FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58452/00 by Burkhard LUCKHOF against Austria

and

Application no. 61920/00

by Helmut SPANNER

against Austria

The European Court of Human Rights (First Section), sitting on 18 March 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above applications lodged on 18 February 2000 and 30 August 2000 respectively,

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

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Burkhard Luckhof, is a German national who was born in 1955 and lives in Dillenburg. The second applicant, Mr Helmut Spanner, is a German national, who lives in Weissenburg. They were represented before the Court by Mr M. Freund, a lawyer practising in Vienna.

A. The circumstances of the case

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

1. The first applicant

On 7 August 1998 at 10.30 a.m. the car, of which the first applicant is the registered owner, was caught in a radar-trap exceeding the speed limit by 17 km/h.

On 12 October 1998 the Deutschlandsberg District Administrative Authority ( Bezirkshauptmannschaft ) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act ( Kraftfahrzeuggesetz ) to disclose within two weeks the full name and address of the person who had been driving his car at the material time on 7 August 1998.

On 25 October 1998 the applicant replied that, on the date at issue, he had been on a holiday trip with some friends and could not remember who had been driving the car at the material time.

On 9 November 1998 the District Administrative Authority issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,500 Austrian schillings (ATS) with two days' imprisonment in default. It found that the applicant had failed to give the requested information.

The applicant filed an objection against this decision.

On 29 December 1998 the District Administrative Authority dismissed the applicant's objection and issued a penal order ( Straferkenntnis ) confirming its previous decision.

The applicant appealed on 20 January 1999, submitting in particular that he had not given any false information but had replied as best as he could. In any case, the obligation under section 103 § 2 of the Road Traffic Act to disclose the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention.

On 1 March 1999 the Styria Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) dismissed the applicant's appeal. It noted in particular that the registered car owner did not only act contrary to section 103 § 2 of the Road Traffic Act if he gave false information, but also if he provided incomplete information or no information at all. If need be he was obliged to keep records of the names and addresses of persons who had been driving his car. The applicant had failed to give the information requested by the District Administrative Authority's order of 12 October 1998. As to the applicant's complaint that the obligation to disclose who had been driving his car at a given time violated his right not to incriminate himself, the Panel observed that the relevant sentence in section 103 § 2 had constitutional rank. In this connection it referred to the Constitutional Court's judgment of 29 September 1988 (see below - relevant domestic law).

On 8 June 1999 the Constitutional Court ( Verfassungsgerichtshof ) refused to deal with the applicant's complaint. Referring to its judgment of 29 September 1988, it considered that the applicant's complaint about an alleged violation of his right not to incriminate himself did not offer sufficient prospects of success.

On 5 August 1999 the Administrative Court ( Verwaltungsgerichtshof ) refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act 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 on 26 August 1999.

No proceedings for speeding were brought against the applicant.

2. The second applicant

On 25 August 1998 the car, of which the second applicant is the registered owner, was parked illegally in a street in the seventh district of Vienna.

On 3 November 1998 the Vienna Municipal Authority ( Magistratsabteilung der Stadt Wien ) issued a provisional penal order for parking contrary to the provisions of the Vienna Parking Meter Act ( Wiener Parkometergesetz ) and sentenced him to pay a fine of 500 Austrian schillings (ATS) with twelve hours' imprisonment in default.

The applicant filed an objection against this decision. Consequently, the provisional penal order became invalid in accordance with section 49 § 2 of the Act on Administrative Offences ( Verwaltungsstrafgesetz ).

On 28 December 1998, the Vienna Municipal Authority ordered the applicant pursuant to section 1a of the Vienna Parking Meter Act to disclose within two weeks the full name and address of the person who had been driving his car on 25 August 1998. The applicant did not reply.

On 3 March 1999 the Vienna Municipal Authority issued a provisional penal order sentencing the applicant under sections 1a and 4 § 2 of the Vienna Parking Meter Act to pay a fine of ATS 500 with twelve hours imprisonment in default for failure to disclose the driver of his car.

The applicant lodged an objection against this decision.

On 10 June 1999 the Vienna Municipal Authority dismissed the applicant's objection and issued a penal order confirming its previous decision.

The applicant appealed on 6 July 1999 submitting in particular that the imposition of a fine for failure to disclose the driver of his car violated his right not to incriminate himself as guaranteed by Article 6 of the Convention.

On 6 September 1999 the Vienna Independent Administrative Panel dismissed the applicant's appeal. It noted in particular that the registered car owner's obligation to disclose the driver of his car pursuant to section 1a of the Vienna Parking Meter Act had to be read in conjunction with Article II of Federal Law no. 384/1986 which provided that the authority's right to require information shall take precedence over the right to refuse to give information. This provision had constitutional rank and was comparable to the ultimate sentence of section 103 § 2 of the Motor Vehicles Act.

On 6 March 2000 the Constitutional Court refused to deal with the applicant's complaint. Having regard to its case-law relating to section 103 § 2 of the Motor Vehicles Act, it found that the applicant's complaint did not offer sufficient prospects of success.

On 15 May 2000 the Administrative Court refused to deal with the applicant's complaint pursuant to section 33a of the Administrative Court Act since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake.

The proceedings for illicit parking against the applicant were not continued.

B. Relevant domestic law

1. The Motor Vehicles Act

Section 103 (2) of the Motor Vehicles Act as amended in 1986 ( Kraftfahrgesetz) provides as follows:

“The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car owner ... must provide such information, which must include the name and address of the person concerned; if he or she is unable to give such information, he/she must name a person who can do so and who will then be under an obligation to inform the authority; the statements made by the person required to give information do not release the authority from its duty to review such statements where this seems appropriate in the circumstances of the case. The requested information is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept. The authority's right to require such information shall take precedence over the right to refuse to give information.”

The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985 quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself.

In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the constitution, but had found that this was not the case.

Section 134 § 1 of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000 could be imposed on a person who violates the regulations of this Act.

2. The Vienna Parking Meter Act and Article II of Federal Law no. 384/1986

The Vienna Parking Meter Act regulates the levying of parking fees in specified “short parking areas”.

Section 1a of the Vienna Parking Meter Act, so far as relevant, reads as follows:

“(1) The registered owner of a motor vehicle ... has, if the motor vehicle has been parking in a short parking area liable to a fee, to inform the Municipal Authority to whom he has left the motor vehicle ... at a certain time.

(2) The information, which must include the name and address of the person concerned, is to be provided immediately or, in case of a written request, within two weeks after the request has been served; where such information cannot be provided without keeping pertinent records, such records shall be kept.

Article II of Federal Law no. 384/1986, so far as relevant, reads as follows:

“Where the Länder, in regulating the levying of fees for the parking of motor vehicles ... oblige the registered owner ... to inform the authority upon its request to whom he has left the motor vehicle ... at a certain time, the authority's right to require such information shall take precedence over the right to refuse to give information.”

This provision was enacted as a provision of constitutional rank.

COMPLAINT

The applicants complain under Article 6 of the Convention that the imposition of a fine for failure to disclose the driver of their cars violated their right to silence and the privilege against self-incrimination.

THE LAW

The applicants complained about a violation of their right to remain silent and their privilege against self-incrimination. They relied on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows.

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”

The Government contended that the right to silence and the privilege against self-incrimination were not absolute. The Court had already found that the drawing of inferences from an accused's silence may be admissible ( John Murray v. the United Kingdom , judgment of 8 February 1996, Reports of Judgments and Decisions 1996-I, p. 49, § 45). In a recent case, concerning an obligation to the disclose one's assets to the tax authorities, the Court found that the privilege against self-incrimination did not provide a general immunity for to actions motivated by the desire to evade investigation by the authorities (see Allen v. the United Kindgom (dec.), no.76574/01, ECHR 2002-VIII).

Further, the Government referred to the case-law of the European Commission of Human Rights ( P. K. and H. v. Austria , nos. 15135/89, 15136/89 and 15137/89, Commission decision of 5 September 1989, Decisions and Reports 62, p. 319; Duschel v. Austria , no. 15226/89, Commission decision of 11 October 1989) which had found that  a sentence under section 103 § 2 of the Motor Vehicles Act and under a similar provision of the Vienna Parking Fees Act, respectively, did not violate Article 6.

The Government distinguished the present case from cases in which the Court found a violation of the right to remain silent and the privilege against self-incrimination (in particular Funke v. France , judgment of 25 February 1993, Series A no. 256-A, and, as a recent authority, J.B. v. Switzerland , no. 31827/96 ECHR 2001-III) in that the applicant's choice was not limited to either remaining silent and having a fine imposed on him or incriminating himself. He remained free to disclose the name and address of a third person as driver of the car or to state that the car had been used without his consent by a person unknown to him. In any case, the authorities did not draw the conclusion from the applicants' reaction to their request that they had committed the traffic offences themselves. Neither was the first applicant prosecuted for speeding, nor was the second applicant convicted of illicit parking.

Moreover, the offence to which he could indirectly confess as well as the fine imposed on him under section 103 § 2 of the Motor Vehicles Act were of a minor nature compared to the offences and fines at issue in the above-mentioned cases.

Given the public interest in the prosecution of traffic offences, section 103 § 2 of the Motor Vehicles Act strikes a fair balance between the public interest and the individual car owners interest to remain silent and therefore appears proportionate.

The applicants argued that the choice referred to by the Government was non-existent in cases where the registered car owner had himself been the driver. Here, he was obliged on pain of a fine to admit to having driven the car at the time when the traffic offence at issue had been committed. In practical terms this amounted to a confession of having committed the offence. However, obtaining a confession by means of coercion was incompatible with the right to silence and the privilege against self-incrimination.

The applicants contested the Government's public policy argument by saying that the interests in an effective prosecution of traffic offences could not justify curtailing the right to silence and the privilege against self-incrimination which were core contents of the notion of a fair trial. Moreover, the example of other member States showed that it was possible to secure the prosecution of traffic offences without resorting to a provision which was contrary to Article 6 of the Convention.

Finally, the applicants, being German nationals, submitted in addition that the Ministries for the Interior of a number of German Länder refused to execute penal orders under section 103 § 2 of the Motor Vehicles Act on the ground that it violated the right to remain silent and the right not to incriminate oneself. The same arguments applied as regards section 1a of the Vienna Parking Meter Act.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the applications admissible, without prejudging the merits of the case.

Santiago Quesada Christos Rozakis                Deputy Registrar President