Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16841/90

Harald Pfarrmeier

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. 17-30) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-20). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 21-30). . . . . . . . . . . . . . . . . . .3

III. OPINION OF THE COMMISSION

(paras. 31-57) . . . . . . . . . . . . . . . . . . . . .8

A. Complaint declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . .8

B. Points at issue

(para. 32). . . . . . . . . . . . . . . . . . . . .8

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

(paras. 33-42). . . . . . . . . . . . . . . . . . .8

a. The existence of a "criminal charge"

(paras. 33-37). . . . . . . . . . . . . .8

b. The reservation to Article 5

of the Convention

(paras. 38-42). . . . . . . . . . . . . .9

D. As to compliance with Article 6 para. 1 of the Convention

(paras. 43-49). . . . . . . . . . . . . . . . . . 10

a. The administrative authorities

(paras. 43-45). . . . . . . . . . . . . 10

b. The scope of review of the decisions of

the administrative authorities

(paras. 46-49). . . . . . . . . . . . . 10

CONCLUSION

(para. 50). . . . . . . . . . . . . . . . . . . . 11

c. The absence of a hearing before the

Administrative Court

(para. 51). . . . . . . . . . . . . . . 11

CONCLUSION

(para. 52). . . . . . . . . . . . . . . . . . . . 11

d. The lack of opportunity to question

witnesses

(para. 53). . . . . . . . . . . . . . . 11

CONCLUSION

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

E. Recapitulation

(paras. 55-57). . . . . . . . . . . . . . . . . . 11

CONCURRING OPINION OF Mr. F. ERMACORA . . . . . . . . . . . 12

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . 13

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 14

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, resident in Bregenz. He was

represented before the Commission by Mr. W.L. Weh, a lawyer practising

in Bregenz.

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 13 June 1990 and registered on

10 July 1990.

6. On 16 October 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 21 February 1992.

The applicant replied on 5 October 1992, after expiry of the time-

limit.

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

the parties in this case and in Applications Nos. 15523/89, 15527/89,

15963/90, 16713/90, and 16718/90. 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 was represented

by Mr. Weh.

9. On 10 May 1993 the Commission declared the application

admissible.

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

to the parties on 19 May 1991 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 11 June 1987 the applicant was fined by a penal order

(Straferkenntnis) of the District Authority (Bezirkshauptmannschaft)

AS 9,000 with provision for 360 hours' detention in default for

failure to submit to a breathalyser test, contrary to Section 99(1)(b)

of the Road Traffic Act 1960 (Straßenverkehrsordnung). He appealed to

the Vorarlberg Provincial Government (Landesregierung) which, on

11 November 1987, rejected his appeal.

18. On 23 March 1988 the Administrative Court

(Verwaltungsgerichtshof) quashed the decision of the Provincial

Government of 11 November 1987 and remitted the case to that

authority. The Provincial Government's second decision, of 23

December 1988, reduced the penalty from AS 9,000 to AS 5,000 and the

period of imprisonment in default from 360 hours to 200 hours.

19. The applicant's complaint to the Constitutional Court (Ver-

fassungsgerichtshof) was rejected on 10 March 1989 on the ground that

it had no sufficient prospect of success and that the case was not

outside the competence of the Administrative Court. The

Constitutional Court referred principally to its own case-law on

Article 6 of the Convention in finding that the application had no

sufficient prospect of success.

20. On 10 November 1989 the Administrative Court gave its second

decision in the case. It found that it was not prevented from

considering that the factual position had been determined in a

relevant and conclusive way, although it was not able to review

whether the defence's version of the facts was correct. Accordingly,

the Administrative Court could not decide whether the applicant had or

had not spoken of a "good session" (drinking). As to the applicant's

complaint that his lawyer had not been able to examine a witness, the

court noted that an oral hearing was not a necessary part of the

administrative criminal proceedings. As to the alleged

unconstitutionality of the Austrian reservation to Article 5 of the

Convention, the Court referred to previous case-law. The complaint

was dismissed as a whole.

B. Relevant domestic law

The duty to provide a breath specimen

21. Section 99 (1) of the Road Traffic Act 1960

(Straßenverkehrsordnung) provides, so far as relevant, as follows:

(German)

"Eine Verwaltungsübertretung begeht und ist mit einer Geldstrafe

von 8 000 S bis 50 000 S, im Fall ihrer Uneinbringlichkeit mit

Arrest von einer bis sechs Wochen, zu bestrafen,

...

b) wer sich bei Vorliegen der in § 5 bezeichneten Voraussetzungen

weigert, seine Atemluft auf Alkoholgehalt untersuchen ... zu

lassen ..."

(Translation)

"An administrative offence, punishable by a fine of AS 8,000 to

AS 50,000 with one to six weeks' detention in default, is

committed by any person who:

...

(b) refuses to undergo a breath/alcohol test, in circumstances

complying with the conditions laid down in Section 5 ..."

Section 5 of the Road Traffic Act prohibits the driving of

vehicles whilst the driver has more than a specified amount of alcohol

in his blood or breath, and lays down the conditions for breathalysers

and blood tests.

In 1958, Section 7 of the Traffic Police Act 1947

(Straßenpolizeigesetz) provided that "every person is under an

obligation to drive with reasonable consideration for other road users

and with such due care and attention as is required for the

maintenance of order, safety and traffic efficiency".

Jurisdiction of the Constitutional and Administrative Courts

22. 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.

23. 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."

24. 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).

25. 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."

26. 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.

27. 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

28. 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."

29. 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.

30. 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

31. The Commission has declared admissible the applicant's complaint

that the proceedings in which he was convicted of refusing to undergo

a breathalyser test did not comply with Article 6 (Art. 6) of the

Convention.

B. Points at issue

32. 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,

- whether the absence of a hearing before the Administrative Court

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

- whether the applicant's lack of opportunity to put questions to

witnesses as no oral hearing was held violated Article 6 para. 3(d)

(Art. 6-3-d) of the Convention.

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

a. The existence of a "criminal charge"

33. 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."

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

convicted of refusing to undergo a breathalyser test. He was fined

AS 5,000, to be replaced by 200 hours' detention in default.

35. 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).

36. 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

penalty, of AS 5,000 with 200 hours' detention in default, cannot be

described as negligible.

37. 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

38. 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."

39. 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 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).

40. 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).

41. The Commission notes that the duty to submit to a breathalyser

test at issue in the present case is comprised in the Road Traffic Act

1960. That Act's predecessor, the Traffic Police Act 1947, 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

is contained in the 1960 Act. 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.

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 administrative authorities which

considered the case, namely the Bregenz District Authority

(Bezirkshauptmannschaft) and the Vorarlberg Provincial Government

(Landesregierung) are officials following instructions, and in no way

independent judges. The Government do not contest this, but point to

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" (above-mentioned Zumtobel judgment, para. 29 with

further reference).

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. 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. The Government accept that, if Article 6

(Art. 6) applies to the proceedings, the Administrative Court does not

fulfil the requirements of the provision.

48. It has not been suggested in the present case that the

Constitutional Court satisfied the requirements of Article 6 (Art. 6)

of the Convention.

49. 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. 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 Commission

finds that the applicant in the present case was entitled to, but did

not have the benefit of, a court which could consider all the facts of

the case.

CONCLUSION

50. 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

51. 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

52. 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.

d. The lack of opportunity to question witnesses

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 lack of opportunity to question

witnesses before the Administrative Court or before the earlier

administrative authorities.

CONCLUSION

54. The Commission concludes, unanimously, that the lack of

opportunity to question witnesses raises no separate issue under

Article 6 (Art. 6) 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. 50).

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. 52).

57. The Commission concludes, unanimously, that the lack of

opportunity to question witnesses raises no separate issue under

Article 6 (Art. 6) of the Convention (para. 54).

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

_________________________________________________________________

13.06.1990 Introduction of application

10.07.1990 Registration of application

Examination of admissibility

16.10.1991 Commission's decision to communicate the

case to the respondent Government and to

invite the parties to submit observations

on admissibility and merits

21.02.1992 Government's observations

05.10.1992 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 : Mr. L. W. Weh

10.05.1993 Commission's decision to declare

application admissible

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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PFARRMEIER v. AUSTRIA

PFARRMEIER v. AUSTRIA

LEXI