FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54272/00 by Gabriel LIEDERMANN against Austria

The European Court of Human Rights (First Section) , sitting on 5 December 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 21 May 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gabriel Liedermann, born in 1958, is an Austrian national who lives in Vienna. He is a practising lawyer by profession.

A. The circumstances of the case

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

On 14 June 1997 the car, of which the applicant is the registered owner, was parked illegally in a street in the nineteenth district of Vienna. Two sets of proceedings ensued.

1. Proceedings relating to the applicant’s obligation to disclose the driver of the car

On 26 September 1997 the Vienna Municipal Authority ( Magistrat der Stadt Wien ) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act ( Kraftfahrzeuggesetz ) to disclose the full name and address of the person who had driven the car on 14 June.

The applicant replied that he had not left the car to anybody on that date.

On 28 January 1998 the Vienna Municipal Authority issued a penal order ( Straferkenntnis ) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,200 Austrian schillings (ATS) with 29 hours’ imprisonment in default. It found that he had failed to give the requested information.

The applicant appealed on 20 February 1998, submitting in particular that any obligation to give more detailed information than he had given would be incompatible with the right not to incriminate oneself as well as with the presumption of innocence as guaranteed by Article 6 of the Convention. In submissions of 24 March 1998 the applicant added that meanwhile on 2 March the Vienna Municipal Authority had issued a penal order for illegal parking against him (see below). He argued that, thus, the information he had actually given had had the effect of incriminating him.

On 2 April 1998 the Vienna Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) dismissed the applicant’s appeal. Referring to the wording of section 103 § 2 of the Motor Vehicles Act, it found that the applicant, by stating that he had not left the car to anyone at the material time, had clearly failed to give the information requested. As to the applicant’s argument that the obligation to disclose who had been driving his car at a certain 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 also referred to the Constitutional Court’s judgment of 29 September 1988 (see below - relevant domestic law and practice).

Subsequently, the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He argued that if the Independent Administrative Panel’s view was correct he would be obliged to incriminate himself by stating that he had driven the car.

On 29 September 1998 the Constitutional Court refused to deal with the applicant’s complaint. Having regard to its judgment of 29 September 1988, it considered that the applicant’s complaint did not offer sufficient prospects of success. This decision was served on the applicant on 25 November 1998.

The applicant did not lodge a complaint with the Administrative Court.

2. Proceedings relating to the traffic offence

On 18 August 1997 the Vienna Municipal Authority issued a provisional penal order against the applicant, finding that he had parked his car contrary to section 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act ( Strassen-verkehrsordnung ) on 14 June 1997 and imposed a fine of ATS 700 with 17 hours’ imprisonment on him.

The applicant filed an objection. Subsequently, on 26 September 1997 the Vienna Municipal Authority ordered him pursuant to section 103 § 2 of the Motor Vehicles Act to disclose the full name and address of the person who had driven the car on 14 June 1997 (see above).

On 2 March 1998 the Vienna Municipal Authority issued a penal order against the applicant, finding that he had illegally parked his car on 14 June 1997. He had thereby violated sections 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act and was liable to pay a fine of ATS 700 with 17 hours’ imprisonment in default.

The applicant appealed on 24 March 1998 arguing in particular that his conviction for failure to disclose the driver of the car and his further conviction for illegal parking amounted to double punishment. Further, he contested that the car had been parked illegally, claiming that the decree ordering the prohibition on parking in the area at issue had not been duly published. He requested that that the authority obtain the file concerning the publication of the decree, that a judicial inspection be carried out and that an expert opinion be taken.

On 2 July 1998 the Independent Administrative Panel held a hearing, sitting with Mr L. as a single member. The applicant, who had been duly summoned, only appeared at the close of the hearing. The Independent Administrative Panel dismissed the applicant’s appeal. It noted that it had obtained the file concerning the publication of the decree relating to the prohibition on parking at issue and had sent it to the applicant giving him an opportunity to comment, of which he had, however, not made use. It followed from that file that the decree had been duly published.

The Panel also noted that the applicant had not contested that he had parked the car. Referring to case-law of the Administrative Court, it found that the imposition of a fine for failure to disclose the driver of the car did not prevent the authority from imposing a fine for the traffic offence in respect of which the request to disclose the driver had been made.

Finally, the Panel dismissed the applicant’s requests for the taking of evidence. It found that a judicial inspection would not contribute to establishing the relevant facts and that the applicant had failed to substantiate his request for the taking of an expert opinion.

The applicant lodged a complaint with the Constitutional Court. He referred to the Constitutional Court’s judgment of 10 October 1997. In that judgment the Constitutional Court had set aside the Vienna Independent Administrative Panel’s assignment of business for the year 1997, finding that it was unlawful on the ground that it had been issued by the President who had, however, not been duly authorised to do so by the relevant organ of the Vienna Independent Administrative Panel. The applicant submitted that the Panel’s assignment of business for the year 1998 failed to take this judgment into account. Moreover, he claimed that Mr. L. was excluded from sitting in his case as he was a former civil servant of the Vienna Federal Police Authority. He also complained that the Independent Administrative Panel had refused his requests for taking of evidence and that its decision did not contain sufficient reasoning. Finally, he complained about double punishment in that he had been fined for failure to disclose the driver of his car and for the parking offence as well.

On 23 February 1999 the Constitutional Court refused to deal with the applicant’s complaint for lack of sufficient prospects of success. This decision was served on the applicant on 16 April 1999.

Again, the applicant did not lodge a complaint with the Administrative Court.

B. Relevant domestic law and practice

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 with up to six weeks’ imprisonment in default could be imposed on a person who violates the regulations of this Act.

2. The Road Traffic Act

Section 24 § 1 (a) of the Road Traffic Act ( Strassenverkehrsordnung ) provides that it is prohibited to stop or park a vehicle within any area delimited by the traffic sign “stopping and parking prohibited”.

Section 99 § 3 (a) of the Road Traffic Act in the version in force at the material time, provided that anyone who, as driver of a vehicle, violated the regulations of this Act committed an administrative offence and was liable to a fine of up to ATS 10,000 with up to two weeks’ imprisonment in default.

3. The Administrative Court Act

Pursuant to section 33a of the Administrative Court Act ( Verwaltungsgerichtshofgesetz ), in the version in force at the material time, the Administrative Court could decline to deal with a complaint against a decision of the Independent Administrative Panel, if  the fine imposed did not exceed ATS 10,000 and if no important legal problem was at stake. An important legal problem arises in particular if the Independent Administrative Panel deviated from the Administrative Court’s case-law, if case-law on the issue does not exist, or if the Administrative Court’s case-law on the issue is not uniform.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the imposition of a fine for failure to disclose the driver of his car violated his right not to incriminate himself.

2. Further, he complains under Article 6 about the criminal proceedings concerning charges of illegal parking. He submits in particular that the Vienna Independent Administrative Panel’s assignment of business for the year 1998 was unlawful and that the member of the Independent Administrative Panel who decided on his case was a former civil servant of the Vienna Federal Police Authority. He also complains that the Independent Administrative Panel failed to take evidence proposed by him and that its decision contains insufficient reasoning.

3. Moreover, he complains under Article 4 of Protocol No. 7 that the imposition of two fines, one for failure to disclose the driver of his car and one for illegal parking, amounted to double punishment. He also relies on Article 13 of the Convention.

THE LAW

1. The applicant complains about a violation of his right not to incriminate himself in the proceedings under section 103 § 2 of the Motor Vehicles Act. He relies on Article 6 of the Convention which, insofar 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 established by law.  ...

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant raises various complaints under Article 6 as regards the proceedings concerning charges of illegal parking.

The Court recalls that, in accordance with Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted.

In the present case, the applicant did not lodge a complaint with the Administrative Court. He argues that the Administrative Court would have rejected his complaint pursuant to section 33a of the Administrative Court Act as the fine did not exceed ATS 10,000 and the Administrative Court would most probably have found that the case did not raise an important legal problem.

The Court is not called upon to decide whether, in the present case, a complaint to the Administrative Court offered reasonable prospects of success (see Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 68). Even assuming exhaustion of domestic remedies, the Court considers that this part of the application is inadmissible for the following reasons.

a. The applicant complains that the Vienna Independent Administrative Panel’s assignment of business for the year 1998 was unlawful.

The Court recalls at the outset that the Independent Administrative Panel qualifies as a tribunal (see Baischer v. Austria , no. 32381/96, § 25, 20 December 2001, unreported).

The Court notes that the applicant merely submitted that the Panel’s assignment of business for the year 1997 had been found to be unlawful by the Constitutional Court. However, the reason given by Constitutional Court was that the President of the Panel had not been duly empowered to decide on the assignment of business for the year 1997. The applicant has not claimed that the assignment of business for the year 1998 suffered from the same shortcoming. Nor has he adduced any argument to put the Independent Administrative Panel’s tribunal quality into doubt. Thus, this complaint does not disclose any appearance of a violation of Article 6.

b. Further, the applicant appears to complain that Mr. L, the member of the Independent Administrative Panel deciding on his case, lacked impartiality. According to the Court’s constant case-law, when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had to the personal conviction and behaviour of a particular judge in a given case - the subjective approach - but also to whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect - the objective approach (see for instance Thomann v. Switzerland , judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, § 30).

As regards the subjective aspect of such impartiality, the Court notes that there is nothing to indicate in the present case any prejudice or bias on the part of Mr L. As regards the objective test, the applicant submits merely that Mr L. was a former civil servant of the Vienna Police Authority. However, in the present case, the penal order at stake in the proceedings before the Independent Administrative Panel had not been issued by that authority but by the Vienna Municipal Authority. In these circumstances, the applicant’s submissions do not suffice to show that his fears of bias were objectively justified. There is no appearance of a violation of Article 6 § 1 in this respect.

c.  As to the applicant’s complaint that the Independent Administrative Panel did not give sufficient reasons for its decision the Court reiterates that, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument ( García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I).

In the present case, the Court finds that the Independent Administrative Panel dealt adequately with the applicant’s argument that the decree ordering the prohibition on parking had not been duly published as well as with his allegation of double punishment.

As to the applicant’s complaint about the refusal of his requests for the taking of evidence, the Court reiterates that Article 6 of the Convention guarantees the right to a fair hearing, but does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts ( García Ruiz v. Spain , cited above, § 28)

In the present case, the Independent Administrative Panel gave reasons for the refusal to take evidence proposed by the applicant, namely that the evidence would either be irrelevant or that his request was not duly substantiated. Thus, there is no appearance of a violation of Article 6 in this respect either.

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.

3. The applicant complains that the imposition of fines on the one hand for failure to disclose the driver of his car and on the other hand for illegal parking, amounted to double punishment contrary to Article 4 of Protocol No. 7, which so far as material, reads as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

Again assuming exhaustion of domestic remedies, the Court reiterates that that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see for instance Gradinger v. Austria , judgment of 23 October 1995, Series  A no. 328-C, p. 65, § 53). Apart from the case where someone is convicted twice for the same offence, the Court’s case-law has shown that cases in which someone is convicted for two different offences on the basis of the same facts raise an issue under Article 4 of Protocol No. 7 ( ibid. , § 55, Oliveira v. Switzerland , judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, §§ 26-28 and Franz Fischer v. Austria , no. 37950/97, § 25, 29 May 2001, unreported).

In the present case, the applicant was neither convicted twice for the same offence nor was he convicted for one act constituting two different offences. He was convicted in respect of two sets of facts constituting different offences, namely for having parked his car on 14 June 1997 constituting the offence of illegal parking under section 24 § 1 (a) taken in conjunction with section 99 § 3 (a) of the Road Traffic Act and for having failed to disclose the driver of his car following the Vienna Municipal Authority’s order of  26 September 1997 constituting an offence under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act.

Consequently, there is no appearance of a violation of Article 4 of Protocol No. 7 nor of Article 13 of the Convention.

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.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that the imposition of a fine for failure to disclose the driver of his car violated his right not to incriminate himself;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos L. Rozakis              Deputy Registrar President