FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63207/00 by Gerda RIEG 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 application lodged on 6 October 2000,

Having regard to the partial decision of 5 December 2002,

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 applicant, Mrs Gerda Rieg, is a German national who was born in 1954 and lives in Laupheim. She was represented before the Court by Mr M. Einsle, a lawyer practising in Bregenz.

A. The circumstances of the case

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

On 17 January 1997 at 18.45 p.m. the car of which the applicant is the registered owner was caught by a radar-trap exceeding the speed limit by 26 km/h.

On 12 March 1997 the Dornbirn 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 her car at the material time on 17 January 1997.

On 24 March 1997 the applicant replied that Mr J.S. [first and family name in full], living in Mostar, Bosnia Herzegovina had been the driver.

On 17 April 1997 the Dornbirn 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.

The applicant filed an objection against this decision.

On 22 September 1997 the District Administrative Authority dismissed the applicant's objection and issued a penal order ( Straferkenntnis ) confirming its previous decision. It found that the applicant had failed to give complete information as requested in the order of 12 March.

The applicant appealed on 1 October 1997 submitting in particular that she had replied to the District Administrative Authority's order, but had been unable to find out the exact address of Mr J.S. Further, she claimed that the obligation under section 103 § 2 of the Motor Vehicles Act to disclose the driver of her car violated the presumption of innocence and her right not to incriminate herself. Finally, she pointed out that she was a German national and that German law did not contain a comparable obligation of the registered car owner to disclose who had been driving the car at a specified time.

On 26 November 1997 the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) dismissed the applicant's appeal. As to the applicant's complaint that the obligation under section 103 § 2 of the Motor Vehicles Act violated the right not to incriminate oneself and the presumption of innocence, it noted that the relevant sentence of that provision had constitutional rank.

On 30 December 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). She repeated the complaint as to the alleged violation of her right not to incriminate herself.

On 9 June 1998 the Constitutional Court declined to deal with the applicant's complaint for lack of sufficient prospects of success.

On 30 June 2000 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.

The applicant was not prosecuted for exceeding the speed limit.

B. Relevant domestic law and practice

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.

COMPLAINTS

The applicant's remaining complaint is that the imposition of a fine for failure to disclose the driver of her car violated her right not to incriminate herself and the presumption of innocence as guaranteed by Article 6 of the Convention. She points out in particular that the last sentence of section 103 § 2 of the Motor Vehicles Act was enacted as a provision of constitutional law after the Constitutional Court had found that similar previous provisions were contrary to the right not to incriminate oneself.

THE LAW

The applicant complained about a violation of her right to remain silent and the privilege against self incrimination and the presumption of innocence. She relied on Article 6 of the Convention which, so far as relevant, reads as follows:

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

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

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 Kingdom (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 her or incriminating herself. She 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 her consent by a person unknown to her. In any case, the authorities did not draw the conclusion from the applicant's reply to their request that she had committed the traffic offence. In fact, she was not suspected of or prosecuted for exceeding the speed limit.

Moreover, the offence to which she could indirectly confess as well as the fine imposed on her 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 owner's interest to remain silent and therefore appears proportionate.

The applicant argued that the choice referred to by the Government was non-existent in cases where the registered car owner had been the driver. Here, he or she was obliged to admit to having driven the car at the time when the traffic offence at issue had been committed, and would then be convicted of that offence.  In case of a refusal to disclose the driver, he or she would be sentenced under section 103 § 2 of the Motor Vehicles Act, usually to a fine of exactly the amount to which he or she would be liable for the underlying traffic offence.

Further, the applicant contested the Government's public policy argument by saying that there were no convincing arguments to show that the public interest in prosecuting traffic offences was bigger than in prosecuting crimes under the Criminal Code, for which there was no obligation to incriminate oneself. 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 infringed the privilege against self-incrimination.

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 remainder of the application admissible, without prejudging the merits of the case.

Santiago Quesada Christos Rozakis   Deputy Registrar President