FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58647/00 and 58649/00 by Robert FAUGEL against Austria

The European Court of Human Rights (First Section), sitting on 20 November 2003 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. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 2 May 2000,

Having regard to the decision of 24 October 2002 to join the two applications,

Having regard to the partial decision of 24 October 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,  Robert Faugel, is an Austrian [Note1] national, who was born in 1968 and lives in Schalchen (Austria). He is represented before the Court by Johann Postlmayr, a lawyer practising in Mattighofen (Austria).

A. The circumstances of the case

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

On 9 March 1993 the applicant caused a road accident in a state of drunkenness.

Subsequently, administrative proceedings were instituted against the applicant in which he was accused of, on the one hand, drunken driving and, on the other, of having failed to inform the authorities of the accident. Although proceedings on both charges were dealt with in one single decision at the first instance level, the proceedings on the above charges were disjoined subsequently. However, the separate decisions were always given on the same day. Application no. 58647/00 concerns the charge of drunken driving, while application no. 58649/00 concerns the charge of having failed to inform the authorities of the accident

On 1 April 1996 the Braunau District Authority ( Bezirkshaupt-mannschaft ) summoned the applicant. However, he did not obey the summon. On 20 May 1996 he filed a comment and asked the District Authority to submit the certificate that the breathalyser had been duly calibrated.

On 31 May 1996 the District Authority served this certificate on the applicant. However, he did not submit any further comment.

On 21 June 1996 the District Authority issued an order imposing a fine of ATS 17,000 on the applicant for having caused a road accident in a state of drunkenness on 9 March 1996. With the same order it imposed a fine of ATS 1,500 for having refrained from notifying the authorities that he had had caused damage to property by a road accident on 9 March 1996.

On 9 July 1996 the applicant filed an appeal.

On 10 January 1997 the Upper Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat - “the IAP”), after having held a hearing on 16 December 1996, sitting with a single member, dismissed the applicant’s appeal against the fine of ATS 1,500. On the same day, sitting as a panel of three members, it dismissed the applicant’s appeal against the fine of ATS 17,000.

On 20 and 21 February 1997 the applicant lodged complaints with the Constitutional Court ( Verfassungsgerichtshof ) against both decisions.

On 10 October 1997 the Constitutional Court quashed the IAP’s decisions. It found that these decisions were based on an unconstitutional provision which had provided that Section 20 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ) did not apply in road-accident proceedings. Section 20 provides that, if the extenuating circumstances outweigh the aggravating circumstances, the fine imposed may be reduced to the half of the statutory minimum fine. This decision was served on the applicant’s counsel on 4 November 1997.

On 11 November 1997 the Independent Administrative Penal, sitting as a panel of three members, partly allowed the applicant’s appeal and reduced the fine to ATS 14,000 as, meanwhile, the applicant’s administrative criminal record was erased ( Tilgung ). However, it found that the requirements of Section 20 of the Code of Administrative Offences were not met.

On the same day, sitting as a single member, it dismissed the appeal against the fine of ATS 1,500. It found that the requirements of Section 20 of the Code of Administrative Offences were not met.

On 7 January 1998 the applicant lodged complaints with the Constitutional Court against these decisions. He stressed that the IAP had failed to hold a hearing in the second set of the proceedings on his appeal despite his request in his appeal of 9 July 1996.

On 9 March 1998 the IAP submitted its observations in reply .

On 27 August 1998 the applicant amended his complaints. He stressed that the composition of the IAP was unlawful as the same members had already decided on his appeal in the first set of the proceedings. Therefore, he challenged the members of the IAP.

On 1 December 1998 the Constitutional Court refused to deal with the cases for lack of prospects of success. These decisions were served on 8 March 1999.

On 19 March 1999 the applicant requested that the cases be transferred to the Administrative Court and on 28 May 1998 he amended his complaints. On 13 July 1999 the IAP submitted its observations in reply .

On 31 March 2000 the Administrative Court dismissed the applicant’s complaints. It found that there was no indication of bias of the members of the IAP. As regards IAP’s failure to hold a hearing in the second set of the proceedings it found that the applicant failed to file a new request to hold a hearing. These decisions were served on 11 April 2000.

B. Relevant domestic law

Section 51e of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), as far as rel e vant, reads as follows:

“... 2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is e x pressly requested in the a p peal.

Section 20 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), as far as rel e vant, reads as follows:

“If the extenuating circumstances considerably outweigh the aggravating circumstances, or if the accused is under age, the minimum fine may be reduced to the half of the amount.”

COMPLAINTS

The applicant complained under Article 6 of the Convention about the lack of a public hearing in the second set of the administrative criminal proceedings against him. He submitted that this would have been the first possibility to argue that the requirements to reduce the fine according to  Section 20 of the Code of Administrative Offences had been met.

THE LAW

The applicant complained under Article 6 of the Convention about the lack of a public hearing in the second set of the administrative criminal proceedings against him. He submitted that this would have been the first possibility to argue that the requirements to reduce the fine according to  Section 20 of the Code of Administrative Offences had been met.

Article 6 § 1, so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

The Government submitted that the applicant could have duly put forward his arguments in the hearing held by the IAP in the first set of the proceedings and that he did not request to hold a further hearing after the first set of the proceedings were set aside nor had he submitted any arguments concerning the applicability of Section 20 of the Code of Administrative Offences. Also in his complaints against the IAP’s decision in the second set of the proceedings the applicant solely complained about the lack of the public hearing but did not put forward substantive arguments as regards Section 20 of the Code of the Administrative Offences or the necessity to hold a further hearing. Thus, the applicant had implicitly withdrawn his right to a public hearing and there were no public interests that would have prevented a decision on the basis of the file.

The Government pointed out that the main focus in the second set of the proceedings had not been the establishment of facts, which had already been sufficiently determined at the oral hearing on 16 December 1996. The subject matter had rather been whether Section 20 of the Code of Administrative Offences applied and this question of law could be assessed on the basis of the file. Moreover, the absence of a new hearing was justified for reasons of procedural efficiency.

As regards the importance of what was at stake for the applicant, the Government submitted that, having regard to the imposed fines of ATS 1,500 and 14,000, the matter was of relatively minor importance for the applicant and he had had the possibility to challenge the IAP’ decision in appeal proceedings.

The applicant contested the Government’s view. He submitted that the IAP’s failure to hold an oral hearing was unlawful under the applicable law as he had requested a hearing in his original appeal. Section 20 of the Code of Administrative Offences only applied in the second set of the proceedings. Since the minimum fine could have been reduced in the case of its applicability, the second set of the proceedings was of great importance for the applicant and it was only at that stage of the proceedings that he could have put forward the respective arguments. Moreover, the subject matter of the proceedings had not only been the determination of the fine as the Constitutional Court quashed the entire decision and not only parts of it.

The Court reiterates that Article 6 § 1 of the Convention provides that, in the determination of civil rights and obligations, “everyone is entitled to a fair and public hearing”. The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1, a fair hearing, the guarantee of which is one of the foundations of a democratic society (see the Sutter v. Switzerland judgment of 22 February 1984, Series A no. 74, § 26).

The Court finds that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be done explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66; and Schuler- Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).

The Court has already considered that in the course of proceedings where exclusively legal or highly technical questions are at stake, the requirements of Article 6 may be fulfilled even in the absence of a hearing. Moreover, neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public ( Schuler- Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 19, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002).

In the present case, the IAP held a hearing in the first set of the proceedings but did not do so after the case was remitted following the Constitutional Courts decision of 10 October 1997.

As to the Government’s argument that the applicant failed to request a hearing in the second set of the proceedings and thereby waved his right to a public hearing, the Court notes that, under Section 51e of the Austrian Code of Administrative, the IAP may refrain from holding a hearing when the parties’ appeal is limited to points of law and there is no express request for a hearing to be held. In the present case, the applicant, who was assisted by counsel, did not request a hearing before the Independent Administrative Panel in the second set of the proceedings.

However, the Court notes that the IAP took its decision already one week after the decision of the Constitutional Court was served on the applicant’s counsel with which the case was remitted to the IAP and that the applicant was not invited by the IAP to comment on the proceedings. Considering the short period of time between the decisions of the Constitutional Court and the IAP, the applicant may not be blamed for the failure to request to hold a further hearing in the second set of the proceedings. Thus, the Court does not find that the applicant, who had requested to hold a hearing in his original appeal, has waived unequivocally his right to a hearing.

The Court thus finds that the applicant was, also in the second set of the proceedings, in principle entitled to a public hearing as none of the exceptions laid down in the second sentence of Article 6 § 1 applied (see the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, p. 20, § 64).

However, the IAP already had held a hearing in the first set of the proceedings and the facts were undisputed in respect of the offences which the applicant was charged with. The IAP also considered both extenuating  and aggravating circumstances in order to determine the fine in its first decision on the applicant’s appeal. Thus, the sole new question to be considered by the IAP was whether Section 20 of the Administrative Offences Code applied to the applicant’s case, i.e. whether the extenuating circumstances outweighed the aggravating circumstances which had to be considered as a question of law.

The Court notes that where the facts are not disputed and a tribunal is only called upon to decide on questions of law of no particular complexity, an oral hearing may not be required under Article 6 § 1 (see Varela Assalino judgment, cited above, with further references). The Court considers that such was the situation in the present case as the IAP only had to decide on questions of law which did, however, not raise complex issues. Taking further into account national authorities’ demands of efficiency and economy (see the Schuler- Zgraggen judgment cited above, p. 20, § 58), the Court concludes that the IAP could abstain from holding an oral hearing in the second set of the proceedings.

As to the applicant’s submission that he could not put forward his arguments as regards the applicability of the provision at issue, the Court observes that the IAP’s decision was subject to appeal proceedings, in particular before the Administrative Court in which the applicant could have put forward his arguments concerning the application of Section 20. However, there were no substantive arguments either in his complaints with the Constitutional Court and Administrative Court or in his submissions with the Court.

The Court finds that there is no indication that the applicant, represented by counsel, could not duly put forward his defence or that the proceedings were otherwise unfair.

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

For these reasons, the Court [unanimously] [by a majority]

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President

[Note1] To be checked.