question as applied in the
applicants' cases does not disclose any appearance of a violation of
the Convention and in particular of the Article invoked by the
applicants. The applications are therefore manifestly ill-founded
with the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
1. DECIDES TO JOIN APPLICATIONS NOS. 15135/89,
15136/89 AND 15137/89;
2. DECLARES THE APPLICATIONS INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)