EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 16841/90
Harald Pfarrmeier
against
Austria
REPORT OF THE COMMISSION
(adopted on 19 May 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-30) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-20). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 21-30). . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 31-57) . . . . . . . . . . . . . . . . . . . . .8
A. Complaint declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 32). . . . . . . . . . . . . . . . . . . . .8
C. As to the applicability of Article 6 of the Convention
(paras. 33-42). . . . . . . . . . . . . . . . . . .8
a. The existence of a "criminal charge"
(paras. 33-37). . . . . . . . . . . . . .8
b. The reservation to Article 5
of the Convention
(paras. 38-42). . . . . . . . . . . . . .9
D. As to compliance with Article 6 para. 1 of the Convention
(paras. 43-49). . . . . . . . . . . . . . . . . . 10
a. The administrative authorities
(paras. 43-45). . . . . . . . . . . . . 10
b. The scope of review of the decisions of
the administrative authorities
(paras. 46-49). . . . . . . . . . . . . 10
CONCLUSION
(para. 50). . . . . . . . . . . . . . . . . . . . 11
c. The absence of a hearing before the
Administrative Court
(para. 51). . . . . . . . . . . . . . . 11
CONCLUSION
(para. 52). . . . . . . . . . . . . . . . . . . . 11
d. The lack of opportunity to question
witnesses
(para. 53). . . . . . . . . . . . . . . 11
CONCLUSION
(para. 54). . . . . . . . . . . . . . . . . . . . 11
E. Recapitulation
(paras. 55-57). . . . . . . . . . . . . . . . . . 11
CONCURRING OPINION OF Mr. F. ERMACORA . . . . . . . . . . . 12
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 13
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 14
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is an Austrian citizen, resident in Bregenz. He was
represented before the Commission by Mr. W.L. Weh, a lawyer practising
in Bregenz.
3. The application is directed against Austria. The respondent
Government were represented by their Agent, Ambassador F. Cede, head
of the International Law Department at the Federal Ministry for Foreign
Affairs.
4. The case concerns administrative criminal proceedings against the
applicant before administrative authorities with subsequent review by
the Constitutional and Administrative Courts. The applicant invokes
Article 6 of the Convention.
B. The proceedings
5. The application was introduced on 13 June 1990 and registered on
10 July 1990.
6. On 16 October 1991 the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 21 February 1992.
The applicant replied on 5 October 1992, after expiry of the time-
limit.
8. On 15 February 1993 the Commission decided to hold a hearing of
the parties in this case and in Applications Nos. 15523/89, 15527/89,
15963/90, 16713/90, and 16718/90. The hearing was held on 10 May 1993.
The Government were represented by Ambassador Cede and Ms. S.
Bernegger, of the Federal Chancellery. The applicant was represented
by Mr. Weh.
9. On 10 May 1993 the Commission declared the application
admissible.
10. The text of the Commission's decision on admissibility was sent
to the parties on 19 May 1991 and they were invited to submit such
further information or observations on the merits as they wished. The
Government submitted observations on 27 May 1993.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NØRGAARD, President
A. WEITZEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
13. The text of this Report was adopted on 19 May 1994 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is :
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. On 11 June 1987 the applicant was fined by a penal order
(Straferkenntnis) of the District Authority (Bezirkshauptmannschaft)
AS 9,000 with provision for 360 hours' detention in default for
failure to submit to a breathalyser test, contrary to Section 99(1)(b)
of the Road Traffic Act 1960 (Straßenverkehrsordnung). He appealed to
the Vorarlberg Provincial Government (Landesregierung) which, on
11 November 1987, rejected his appeal.
18. On 23 March 1988 the Administrative Court
(Verwaltungsgerichtshof) quashed the decision of the Provincial
Government of 11 November 1987 and remitted the case to that
authority. The Provincial Government's second decision, of 23
December 1988, reduced the penalty from AS 9,000 to AS 5,000 and the
period of imprisonment in default from 360 hours to 200 hours.
19. The applicant's complaint to the Constitutional Court (Ver-
fassungsgerichtshof) was rejected on 10 March 1989 on the ground that
it had no sufficient prospect of success and that the case was not
outside the competence of the Administrative Court. The
Constitutional Court referred principally to its own case-law on
Article 6 of the Convention in finding that the application had no
sufficient prospect of success.
20. On 10 November 1989 the Administrative Court gave its second
decision in the case. It found that it was not prevented from
considering that the factual position had been determined in a
relevant and conclusive way, although it was not able to review
whether the defence's version of the facts was correct. Accordingly,
the Administrative Court could not decide whether the applicant had or
had not spoken of a "good session" (drinking). As to the applicant's
complaint that his lawyer had not been able to examine a witness, the
court noted that an oral hearing was not a necessary part of the
administrative criminal proceedings. As to the alleged
unconstitutionality of the Austrian reservation to Article 5 of the
Convention, the Court referred to previous case-law. The complaint
was dismissed as a whole.
B. Relevant domestic law
The duty to provide a breath specimen
21. Section 99 (1) of the Road Traffic Act 1960
(Straßenverkehrsordnung) provides, so far as relevant, as follows:
(German)
"Eine Verwaltungsübertretung begeht und ist mit einer Geldstrafe
von 8 000 S bis 50 000 S, im Fall ihrer Uneinbringlichkeit mit
Arrest von einer bis sechs Wochen, zu bestrafen,
...
b) wer sich bei Vorliegen der in § 5 bezeichneten Voraussetzungen
weigert, seine Atemluft auf Alkoholgehalt untersuchen ... zu
lassen ..."
(Translation)
"An administrative offence, punishable by a fine of AS 8,000 to
AS 50,000 with one to six weeks' detention in default, is
committed by any person who:
...
(b) refuses to undergo a breath/alcohol test, in circumstances
complying with the conditions laid down in Section 5 ..."
Section 5 of the Road Traffic Act prohibits the driving of
vehicles whilst the driver has more than a specified amount of alcohol
in his blood or breath, and lays down the conditions for breathalysers
and blood tests.
In 1958, Section 7 of the Traffic Police Act 1947
(Straßenpolizeigesetz) provided that "every person is under an
obligation to drive with reasonable consideration for other road users
and with such due care and attention as is required for the
maintenance of order, safety and traffic efficiency".
Jurisdiction of the Constitutional and Administrative Courts
22. According to Article 144 of the Austrian Federal Constitution
(Bundes-Verfassungsgesetz) an appeal can be filed with the
Constitutional Court in which an applicant can allege a violation of
his constitutional rights. He can also complain that his rights have
been violated on account of an unlawful ordinance, an unconstitutional
Act, or an unlawful international treaty.
23. Article 144 para. 2 of the Federal Constitution provides as
follows:
(German)
"Der Verfassungsgerichtshof kann die Behandlung einer Beschwerde
bis zur Verhandlung durch Beschluß ablehnen, wenn sie keine
hinreichende Aussicht auf Erfolg hat oder von der Entscheidung
die Klärung einer verfassungsrechtlichen Frage nicht zu erwarten
ist. Die Ablehnung der Behandlung ist unzulässig, wenn es sich
um einen Fall handelt, der nach Art. 133 von der Zuständigkeit
des Verwaltungsgerichtshofes ausgeschlossen ist."
(Translation)
"The Constitutional Court may refuse to consider a case up to a
hearing by way of decision if it has no reasonable prospect of
success or it cannot be expected that the decision will shed
light on a problem of constitutional law. A refusal to consider
is inadmissible if it concerns a case excluded from the
jurisdiction of the Administrative Court by Article 133."
24. According to Article 130 para. 1 of the Federal Constitution the
Administrative Court will review allegations of unlawfulness of an
administrative decision. According to Article 130 para. 2, "no
unlawfulness exists where legislation does not establish a binding
rule on an administrative authority's conduct, leaving the
determination of such conduct to the authority itself, and the
authority has made use of this discretion in the spirit of the law"
("Rechtswidrigkeit liegt nicht vor, soweit die Gesetzgebung von einer
bindenden Regelung des Verhaltens der Verwaltungsbehörde absieht und
die Bestimmung dieses Verhaltens der Behörde selbst überläßt, die
Behörde aber von diesem freien Ermessen im Sinne des Gesetzes Gebrauch
gemacht hat"). The Administrative Court is also competent to deal
with complaints that the administrative authority has violated its
duty to take a decision (Article 132).
25. Section 41 of the Administrative Court Act (Verwaltungs-
gerichtshofgesetz) provides, so far as relevant:
(German)
"(1) Der Verwaltungsgerichtshof hat, soweit er nicht
Rechtswidrigkeit wegen Unzuständigkeit der belangten Behörde oder
wegen Verletzung von Verfahrensvorschriften gegeben findet (§ 42
Abs. 2 Z. 2 und 3) ..., den angefochtenen Bescheid auf Grund des
von der belangten Behörde angenommenen Sachverhaltes im Rahmen
der geltend gemachten Beschwerdepunkte ... zu überprüfen. Ist
er der Ansicht, dass für die Entscheidung über die
Rechtswidrigkeit des Bescheides in einem der Beschwerdepunkte
... Gründe massgebend sein könnten, die einer Partei bisher nicht
bekanntgegeben wurden, so hat er die Parteien darüber zu hören
und, wenn nötig, eine Vertagung zu verfügen."
(Translation)
"(1) In so far as the Administrative Court does not find
unlawfulness on account of a lack of jurisdiction of the
authority against which the appeal is directed or on account of
a violation of procedural provisions (Section 42 (2) (2) and (3),
..., the Court must examine the contested decision on the basis
of the facts as accepted by the authority against which the
appeal is directed within the framework of the alleged complaint
... If it is of the opinion that reasons would be relevant for
the decision on the unlawfulness of the contested decision ...
which were so far not known to a party, it must hear the parties
thereupon and, if necessary, adjourn the proceedings."
26. Section 42 (1) of the Administrative Court Act states that, save
as otherwise provided, decisions of the Administrative Court shall
either dismiss a complaint as ill-founded or quash the contested
decision. Apart from amendments to that part of Section 42 (1) which
enumerates those proceedings to which it does not apply (not relevant
in the present case) Section 42 (1) has been in force since at least
1946.
27. As regards the decisions of the Administrative Court, Section
42 (2) of the Administrative Court Act provides, so far as relevant:
(German)
"(2) Der angefochtene Bescheid ist aufzuheben
1. wegen Rechtswidrigkeit seines Inhaltes,
2. wegen Rechtswidrigkeit infolge Unzuständigkeit
der belangten Behörde,
3. wegen Rechtswidrigkeit infolge Verletzung von
Verfahrensvorschriften, und zwar weil
a) der Sachverhalt von der belangten Behörde
in einem wesentlichen Punkt aktenwidrig
angenommen wurde oder
b) der Sachverhalt in einem wesentlichen
Punkt einer Ergänzung bedarf oder
c) Verfahrensvorschriften ausser acht gelassen
wurden, bei deren Einhaltung die belangte
Behörde zu einem anderen Bescheid hätte
kommen können."
(Translation)
"(2) The contested decision must be quashed
1. on account of the unlawfulness of its content,
2. on account of unlawfulness due to the lack of
jurisdiction of the authority against which the
appeal is directed,
3. on account of unlawfulness due to a violation of
procedural provisions in particular because
a) the authority against which the appeal is
directed has determined the facts on an
important point contrary to the case-file, or
b) the facts require to be supplemented on an important
point, or
c) procedural provisions have been disregarded
which, if taken into consideration by the authority
against which the appeal is directed, could have led
to a different decision of the authority."
Hearings before the Administrative Court
28. Section 39 (1) of the Administrative Court Act provides that the
Administrative Court is to hold a hearing after its preliminary
investigation of the case where a complainant has requested a hearing
within the time-limit. Section 39 (2) provides as follows:
(German)
"Der Verwaltungsgerichtshof kann ungeachtet eines Parteiantrages
nach Abs. 1 Z. 1 von einer Verhandlung absehen, wenn
1. das Verfahren einzustellen (§ 33) oder die Beschwerde
zurückzuweisen ist (§ 34);
2. der angefochtene Bescheid wegen Rechtswidrigkeit infolge
Unzuständigkeit der belangten Behörde aufzuheben ist
(§ 42 Abs. 2 Z. 2);
3. der angefochtene Bescheid wegen Rechtswidrigkeit infolge
Verletzung von Verfahrensvorschriften aufzuheben ist (§ 42 Abs. 2
Z. 3);
4. der angefochtene Bescheid nach der ständigen Rechtsprechung
des Verwaltungsgerichtshofes wegen Rechtswidrigkeit seines
Inhaltes aufzuheben ist;
5. weder die belangte Behörde noch etwaige Mitbeteiligte eine
Gegenschrift eingebracht haben und der angefochtene Bescheid
aufzuheben ist;
6. die Schriftsätze der Parteien des verwaltungsgerichtlichen
Verfahrens und die dem Verwaltungsgerichtshof vorgelegten Akten
des Verwaltungsverfahrens erkennen lassen, daß die mündliche
Erörterung eine weitere Klärung der Rechtssache nicht erwarten
läßt."
(Translation)
"Notwithstanding a party's application, the Administrative Court
may decide not to hold a hearing when
1. The proceedings are to be discontinued (Section 33) or the
complaint is to be rejected (Section 34);
2. The contested decision is to be quashed for unlawfulness due
to lack of jurisdiction on the part of the authority challenged
(Section 42 (2) (2));
3. The contested decision is to be quashed for failure to comply
with procedural provisions (Section 42 (2) (3));
4. The contested decision is to be quashed in accordance with
the constant case-law of the Administrative Court for
unlawfulness as to its contents;
5. Neither the authority challenged nor any third party has
submitted a reply and the contested decision is to be quashed;
6. It is apparent from the written pleadings of the parties to
the proceedings before the Administrative Court and from the
files relating to the prior proceedings that an oral hearing is
not likely to contribute to clarifying the case."
29. Section 39 (2) (1) to (2) (3) were in force in 1958.
Section 39 (2) (4) and (2) (5) were added in 1964 and Section 39 (2)
(6) was added in 1982.
30. Article 90 para. 2 of the Federal Constitution provides as
follows:
(German)
"Die Verhandlungen in Zivil- und Strafrechtssachen vor dem
erkennenden Gericht sind mündlich und öffentlich. Ausnahmen
bestimmt das Gesetz."
(Translation)
"Hearings in civil and criminal cases by the trial court shall
be oral and public. Exceptions may be prescribed by law."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
31. The Commission has declared admissible the applicant's complaint
that the proceedings in which he was convicted of refusing to undergo
a breathalyser test did not comply with Article 6 (Art. 6) of the
Convention.
B. Points at issue
32. The issues to be determined are:
- whether there has been a violation of the applicant's right to a
tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention,
- whether the absence of a hearing before the Administrative Court
violated Article 6 para. 1 (Art. 6-1) of the Convention, and
- whether the applicant's lack of opportunity to put questions to
witnesses as no oral hearing was held violated Article 6 para. 3(d)
(Art. 6-3-d) of the Convention.
C. As to the applicability of Article 6 (Art. 6) of the Convention
a. The existence of a "criminal charge"
33. Article 6 para. 1 (Art. 6-1) of the Convention provides, so far
as relevant, as follows:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
34. In the proceedings in the present case, the applicant was
convicted of refusing to undergo a breathalyser test. He was fined
AS 5,000, to be replaced by 200 hours' detention in default.
35. The applicant considers that the proceedings determined a
criminal charge. With reference to the case-law of the Convention
organs, the Government do not contest the claim, but point to various
features of this type of offence which, in their view, call for a
differentiated approach to administrative criminal offences
(Verwaltungsstrafsachen) when compared with ordinary, judicial
criminal offences. They note, for instance, that criminal records do
not make reference to administrative convictions, that administrative
criminal law is not directed against the commission of social wrong
but serves the purpose of maintaining public order, and that the
offences are of a minor and frequently purely formal character (non-
registration for example).
36. The Commission recalls that the European Court of Human Rights
has applied the same test for the applicability of Article 6 (Art. 6)
to regulatory offences (Ordnungswidrigkeiten) in Germany as to other
types of proceedings (Eur. Court H.R., Öztürk judgment of
21 February 1984, Series A no. 73, p. 18, para. 50). The Commission
notes that administrative criminal proceedings in Austria are
regulated by special legislative provisions which are separate from
the ordinary criminal law. The proceedings are, however, expressly
referred to as administrative "criminal" proceedings, and the
Commission finds that this gives an indication of their nature. The
penalty, of AS 5,000 with 200 hours' detention in default, cannot be
described as negligible.
37. Taking into account the classification as "administrative
criminal" of the offence in domestic law, the nature of the offence as
failure to comply with a specific regulation, and the nature of the
penalty, which included the possibility of imprisonment, the
Commission finds that the proceedings at issue in the present case
determined a "criminal charge" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
b. The reservation to Article 5 (Art. 5) of the Convention
38. The Government submit that the Austrian reservation to Article 5
(Art. 5) of the Convention prevents the Commission from entertaining
this complaint. This reservation provides as follows:
"The provisions of Article 5 (Art. 5) of the Convention shall be
so applied that there shall be no interference with measures for
the deprivation of liberty prescribed in the laws on
administrative procedure, BGBl. No. 172/1950, subject to review
by the Administrative Court or the Constitutional Court as
provided for in the Austrian Federal Constitution."
39. The applicant points out that the laws on administrative
procedure BGBl. No. 172/1950 contain very few criminal offences, and
not that at issue in the present case, such that the reservation
cannot be relevant. He also points out that the offence in the
present case came into being after the reservation was entered in
1958. The Government consider that the reservation must be taken to
apply not merely to actual measures of detention under Article 5
(Art. 5) of the Convention, but also to the proceedings which may lead
to such detention, and they refer to Commission case-law to this
effect (eg. No. 8998/80, Dec. 3.3.83, D.R. 32, p. 150).
40. The Commission recalls that the European Court of Human Rights
has recently had occasion to affirm the validity of the Austrian
reservation to Article 5 (Art. 5) (Eur. Court H.R., Chorherr judgment
of 25 August 1993, Series A no. 266, p. 35, para. 21). In particular,
the Court emphasised that the laws referred to in the reservation "lay
down rules for the punishment of offences, setting out the punishable
acts, the penalties incurred and the procedure to be followed" (p. 34,
para. 18). The Court continued that "the provisions to which the
reservation applied in [that] case were all in force on
3 September 1958 ..." (ibid).
41. The Commission notes that the duty to submit to a breathalyser
test at issue in the present case is comprised in the Road Traffic Act
1960. That Act's predecessor, the Traffic Police Act 1947, was in
force in 1958, but it is not one of the laws referred to in the
Austrian reservation to Article 5 (Art. 5) of the Convention.
Moreover, the specific amendment by which the applicant was penalised
is contained in the 1960 Act. Accordingly, neither the punishable act
nor the penalty imposed were included in the laws referred to in the
reservation. Finally in this respect, the Commission notes that the
Austrian reservation to Article 5 (Art. 5) of the Convention in terms
refers to Article 5 (Art. 5) and not to Article 6 (Art. 6) of the
Convention.
42. The Commission finds that that reservation cannot be said to
apply in the present case. Accordingly, the reservation does not
prevent the Commission from examining the complaint under Article 6
(Art. 6) of the Convention.
D. As to compliance with Article 6 para. 1 (Art. 6-1)
of the Convention
a. The administrative authorities
43. The applicant considers that the administrative authorities which
considered the case, namely the Bregenz District Authority
(Bezirkshauptmannschaft) and the Vorarlberg Provincial Government
(Landesregierung) are officials following instructions, and in no way
independent judges. The Government do not contest this, but point to
procedural rules which apply before the administrative authorities.
44. The Commission finds that the administrative authorities which
decided the applicant's case at first and second instance were not
"independent and impartial tribunals" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Obermeier
judgment of 28 June 1990, Series A no. 179, p. 22, para. 70; Zumtobel
judgment of 21 September 1993, Series A no. 268-A, para. 29).
45. The decisions of the administrative authorities may give rise to
appeals to the Constitutional Court (Verfassungsgerichtshof) and the
Administrative Court (Verwaltungsgerichtshof), but the proceedings for
the consideration of such appeals will be consistent with Article 6
para. 1 (Art. 6-1) only if conducted before "judicial bodies that have
full jurisdiction" (above-mentioned Zumtobel judgment, para. 29 with
further reference).
b. The scope of review of the decisions of the administrative
authorities
46. The Commission must therefore examine the scope of review offered
by the Austrian judicial authorities in this determination of a
criminal charge in order to establish whether the applicant was able
to take his case before a tribunal that did offer the guarantees of
Article 6 (Art. 6) (above-mentioned Öztürk judgment, p. 22, para. 56).
47. The applicant considers that where Article 6 (Art. 6) is
applicable, the Convention requires a court which can determine all
aspects of the case. He points out that new evidence cannot be
submitted to the Administrative Court by virtue of Section 41 of the
Administrative Court Act (Verwaltungsgerichtshofgesetz), that the
Administrative Court does not permit the assessment of the evidence by
the administrative authorities to be challenged, and that the
Administrative Court can only quash decisions, and cannot substitute
its assessment of the facts. The Government accept that, if Article 6
(Art. 6) applies to the proceedings, the Administrative Court does not
fulfil the requirements of the provision.
48. It has not been suggested in the present case that the
Constitutional Court satisfied the requirements of Article 6 (Art. 6)
of the Convention.
49. The Commission finds that whilst in civil matters a somewhat
limited review of the decisions of administrative authorities may, in
certain circumstances, satisfy the requirements of Article 6 (Art. 6)
of the Convention (see, for example, the above-mentioned Zumtobel
judgment, and Eur. Court H.R., Schuler-Zgraggen judgment of
24 June 1993, Series A no. 263, p. 19, para. 58), criminal cases may
require a different approach. In particular, they involve rules
directed towards all citizens in their capacity - in the present case
as in the Öztürk case - as road users, which prescribe conduct of a
certain kind and create sanctions for non-compliance. Where a
defendant desires a court to determine a criminal charge against him,
there is no room for limitation on the scope of review required of the
decisions of administrative authorities. Accordingly, the Commission
finds that the applicant in the present case was entitled to, but did
not have the benefit of, a court which could consider all the facts of
the case.
CONCLUSION
50. The Commission concludes, unanimously, that there has been a
violation of the applicant's right to a tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
c. The absence of a hearing before the Administrative Court
51. In the light of its above finding that the applicant was denied
his right to a tribunal within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention, the Commission finds that no separate
issue arises in connection with the absence of a hearing before the
Administrative Court.
CONCLUSION
52. The Commission concludes, unanimously, that the absence of a
hearing before the Administrative Court raises no separate issue under
Article 6 para. 1 (Art. 6-1) of the Convention.
d. The lack of opportunity to question witnesses
53. In the light of its above finding that the applicant was denied
his right to a tribunal within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention, the Commission finds that no separate
issue arises in connection with the lack of opportunity to question
witnesses before the Administrative Court or before the earlier
administrative authorities.
CONCLUSION
54. The Commission concludes, unanimously, that the lack of
opportunity to question witnesses raises no separate issue under
Article 6 (Art. 6) of the Convention.
E. Recapitulation
55. The Commission concludes, unanimously, that there has been a
violation of the applicant's right to a tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (para. 50).
56. The Commission concludes, unanimously, that the absence of a
hearing before the Administrative Court raises no separate issue under
Article 6 para. 1 (Art. 6-1) of the Convention (para. 52).
57. The Commission concludes, unanimously, that the lack of
opportunity to question witnesses raises no separate issue under
Article 6 (Art. 6) of the Convention (para. 54).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
(Or. English)
CONCURRING OPINION OF Mr. F. ERMACORA
I agree with the Commission that the scope of review afforded by
the Administrative Court does not comply with Article 6 para. 1 of the
Convention. However, the Commission finds that no separate issue
arises in connection with the absence of a hearing before the
Administrative Court.
I consider that a separate issue does arise in this case because
the Austrian reservation to Article 6 has just such a separate wording
and function from the other reservation which Austria has declared to
Article 6 in general.
The difference lies in the fact that the Austrian reservation
does not concern the administrative procedural law directly but
Article 90 para. 2 of the Constitution which states that "Hearings in
civil and criminal cases by the trial court shall be oral and public.
Exceptions may be prescribed by law".
This reservation is not at all applicable to procedures before
the Administrative and Constitutional Courts because these courts do
not deal with cases in civil and criminal cases but in cases of a
public law character. The reservation cannot be understood in any
other way because the meaning of the reservation at the time it was
made must be respected.
In 1958, when the reservation was made, Article 90 of the
Constitution could not have the meaning which the Commission now gives
to the reservation. In 1958 - long before the Ringeisen case -
Article 90 could in no way be applicable to procedures before the
Constitutional Court because Article 90 (2) from a systematic point of
view falls within the chapter of the Constitution dealing with civil
and criminal law before the ordinary courts and not the part dealing
with public law, which is regulated by Article 137 et seq. of the
Constitution.
The Commission should have entered into this question which shows
that the reservation is not at all applicable in the case. The
interpretation of this reservation is contrary to the scope of the
reservation and therefore the Commission should have applied Article 6
with reference to the misinterpretation of the said reservation. The
Commission should have considered this fact as a separate issue as to
the interpretation of the Austrian reservation. This brings me to the
same result as the other members, but based rather on a different
interpretation of the reservation.
APPENDIX I
HISTORY OF THE PROCEEDINGS
Date Item
_________________________________________________________________
13.06.1990 Introduction of application
10.07.1990 Registration of application
Examination of admissibility
16.10.1991 Commission's decision to communicate the
case to the respondent Government and to
invite the parties to submit observations
on admissibility and merits
21.02.1992 Government's observations
05.10.1992 Applicant's observations in reply
15.02.1993 Commission's decision to hold a hearing
10.05.1993 Hearing on admissibility and merits, the
parties being represented as follows :
Government : Ambassador Cede
Ms. S. Bernegger,
Federal Chancellery
Applicant : Mr. L. W. Weh
10.05.1993 Commission's decision to declare
application admissible
Examination of the merits
16.10.1993 Commission's consideration of state of
proceedings
05.03.1994 Commission's consideration of state of
proceedings
16.05.94 Commission's deliberations on the merits,
final vote and consideration of text of
the Report
19.05.94 Adoption of Report
Full & Egal Universal Law Academy