FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38544/97
by Ludwig WEH and Evi WEH
against Austria
The European Court of Human Rights (First Section), sitting on 4 July 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrG. Bonello,
MrP. Lorenzen,
MrsN. Vajić,
MrsS. Botoucharova,
MrsE. Steiner, judges,
MrE. Fribergh, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 8 August 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, where it was allocated to the former Third Section,
Having regard to the Court’s partial decision of 30 January 2001,
Having regard to the observations submitted by the respondent Government and the decision of 7 September 2001 by the President of the former Third Section not to accept that the applicant’s belated observations in reply be included in the file pursuant to rule 38 § 1 of the Rules of Court.
Having regard to the general restructuring of the Court’s sections on 1 November 2001 following which the application was allocated to the First Section,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Ludwig Weh and Mrs Evi Weh, are Austrian nationals, who were born in 1952 and 1954, respectively and live in Bregenz. They were represented before the Court by the first applicant, a lawyer practising in Bregenz. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first applicant’s proceedings
On 21 March 1995 the Bregenz District Authority (Bezirkshauptmannschaft) issued an anonymous order (Anonymverfügung) upon the first applicant in the sum of 800 Austrian schillings (ATS). It stated that on 5 March 1995 the driver of the applicant’s car had exceeded the city area speed limit of 50 km/h by 21 km/h.
The first applicant did not comply with the anonymous order. Thereupon, the Bregenz District Authority opened criminal proceedings against unknown offenders and, on 27 April 1995, it ordered the first applicant, under section 103 § 2 of the Motor Vehicles Act (Kraftfahrgesetz), to disclose the name of the person who had driven the car. The first applicant answered that “C.K.[first and family name in full]”, living in “USA/University of Texas” was the person who had used the car.
On 25 July 1995 the Bregenz District Authority issued a provisional penal order (Strafverfügung) in which it sentenced the applicant under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of ATS 900 (with 54 hours’ imprisonment in default) for failure to disclose the driver noting that he had submitted inaccurate information.
The first applicant filed an objection (Einspruch) against this decision. On 22 August 1995 the Bregenz District Authority, pursuant to section 40 § 2 of the Law on Administrative Offences (Verwaltungsstrafgesetz), requested the applicant to submit his defence either in writing or to appear for an oral hearing. It also cautioned him that in case of a failure to reply the proceedings could be conducted without hearing him. The applicant did not react to this request.
On 18 September 1995 the Bregenz District Authority issued a penal order (Straferkenntnis) confirming its previous decision and sentenced the first applicant to a fine of ATS 900 (with 54 hours’ imprisonment in default). The Authority found that the information supplied by him had been inaccurate.
The first applicant appealed to the Vorarlberg Independent Administrative Panel. He argued that he had given the required information.
On 15 April 1996 the Vorarlberg Independent Administrative Panel sitting with a single member held a public hearing in presence of the applicant but in absence of a representative of the Bregenz District Authority. Upon being questioned, the first applicant briefly stated that he considered that the information submitted by him was sufficiently accurate. No witnesses were heard and no other evidence was taken. Following the hearing the Panel dismissed the first applicant’s appeal. It referred to the Administrative Court’s case-law according to which the disclosure of inaccurate information amounted to a refusal to give information. Furthermore, the Panel observed that the University of Texas had 14 different locations in Texas. Therefore the information provided by the first applicant had indeed been inaccurate.
2. The second applicant’s proceedings
On 10 January 1996 the Bregenz District Authority issued a provisional penal order in which the second applicant was sentenced, under section 20 § 2 in conjunction with section 99 § 3 of the Road Traffic Act (Straßenverkehrsordnung), to pay ATS 1,500 (with 81 hours’ imprisonment in default). It found that the second applicant had, on 16 November 1995 exceeded a city area speed limit of 50 km/h by 22 km/h.
The second applicant filed an objection against this decision. On 23 January 1996 the Bregenz District Authority requested the second applicant to submit her defence either in writing or to appear at an oral hearing. The applicant replied in writing on 6 February 1996 alleging that the Authority had unlawfully relied on an “internal decree” of the Vorarlberg Provincial Government (Landesregierung) that fixed the penalties for exceeding speed limits.
On 23 February 1996 the Bregenz District Authority issued a penal order confirming its previous decision.
The second applicant appealed repeating her arguments concerning the internal decree fixing a scale of penalties.
On 15 April 1996 the Vorarlberg Independent Administrative Panel sitting with a single member held a public hearing in presence of the first applicant, acting as the second applicant’s counsel, but in absence of a representative of the Bregenz District Authority. The defence submitted that in their view the internal decree of the Vorarlberg Provincial Goverment was unlawful. No witnesses were heard and no other evidence was taken. Following the hearing, the Panel dismissed the second applicant’s appeal. It found that the amount of the penalty was commensurate to her guilt.
Furthermore, referring to the Constitutional Court’s judgment in a previous set of proceedings brought by the second applicant, it found that the “internal decree” was only to be considered as information and not as a legally binding regulation for the subordinate authorities.
3. Joint proceedings before the Constitutional Court and before the Administrative Court
On 3 June 1996 the applicants lodged a joint complaint against the Vorarlberg Independent Administrative Panel’s decisions with the Constitutional Court and requested the court to hold a hearing. They complained, inter alia, that the proceedings had been unfair due to the lack of an impartial tribunal deciding their cases, the Vorarlberg Independent Administrative Panel lacking a prosecuting authority. Therefore the member of the Panel acted at the same time as judge and prosecutor, which violated the principle of equality of arms. Furthermore, they complained about the fact that their fine had been calculated according to the “internal decree” of the Vorarlberg Provincial Government. The first applicant did not raise the issue of a right to silence.
On 26 November 1996 the Constitutional Court, sitting in camera, refused to deal with the applicants’ complaint for lack of prospects of success. Furthermore, the Vorarlberg Provincial Government’s “internal decree” was not a legally binding regulation but only of an informative character.
On 27 June 1997 the Administrative Court refused to deal with the applicants’ complaint pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) since the amount of each penalty did not exceed ATS 10,000, and no important legal problem was at stake.
B.Relevant domestic law and practice
1. The Motor Vehicles Act
Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows:
“The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car owner ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to review such statements where this seems appropriate in the circumstances of the case. The requested information is to be provided immediately or, in case of a written request, within two weeks after the
request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept. The authority’s right to require such information shall take precedence over the right to refuse to give information.”
The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985 quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself.
In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the constitution, but had found that this was not the case.
Section 134 of the Motor Vehicles Act provides that a fine of up to AS 30,000 may be imposed on a person who violates the regulations of this Act.
2. The Law on Administrative Offences
(a) Anonymous order
According to section 49 a of the Law on Administrative Offences, the competent authority may determine by decree minor administrative criminal offences for which it may serve an anonymous order (Anonymverfügung).
If the person who has committed a minor administrative criminal offence is unknown to the competent authorities, the latter may serve an “anonymous order” on the person who is supposed to know the offender. The fine imposed must not exceed ATS 1,000 and may not be converted in a prison term in default.
The anonymous order is not regarded as an act of prosecution. No remedy lies against it. If the fine imposed is not paid within four weeks, the anonymous order automatically becomes invalid and a normal prosecution against unknown offenders is to be commenced. If the fine imposed is paid within four weeks, no prosecution is to take place. The anonymous order is not entered into any register and may not be taken into account when determining the sentence for other administrative criminal offences.
The possibility to issue an anonymous order was introduced by the 1987 amendment of the Law on Administrative Offences.
(b) Proceedings before the Independent Administrative Panel
Section 51 (1) of the Law on Administrative Offences provides that a person may lodge an appeal against a penal order (Strafbescheid) with the competent Independent Administrative Panel.
The Independent Administrative Panel sits as a chamber with three members. It sits with a single member if the penal order does neither impose a prison term nor a fine exceeding ATS 10,000 (section 51c).
The accused, who has lodged the appeal and the authority having issued the penal order are parties (Partei) to the proceedings before the Panel (section 51d).
As a rule the Panel holds a public, oral hearing to which the parties and, if need be, witnesses and experts are summoned. It may dispense with a hearing, unless the appellant expressly requests one, if the appeal raises only points of law or concerns only the sentence. Further, it may dispense with a hearing, if the parties explicitly waive their right to have one (section 51 e).
If an oral hearing is scheduled, the absence of a duly summoned party does not prevent the Panel from holding the hearing and delivering its decision. At the beginning of the hearing the Panel indicates the subject matter of the appeal hearing and summarises the course of the proceedings so far (section 51f).
COMPLAINTS
The applicants’ remaining complaints, so far as they have not been declared inadmissible in the partial decision of 30 January 2001, are as follows:
1. The first applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair in that his right to remain silent was infringed. He submits in particular that section 103 § 2 of the Motor Vehicles Act contains a possible obligation for the car owner to incriminate himself. He points out that the Constitutional Court quashed the previous version of section 103 § 2 of the Motor Vehicles Act on the ground that it violated the right not to incriminate oneself but was prevented from examining the current version as the relevant sentence has been enacted as a provision of constitutional rank.
2. Both applicants raise the following further complaints under Article 6 as regards the criminal proceedings against them. Firstly, they submit that no prosecuting authority participated in the proceedings and in the hearing before the Independent Administrative Panel and that therefore the member of the Panel acted both as judge and prosecutor, which violates the principle
of equality of arms. Secondly, they complain about the lack of a public hearing before the Constitutional Court and, under Article 2 of Protocol No. 7, about a lack of review by a higher tribunal.
3. In their submissions of 3 October 2000 the applicants raised a number of further complaints under Article 6 of the Convention. The first applicant complained in particular that the charge against him was changed, in that the Bregenz District Authority had found that he had failed to divulge the driver of the car while the Independent Administrative Panel found that he had given inaccurate information. Moreover, it had not ordered him to complete the information given. The second applicant alleged that the Independent Administrative Panel arbitrarily refused to take evidence proposed by her concerning the Regional Government’s “internal decree”.
THE LAW
1. The first applicant complains under Article 6 of the Convention of a violation of his right to remain silent and not to incriminate himself.
Article 6, insofar as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
a. The Government argued that the first applicant failed to exhaust domestic remedies, as he did not submit the above complaint to the Constitutional Court. As the relevant sentence of section 103 § 2 of the Motor Vehicles Act has the rank of constitutional law, the Constitutional Court cannot review its conformity with other provisions of the constitution, including the Convention which equally has constitutional rank. However, in its judgment of 29 September 1988 concerning section 103 § 2 of the Motor Vehicles Act and in a number of subsequent judgments, concerning other subject matters, the Constitutional Court has indicated that it may review whether the practice to enact provisions as constitutional law and thereby to restrict its right to review could amount to a total revision of the Constitution which would be in contradiction with the guiding principles of constitutional law. The first applicant should therefore have challenged section 103 § 2 of the Motor Vehicles Act before the Constitutional Court.
Further the Government expressed doubts as to whether the applicant can claim to be a victim of the alleged violation. They noted in particular that the applicant had submitted in the domestic proceedings that a third person
had committed the speeding offence at issue. He was not sentenced for speeding but solely for providing incomplete information. Thus, there is no indication that he was actually under any pressure to incriminate himself.
The Court reiterates that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see the Akdivar v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66).
In the present case the Court is not convinced by the Government’s non-exhaustion plea. It is uncontested that the ultimate sentence of section 103 § 2 of the Motor Vehicles Act has constitutional rank. The applicant was therefore not in a position to argue that it was unconstitutional on the ground that it would violate the requirements of Article 6 of the Convention, which equally has constitutional rank. Moreover, in its jugdment of 29 September 1988, the Constitutional Court has already examined the question whether the ultimate sentence of section 103 § 2 of the Motor Vehicles Act in the version applicable in the present case violated guiding principles of the constitution and answered it in the negative. In these circumstances, the Court finds that the applicant has not failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.
As to the question whether or not the applicant can claim to be a victim of the alleged violation, the Court finds that this issue is closely linked to the merits of the complaint.
b. As to the merits, the Government contended that the right to remain silent was not absolute. However, in the present case the applicant’s failure to give adequate information did not lead the authorities to the conclusion that he committed the offence of exceeding the city area speed limit. In fact he was not sentenced for this offence but was punished under section 103 § 2 of the Motor Vehicles Act. In this context the Government referred to the case-law of the European Commission of Human Rights, which had found that a sentence under section 103 § 2 of the Motor Vehicles Act did not violate Article 6, in particular the presumption of innocence, on the ground that it did not, in all circumstances, oblige the car owner to incriminate himself or a near relative.
Further, the Government distinguished the present case from cases in which the Court has found a violation of the right to remain silent (see, in particular, the Funke v. France judgment of 25 February 1993, Series A no. 256-A and, as a recent authority, J.B. v. Switzerland, no. 31827/96, ECHR 2001-III), in that the applicant’s choice was not limited to either remaining silent and having a fine imposed on him or incriminating himself. He remained free to disclose the name and address of a third person as driver of the car. Moreover, the offence to which he could have indirectly confessed as well as the fine imposed on him under section 103 § 2 of the Motor Vehicles Act were not of a very severe nature. Finally, given the public interest in the prosecution of speeding, which is frequently the cause of serious traffic accidents, the provision strikes a fair balance between this public interest and the individual car owner’s interest to remain silent and therefore appears proportionate.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. Both applicants complain under Article 6 that no prosecuting authority participates in the proceedings and in the hearing before the Independent Administrative Panel and that, thus, the member of the Panel acts as both judge and prosecutor. Further, they complain about the lack of a public hearing before the Constitutional Court and under Article 2 of Protocol No. 7, about a lack of review by a higher tribunal.
The Court refers to the provision of Article 6 § 1 cited above. Article 2 of Protocol No. 7 provides as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
The Government asserted that the Vorarlberg Independent Administrative Panel is a “tribunal” within the meaning of Article 6 and is called upon ex officio to establish the truth, i.e. to establish all circumstances that may exonerate the defendant as well as those that may incriminate him pursuant to section 25 § 2 of the Law on Administrative Offences. As to the applicants’ complaint about the absence of a prosecuting authority, the Government conceded that, at the beginning, administrative criminal proceedings are one party proceedings. However, as soon as the accused files an appeal with the Independent Administrative Panel, the administrative authority which issued the penal order assumes the function of the prosecuting authority, in that it becomes the opposite party in the proceedings before the Panel. The penal order issued by it is to be regarded as the charge which has to be determined by the Panel. The principle of equality of arms is complied with as the prosecuting authority is only granted rights which correspond to the rights of the accused. As to the applicants’ allegation that the Panel conducted the hearing in the absence of the prosecuting side, the Government point out that what is relevant for the principle of equality of arms is that the two parties have the same procedural rights but not whether a party has actually made use of its rights.
The Government, referring to the Vorarlberg Independent Administrative Panel’s Activity Report published in 2000, further emphasised that the Panel, during the first ten years of its existence, fully allowed the appeals in about 30% of cases and partly in another 20 %. Thus, there is nothing to support the applicants’ allegation that the members of the Panel acted as prosecutors or were favouring the prosecution.
As to the applicants’ complaint about the lack of a hearing before the Constitutional Court, the Government contended that, given that a hearing fulfilling the requirements of Article 6 had already been held by the Independent Administrative Panel, the proceedings before the Constitutional Court which can be compared to leave to appeal proceedings and, in any case, only involved questions of law, did not require a further hearing.
Finally, as regards the applicants’ complaint under Article 2 of Protocol No. 7, about a lack of review by a higher tribunal, the Government submitted in particular, that the review exercised by the Administrative Court in the present case, which again is akin to leave to appeal proceedings, is sufficient for the purpose of this Article.
a. The Court will first examine the applicants’ complaints under Article 6 of the Convention. It recalls that according to its established case-law administrative offences like those at issue in the present case are to be classified as “criminal” for the purposes of Article 6 which therefore applies to administrative criminal proceedings under Austrian law (see for instance the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328‑A, p. 13, § 28 and as a recent authority Baischer v. Austria, no. 32381/96, 20.12.2001, § 22).
The Court further reiterates that conferring the prosecution and punishment of minor offences on administrative authorities, which do not themselves satisfy the requirements of Article 6 § 1 of the Convention - as in this case the District Authority - is not inconsistent with the Convention provided that the person concerned is enabled to take any decision thus made against him before a tribunal that does offer the guarantees of Article 6 (see the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73. pp. 21-22, § 56 and the above-cited Schmautzer judgment, p. 15, § 34).
According to the Court’s case-law, the Independent Administrative Panel has to be regarded as a tribunal within the meaning of Article 6 of the Convention (see the Baischer judgment, cited above, § 25). The Court, therefore, has to examine whether the proceedings before the Independent Administrative Panel fulfilled the requirements of Article 6.
The principle of equality of arms, as one of the features of the wider concept of a fair trial, requires that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent (see the Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, p. 359, § 47 with further references). In the context of criminal proceedings the principle is violated for instance if the defence does not have the opportunity to have knowledge of and comment upon submissions made by the prosecution (ibid., p. 360, § 50) or if the defence is excluded from a sitting of the court in which the prosecution is allowed to participate (see the Borgers v. Belgium judgment of 30 October 1991, Series A no. 214-B, p. 32, § 28).
The Court notes the Government’s explanations that the authority which has issued the penal order assumes the function of the prosecuting authority before the Independent Administrative Panel. This is confirmed by section 51d of the Law on Administrative Offences according to which the authority having issued the penal order is a party to the proceedings before the Panel. The applicant has not alleged, and there is no indication in the present case, that any procedural rights are conferred on the prosecution which would put it in a position more favourable than the accused’s.
However, the applicants’ complaint that the Independent Administrative Panel conducted the hearing in absence of the prosecuting side may raise an issue as to the Panel’s impartiality. In this connection the Court recalls that it had to examine a comparable complaint in the Thorgeir Thorgeirson v. Iceland case, relating to criminal proceedings for defamation in which some sittings of the trial court had been conducted in absence of the public prosecutor. It found no violation of Article 6 on the ground that at the sittings held in the public prosecutor’s absence the court was not called upon to investigate the merits of the case, let alone to assume any function which might have been fulfilled by the prosecutor had he been present (judgment of 25 June 1992, Series A no. 239, p. 24, § 53).
As opposed to the Thorgeir Thorgeirson case, which concerned criminal proceedings, classified as such under domestic law, before a first instance court, the present case concerns proceedings which are classified as administrative under domestic law and are dealt with by the administrative authorities at first instance. Thus, the Independent Administrative Panel, though being the first tribunal dealing with the case, occupies the place of an appellate court in the domestic system. In this context the Court recalls that the manner of application of Article 6 to proceedings before appellate courts depends on the special features of the proceedings involved: account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see the above-mentioned Bulut judgment, p. 357, § 40). The Court notes in particular, that the appeal proceedings before the Independent Administrative Panel follow proceedings of a quasi-judicial nature at the lower instance (see mutatis mutandis the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 17, § 45). In these proceedings the administrative authority must conduct a formal inquiry under the terms specified in the Law on Administrative Offences; it must inform the accused of all the evidence gathered and, before issuing a penal order, must give the accused the opportunity to submit his defence.
In the present case relating to minor traffic offences, the applicants had spelt out their position in the objection against the provisional penal order, had been given an opportunity to present their defence before the issuing of the penal order and had once again forwarded the arguments for their defence in their appeal against the latter. On the other hand the penal order, which represents the charge in the proceedings before the Independent Administrative Panel set out the facts the District Authority considered relevant as well as its legal assessment thereof. Thus, the Independent Administrative Panel had both parties’ positions before it. Moreover, the Court notes that the procedure before the Panel does not provide for an oral presentation of the charges by the prosecution. Further, as the Government pointed out, the Independent Administrative Panel is obliged to establish exonerating circumstances as well as incriminating circumstances of its own motion. This obligation exists irrespective of whether or not the administrative authority which issued the penal order is present at the hearing. Finally, there are no particular circumstances in the present case, which would indicate that the Independent Administrative Panel exercised any functions which might have been fulfilled by the prosecution, had it been present.
In conclusion the Court finds that the absence of a representative of the District Authority, i.e. the prosecuting side, at the hearing before the Independent Administrative Panel does not give rise to objectively justified fears as regards this body’s impartiality. The applicants have not alleged that the member of the Panel deciding upon their cases was personally biased.
The applicants further complain about the lack of a public hearing before the Constitutional Court. The Court notes that the applicants both had a public hearing before the Independent Administrative Panel, which fulfilled the requirements of Article 6 of the Convention. It is well established case‑law that the absence of a further public hearing at second or third instance may be justified by the special features of the proceedings at issue. Thus proceedings for leave to appeal or proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even where no hearing was held (see the above‑cited Bulut judgment, p. 358, § 41).
In the present case, the Court agrees with the Government that the proceedings before the Constitutional Court, which refused the applicants’ complaint for lack of prospects of success, may be compared to leave to appeal proceedings which do not require a public hearing.
In conclusion the Court finds no indication of a violation of Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b. The Court will now turn to the applicants’ complaint under Article 2 of Protocol No. 7. It recalls that the reference to the grounds for review being governed by law, in the second sentence of paragraph 1 of Article 2 of Protocol No. 7, shows that the Contracting States have a discretion as to the modalities for the exercise of the right to review. Thus, different rules govern review by a higher tribunal in the various Member States of the Council of Europe. In some Member States a person wishing to appeal to the highest tribunal must apply for leave to appeal. Such a right to apply for leave to appeal to a higher court can in itself be regarded as a review within the meaning of Article 2 of Protocol No. 7 (see Hubner v. Austria, (dec.) no. 34311/96, 31.8.99 with further references).
In the present case, the Administrative Court which had the competence to review the Independent Administrative Panel’s decisions decided pursuant to section 33a of the Administrative Court Act not to deal with the applicants’ complaint. The Court has already held that such a decision may be equated to a decision given on an application for leave to appeal (ibid., with a reference to no. 26808/95, Hauser v. Austria, Dec. 16.1.1996, D.R. 84, p. 164). Thus, there is no appearance of a violation of Article 2 of Protocol No. 7.
It follows that this part of the applicants’ complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. As to the applicants’ further complaints under Article 6, the Court notes that they were raised for the first time in the applicants’ submissions of 3 October 2000 while the final decision was given by the Administrative Court on 27 June 1997. Thus, the six months time-limit laid down in Article 35 § 1 of the Convention has not been complied with.
It follows that these complaints are introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible the first applicant’s complaint that his right to remain silent and not to incriminate himself has been breached in the criminal proceedings against him;
Declares inadmissible the remainder of the application.
Erik FriberghChristos L. Rozakis
RegistrarPresident
Full & Egal Universal Law Academy