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AS TO THE ADMISSIBILITY OF

Application No. 16841/90

by Harald PFARRMEIER

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 13 June 1990 by

Harald Pfarrmeier against Austria and registered on 10 July 1990 under

file No. 16841/90;

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

21 February 1992 and the observations in reply submitted by the

applicant on 5 October 1992 ;

- the submissions of the parties at the oral hearing on

10 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen who lives in Bregenz. He

is represented before the Commission by Mr. L. W. Weh, a lawyer

practising in Bregenz.

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

summarised as follows:

On 11 June 1987 the applicant was fined by a penal order

(Straferkenntnis) AS 9,000 with provision for 360 hours' detention in

default for failure to submit to a breath test, contrary to Section 99

(1) (b) of the Road Traffic Act 1960 (Straßenverkehrsordnung). He

appealed to the Regional Government (Landesregierung) which, on 11

November 1987, rejected his appeal.

On 23 March 1988 the Administrative Court

(Verwaltungsgerichtshof) quashed the decision of the Regional

Government of 11 November 1987 and remitted the case to that authority.

The Regional Government's second decision, of 23 December 1988, reduced

the penalty from AS 9,000 to AS 5,000 and the period of imprisonment

in default from 360 hours to 200 hours.

The applicant's complaint to the Constitutional Court (Ver-

fassungsgerichtshof) was rejected on 10 March 1989 on the ground that

it had no sufficient prospect of success and that the case was not

outside the competence of the Administrative Court. The Constitutional

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

Convention in finding that the application had no sufficient prospect

of success.

On 10 November 1989 the Administrative Court gave its second

decision in the case. It found that it was not prevented from

considering that the factual position had been determined in a relevant

and conclusive way, although it was not able to review whether the

defence's version of the facts was correct. Accordingly, the

Administrative Court could not decide whether the applicant had or had

not spoken of a "good session" (drinking). As to the applicant's

complaint that his lawyer had not been able to examine a witness, the

court noted that an oral hearing was not a necessary part of the

administrative criminal proceedings. As to the alleged

unconstitutionality of the Austrian reservation to Article 5 of the

Convention, the Court referred to previous case-law. The complaint was

dismissed as a whole.

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 the administrative authorities which did

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 themselves.

He also makes specific complaints about the nature of the

administrative authorities' examination of the case, including his

inability to put questions to prosecution witnesses, and about the

inevitably partial status of experts.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 June 1990 and registered on

10 July 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 16718/90. 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

The applicant alleges 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 the

case. They accept, however, that if the reservation does not prevent

an examination of the case, then the review of administrative decisions

by the Administrative Court and Constitutional Court was not

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

Convention. They add, in this respect, that although the offence for

which the applicant was convicted under Section 99 (1)(b) of the Road

Traffic Act 1960 (refusing to take a breath test) was not, as such, in

force on the date of the reservation, the law then in force did impose

an obligation on road users to drive with reasonable consideration for

other road users and to pay such attention as is required for the

maintenance of order, safety and traffic efficiency.

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. He agrees that the scope of review by the Constitutional

Court and Administrative Court does not comply with Article 6 (Art. 6)

of the Convention. 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 Government consider that, although that provision

provides for non-acceptance of a constitutional complaint on grounds

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

possibility for the Constitutional Court to refuse to deal with appeals

against decisions without giving detailed reasons is only a procedural

limitation and not a substantive one. They point out that any appeal

lodged with the Constitutional Court against a decision is subject to

comprehensive review.

The applicant in this respect considers that the limitation of

the Constitutional Court's jurisdiction by Article 144 para. 2 of the

Federal Constitution does not meet the requirements of the reservation,

even if it applies.

The Commission finds that the application 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.

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. NØRGAARD)

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PFARRMEIER v. AUSTRIA

PFARRMEIER v. AUSTRIA

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