Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25809/94

by Michael HORST

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, 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

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 October 1994

by Michael HORST against Austria and registered on 30 November 1994

under file No. 25809/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1942 and residing

in Budapest. Before the Commission he is represented by Mr. P. Hauser,

a lawyer practising in Salzburg.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

On 3 March 1993 the Salzburg Federal Police Authority

(Bundespolizeidirektion) convicted the applicant under the Road Traffic

Act (Straßenverkehrsordnung) of having refused to undergo a

breathalyser test and under the Motor Vehicles Act (Kraftfahrzeug-

gesetz) of having failed to carry with him the registration certificate

of his car. It imposed fines of 9000 and 200 AS or eight days' and six

hours' imprisonment in default respectively.

On 17 December 1993 the Salzburg Independent Administrative

Panel (unabhängiger Verwaltungssenat), after an oral hearing,

dismissed the appeal.

On 14 February 1994 the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof).

On 16 March 1994 the Administrative Court, relying on Section 33a

of the Administrative Court Act (Verwaltungsgerichtshofgesetz),

declined to deal with the applicant's complaint.

B. Relevant domestic law

1. Articles 129a and 129b in the version of the 1988 Amendment of

the Federal Constitution (Federal Law Gazette No. 1988/685) provided

for the institution of Independent Administrative Panels.

Independent Administrative Panels deal, inter alia, with appeals

against penal orders issued by administrative authorities. Their

members are lawyers, appointed by the Regional Government for a term

of office of at least 6 years. They are independent and must not

receive instructions. They can only be dismissed from office upon a

decision of the Independent Administrative Panel itself.

The Salzburg Regional Act of 4 July 1990 on the Independent

Administrative Panel for Salzburg (Gesetz über den Unabhängigen

Verwaltungssenat des Landes Salzburg, LGBl. 1990/65) repeats to a large

extent the provisions of the Federal Constitution. Section 3 para. 2

of the Act provides that members are initially appointed for a term of

office of six years; renewal of appointment is for ten years.

2. Section 33a of the Administrative Court Act (Verwaltungs-

gerichtshofgesetz), as in force from 1 January 1991, reads as follows:

"The Administrative Court may decline to deal with a complaint

against a decision of an Independent Administrative Panel in an

administrative criminal case, if no prison sentence or a fine

exceeding AS 10,000 has been imposed and the Administrative

Court's decision would not involve the determination of a legal

question of fundamental importance. A legal question of

fundamental importance is involved in particular if the

challenged decision of the Independent Administrative Panel is

at variance with the Administrative Court's case-law, if no such

case-law exists or if the legal questions at issue have not been

answered uniformly in the Administrative Court's case-law."

3. Section 99 para. 1 (b) of the Road Traffic Act (Strassenverkehrs-

ordnung) provides that whoever, when driving a car, refuses to undergo

a breathalyser test or refuses an examination by a medical officer as

to whether he is under the influence of alcohol commits and

administrative offence, punishable by a fine between 8000 and 50000 AS

or imprisonment in default of between one and six weeks.

Section 102 para. 5 (b) of the (Kraftfahrzeuggesetz) provides

that the driver of a car has to carry with him the registration

certificate of his car. Section 134 para. 1 provides that the failure

to comply with the duties mentioned in the Motor Vehicles Act is an

administrative offence punishable by a fine of up to 30000 AS.

COMPLAINT

The applicant complains that the Administrative Court's refusal

to deal with his complaint violated Article 2 of Protocol No. 7.

THE LAW

The applicant complains that the Administrative Court's refusal

to deal with his complaint violated Article 2 of Protocol No. 7 (P7-2),

which, insofar as relevant, reads as follows:

"1. Everyone convicted of a criminal offence by a tribunal

shall have the right to have his conviction or sentence

reviewed by a higher tribunal. The exercise of this right,

including the grounds on which it may be exercised, shall

be governed by law."

The Commission, having regard to the nature of the applicant's

offences as a failure to comply with a specific regulation, their

qualification under domestic law as administrative criminal offences

and the severity of the punishment involved, finds that the applicant

was convicted of criminal offences within the meaning of Article 2 of

Protocol No. 7 (P7-2) (see mutatis mutandis Eur. Court H.R., Öztürk

judgment of 21 February 1984, Series A no. 73, p. 18, para. 50;

Gradinger judgment of 23 October 1995, paras. 35-36, to be published

in Series A no. 328-C).

The Commission observes that the Salzburg Federal Police

Authority cannot be considered as a tribunal within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (see e.g. Eur. Court

H.R., Gradinger judgment of 23 October 1995 loc. cit., para. 42;

Schmautzer judgment of 23 October 1995, para. 34 to be published in

Series A no. 328-A) and consequently not as a tribunal for the purpose

of Article 2 of Protocol No. 7 (P7-2). However, having regard to the

criteria developed in its case-law by the Court for the qualification

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

the relevant domestic provisions on the institution of Independent

Administrative Panels, the Commission finds that the Salzburg

Independent Administrative Panel has to be regarded as a tribunal

within the meaning of Article 2 para. 1 of Protocol No. 7 (P7-2-1) (see

mutatis mutandis Eur. Court H.R., Ringeisen judgment of 16 July 1971,

Series A no. 13, p.39, para. 95; Sramek judgment of 22 October 1984,

Series A no. 84, pp. 17-18, paras. 36-38; Ettl judgment of

23 April 1987, Series A no. 117, pp. 17-19, paras. 34-41).

Article 2 of Protocol No. 7 (P7-2) thus applies to the

applicant's convictions by the Salzburg Independent Administrative

Panel and he was therefore in principle entitled to a review of his

convictions or sentences by a higher tribunal.

The Commission recalls that reference to the grounds for review

being governed by law in the second sentence of paragraph 1 of Article

2 of Protocol No. 7 (P7-2-1) clearly shows that the Contracting States

have a discretion as to the modalities for the exercise of the right

to review. Thus, different rules govern review by a higher tribunal

in the various Member States of the Council of Europe. In some member

States a person wishing to appeal to the highest tribunal must apply

for leave to appeal. Such a right to apply for leave to appeal to a

higher court can in itself be regarded as a review within the meaning

of Article 2 of Protocol No. 7 (P7-2) (No. 18066/91, Dec. 6.4.94, D.R.

77, p. 37; No. 20087/92, Dec. 26.10.95, D.R. 83, p. 5). Decisions

given by the Administrative Court pursuant to Section 33a of the

Administrative Court Act may be equated to decisions given on

applications for leave to appeal (No. 26808/95, Dec. 16.1.96,

unpublished).

In the present case the Administrative Court, which had the

competence to review the Independent Administrative Panel's decision

of 17 December 1993, decided pursuant to Section 33a of the

Administrative Court Act not to deal with the applicant's complaint.

In these circumstances the Commission does not find any

appearance of a violation of the applicant's right under Article 2 of

Protocol No. 7 (P7-2) to a review of his conviction or sentence by a

higher tribunal.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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HORST v. AUSTRIA

HORST v. AUSTRIA

LEXI