Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15527/89

by H.U.

against Austria

The European Commission of Human Rights sitting in private on

10 May 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 August 1989 by

H.U. against Austria and registered on 20 September 1989 under file No.

15527/89 ;

Having regard to:

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

the Commission;

- the observations submitted by the respondent Government on

21 January 1992 and the observations in reply submitted by the

applicant on 20 March 1992 ;

- the submissions of the parties at the oral hearing held on

10 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen. He is represented before

the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.

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

summarised as follows.

On 16 October 1987 the applicant refused to undergo a

breathalyser test. On the same day he was fined by a penal order

(Straferkenntnis) 10,000 AS for failure to comply with Section 99

(1)(b) of the Road Traffic Act (Straßenverkehrsordnung) of 1960, with

provision for 480 hours' imprisonment in default. The applicant

appealed to the Regional Government (Landesregierung) which, on 19

January 1988, rejected his appeal.

The applicant then made a complaint to the Constitutional Court

(Verfassungsgerichtshof) alleging, inter alia, that the type of

breathalyser used was calibrated in a way which did not comply with the

legal provisions applicable, and that the proceedings involved did not

comply with Article 6 of the Convention. The Constitutional Court

rejected the complaint on 14 October 1988 on the ground that it had no

sufficient prospect of success and that the case was not outside the

competence of the Administrative Court (Verwaltungsgerichtshof). The

Constitutional Court referred to its own case-law on Article 6 of the

Convention in finding that the application had no sufficient prospect

of success.

On 6 December 1988 the applicant requested the Constitutional

Court to refer the complaint to the Administrative Court. The

Administrative Court, by decision of 20 January 1989 (received by the

applicant's representative on 23 February 1989), rejected the complaint

concerning the calibration of the breathalyser. As to Article 6 of the

Convention, the Administrative Court noted that the Constitutional

Court had found the complaint unfounded, and there was no reason to

return the case to the Constitutional Court.

COMPLAINTS

The applicant alleges a violation of Article 6 of the

Convention in that the administrative criminal proceedings brought

against him were determined initially by administrative authorities

which do not constitute independent and impartial tribunals within the

meaning of Article 6 para. 1 of the Convention, and subsequently by the

Constitutional Court and the Administrative Court, the scope of whose

review is not sufficient to comply with Article 6 of the Convention,

and which cannot decide the case for themselves.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 August 1989 and registered

on 20 September 1989.

On 2 September 1991 the Commission decided to request the parties

to submit their written observations on the admissibility and merits

of the application.

The respondent Government submitted their observations, after an

extension of the time-limit, on 21 January 1992 and the applicant

submitted his observations on 20 March 1992.

On 15 February 1993 the Commission decided to hear the parties

on the admissibility and merits of this case and Applications Nos.

15523/89, 15963/90, 16713/90, 16718/90 and 16841/90.

At the hearing, which was held on 10 May 1993, the parties in the

present case were represented as follows:

For the Government:

Ambassador F. Cede Legal Adviser, Federal Ministry for Foreign

Affairs, Agent

Ms. S. Bernegger Federal Chancellery, Adviser

For the applicant:

Mr. W.L. Weh Representative

THE LAW

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

Convention.

The Government submit that the Austrian reservation to Article

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

this complaint. They also consider that the applicant has failed to

comply with the six months rule in Article 26 (Art. 26) of the

Convention, as his application to the Administrative Court had so

little chance of success that it cannot count as a remedy for these

purposes.

The Government consider that the absence of an oral public and

direct hearing is covered by the Austrian reservation to Article 6

(Art. 6) of the Convention. They also point out that the applicant did

not make a complaint about the absence of a hearing before the

Administrative Court.

The applicant considers that the Austrian reservation to Article

5 (Art. 5) of the Convention is neither applicable nor valid, and

points out that the Administrative Court in fact dealt with the

substance of his administrative complaint and, indeed, could have

raised questions of constitutionality of the norms at issue before the

Constitutional Court. He considers that the reservation to Article 6

(Art. 6), if valid, is not applicable to the present proceedings.

The Commission notes that the applicant's request to the

Constitutional Court to refer the complaint to the Administrative Court

was granted, and that the Administrative Court dismissed the complaint

in a decision on the merits. Had the Administrative Court accepted the

applicant's contentions, he would no longer have been the victim of an

alleged violation of the Convention. The Commission finds, in the

present case, that the decision of the Administrative Court of 20

January 1989 (received by the applicant's representative on 23 February

1989) must be taken as the final decision for the purposes of Article

26 (Art. 26) of the Convention.

The Commission finds that the complaints raised by the present

application raise 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 to an examination of the merits.

The application 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 unanimously

DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits

of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NORGAARD)

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