Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 15523/89

Peter Schmautzer

against

Austria

REPORT OF THE COMMISSION

(adopted on 19 May 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-32) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-21). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 22-32). . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 33-58) . . . . . . . . . . . . . . . . . . . . .8

A. Complaint declared admissible

(para. 33). . . . . . . . . . . . . . . . . . . . .8

B. Points at issue

(para. 34). . . . . . . . . . . . . . . . . . . . .8

C. As to the applicability of Article 6 of the Convention

(paras. 35-44). . . . . . . . . . . . . . . . . . .8

a. The existence of a "criminal charge"

(paras. 35-39). . . . . . . . . . . . . .8

b. The reservation to Article 5 of the

Convention

(paras. 40-44). . . . . . . . . . . . . .9

D. As to compliance with Article 6 para. 1

of the Convention

a. The administrative authorities

(paras. 45-47). . . . . . . . . . . . . 10

b. The scope of review of the decisions of

the administrative authorities

(paras. 48-53) . . . . . . . . . . . . 10

CONCLUSION (para. 54) . . . . . . . . . . . . . . 11

c. The absence of a hearing before the

Administrative Court (para. 55) . . . . 11

CONCLUSION

(para. 56). . . . . . . . . . . . . . . . . . . . 12

E. Recapitulation

(paras. 57-58). . . . . . . . . . . . . . . . . . 12

CONCURRING OPINION OF Mr. F. ERMACORA . . . . . . . . . . . 13

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 14

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before

the Commission.

A. The application

2. The applicant is an Austrian citizen, born in 1942 and

resident in Graz. He is a lawyer.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador F. Cede,

head of the International Law Department at the Federal Ministry

for Foreign Affairs.

4. The case concerns administrative criminal proceedings

against the applicant before administrative authorities with

subsequent review by the Constitutional and Administrative

Courts. The applicant invokes Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 26 May 1989 and registered

on 20 September 1989.

6. On 11 July 1991 the Commission decided, pursuant to

Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of

the application to the respondent Government and to invite the

parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on

8 November 1991 after an extension of the time-limit fixed for

this purpose. The applicant replied on 7 January 1992.

8. On 15 February 1993 the Commission decided to hold a hearing

of the parties in this case and in Applications Nos. 15527/89,

15963/90, 16713/90, 16718/90 and 16841/90. The hearing was held

on 10 May 1993. The Government were represented by Ambassador

Cede and Ms. S. Bernegger of the Federal Chancellery. The

applicant appeared in person.

9. On 10 May 1993 the Commission declared inadmissible the

applicant's complaint under Article 6 of the Convention that he

was required to wear a safety belt. It declared the remainder

of the application admissible.

10. The text of the Commission's decision on admissibility was

sent to the parties on 19 May 1993 and they were invited to

submit such further information or observations on the merits as

they wished. The Government submitted observations on

27 May 1993.

11. After declaring the case admissible, the Commission, acting

in accordance with Article 28 para. 1 (b) of the Convention, also

placed itself at the disposal of the parties with a view to

securing a friendly settlement. In the light of the parties'

reaction, the Commission now finds that there is no basis on

which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations

and votes, the following members being present :

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

13. The text of this Report was adopted on 19 May 1994 by the

Commission and is now transmitted to the Committee of Ministers

of the Council of Europe, in accordance with Article 31 para. 2

of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is :

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found

disclose a breach by the State concerned of its

obligations under the Convention.

15. A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the

Commission's decision on the admissibility of the application as

Appendix II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. On 30 April 1986 the applicant was stopped by a policeman

who found that the applicant was driving his car without wearing

his safety belt. By a penal order (Straferkenntnis) of

1 June 1987 the Federal Police Authority

(Bundespolizeidirektion) in Graz imposed on the applicant a fine

of AS 300, to be replaced by 24 hours' detention in case of

default, for having committed the offence of non-compliance with

the car-driver's duty to wear a safety belt according to

Section III paras. 1 and 5 (a) of the 3rd amendment to the Motor

Vehicles Act (Kraftfahrgesetz). On 2 February 1988 the

Provincial Governor (Landeshauptmann) of Styria confirmed this

decision while reducing the fine to AS 200 (to be replaced by

fourteen hours' detention in case of default).

18. The applicant filed a complaint (B 821/88) with the

Constitutional Court (Verfassungsgerichtshof) alleging, inter

alia, a violation of his rights under Articles 5, 6 and 8 of the

Convention.

19. On 27 February 1989 the Constitutional Court rejected the

complaint as lacking prospects of success. It referred to an

earlier decision of 3 December 1988 (B 176/87) where it had held

that the imposition of administrative penal sanctions for

failure to wear a safety belt was not unconstitutional and did

not infringe the Convention. As regards Articles 5 and 6, the

Constitutional Court considered that the Austrian reservation

concerning Article 5 applied, notwithstanding that the

administrative offence in question had been introduced after the

declaration of the reservation, because it was no more than a

logical development (systemkonforme Fortentwicklung) of legal

provisions which had existed at that time. In this context the

Constitutional Court referred to a number of offences included

in the Motor Vehicles Act 1955 which also pursued the aim of

protecting the life, health and safety of persons transported in

motor vehicles.

20. As regards Article 8 of the Convention, the Constitutional

Court referred to Application No. 8707/79 (Dec. 13.12.79,

D.R. 18, p. 255) where the Commission had denied an interference

with private life by an obligation to wear safety belts.

21. The applicant's case was referred to the Administrative

Court (Verwaltungsgerichtshof), but the applicant did not pursue

the proceedings before that Court.

B. Relevant domestic law

The obligation to wear safety belts

22. The duty to wear a safety belt was introduced in 1976 by

Section III of the 3rd amendment to the 1955 Motor Vehicles Act.

However, at that time it was deliberately decided not to make

non-compliance with this duty an administrative offence. The

legal consequences of breaches of the duty were limited to civil

law (coverage by insurance etc.). It was only in 1984 that a

further amendment to the Motor Vehicles Act made the failure to

comply with this duty an administrative offence

(Verwaltungsübertretung).

23. As far as relevant, Section III of the Motor Vehicles Act

(Amendment No. 3) Act 1976, as amended, reads as follows:

(German)

"(1) Ist ein Sitzplatz eines Kraftfahrzeugs nach

kraftfahrgesetzlicher Anordnung mit einem Sicherheitsgurt

ausgerüstet, so sind Lenker und beförderte Personen, die

einen solchen Sitzplatz benützen, je für sich zum

bestimmungsgemäßen Gebrauch des Sicherheitsgurts

verpflichtet.

...

(5) Wer

(a) als Lenker eines Kraftfahrzeuges oder

(b) als mit einem Kraftfahrzeug beförderte Person die im

Abs. 1 erster Satz angeführte Verpflichtung nicht erfüllt,

begeht ... eine Verwaltungsübertretung, welche mit einer

Organstrafverfügung gemäß § 50 VStG 1950 mit einer

Geldstrafe von 100 S zu ahnden ist. Wenn die Zahlung des

Strafbetrages ... verweigert wird ... ist von der Behörde

eine Geldstrafe bis zu 300 S, im Falle der

Uneinbringlichkeit eine Freiheitsstrafe bis zu 24 Stunden,

zu verhängen."

(Translation)

"(1) If a seat of a motor vehicle is equipped with a safety

belt in accordance with the requirements of the Motor

Vehicles Act, the driver and the transported persons who

use such a seat are obliged to wear the safety belt in

accordance with its intended purpose.

...

(5) Any person who fails to comply with the duty referred

to in

para. 1

(a) as the driver of a motor vehicle or

(b) as a person transported by a motor vehicle

commits an administrative offence to be punished, by way of

a provisional penal order within the meaning of Article 50

of the 1950 Code of Administrative Offences, with a fine of

AS 100. If payment of the fine is refused ... the

authority [dealing with the case in ordinary proceedings]

may impose a fine of up to AS 300, to be replaced, in case

of default, by detention of up to 24 hours."

Jurisdiction of the Constitutional and Administrative Courts

24. According to Article 144 of the Austrian Federal

Constitution (Bundes-Verfassungsgesetz) an appeal can be filed

with the Constitutional Court in which an applicant can allege

a violation of his constitutional rights. He can also complain

that his rights have been violated on account of an unlawful

ordinance, an unconstitutional Act, or an unlawful international

treaty.

25. Article 144 para. 2 of the Federal Constitution provides as

follows:

(German)

"Der Verfassungsgerichtshof kann die Behandlung einer

Beschwerde bis zur Verhandlung durch Beschluß ablehnen,

wenn sie keine hinreichende Aussicht auf Erfolg hat oder

von der Entscheidung die Klärung einer

verfassungsrechtlichen Frage nicht zu erwarten ist. Die

Ablehnung der Behandlung ist unzulässig, wenn es sich um

einen Fall handelt, der nach Art. 133 von der Zuständigkeit

des Verwaltungsgerichtshofes ausgeschlossen ist."

(Translation)

"The Constitutional Court may refuse to consider a case up

to a hearing by way of decision if it has no reasonable

prospect of success or it cannot be expected that the

decision will shed light on a problem of constitutional

law. A refusal to consider is inadmissible if it concerns

a case excluded from the jurisdiction of the Administrative

Court by Article 133."

26. According to Article 130 para. 1 of the Federal

Constitution the Administrative Court will review allegations of

unlawfulness of an administrative decision. According to

Article 130 para. 2, "no unlawfulness exists where legislation

does not establish a binding rule on an administrative

authority's conduct, leaving the determination of such conduct

to the authority itself, and the authority has made use of this

discretion in the spirit of the law" ("Rechtswidrigkeit liegt

nicht vor, soweit die Gesetzgebung von einer bindenden Regelung

des Verhaltens der Verwaltungsbehörde absieht und die Bestimmung

dieses Verhaltens der Behörde selbst überläßt, die Behörde aber

von diesem freien Ermessen im Sinne des Gesetzes Gebrauch

gemacht hat"). The Administrative Court is also competent to

deal with complaints that the administrative authority has

violated its duty to take a decision (Article 132).

27. Section 41 of the Administrative Court Act (Verwaltungs-

gerichtshofgesetz) provides, so far as relevant:

(German)

"(1) Der Verwaltungsgerichtshof hat, soweit er nicht

Rechtswidrigkeit wegen Unzuständigkeit der belangten

Behörde oder wegen Verletzung von Verfahrensvorschriften

gegeben findet (§ 42 Abs. 2 Z. 2 und 3) ..., den

angefochtenen Bescheid auf Grund des von der belangten

Behörde angenommenen Sachverhaltes im Rahmen der geltend

gemachten Beschwerdepunkte ... zu überprüfen. Ist er der

Ansicht, dass für die Entscheidung über die

Rechtswidrigkeit des Bescheides in einem der

Beschwerdepunkte ... Gründe massgebend sein könnten, die

einer Partei bisher nicht bekanntgegeben wurden, so hat er

die Parteien darüber zu hören und, wenn nötig, eine

Vertagung zu verfügen."

(Translation)

"(1) In so far as the Administrative Court does not find

unlawfulness on account of a lack of jurisdiction of the

authority against which the appeal is directed or on

account of a violation of procedural provisions

(Section 42 (2) (2) and (3), ... the Court must examine the

contested decision on the basis of the facts as accepted by

the authority against which the appeal is directed within

the framework of the alleged complaint ... If it is of the

opinion that reasons would be relevant for the decision on

the unlawfulness of the contested decision ... which were

so far not known to a party, it must hear the parties

thereupon and, if necessary, adjourn the proceedings."

28. Section 42 (1) of the Administrative Court Act states that,

save as otherwise provided, decisions of the Administrative

Court shall either dismiss a complaint as ill-founded or quash

the contested decision. Apart from amendments to that part of

Section 42 (1) which enumerates those proceedings to which it

does not apply (not relevant in the present case) Section 42 (1)

has been in force since at least 1946.

29. As regards the decisions of the Administrative Court,

Section 42 (2) of the Administrative Court Act provides, so far

as relevant:

(German)

"(2) Der angefochtene Bescheid ist aufzuheben

1. wegen Rechtswidrigkeit seines Inhaltes,

2. wegen Rechtswidrigkeit infolge Unzuständigkeit

der belangten Behörde,

3. wegen Rechtswidrigkeit infolge Verletzung von

Verfahrensvorschriften, und zwar weil

a) der Sachverhalt von der belangten Behörde

in einem wesentlichen Punkt aktenwidrig

angenommen wurde oder

b) der Sachverhalt in einem wesentlichen

Punkt einer Ergänzung bedarf oder

c) Verfahrensvorschriften ausser acht gelassen

wurden, bei deren Einhaltung die belangte

Behörde zu einem anderen Bescheid hätte

kommen können."

(Translation)

"(2) The contested decision must be quashed

1. on account of the unlawfulness of its content,

2. on account of unlawfulness due to the lack of

jurisdiction of the authority against which the

appeal is directed,

3. on account of unlawfulness due to a violation of

procedural provisions in particular because

a) the authority against which the appeal is

directed has determined the facts on an

important point contrary to the case-file, or

b) the facts require to be supplemented on an

important point, or

c) procedural provisions have been disregarded

which, if taken into consideration by the

authority against which the appeal is directed,

could have led to a different decision of the

authority."

Hearings before the Administrative Court

30. Section 39 (1) of the Administrative Court Act provides

that the Administrative Court is to hold a hearing after its

preliminary investigation of the case where a complainant has

requested a hearing within the time-limit. Section 39 (2)

provides as follows:

(German)

"Der Verwaltungsgerichtshof kann ungeachtet eines

Parteiantrages nach Abs. 1 Z. 1 von einer Verhandlung

absehen, wenn

1. das Verfahren einzustellen (§ 33) oder die Beschwerde

zurückzuweisen ist (§ 34);

2. der angefochtene Bescheid wegen Rechtswidrigkeit

infolge Unzuständigkeit der belangten Behörde aufzuheben

ist (§ 42 Abs. 2 Z. 2);

3. der angefochtene Bescheid wegen Rechtswidrigkeit

infolge Verletzung von Verfahrensvorschriften aufzuheben

ist (§ 42 Abs. 2 Z. 3);

4. der angefochtene Bescheid nach der ständigen

Rechtsprechung des Verwaltungsgerichtshofes wegen

Rechtswidrigkeit seines Inhaltes aufzuheben ist;

5. weder die belangte Behörde noch etwaige Mitbeteiligte

eine

Gegenschrift eingebracht haben und der angefochtene

Bescheid

aufzuheben ist;

6. die Schriftsätze der Parteien des

verwaltungsgerichtlichen

Verfahrens und die dem Verwaltungsgerichtshof vorgelegten

Akten des Verwaltungsverfahrens erkennen lassen, daß die

mündliche Erörterung eine weitere Klärung der Rechtssache

nicht erwarten läßt."

(Translation)

"Notwithstanding a party's application, the Administrative

Court may decide not to hold a hearing when

1. The proceedings are to be discontinued (Section 33) or

the complaint is to be rejected (Section 34);

2. The contested decision is to be quashed for

unlawfulness due to lack of jurisdiction on the part of the

authority challenged (Section 42 (2) (2));

3. The contested decision is to be quashed for failure to

comply with procedural provisions (Section 42 (2) (3));

4. The contested decision is to be quashed in accordance

with the constant case-law of the Administrative Court for

unlawfulness as to its contents;

5. Neither the authority challenged nor any third party

has submitted a reply and the contested decision is to be

quashed;

6. It is apparent from the written pleadings of the

parties to the proceedings before the Administrative Court

and from the files relating to the prior proceedings that

an oral hearing is not likely to contribute to clarifying

the case."

31. Section 39 (2) (1) to (2) (3) were in force in 1958.

Section 39 (2) (4) and (2) (5) were added in 1964 and

Section 39 (2) (6) was added in 1982.

32. Article 90 para. 2 of the Federal Constitution provides as

follows:

(German)

"Die Verhandlungen in Zivil- und Strafrechtssachen vor dem

erkennenden Gericht sind mündlich und öffentlich.

Ausnahmen bestimmt das Gesetz."

(Translation)

"Hearings in civil and criminal cases by the trial court

shall be oral and public. Exceptions may be prescribed by

law."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

33. The Commission has declared admissible the applicant's

complaint that the proceedings in which he was convicted of

failing to wear a safety belt did not comply with Article 6

(Art. 6) of the Convention.

B. Points at issue

34. The issues to be determined are:

- whether there has been a violation of the applicant's right

to a tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention, and

- whether the absence of a hearing before the Administrative

Court violated Article 6 para. 1 (Art. 6-1) of the Convention.

C. As to the applicability of Article 6 (Art. 6)

of the Convention

a. The existence of a "criminal charge"

35. Article 6 para. 1 (Art. 6-1) of the Convention provides, so

far as relevant, as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law."

36. In the proceedings in the present case, the applicant was

convicted of failing to wear a safety belt whilst driving a car.

The administrative offence (Verwaltungsübertretung) was

introduced in 1984. The applicant was fined AS 200, to be

replaced by fourteen hours' detention in default.

37. The applicant considers that the proceedings determined a

criminal charge. With reference to the case-law of the

Convention organs, the Government do not contest the claim, but

point to various features of this type of offence which, in

their view, call for a differentiated approach to administrative

criminal offences (Verwaltungsstrafsachen) when compared with

ordinary, judicial criminal offences. They note, for instance,

that criminal records do not make reference to administrative

convictions, that administrative criminal law is not directed

against the commission of social wrong but serves the purpose of

maintaining public order, and that the offences are of a minor

and frequently purely formal character (non-registration for

example).

38. The Commission recalls that the European Court of Human

Rights has applied the same test for the applicability of

Article 6 (Art. 6) to regulatory offences (Ordnungswidrigkeiten)

in Germany as to other types of proceedings (Eur. Court H.R.,

Öztürk judgment of 21 February 1984, Series A no. 73, p. 18,

para. 50). The Commission notes that administrative criminal

proceedings in Austria are regulated by special legislative

provisions which are separate from the ordinary criminal law.

The proceedings are, however, expressly referred to as

administrative "criminal" proceedings, and the Commission finds

that this gives an indication of their nature. The Commission

also notes that, although the fine in the present case was very

small, it carried with it the default penalty of 14 hours'

detention. The maximum period of detention in default was

24 hours.

39. Taking into account the classification as "administrative

criminal" of the offence in domestic law, the nature of the

offence as failure to comply with a specific regulation, and the

nature of the penalty, which included the possibility of

imprisonment, the Commission finds that the proceedings at issue

in the present case determined a "criminal charge" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

b. The reservation to Article 5 (Art. 5)

of the Convention

40. The Government submit that the Austrian reservation to

Article 5 (Art. 5) of the Convention prevents the Commission

from entertaining this complaint. This reservation provides as

follows:

"The provisions of Article 5 (Art. 5) of the Convention

shall be so applied that there shall be no interference

with measures for the deprivation of liberty prescribed in

the laws on administrative procedure, BGBl. No. 172/1950,

subject to review by the Administrative Court or the

Constitutional Court as provided for in the Austrian

Federal Constitution."

41. The applicant points out that the laws on administrative

procedure BGBl. No. 172/1950 contain very few criminal offences,

and not that at issue in the present case, such that the

reservation cannot be relevant. He also points out that the

offence in the present case came into being long after the

reservation was entered in 1958. The Government consider that

the reservation must be taken to apply not merely to actual

measures of detention under Article 5 (Art. 5) of the

Convention, but also to the proceedings which may lead to such

detention, and they refer to Commission case-law to this effect

(eg. No. 8998/80, Dec. 3.3.83, D.R. 32, p. 150).

42. The Commission recalls that the European Court of Human

Rights has recently had occasion to affirm the validity of the

Austrian reservation to Article 5 (Art. 5) (Eur. Court H.R.,

Chorherr judgment of 25 August 1993, Series A no. 266, p. 35,

para. 21). In particular, the Court emphasised that the laws

referred to in the reservation "lay down rules for the

punishment of offences, setting out the punishable acts, the

penalties incurred and the procedure to be followed" (p. 34,

para. 18). The Court continued that "the provisions to which

the reservation applied in [that] case were all in force on

3 September 1958 ..." (ibid).

43. The Commission notes that the duty to wear a safety belt at

issue in the present case is comprised in the Motor Vehicles Act

1955. That Act was in force in 1958, but it is not one of the

laws referred to in the Austrian reservation to Article 5

(Art. 5) of the Convention. Moreover, the specific amendment by

which the applicant was penalised was introduced in 1984.

Accordingly, neither the punishable act nor the penalty imposed

were included in the laws referred to in the reservation.

Finally in this respect, the Commission notes that the Austrian

reservation to Article 5 (Art. 5) of the Convention in terms

refers to Article 5 (Art. 5) and not to Article 6 (Art. 6) of

the Convention.

44. The Commission finds that that reservation cannot be said

to apply in the present case. Accordingly, the reservation does

not prevent the Commission from examining the complaint under

Article 6 (Art. 6) of the Convention.

D. As to compliance with Article 6 para. 1 (Art. 6-1)

of the Convention

a. The administrative authorities

45. The applicant considers that the introduction of the

Independent Administrative Tribunals is an indication that the

Government have accepted that the system in force in his case

did not comply with the Convention. The Government do not

submit that the administrative authorities which heard the

applicant's case at first and second instance were comprised of

independent judges, but they point to the procedural rules whcih

apply before the administrative authorities.***

46. The Commission finds that the administrative authorities

which decided the applicant's case at first and second instance

were not "independent and impartial tribunals" within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf.

Eur. Court H.R., Obermeier judgment of 28 June 1990, Series A

no. 179, p. 22, para. 70; Zumtobel judgment of

21 September 1993, Series A no. 268-A, para. 29).

47. The decisions of the administrative authorities may give

rise to appeals to the Constitutional Court

(Verfassungsgerichtshof) and the Administrative Court

(Verwaltungsgerichtshof), but the proceedings for the

consideration of such appeals will be consistent with Article 6

para. 1 (Art. 6-1) only if conducted before "judicial bodies

that have full jurisdiction" (above-mentioned Zumtobel judgment,

para. 29 with further reference).

b. The scope of review of the decisions of the

administrative authorities

48. The Commission must therefore examine the scope of review

offered by the Austrian judicial authorities in this

determination of a criminal charge in order to establish whether

the applicant was able to take his case before a tribunal that

did offer the guarantees of Article 6 (Art. 6) (above-mentioned

Öztürk judgment, p. 22, para. 56).

49. The applicant considers that where Article 6 (Art. 6) is

applicable, the Convention requires a court which can determine

all aspects of the case. He points out that new evidence cannot

be submitted to the Administrative Court by virtue of Section 41

of the Administrative Court Act (Verwaltungsgerichtshofgesetz),

that the Administrative Court does not permit the assessment of

the evidence by the administrative authorities to be challenged,

and that the Administrative Court can only quash decisions, and

cannot substitute its assessment of the facts. With regard to

a question put on 10 May 1993 at the oral hearing by a Member of

the Commission as to facts he wished to challenge, the applicant

stated that he had not wanted to wear a safety belt as he had

sun-burn at the relevant time, and he would have wished to have

this finding made by a court, but he was constrained to abandon

his complaint to the Administrative Court because this would

have amounted to a challenge to the assessment of the evidence.

50. The Government consider that in minor cases such as the

present one, it is permissible for an independent tribunal -

they underline that the independence and impartiality of the

Administrative and Constitutional Courts are not in doubt - to

review the facts as established by the administrative

authorities. They point out that the Administrative Court can

quash the decision of the administrative authorities where the

facts are in contradiction of the file, where a fundamental

point of fact needs complementing, or where procedural

provisions have been ignored which could have led to a different

result. At the hearing on 10 May 1993 they also considered that

the applicant was not actually attempting to challenge any

specific findings of fact.

51. The Commission first finds that the Constitutional Court

did not satisfy the requirement of "full jurisdiction". It was

able to inquire into the contested proceedings only from the

point of view of their conformity with the Constitution (see

also the above-mentioned Zumtobel judgment, para. 30). The

Government do not contend that the Constitutional Court has

sufficient powers to examine all relevant facts.

52. The Convention organs have considered the scope of review

by the Administrative and Constitutional Courts of the decisions

of Austrian administrative authorities several times (see, for

example, the above-mentioned Obermeier and Zumtobel judgments,

with further references). All previous cases, however,

concerned determinations of civil rights or obligations. The

Commission recalls that criminal charges, even indisputably

minor ones, must be determined by a court which complies with

Article 6 (Art. 6), even though it is not inconsistent with the

Convention for prosecution and punishment of minor offences to

be conferred in the first place on administrative authorities

(see the above-mentioned Öztürk judgment, p. 21, para. 56).

53. The Commission finds that whilst in civil matters a

somewhat limited review of the decisions of administrative

authorities may, in certain circumstances, satisfy the

requirements of Article 6 (Art. 6) of the Convention (see, for

example, the above-mentioned Zumtobel judgment, and Eur. Court

H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A

no. 263, p. 19, para. 58), criminal cases may require a

different approach. In particular, they involve rules directed

towards all citizens in their capacity - in the present case as

in the Öztürk case - as road users, which prescribe conduct of

a certain kind and create sanctions for non-compliance. Whilst

the Commission well appreciates the advantages for the

prosecution and the defence in dealing with minor criminal

offences as expeditiously as possible, it finds that where a

defendant desires a court to determine a criminal charge against

him, there is no room for limitation on the scope of review

required of the decisions of administrative authorities.

Accordingly, the applicant in the present case, who wished to

have determined by a court at least one question of fact, was

entitled to, but did not have the benefit of, a court which

could consider all the facts of the case.

CONCLUSION

54. The Commission concludes, unanimously, that there has been

a violation of the applicant's right to a tribunal within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

c. The absence of a hearing before

the Administrative Court

55. The Commission notes that the applicant did not, in the

event, pursue his complaint before the Administrative Court.

Accordingly, and in the light of its above finding that the

applicant was denied his right to a tribunal within the meaning

of Article 6 para. 1 (Art. 6-1) of the Convention, the

Commission finds that no separate issue arises in connection

with the absence of a hearing before the Administrative Court.

CONCLUSION

56. The Commission concludes, unanimously, that the absence of

a hearing before the Administrative Court raises no separate

issue under Article 6 para. 1 (Art. 6-1) of the Convention.

E. Recapitulation

57. The Commission concludes, unanimously, that there has been

a violation of the applicant's right to a tribunal within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention

(para. 54).

58. The Commission concludes, unanimously, that the absence of

a hearing before the Administrative Court raises no separate

issue under Article 6 para. 1 (Art. 6-1) of the Convention

(para. 56).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

(Or. English)

CONCURRING OPINION OF Mr. F. ERMACORA

I agree with the Commission that the scope of review

afforded by the Administrative Court does not comply with

Article 6 para. 1 of the Convention. However, the Commission

finds that no separate issue arises in connection with the

absence of a hearing before the Administrative Court.

I consider that a separate issue does arise in this case

because the Austrian reservation to Article 6 has just such a

separate wording and function from the other reservation which

Austria has declared to Article 6 in general.

The difference lies in the fact that the Austrian

reservation does not concern the administrative procedural law

directly but Article 90 para. 2 of the Constitution which states

that "Hearings in civil and criminal cases by the trial court

shall be oral and public. Exceptions may be prescribed by law".

This reservation is not at all applicable to procedures

before the Administrative and Constitutional Courts because

these courts do not deal with cases in civil and criminal cases

but in cases of a public law character. The reservation cannot

be understood in any other way because the meaning of the

reservation at the time it was made must be respected.

In 1958, when the reservation was made, Article 90 of the

Constitution could not have the meaning which the Commission now

gives to the reservation. In 1958 - long before the Ringeisen

case - Article 90 could in no way be applicable to procedures

before the Constitutional Court because Article 90 (2) from a

systematic point of view falls within the chapter of the

Constitution dealing with civil and criminal law before the

ordinary courts and not the part dealing with public law, which

is regulated by Article 137 et seq. of the Constitution.

The Commission should have entered into this question which

shows that the reservation is not at all applicable in the case.

The interpretation of this reservation is contrary to the scope

of the reservation and therefore the Commission should have

applied Article 6 with reference to the misinterpretation of the

said reservation. The Commission should have considered this

fact as a separate issue as to the interpretation of the

Austrian reservation. This brings me to the same result as the

other members, but based rather on a different interpretation of

the reservation.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

___________________________________________________________

26.05.1989 Introduction of application

20.09.1989 Registration of application

Examination of admissibility

11.07.1991 Commission's decision to communicate

the case to the respondent Government

and to invite the parties to submit

observations on admissibility and

merits

08.11.1991 Government's observations

07.01.1992 Applicant's observations in reply

15.02.1993 Commission's decision to hold a hearing

10.05.1993 Hearing on admissibility and merits,

the parties being represented as

follows :

Government : Ambassador Cede

Ms. S. Bernegger,

Federal Chancellery

Applicant : in person

10.05.1993 Commission's decision to declare

application in part admissible and in

part inadmissible

Examination of the merits

16.10.1993 Commission's consideration of state of

proceedings

05.03.1994 Commission's consideration of state of

proceedings

16.05.94 Commission's deliberations on the

merits, final vote and consideration

of text of the Report

19.05.94 Adoption of Report

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SCHMAUTZER v. AUSTRIA

SCHMAUTZER v. AUSTRIA

LEXI