Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26510/95

by H. S.

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 26 January 1995

by H. S. against Austria and registered on 14 February 1995 under file

No. 26510/95;

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 1939 and residing

in Neumarkt (Austria). Before the Commission he is represented by Mr.

S. Holter, a lawyer practising in Grieskirchen.

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 Grieskirchen District Administrative

Authority (Bezirkshauptmannschaft) issued a penal order

(Straferkenntnis) against the applicant. It found that on

17 February 1993 the applicant had driven his car under the influence

of alcohol. After having smashed into a parked car, he had left the

place of the accident, had gone home, had taken his second car and had

driven back to the place of the accident. When he returned home from

there a police officer had already been waiting for him and a

breathalyser test had been taken which showed that the applicant had

been under the influence of alcohol. When the applicant had been

driving with his second car he also had failed to put on the

interchangeable number plates.

The District Administrative Authority convicted the applicant

under the Road Traffic Act (Straßenverkehrsordnung) on two counts of

drunk driving and of having failed to maintain the minimum distance

from the roadside (which was the cause of the accident). It further

convicted the applicant under the Motor Vehicles Act (Kraftfahrzeug-

gesetz) of having driven a car without number plates. As regards the

convictions of drunk driving the District Administrative Authority

sentenced the applicant to two fines of 10000 AS or 200 hours of

imprisonment in default each. As regards the other convictions the

District Administrative Authority imposed fines of 500 As and 1000 AS

or 15 and 30 hours of imprisonment in default respectively.

The applicant, assisted by counsel, appealed. He submitted,

inter alia, that the result of the breathalyser test had not been

reliable as he had drunk alcohol when he had returned home after the

accident.

On 24 March 1994 the Upper Austria Independent Administrative

Panel (Unabhängiger Verwaltungssenat), after an oral hearing in which

it heard witnesses and a medical expert, dismissed the appeal.

Thereupon the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof).

On 24 June 1994 the Administrative Court, relying on Section 33a

of the Administrative Court Act (Verwaltungsgerichtshofgesetz),

declined to deal with the applicant's complaint. This decision was

served on the applicant's lawyer on 11 August 1994.

On 1 September 1994 the Grieskirchen District Administrative

Authority issued a further penal order against the applicant. It found

that the applicant after the accident on 17 February 1993 had failed

to comply with his obligation under the Road Traffic Act to participate

in the establishment of the circumstances of an accident. He had left

the scene of the accident and had drunk alcohol in order to hide his

state of inebriation. The District Administrative Authority sentenced

him to a fine of 2 000 AS or 60 hours of imprisonment in default. The

applicant did not appeal.

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 Upper Austrian Regional Act of 11 October 1990 on the

Independent Administrative Panel (Oberösterreichisches Verwaltungs-

senatsgesetz, LGBl. 1990/90) repeats to a large extent the provisions

of the Federal Constitution. Section 3 para. 3 of the Act provides

that members are appointed for an indefinite term of office.

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 (a) of the Road Traffic Act (Strassenverkehrs-

ordnung) provides that whoever drives or attempts to drive a car under

the influence of alcohol or drugs commits and administrative offence,

punishable by a fine between 8000 and 50000 AS or imprisonment in

default between one and six weeks.

Section 99 para. 2 (a) of the Road Traffic Act provides, inter

alia, that whoever, involved in a road accident as the driver of a car,

fails to comply with his he duty to participate in the establishment

of the relevant facts commits an administrative offence, punishable by

a fine between 500 and 30000 AS or imprisonment in default of between

twenty-four hours and six weeks.

Section 17 para. 1 of the Road Traffic Act provides, inter alia,

that the driver of a car has to maintain a minimum safety distance when

passing by another car. Section 99 para. 3 (a) provides that the

failure to comply with the above duty is an administrative offence

punishable by a fine of up to 10000 AS or imprisonment in default of

up to two weeks.

The Motor Vehicle Act (Kraftfahrzeuggesetz) provides that the

owner of more than one car may register all his cars under one license

plate. In such a case he receives an interchangeable license plate

which he has to put on the car he is actually using. He is not allowed

to use more than one car at the same time. Section 49 of the Motor

Vehicles Act, which deals with license plates, provides in paragraph

6 that a motor vehicle may only circulate if it has the necessary

license plates attached. 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.

He further complains under Article 4 of Protocol No. 7 about the

penal order of 1 September 1994. He submits that this conviction and

the conviction of 3 March 1993 of drunk driving concern the same

offence as in both cases his conviction was based on the same facts,

namely that he had drunken alcohol. He submits further that the

Administrative Court has constantly held that the obligation to

participate in the establishment of the circumstances of an accident

included the prohibition against drinking alcohol after the accident

had occurred and before the establishment of the circumstances had

taken place since the possible drunkenness of the driver is a relevant

element. In view of this case-law an appeal against the penal order

of 1 September 1994 and subsequent complaints to the Administrative

Court and Constitutional court would have clearly no prospect of

success and would be ineffective.

THE LAW

1. 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, Series A no. 328-C, paras. 35-

36).

The Commission observes that the District Administrative

Authority cannot be considered as a tribunal within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (see e.g. Gradinger v.

Austria, loc, cit., para. 51; Umlauft v. Austria, Comm. Report 19.5.94,

para. 42) 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 Upper Austrian 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 Upper Austrian 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 this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 4 of Protocol No.

7 (P7-4) about the penal order of 1 September 1994. He submits that

this conviction and the conviction of 3 March 1993 of drunk driving

concern the same offence as in both cases his conviction was based on

the same facts, namely that he had drunk alcohol.

Article 4 para. 1 of Protocol No. 7 (P7-4-1) reads as follows:

"No one shall be liable to be tried or punished again in

criminal proceedings under the jurisdiction of the same

State for an offence for which he has already been finally

acquitted or convicted in accordance with the law and penal

procedure of that State."

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 4 of Protocol No. 7 (P7-4), as under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission observes that the applicant did not appeal against

the penal order of the Grieskirchen District Administrative Authority

of 1 September 1993.

The applicant submits that in view of the Administrative Court's

case-law an appeal against and subsequent complaints to the

Administrative Court and Constitutional Court would clearly have no

prospect of success and thus be ineffective remedies.

However, he has not shown that the Administrative Court's

case-law which he is referring to has any relation to his complaint

that he has been convicted again for the same offence. Thus, an

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicant from compliance

with the requirement of exhaustion of domestic remedies as regards his

complaint under Article 4 of Protocol No. 7 (P7-4).

It follows that the applicant has failed to comply with the

requirement of exhaustion of domestic remedies under Article 26

(Art. 26) of the Convention.

Accordingly this part of the application must be rejected under

Article 27 para. 3 (Art. 27-3) 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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