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J.P. ; K.R. ; G.H. v. AUSTRIA

Doc ref: 15135/89;15136/89;15137/89 • ECHR ID: 001-1147

Document date: September 5, 1989

Inbound citations: 5
•
Cited paragraphs: 0
•
Outbound citations: 0

J.P. ; K.R. ; G.H. v. AUSTRIA

Doc ref: 15135/89;15136/89;15137/89 • ECHR ID: 001-1147

Document date: September 5, 1989

Cited paragraphs only

Application No. 15135/89, 15136/89

and 15137/89

by J.P., K.R. and G.H.

against Austria

The European Commission of Human Rights sitting in private

on 5 September 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 applications introduced on 30 May 1989

by J.P., K.R. and G.H. against Austria and registered on 16 June

1989 under files Nos. 15135/89, 15136/86 and 15137/89;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant P. (Application No. 15135/89) is an Austrian

citizen, born in 1941 and practising as a lawyer in Vienna. The

applicants H. (Application No. 15137/89) and R. (Application

No. 15136/89) are likewise Austrian citizens, born in 1944 and 1945

and both living in Vienna. They are represented by Mr. P.

All three applicants complain that under Austrian law, namely

Sec. 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz = KFG), the

registered owner of a car (Zulassungsbesitzer) is obliged to inform

the authorities at their request as to who has last driven or parked

the car and that they were fined for not having conformed with this

obligation.

The applicant P. was imposed two fines of 2,000 AS each

or four days of detention for each unpaid fine.

The applicant H. was fined 1,000 AS or 60 hours of

detention. The applicant R. was fined 600 AS or 36 hours of

detention.

Mr. P.'s appeal against the two fines was rejected by

the competent Land authority (Amt der Wiener Landesregierung) on

6 November 1987. It is stated in the decision that the applicant had

been named by the registered owner, a leasing company, to be

responsible for two cars which on two different occasions were found

wrongly parked in Vienna. He was therefore obliged under the relevant

law to indicate the person who had parked the cars. As he did not

furnish this information within the time-limit of two weeks he had to

be fined in accordance with the law.

The appeals of the two other applicants were rejected on

22 September 1987 and 29 March 1988.

The applicants then lodged constitutional complaints in which

they requested that the Constitutional Court (Verfassungsgerichtshof)

annul as being incompatible with the Constitution the relevant

provisions in Secs. 103 (2) and 103a (1) KFG of 1986. Similar

provisions in the previous versions of Sec. 103 (2) had already been

quashed twice by the Constitutional Court on the ground that they were

unconstitutional because they involved an element of self-

incrimination (Collection of Constitutional Court Decisions No.

9950/1984 and No. 10394/1985). In the present case the Constitutional

Court again instituted norm control proceedings, but in a decision of

29 September 1988 (G 72/88) pointed out that the ultimate sentence in

Sec. 103 (2) KFG had now been enacted as a provision of constitutional

rank (Verfassungsnorm). It provided that no right to refuse to give

the information (Auskunftverweigerungsrecht) requested in accordance

with Sec. 103 (2) KFG could be invoked vis-à-vis the authorities.

Thereby the body competent to legislate on the constitutional level

(Verfassungsgesetzgeber) intended to create, for reasons of legal

policy, an exception from the general rule that nobody should be

obliged under threat of punishment to confess having committed a

punishable offence. As this exception did not violate any predominant

principles of constitutional law the Constitutional Court could not

review this constitutional norm as to its compatibility with other

constitutional provisions, including the internal law aspect of

Article 6 of the Convention.

On 29 November 1988 the Constitutional Court rejected the

applicants' constitutional complaints against the decisions rejecting

their appeals against the fines imposed on them.

The applicants allege a violation of Article 6 of the

Convention. In particular they refer to the principle of equality of

arms which they consider violated because Sec. 103 (2) KFG obliges the

registered car owner to confess having committed an offence.

THE LAW

1. The applicants' complaints are analogous. The Commission

therefore finds it convenient to join the applications under Rule 29

of its Rules of Procedure.

2. The applicants complain of having been fined because they had

refused to indicate to the competent authorities who last drove or

parked a car which was found wrongly parked in Vienna and belonged to

them or had been entrusted to them. They invoke Article 6 para. 1

(Art. 6-1) of the Convention which guarantees the right to a fair trial.

However, even assuming that Article 6 (Art. 6) applies to the

proceedings in question it cannot be found that the obligation in

question violated this right or the principle of presumption of

innocence as guaranteed by Article 6 para. 2 (Art. 6-2).

The Contracting States are free to define the constituent

elements of an offence. Furthermore, the Convention does not

prohibit, in principle, the use of legal presumptions in criminal law

(Eur. Court H.R., Salabiaku case, judgment of 7.10.88, Series A no.

143, p. 15 paras. 27-28). The Commission has already found that

criminal liability of a car owner whose car was found wrongly parked

without his being able or willing to name the driver or to establish

that the car had been used against his will did not violate Article 6

(Art. 6) of the Convention (No. 6170/73, Dec. 26.5.75, unpublished).

The regulation here in question is based on a similar principle,

in that it obliges a car owner, or other person named by the owner as

the driver of the car, to assume the responsibility for the use or to

name the actual driver.

Thereby the person concerned is not under all circumstances

obliged to incriminate himself/herself or a close relative, but may,

according to the circumstances, also show that he/she is not connected

with the offence committed by the driver. For example, a car may have

been used by other known or unknown persons with or without the

consent of the owner of the car.

It follows that the regulation in question as applied in the

applicants' cases does not disclose any appearance of a violation of

the Convention and in particular of the Article invoked by the

applicants. The applications are therefore manifestly ill-founded

with the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

1. DECIDES TO JOIN APPLICATIONS NOS. 15135/89,

15136/89 AND 15137/89;

2. DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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