FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76718/01 by Wilhelm ZUCKERSTÄTTER and Christian RESCHENHOFER against Austria

The European Court of Human Rights (First Section), sitting on 2 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mrs E. Steiner, judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 25 October 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Wilhelm Zuckerstätter and Mr Christian Reschenhofer are Austrian nationals, who were born in 1970 and 1974 respectively. The first applicant lives in Feldkirchen, the second applicant in Neukirchen. They are represented before the Court by Mr J. Postlmayr, a lawyer practising in Mattighofen. The respondent Government are represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Office for Foreign Affairs.

A. The circumstances of the case

1. The first applicant

On 7 January 1995 the first applicant started his car and then stayed in his parked car while the engine was running. Considering that the applicant was under the influence of alcohol, the police asked him to undergo a breathalyser test which he refused.

On 31 January 1995 the Braunau District Administrative Authority ( Bezirkshauptmannschaft ) asked the applicant to comment on the charge against him as he was suspected of the offence under sections 5 § 2 and 99 § 1 (b) of the Road Traffic Act for having refused to undergo a breathalyser test.

On 10 March 1995 the applicant, who was assisted by counsel, submitted his comments.

On 22 March 1995 the Braunau District Administrative Authority issued a penal order ( Straferkenntnis ) against the applicant and ordered him to pay a fine of approximately 14,000 Austrian schillings (approximately EUR 1,020) with thirteen days’ imprisonment in default, for refusing to undergo a breathalyser test when reasonably suspected of starting a car while under the influence of alcohol.

On 11 April 1995 the applicant filed an appeal.

On 9 May 1995 the Upper Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) quashed the penal order, finding that the elements of the offence were not fulfilled as, in the circumstances of the present case, the first applicant had been under no obligation to undergo a breathalyser test. It decided, therefore, to discontinue the proceedings.

On 19 May 1995 this decision was served on the applicant’s counsel.

On 7 May 1996 the Federal Minister of Science, Traffic and Art ( Bundesminister für Wissenschaft , Verkehr und Kunst ) lodged an official appeal ( Amtsbeschwerde ) under Article 131 (1) subparagraph (2) of the Federal Constitution with the Administrative Court ( Verwaltungs-gerichtshof ), claiming that the Independent Administrative Panel’s decision suffered from errors of law. He found that the applicant had been under an obligation to undergo a breathalyser test, and by his refusal to do so, had fulfilled the elements of the offence under sections 5 § 2 and 99 § 1 (b) of the Road Traffic Act.

On 28 May 1996 the Administrative Court informed the applicant and the Independent Administrative Panel about the appeal and opened preliminary proceedings.

On 17 July 1996 the Independent Administrative Panel submitted its comments.

On 18 September 1996 the applicant submitted his comments.

On 26 January 2001 the Administrative Court, noting that the Federal Minister had lodged the official appeal in time, namely within six weeks of the moment he got knowledge of the impugned decision, quashed the Independent Administrative Panel’s decision of 9 May 1995. It noted that the obligation to undergo a breathalyser test arose inter alia , if a person suspected of being drunk had “put a car into operation”. Referring to its case-law, the Administrative Court noted that a car was “put into operation”, as soon as the engine was started. On the basis of the facts established in the present case, the authorities should have concluded that the physical elements of the offence under sections 5 § 2 and 99 § 1 (b) of the Road Traffic Act (failure to comply with the obligation to undergo a breathalyser test) were fulfilled.

On 7 March 2001 the applicant supplemented his appeal against the Braunau District Administrative Authority’s decision of 22 March 1995 and requested an oral hearing.

On 13 March 2001 the Independent Administrative Panel again quashed the Administrative Authority’s decision of 22 March 1995, finding that the physical elements of the offence had been fulfilled but not its mental elements. Consequently, it decided to discontinue the proceedings.

This decision was served on the applicant’s counsel on 7 May 2001.

On 23 July 2001 the Federal Minister for Traffic, Innovation and Technology ( Bundesminister für Verkehr , Innovation und Technologie ) lodged an official appeal against this decision with the Administrative Court.

On 19 October 2001 the Administrative Court rejected the Federal Minister’s appeal for being out of time. This decision was served on the applicant’s counsel on 3 December 2001.

2. The second applicant

On 24 March 1997 the Braunau District Administrative Authority, in summary proceedings, issued a provisional penal order ( Strafverfügung ) against the second applicant in which he was sentenced to pay a fine of ATS 3,000 Austrian schillings (approximately EUR 220) with 96 hours’ imprisonment in default for reckless driving.

On 4 April 1997 the applicant filed an objection ( Einspruch ) against this decision. Consequently, the District Administrative Authority opened ordinary proceedings requesting the applicant to submit his defence. On 22 May 1997 and on 16 June 1997 the applicant submitted comments and requested a visit on the site and an opinion by an expert on motor vehicles.

On 30 June 1997 the Braunau District Administrative Authority issued a penal order ( Straferkenntnis ) against the applicant and ordered him to pay a fine of ATS 3000, with 96 hours’ imprisonment in default for reckless driving.

On 11 July 1997 the applicant lodged an appeal.

On 19 August 1997 the Upper Austria Independent Administrative Panel held a public hearing on the site and heard two witnesses. On the same day it dismissed the applicant’s appeal.

On 9 September 1997 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He submitted inter alia that the Independent Administrative Panel had refused to order the requested expert opinion without giving any reasons.

On 27 November 1997 the Constitutional Court quashed the decision of the Independent Administrative Panel as specific provisions of the Road Traffic Act concerning the assessment of penalties, which could possibly have been applied in the applicant’s case, had in the meantime been quashed as being unconstitutional.

On 30 December 1997 the Independent Administrative Panel, without a hearing, again dismissed the applicant’s appeal against the penal order of 30 June 1997. It noted that the quashed provisions of the Road Traffic Act concerning assessment of penalties were not applicable to the applicant’s case. It further observed that the applicant, who, in any way, had not substantiated in what respect an expert opinion was relevant to the proceedings, had not reiterated this request at the public hearing.

On 5 February 1998 the applicant lodged a complaint with the Constitutional Court and on 27 February 1998 a complaint with the Administrative Court ( Verwaltungsgerichtshof ). He submitted inter alia that the Independent Administrative Panel had failed to hold a hearing and take an opinion by an expert on motor vehicles. He further requested an oral hearing before the Administrative Court.

On 1 December 1998 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success.

On 7 August 2001 the Administrative Court declined to deal with the complaint pursuant to Section 33a of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ) since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake.

This decision was served on the applicant’s lawyer on 3 September 2001.

B. Relevant domestic law

By virtue of Article 130 of the Federal Constitution ( Bundesverfassungsgesetz ), the Administrative Court has jurisdiction to hear appeals alleging that an administrative decision is unlawful.

Article 131 (1) subparagraph (2) of the Federal Constitution entitles the competent Federal Minister, inter alia in matters pertaining to the enforcement of federal laws by the Länder , to lodge an official appeal with the Administrative Court against an allegedly unlawful decision of an administrative authority, if the parties are no longer able to contest the decision on appeal.

According to section 26 (1) of the Administrative Court Act ( Verwaltungsgerichtshofsgesetz ) such an appeal has to be brought within six weeks of the point in time when the decision at issue has been served upon the Federal Minister or the Federal Minister gets knowledge of the decision at issue.

COMPLAINTS

1. Both applicants complain under Article 6 of the Convention about the length of the administrative criminal proceedings.

2. The first applicant further complains that the proceedings had been unfair in that the Independent Administrative Panel and the Administrative Court failed to hold hearings and did not pronounce their decisions in public. He further complains that the Federal Minister could and did lodge an official appeal a year after the decision of the Independent Administrative Panel.

3. The second applicant further complains that, after the Constitutional Court had quashed the Independent Administrative Panel’s decision, the latter decided without holding a further hearing. He complains that the Independent Administrative Panel dismissed his request for an expert on motor vehicles and invokes Article 6 § 2 and § 3 (d) of the Convention.

4. In his submissions of 26 July 2002 the second applicant further complained under Article 2 of Protocol No. 7 about a lack of review by a higher tribunal.

THE LAW

The applicants raise a number of complaints under Article 6 of the Convention which as far as relevant, reads as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

1. Both applicants complain about the length of the criminal proceedings against them.

a. As regards the first applicant’s complaint concerning the length of the proceedings, the Court notes that, after the Independent Administrative Panel had discontinued the proceedings, the competent Federal Minister lodged an official appeal with the Administrative Court.

The Court will, therefore, first examine whether Article 6 applies to the proceedings concerning the Federal Minister’s official appeal.

The Government accepted that Article 6 applied to these proceedings as the applicant’s criminal liability was directly at stake. The applicant agreed.

The Court notes that, as a general rule, a decision to discontinue criminal administrative proceedings becomes final and can only be changed in case of re-opening of the proceedings. In certain cases, however, the Federal Minister is entitled, pursuant to Article 131 (1) subparagraph (2) of the Federal Constitution, to bring an official appeal if he considers that a decision from which the parties can no longer appeal, suffers from errors of law. He can do so within six weeks of the point in time when he gets knowledge of the decision at issue. In the present case, the Federal Minister’s official appeal concerned the question whether the applicant’s conduct, namely his refusal to undergo a breathalyser test, fulfilled the elements of an offence under the Road Traffic Act.

The Court considers that proceedings relating to an official appeal have to be distinguished from proceedings for the re-opening of criminal proceedings which do not fall within the scope of Article 6 (see Fischer v. Austria ( dec .), no. 27569/02, ECHR 2003 ‑ VI, with further references). Whereas the latter exclusively concern the question whether the conditions for re-opening, for instance the existence of relevant new facts or evidence, are met and do not deal with the “determination of a criminal charge”, proceedings upon an official appeal may, as the Government pointed out, raise questions decisive for the accused’s criminal liability.

Proceedings relating to an official appeal are also to be distinguished from proceedings on a plea of nullity for safeguarding the law under Article 33 (2) the Austrian Code of Criminal Procedure to which Article 6 does not apply (see Oberschlick v. Austria , nos. 19255/92 and 21655/93, Commission decision of 16 May 1995, Decisions and Reports 81, p. 5). While the latter, which may be introduced without any time-limit, serves to clarify questions of law in the abstract, in the interest of preserving the uniform interpretation of the law, proceedings on an official appeal have to be introduced within a time-limit. They aim at rectifying an erroneous decision. Again, in criminal proceedings, the official appeal may raise questions which are decisive for the accused’s criminal liability. Indeed, it did so in the present case.

In these circumstances, the Court finds that the proceedings relating to the Federal Minister’s official appeal concerned the “determination of a criminal charge” and, therefore, concludes that Article 6 applied to them.

Consequently the proceedings have to be considered as a whole. They started on 31 January 1995 and were terminated on 3 December 2001. They, thus, lasted six years and ten months before three levels of jurisdiction.

As regards the reasonableness of the length of the proceedings, the Government contended that in the view of the comparably minor relevance of the matter for the applicant, the duration of the proceedings was not unreasonable.

The applicant contested this argument and submitted that the proceedings concerned the imposition of a fine which corresponded to his monthly salary. He further submitted that the proceedings were not complex.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

b. As regards the second applicant’s complaint concerning the length of the proceedings, the Court notes that they started on 24 March 1997 and were terminated on 3 September 2001. They therefore lasted four years and a little more than five months and came before three levels of jurisdiction.

The Government contended that in the view of the comparably minor relevance of the matter for the applicant, the duration of the proceedings was not unreasonable.

The applicant contested this argument and submitted in particular that the proceedings had also been of importance for related proceedings concerning the withdrawal of his driving licence. He further submitted that the proceedings were not complex.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

2. The first applicant raises further complaints under Article 6 of the Convention.

a. He complains that the proceedings were unfair in that there had been no oral hearing before the Independent Administrative Panel and the Administrative Court and the decisions had not been pronounced in public.  The Court notes that, in the present case, the applicant’s appeal in the second set of proceedings was again successful as the Independent Administrative Panel decided to discontinue the criminal proceedings against the applicant. Consequently, the Court finds that the applicant can no longer claim to be a victim of the alleged violations of Article 6 § 1.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b. The applicant further complains that Federal Minister could and did lodge an official appeal a year after the decision of the Independent Administrative Panel. However, the Court notes that the applicant has not raised the issue of a possible violation of Article 6, at least in substance, either in his submissions of 18 September 1996 to the Administrative Court concerning the question whether the official appeal should be admitted or in his submissions of 7 March 2001 in the continued proceedings before the Independent Administrative Panel.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The second applicant complained that, after the Constitutional Court had quashed the Independent Administrative Panel’s decision, the latter decided without holding a further hearing and that the authorities failed to hear an expert on motor vehicles.

a. As to the first complaint, the Court observes that the Independent Administrative Panel, which according to the Court’s case-law qualifies as a tribunal within the meaning of Article 6 of the Convention (see Baischer v. Austria , no. 32381/96, § 25, 16 January 2001, unreported) had held a public hearing in the first set of proceedings. The Court reiterates that, provided a public hearing has been held at first instance, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings (see for instance Bulut v. Austria , judgment of 22 February 1996, Reports 1996-II, p. 358, 22, § 41; Jan-Ake Andersson v. Sweden, judgment of 29 October 1991, Series A no. 212-B, p. 45-46, § 28).

The Court considers that similar prinicples are to be applied in the present case which, in the second round of proceedings, did not raise any questions of fact but only questions of law which could be adequately resolved on the basis of the case-file. Moreover, the applicant did not request a hearing after a first decision of the Independent Administrative Panel had been quashed. In sum, there is no appearance of a violation of Article 6.

b. As to the second applicant’s complaint about the authorities’ refusal to hear an expert on motor vehicles, the Court observes that the applicant apparently failed to reiterate his written request in the public hearing before the Independant Administrative Panel. It is therefore open to doubt whether he has exhausted domestic remedies.

The Court notes that Article 6, in any way, does not give the accused an unlimited right to have witnesses called. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. More specifically, Article 6 § 3 (d) leaves it to them, again as a general rule, to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused’s behalf (see, Bricmont v. Belgium , judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium , judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). The Court therefore finds that the Independent Administrative Panel’s decision, giving sufficient arguments for the refusal to take the requested evidence, does not disclose any unfairness.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. Finally, the second applicant complained about a lack of review by a higher tribunal. The Court notes that the final decision in the above proceedings was given on 7 Augus t 2001 and served on the second applicant’s counsel on 3 September 2001. The second applicant, however, only raised this complaint more than six months after the date of service, namely in his submissions of 26 July 2002.

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 § 1 and § 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, both applicants’ complaint under Article 6 § 1 of the Convention concerning the length of the proceedings,

Declares inadmissible the remainder of the application.

Søren N ielsen Christos R ozakis Registrar President