Lexploria

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)

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W. M. v. AUSTRIA

W. M. v. AUSTRIA

LEXI