EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 16566/90
W. M.
against
Austria
REPORT OF THE COMMISSION
(adopted on 27 June 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-29) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-18). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 19-29). . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 30-56) . . . . . . . . . . . . . . . . . . . . .8
A. Complaint declared admissible
(para. 30). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 31). . . . . . . . . . . . . . . . . . . . .8
C. As to the applicability of Article 6 of the Convention
(paras. 32-42). . . . . . . . . . . . . . . . . . .8
a. The existence of a "criminal charge"
(paras. 32-36) . . . . . . . . . . . . . . . .8
b. The reservation to Article 5 of the Convention
(paras. 37-42) . . . . . . . . . . . . . . . .9
D. As to the compliance with Article 6 para. 1
of the Convention
(paras. 43-51). . . . . . . . . . . . . . . . . . 10
a. The administrative authorities
(paras. 43-45) . . . . . . . . . . . . . . . 10
b. The scope of review of the decisions
of the administrative authorities
(paras. 46-51) . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 52). . . . . . . . . . . . . . . . . . . . 12
c. The absence of a hearing before the
Administrative Court
(para. 53) . . . . . . . . . . . . . . . . . 12
CONCLUSION
(para. 54). . . . . . . . . . . . . . . . . . . . 12
E. Recapitulation
(paras. 55-56). . . . . . . . . . . . . . . . . . 12
APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY
OF THE APPLICATION. . . . . . . . . . . . . . . . 13
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 1953 and resident
in Vienna.
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 and the
scope of review by the Administrative Court. The applicant invokes
Article 6 of the Convention.
B. The proceedings
5. The application was introduced on 18 January 1990 and registered
on 8 May 1990.
6. On 13 February 1992 the Commission (Second Chamber) 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 9 July 1992. The
applicant's reply was received on 24 August 1992. On 13 October 1992,
the Government submitted a further comment on admissibility.
8. On 18 October 1994 the Commission (First Chamber) declared the
application admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 27 October 1994 and they were invited to submit such
further information or observations on the merits as they wished. No
further submissions were made.
10. 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
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, 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. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
12. The text of this Report was adopted on 27 June 1995 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.
13. 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.
14. The Commission's decision on the admissibility of the application
is appended hereto.
15. 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
16. On 20 May 1988 the Vienna Federal Police Authority
(Bundespolizeidirektion) imposed a fine of AS 800 with 48 hours'
detention in default on the applicant by way of a provisional penal
order (Strafverfügung) for having failed to comply with his obligation
to disclose the identity of the driver of his car at a given time,
contrary to Section 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz)
1967.
17. The applicant wanted to submit his written appeal at a police
station and/or to declare his objections orally, but the officers at
the police station refused to accept his appeal. When the authority
proceeded to the enforcement of the provisional order, the applicant
referred to this refusal and the authority thereupon instituted
ordinary penal administrative proceedings which - after a hearing of
the applicant - led to the imposition of a fine of AS 800 (again with
48 hours' detention in default) by a penal order (Straferkenntnis) of
21 April 1989.
18. On appeal, the Vienna Provincial Governor (Landeshauptmann) on
12 June 1989 quashed this penal order as being null and void on the
ground that the applicant had not effectively raised objections against
the initial provisional penal order, which accordingly remained valid.
The applicant complained of this decision to the Administrative Court
(Verwaltungsgerichtshof) which on 18 October 1989 confirmed the
Provincial Governor's decision, observing that after the refusal of the
police to accept his written appeal and his oral declaration, the
applicant could still have filed his objection in writing.
B. Relevant domestic law
The relevant administrative criminal law
19. The duty to disclose the identity of the driver of a car at a
given time is set out in Section 103 (2) of the Motor Vehicles Act
(Kraftfahrgesetz) 1967. The maximum penalty in default is six weeks'
imprisonment, and the section provides, so far as relevant, as follows:
"The authority may request information as to the driver ... of
a particular vehicle ... at a particular time ... The registered
owner is required to give this information ... if he cannot give
the information he is required to give the name of the person who
can give the information ... The information is to be given
forthwith or, if the request was made in writing, within two
weeks ..."
20. The precursor of Section 103 (2) of the Motor Vehicles Act 1967
was the Motor Vehicles Act 1955, Section 86 (2) of which provided:
"On the request of the authority [the owner] is required to give
information as to the person to whom he has entrusted
(überlassen) the use (Führung) of the vehicle ..."
Jurisdiction of the Constitutional and Administrative Courts
21. According to Article 144 of the Austrian Federal Constitution
(Bundesverfassungsgesetz) 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.
22. 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."
23. 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).
24. 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."
25. 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.
26. 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
27. 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."
28. 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.
29. 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
30. The Commission has declared admissible the applicant's complaint
that the proceedings in which he was convicted of failing to give
information as to the driver of a vehicle at a particular time did not
comply with Article 6 (Art. 6) of the Convention.
B. Points at issue
31. 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"
32. 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."
33. In the proceedings in the present case, the applicant was
convicted of failing to comply with his obligation to disclose the
identity of the driver of a vehicle. The administrative offence
(Verwaltungsübertretung) was contained in the Motor Vehicles Act 1967.
The applicant was fined AS 800, to be replaced by 48 hours' detention
in default.
34. 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).
35. 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 small, it carried with
it the default penalty of 48 hours' detention. The maximum period of
detention in default was six weeks. Moreover, the rule in question was
directed towards all citizens in their capacity as road-users (cf. the
above-mentioned Öztürk judgment, p. 20, para. 53).
36. 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
37. 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."
38. The applicant considers that the Motor Vehicles Act under which
he was convicted is not the same as that in force when the reservation
was entered, and that Section 103 (2) of the new Act is not the same
as the old Section 86 (2), in particular as the earlier provision
related to the person to whom the vehicle had been entrusted, whereas
the new provision refers to the "driver". The Government submit that
the provision under which the applicant was convicted was in force at
the time the reservation was made, and 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. They refer to Commission case-law to this
effect (eg. No. 8998/80, Dec. 3.3.83, D.R. 32, p. 150).
39. 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).
40. The duty to give information as to the driver of a vehicle at a
particular time was included, in substance, in the provisions of
substantive Austrian administrative law in 1958, when the reservation
was entered.
41. The Motor Vehicles Act is not, however, one of the laws referred
to in the Austrian reservation to Article 5 (Art. 5) of the Convention
(cf. No. 16713/90, Pramstaller v. Austria, Comm. Report 19.5.94,
pending before the European Court of Human Rights). It is true that
in the case of Fischer (Eur. Court H.R., judgment of 26 April 1995,
Series A no. 312) the European Court of Human Rights, in finding that
the Austrian reservation to Article 6 (Art. 6) did not apply in that
case, referred to the fact that a provision of procedural law had not
been in force at the time of the reservation, rather that finding that
the statute was not referred to in the reservation. However, the
Commission considers that even an extensive interpretation of Article
64 (Art. 64) of the Convention cannot, in the light of the criteria in
the case of Chorherr (see para. 39 above), justify the conclusion that
the provisions of the Motor Vehicles Act 1955 were referred to in the
reservation to Article 5 (Art. 5). 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 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 composed of independent judges, but they point to the
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" (cf. No. 15523/89, Schmautzer v. Austria, Comm.
Report 19.5.94, pending before the European Court of Human Rights, with
reference to the above-mentioned Zumtobel judgment, para. 29).
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.
48. The Government consider that the applicant's real complaint is
that he was not able to make his appeal against the decision of 20 May
1988 because the officials refused to accept it. They point out that -
as the Administrative Court found - he could have made his appeal in
writing with no hindrance whatever. They also 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.
49. 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.
50. 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 determined by the Court, 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).
51. 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
expressed a clear wish to challenge the first instance administrative
decision by attempting to make an objection orally, and then
challenging the second penal order before the Vienna Provincial
Governor and the Administrative Court, was entitled to, but did not
have the benefit of, a court which could consider all the facts of the
case.
CONCLUSION
52. 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
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 absence of a hearing before the
Administrative Court.
CONCLUSION
54. 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
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. 52).
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. 54).
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy