Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26808/95

by Peter HAUSER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 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. CONFORTI

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 1 February 1995

by Peter HAUSER against Austria and registered on 22 March 1995 under

file No. 26808/95;

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 1957 and residing

in Salzburg. He is a lawyer by profession.

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

summarised as follows.

A. Particular circumstances of the case

On 26 January 1993 the Salzburg Municipality Office (Magistrat)

convicted the applicant under the Salzburg Municipality Parking Fee Act

(Parkgebührengesetz für die Stadt Salzburg) of failure to pay parking

fees and sentenced him to a fine of 500 AS or 20 hours' imprisonment

in default.

Between 3 February 1993 and 3 May 1993 the Municipality Office

convicted the applicant five times under the Salzburg Municipality

Parking Fee Act of failure to comply with instructions of the

Municipality Office to inform them on the person who had used the

applicant's car on specific days (Lenkerauskunft). It imposed in each

case a fine of 600 AS or 21 hours' imprisonment in default.

The applicant appealed in all cases.

On 18 November 1993 the Salzburg Independent Administrative Panel

(unabhängiger Verwaltungssenat), in separate decisions, dismissed the

applicant's appeals against the convictions concerning the failure to

give information to the Municipality Office. On 3 December 1993 it

dismissed the applicant's appeal concerning the conviction for non-

payment of parking fees.

The applicant lodged complaints with the Constitutional Court

(Verfassungsgerichtshof) against the Independent Administrative Panel's

decisions as regards the convictions for failure to give information

to the Municipality Office and a complaint with the Administrative

Court (Verwaltungsgerichtshof) as regards the conviction for non-

payment of parking fees.

On 1 March 1994 the Constitutional Court declined to deal with

the applicant's complaints for lack of prospect of success and referred

the cases to the Administrative Court.

On 14 July 1994 the Administrative Court, relying on Section 33a

of the Administrative Court Act (Verwaltungsgerichtshofgesetz),

declined to deal with all the applicant's complaints. It found that

his cases did not raise important legal issues.

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; any 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."

According to Section 11 of the Administrative Court Act, the

Court decides in administrative criminal cases in chambers of three

judges.

3. The Salzburg Municipality Parking Fees Act (Parkgebührengesetz

für die Stadt Salzburg) regulates parking fees in the city of Salzburg.

Section 7 of the Act provides that the owner of a car has to give

information to the authority on request as to the user of the car at

a specified time. The maximum penalty for non-payment of parking fees

and failure to give information as to the user of a car is a fine of

10.000 AS.

According to Section 16 of the Code of Administrative Criminal

Procedure (Verwaltungsstrafgesetz) the administrative authority which

imposes a fine must at the same time order imprisonment in default.

If the law providing for the fine does not provide otherwise,

imprisonment in default must not exceed two weeks. No minimum duration

of imprisonment by default is provided for.

According to Section 54b of the Code of Administrative Criminal

Procedure imprisonment in default can only be enforced if the

collection of the fine, normally with the assistance of an enforcement

court (Exekutionsgericht) has failed. The mere refusal to pay a fine

is not sufficient to find that a fine is not collectible.

COMPLAINT

The applicant complains that the Administrative Court's refusal

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

THE LAW

The applicant complains that the Administrative Court's refusal

to deal with his complaints 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.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, ..."

The Commission finds that the applicant was convicted of criminal

offences within the meaning of Article 2 of Protocol No. 7 (P7-2). In

this respect the Commission has had 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, which included

the possibility of imprisonment and cannot be described as negligible

(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 Salzburg Municipal Office 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, Series A no. 328-A, para. 34) 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) therefore 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) 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).

Under Austrian law the Administrative Court had the competence

to review the appeal decisions given by the Salzburg Independent

Administrative Panel on the applicant's convictions for road traffic

offences. However, the Administrative Court, in applying Section 33a

of the Administrative Court Act, could, and did, decline to deal with

the applicant's complaints.

The Commission finds that the Administrative Court's decisions

given pursuant to Section 33a of the Administrative Court Act may be

equated to decisions given on applications for leave to appeal which

in themselves have to be regarded as a review within the meaning of

Article 2 of Protocol No. 7 (P7-2).

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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HAUSER v. AUSTRIA

HAUSER v. AUSTRIA

LEXI