EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15523/89
Peter Schmautzer
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. 17-32) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-21). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 22-32). . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 33-58) . . . . . . . . . . . . . . . . . . . . .8
A. Complaint declared admissible
(para. 33). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 34). . . . . . . . . . . . . . . . . . . . .8
C. As to the applicability of Article 6 of the Convention
(paras. 35-44). . . . . . . . . . . . . . . . . . .8
a. The existence of a "criminal charge"
(paras. 35-39). . . . . . . . . . . . . .8
b. The reservation to Article 5 of the
Convention
(paras. 40-44). . . . . . . . . . . . . .9
D. As to compliance with Article 6 para. 1
of the Convention
a. The administrative authorities
(paras. 45-47). . . . . . . . . . . . . 10
b. The scope of review of the decisions of
the administrative authorities
(paras. 48-53) . . . . . . . . . . . . 10
CONCLUSION (para. 54) . . . . . . . . . . . . . . 11
c. The absence of a hearing before the
Administrative Court (para. 55) . . . . 11
CONCLUSION
(para. 56). . . . . . . . . . . . . . . . . . . . 12
E. Recapitulation
(paras. 57-58). . . . . . . . . . . . . . . . . . 12
CONCURRING OPINION OF Mr. F. ERMACORA . . . . . . . . . . . 13
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 14
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 15
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, born in 1942 and
resident in Graz. He is a lawyer.
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 26 May 1989 and registered
on 20 September 1989.
6. On 11 July 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
8 November 1991 after an extension of the time-limit fixed for
this purpose. The applicant replied on 7 January 1992.
8. On 15 February 1993 the Commission decided to hold a hearing
of the parties in this case and in Applications Nos. 15527/89,
15963/90, 16713/90, 16718/90 and 16841/90. 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 appeared in person.
9. On 10 May 1993 the Commission declared inadmissible the
applicant's complaint under Article 6 of the Convention that he
was required to wear a safety belt. It declared the remainder
of the application admissible.
10. The text of the Commission's decision on admissibility was
sent to the parties on 19 May 1993 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 30 April 1986 the applicant was stopped by a policeman
who found that the applicant was driving his car without wearing
his safety belt. By a penal order (Straferkenntnis) of
1 June 1987 the Federal Police Authority
(Bundespolizeidirektion) in Graz imposed on the applicant a fine
of AS 300, to be replaced by 24 hours' detention in case of
default, for having committed the offence of non-compliance with
the car-driver's duty to wear a safety belt according to
Section III paras. 1 and 5 (a) of the 3rd amendment to the Motor
Vehicles Act (Kraftfahrgesetz). On 2 February 1988 the
Provincial Governor (Landeshauptmann) of Styria confirmed this
decision while reducing the fine to AS 200 (to be replaced by
fourteen hours' detention in case of default).
18. The applicant filed a complaint (B 821/88) with the
Constitutional Court (Verfassungsgerichtshof) alleging, inter
alia, a violation of his rights under Articles 5, 6 and 8 of the
Convention.
19. On 27 February 1989 the Constitutional Court rejected the
complaint as lacking prospects of success. It referred to an
earlier decision of 3 December 1988 (B 176/87) where it had held
that the imposition of administrative penal sanctions for
failure to wear a safety belt was not unconstitutional and did
not infringe the Convention. As regards Articles 5 and 6, the
Constitutional Court considered that the Austrian reservation
concerning Article 5 applied, notwithstanding that the
administrative offence in question had been introduced after the
declaration of the reservation, because it was no more than a
logical development (systemkonforme Fortentwicklung) of legal
provisions which had existed at that time. In this context the
Constitutional Court referred to a number of offences included
in the Motor Vehicles Act 1955 which also pursued the aim of
protecting the life, health and safety of persons transported in
motor vehicles.
20. As regards Article 8 of the Convention, the Constitutional
Court referred to Application No. 8707/79 (Dec. 13.12.79,
D.R. 18, p. 255) where the Commission had denied an interference
with private life by an obligation to wear safety belts.
21. The applicant's case was referred to the Administrative
Court (Verwaltungsgerichtshof), but the applicant did not pursue
the proceedings before that Court.
B. Relevant domestic law
The obligation to wear safety belts
22. The duty to wear a safety belt was introduced in 1976 by
Section III of the 3rd amendment to the 1955 Motor Vehicles Act.
However, at that time it was deliberately decided not to make
non-compliance with this duty an administrative offence. The
legal consequences of breaches of the duty were limited to civil
law (coverage by insurance etc.). It was only in 1984 that a
further amendment to the Motor Vehicles Act made the failure to
comply with this duty an administrative offence
(Verwaltungsübertretung).
23. As far as relevant, Section III of the Motor Vehicles Act
(Amendment No. 3) Act 1976, as amended, reads as follows:
(German)
"(1) Ist ein Sitzplatz eines Kraftfahrzeugs nach
kraftfahrgesetzlicher Anordnung mit einem Sicherheitsgurt
ausgerüstet, so sind Lenker und beförderte Personen, die
einen solchen Sitzplatz benützen, je für sich zum
bestimmungsgemäßen Gebrauch des Sicherheitsgurts
verpflichtet.
...
(5) Wer
(a) als Lenker eines Kraftfahrzeuges oder
(b) als mit einem Kraftfahrzeug beförderte Person die im
Abs. 1 erster Satz angeführte Verpflichtung nicht erfüllt,
begeht ... eine Verwaltungsübertretung, welche mit einer
Organstrafverfügung gemäß § 50 VStG 1950 mit einer
Geldstrafe von 100 S zu ahnden ist. Wenn die Zahlung des
Strafbetrages ... verweigert wird ... ist von der Behörde
eine Geldstrafe bis zu 300 S, im Falle der
Uneinbringlichkeit eine Freiheitsstrafe bis zu 24 Stunden,
zu verhängen."
(Translation)
"(1) If a seat of a motor vehicle is equipped with a safety
belt in accordance with the requirements of the Motor
Vehicles Act, the driver and the transported persons who
use such a seat are obliged to wear the safety belt in
accordance with its intended purpose.
...
(5) Any person who fails to comply with the duty referred
to in
para. 1
(a) as the driver of a motor vehicle or
(b) as a person transported by a motor vehicle
commits an administrative offence to be punished, by way of
a provisional penal order within the meaning of Article 50
of the 1950 Code of Administrative Offences, with a fine of
AS 100. If payment of the fine is refused ... the
authority [dealing with the case in ordinary proceedings]
may impose a fine of up to AS 300, to be replaced, in case
of default, by detention of up to 24 hours."
Jurisdiction of the Constitutional and Administrative Courts
24. 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.
25. 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."
26. 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).
27. 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."
28. 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.
29. 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
30. 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."
31. 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.
32. 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
33. The Commission has declared admissible the applicant's
complaint that the proceedings in which he was convicted of
failing to wear a safety belt did not comply with Article 6
(Art. 6) of the Convention.
B. Points at issue
34. 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, and
- whether the absence of a hearing before the Administrative
Court violated Article 6 para. 1 (Art. 6-1) of the Convention.
C. As to the applicability of Article 6 (Art. 6)
of the Convention
a. The existence of a "criminal charge"
35. 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."
36. In the proceedings in the present case, the applicant was
convicted of failing to wear a safety belt whilst driving a car.
The administrative offence (Verwaltungsübertretung) was
introduced in 1984. The applicant was fined AS 200, to be
replaced by fourteen hours' detention in default.
37. 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).
38. 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 Commission
also notes that, although the fine in the present case was very
small, it carried with it the default penalty of 14 hours'
detention. The maximum period of detention in default was
24 hours.
39. 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
40. 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."
41. 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 long 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).
42. 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).
43. The Commission notes that the duty to wear a safety belt at
issue in the present case is comprised in the Motor Vehicles Act
1955. That Act 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 was introduced in 1984.
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.
44. 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
45. The applicant considers that the introduction of the
Independent Administrative Tribunals is an indication that the
Government have accepted that the system in force in his case
did not comply with the Convention. The Government do not
submit that the administrative authorities which heard the
applicant's case at first and second instance were comprised of
independent judges, but they point to the procedural rules whcih
apply before the administrative authorities.***
46. 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).
47. 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
48. 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).
49. 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. With regard to
a question put on 10 May 1993 at the oral hearing by a Member of
the Commission as to facts he wished to challenge, the applicant
stated that he had not wanted to wear a safety belt as he had
sun-burn at the relevant time, and he would have wished to have
this finding made by a court, but he was constrained to abandon
his complaint to the Administrative Court because this would
have amounted to a challenge to the assessment of the evidence.
50. The Government consider that in minor cases such as the
present one, it is permissible for an independent tribunal -
they underline that the independence and impartiality of the
Administrative and Constitutional Courts are not in doubt - to
review the facts as established by the administrative
authorities. They point out that the Administrative Court can
quash the decision of the administrative authorities where the
facts are in contradiction of the file, where a fundamental
point of fact needs complementing, or where procedural
provisions have been ignored which could have led to a different
result. At the hearing on 10 May 1993 they also considered that
the applicant was not actually attempting to challenge any
specific findings of fact.
51. The Commission first finds that the Constitutional Court
did not satisfy the requirement of "full jurisdiction". It was
able to inquire into the contested proceedings only from the
point of view of their conformity with the Constitution (see
also the above-mentioned Zumtobel judgment, para. 30). The
Government do not contend that the Constitutional Court has
sufficient powers to examine all relevant facts.
52. The Convention organs have considered the scope of review
by the Administrative and Constitutional Courts of the decisions
of Austrian administrative authorities several times (see, for
example, the above-mentioned Obermeier and Zumtobel judgments,
with further references). All previous cases, however,
concerned determinations of civil rights or obligations. The
Commission recalls that criminal charges, even indisputably
minor ones, must be determined by a court which complies with
Article 6 (Art. 6), even though it is not inconsistent with the
Convention for prosecution and punishment of minor offences to
be conferred in the first place on administrative authorities
(see the above-mentioned Öztürk judgment, p. 21, para. 56).
53. 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. Whilst
the Commission well appreciates the advantages for the
prosecution and the defence in dealing with minor criminal
offences as expeditiously as possible, it finds that 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 applicant in the present case, who wished to
have determined by a court at least one question of fact, was
entitled to, but did not have the benefit of, a court which
could consider all the facts of the case.
CONCLUSION
54. 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
55. The Commission notes that the applicant did not, in the
event, pursue his complaint before the Administrative Court.
Accordingly, and 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
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.
E. Recapitulation
57. 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. 54).
58. 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. 56).
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
___________________________________________________________
26.05.1989 Introduction of application
20.09.1989 Registration of application
Examination of admissibility
11.07.1991 Commission's decision to communicate
the case to the respondent Government
and to invite the parties to submit
observations on admissibility and
merits
08.11.1991 Government's observations
07.01.1992 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 : in person
10.05.1993 Commission's decision to declare
application in part admissible and in
part inadmissible
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