Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16718/90

by Peter PALAORO

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 28 May 1990 by

Peter PALAORO against Austria and registered on 13 June 1990 under file

No. 16718/90 ;

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

24 February 1992 and the observations in reply submitted by the

applicant on 5 October 1992 ;

- the parties' submissions 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 November 1988 the Imst District Authority (Bezirks-

hauptmannschaft) found the applicant guilty of having committed two

speeding offences contrary to the Road Traffic Act (Straßenverkehrs-

ordnung). The first offence involved driving in excess of the maximum

speed permitted on motorways (Section 20 para. 2 of the Road Traffic

Act); the second offence involved driving, on a further stretch of the

same road, in excess of the speed limit imposed by a road sign (Section

52, sub-section A (10) (a) of the Act). The applicant was fined AS

6,000 and AS 4,000 respectively, with imprisonment of 10 days and 8

days in default. The applicant's appeal to the Regional Government

(Landesregierung) was rejected on 22 December 1988, although the

penalties were reduced to AS 4,000 and AS 2,000, with the default

penalties reduced to 7 and 4 days.

The applicant's complaint to the Constitutional Court

(Verfassungsgerichtshof) was rejected on 10 March 1989. The

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

Convention in finding that the application had no sufficient prospects

of success.

On 25 October 1989 the Administrative Court (Verwaltungs-

gerichtshof) dismissed the applicant's complaint to it. It recalled

that a formal confrontation with a witness is only to be ordered where

it is necessary in the case: there is no right to put questions in

person to a witness. In any event, the applicant had not shown in what

way the evidence brought could have been challenged if the witnesses

had been questioned.

The Administrative Court also considered the applicant's

complaint that he had been fined twice for the same offence. The court

recalled its case-law that, where a person drives in excess of speed

limits imposed by a series of road signs, only one offence is

committed. In the present case, however, the applicant had been

convicted under two separate provisions of the Road Traffic Act, namely

Sections 20 and 52. Accordingly, he had committed two separate

offences which fell to be dealt with separately.

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. He also alleges a

violation of Article 6 para. 3 (d) of the Convention in that he was not

able to put questions to witnesses for the prosecution as no oral

hearing was held before the administrative authorities at first and

second instance.

The applicant also alleges a violation of Article 4 of Protocol

No. 7 to the Convention in that he was fined twice for speeding in the

course of one journey. He notes that in criminal proceedings the

"principle of cumulation" (Kumulationsprinzip) would have applied, with

the result that only one "total" sentence would have been imposed. In

the present case, as not criminal proceedings, but administrative

criminal proceedings were at issue, the "principle of cumulation" was

not applied (Article 22 of the Administrative Criminal Code).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 May 1990 and registered on

13 June 1990.

On 16 October 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 on

21 February 1992 and the applicant submitted his observations on

5 October 1992.

On 15 February 1993 the Commission decided to hear the parties

as to the admissibility and merits of this case and Applications Nos.

15523/89, 15527/89, 15963/90, 16713/90 and 16841/90. At the hearing

the parties 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

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

Convention in various respects.

The Government submit that the Austrian reservation to Article

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

this complaint. They submit that, even if the reservation does not

prevent an examination, then the review of administrative decisions by

the Administrative Court and the Constitutional Court is sufficiently

wide to comply with Article 6 para. 1 (Art. 6-1) of the Convention.

In particular, they refer to Section 41 (2) 3 (a)-(c) of the

Administrative Court Act under which the Administrative Court must

quash an authority's decision for violation of procedural rules where

in an essential point the authority has found facts in a way which

contradicts the file, where the facts require complementation in an

essential point, or where procedural provisions have been disregarded

in circumstances where, had they been observed, the authority could

have arrived at a different decision. The Government consider that the

Austrian reservation to Article 5 (Art. 5) of the Convention, if

applicable, also covers the applicant's complaint under Article 6 para.

3 (d) (Art. 5-3-d).

In connection with Article 144 para. 2 of the Federal

Constitution, the Government consider that, although the provision

provides for non-acceptance of a constitutional complaint on grounds

which were not in force in 1958 when the reservation was made, the

ability of the Constitutional Court to refuse to deal with complaints

against decisions without giving detailed reasons is only a procedural

limitation and not a substantive one. The Government point out that any

complaint lodged with the Constitutional Court against a decision is

subject to comprehensive review.

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 valid nor applicable in the

present case and that Article 6 (Art. 6) was violated both by the

inability of the Administrative Court to make findings of fact, and in

that he was unable to put questions to the prosecuting authorities.

He considers that the reservation to Article 6 (Art. 6), if valid, is

not applicable to the present proceedings.

In connection with Article 144 para. 2 of the Federal

Constitution, the applicant considers that the enlarged grounds for

non-acceptance of a constitutional complaint are in any event at

variance with Convention requirements.

The Commission finds that these complaints 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 for an

examination of the merits.

This part of 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.

2. The applicant also alleges a violation of Article 4 of Protocol

No. 7 (P7-4) to the Convention in that he was fined twice for speeding

in the course of one journey. Article 4 of Protocol No. 7 (P7-4)

provides as follows:

"1. 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.

..."

The Commission finds that the applicant, who was convicted for

speeding twice in the course of one journey, but over separate

stretches of road, was convicted not of one but of two separate

offences. It follows that he was not tried or punished again "for an

offence for which he has already been finally acquitted or convicted".

This part of the application must therefore be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES INADMISSIBLE the complaint relating to the applicant's

having been convicted twice;

DECLARES ADMISSIBLE, without prejudice to the merits, the

remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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PALAORO v. AUSTRIA

PALAORO v. AUSTRIA

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