Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16566/90

by W.M.

against Austria.

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 18 January 1990

by W.M. against Austria and registered on 8 May 1990 under file

No. 16566/90;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

9 July 1992, the observations in reply submitted by the applicant

on 24 August 1992 and the Government's letter of 13 October 1992;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen born in 1953. He runs a

taxi firm. The facts of the case, as submitted by the parties, may be

summarised as follows.

On 20 May 1988 the Vienna Federal Police Authority imposed a fine

of AS 500 on the applicant by way of a provisional penal order

(Strafverfügung) for having failed to comply with his obligation to

disclose the identity of the driver of his car at a given time,

contrary to Section 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz)

1967. The applicant wanted to submit his written appeal at a police

station and/or to declare his objections orally, but the officers at

the police station refused to accept his appeal. When the authority

proceeded to the enforcement of the provisional order, the applicant

referred to this refusal and the authority thereupon instituted

ordinary penal administrative proceedings which - after a hearing of

the applicant - led to the imposition of a fine of AS 2,000 by a penal

order (Straferkenntnis) of 21 April 1989. On appeal, the Vienna

Provincial Governor (Landeshauptmann) on 12 June 1989 quashed this

penal order as being null and void on the ground that the applicant had

not effectively raised objections against the initial provisional penal

order, which accordingly remained valid. The applicant complained of

this decision to the Administrative Court (Verwaltungsgerichtshof)

which on 18 October 1989 confirmed the Provincial Governor's decision,

observing that after the refusal of the police to accept his written

appeal and his oral declaration, the applicant could still have filed

his objection in writing.

COMPLAINTS

The applicant complains under Article 6 of the Convention that

he did not have a fair and public hearing. In particular he alleges

a violation of his right of access to court and of his right to defend

himself in person.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 January 1990 and registered

on 8 May 1990.

On 13 February 1992 the Commission (Second Chamber) decided to

request the parties to submit their written observations on the

admissibility and merits of the application.

The respondent Government submitted their observations on

9 July 1992 and the applicant's observations in reply were received on

24 August 1992. On 13 October 1992 the Government submitted a further

comment on admissibility.

THE LAW

The applicant alleges violation of Article 6 (Art. 6) of the

Convention in connection with the proceedings which were brought

against him for failure to comply with his obligation to disclose the

identity of the driver of a car at a particular time.

The Government submit that the Austrian reservation to Article

5 (Art. 5) of the Convention prevents the Commission from entertaining

the complaint. In particular, they submit that Section 103 (2) of the

Motor Vehicles Act was in force at the time the reservation was made,

as Section 86 (2) of the Motor Vehicles Act 1955. As to exhaustion of

domestic remedies, the Government accept that an application to the

Constitutional Court would have had no prospect of success in

connection with an Article 6 (Art. 6) complaint as such, but state that

it would have been open to the applicant, in the light of the decisions

of the European Court of Human Rights on the question of the precision

with which reservations have to be made in the cases of Belilos and

Weber (Eur. Court H.R., judgments of 29 April 1988 and 22 May 1990,

Series A nos. 132 and 177), to have raised this point with the

Constitutional Court. They consider that to the extent that the

applicant alleges violation of access to a tribunal, he would have had

access to the Administrative Court if he had lodged his appeal against

the initial penal order in writing. They further point out that the

European Court of Human Rights has accepted that the Administrative

Court is an impartial and independent tribunal in, for example, the

case of Ettl (Eur. Court H.R., Ettl judgment of 23 April 1987, Series

A no. 117, p. 17, paras. 34, 35), and that Article 6 (Art. 6) is

complied with if, in administrative "criminal" matters, a last instance

decision is taken by an independent and impartial tribunal (Eur. Court

H.R., Öztürk judgment of 21 February 1984, Series A no. 73).

The applicant does not accept that the Austrian reservation to

Article 5 (Art. 5) can affect the substance of the case, because the

Motor Vehicles Act is not referred to in the reservation, and because

the provision of Section 103 (2) (which only entered into force in

1968) is not the same as Section 86 (2) of the 1955 Act in that the

earlier provision relate to the identity of the person to whom the

vehicle was entrusted (überlassen), whereas Section 103 (2) relates to

who was driving the vehicle. The applicant also considers that, by the

institution of Independent Administrative Tribunals (Unabhängige

Verwaltungssenate), the Government have accepted that the system in

force in his case did not comply with the Convention.

The Commission has considered the Government's argument that the

applicant could have put to the Constitutional Court a plea concerning

the validity of reservations based on the judgments of the European

Court of Human Rights in the cases of Belilos and Weber.

The Commission notes that the case of Weber was decided by the

European Court of Human Rights on 22 May 1990 (Series A no. 177),

post-dating the Vienna Provincial Governor's decision of 12 June 1989

by almost a year. It follows that the applicant could not have

referred to the Weber case in the domestic proceedings.

It is true, as the Government submit, that it would have been

open to the applicant in the light of the findings of the European

Court of Human Rights in the case of Belilos (judgment of

29 April 1988, Series A no. 132), to submit to the Constitutional Court

that that Court's traditional reasoning as to the Austrian reservation

to Article 5 (Art. 5) of the Convention should be re-considered.

However, although the Convention has the status of constitutional law

in Austria, the domestic courts are not formally bound by the findings

of the Strasbourg organs, and the Government have not indicated how the

findings of the European Court of Human Rights in a Swiss case

involving an interpretative declaration to Article 6 (Art. 6) of the

Convention could have led to the Constitutional Court amending its

long-standing case-law on the Austrian reservation to Article 5

(Art. 5) of the Convention (cf. Demicoli v. Malta, 13057/87,

Dec. 15.3.89, D.R. 60, p. 243, 248 with further references).

The Commission finds that the applicant was not required by

Article 26 (Art. 26) of the Convention to put his case to the

Constitutional Court. Accordingly, the application cannot be declared

inadmissible for non-exhaustion of domestic remedies.

As to the substance of the application, the Commission finds that

the case raises complex issues of law under the Convention, including

questions concerning the Austrian reservations to Articles 5 and 6

(Art. 5, 6) of the Convention, the determination of which must be

reserved for an examination on the merits. It cannot therefore be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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