FIRST SECTION

PARTIAL 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 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 6 October 2000,

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 (Germany). She is 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., 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.

Furthermore, it noted that according to the Administrative Court’s case-law, in particular its lead-case of 31 January 1996, concerning the offence under section 103 § 2 of the Motor Vehicles Act, the  place of the commission of the offence was Austria and the requested information had to be given to the Austrian authorities. Consequently, Austrian law applied. The Administrative Court’s case-law, in particular its judgment of 27 June 1996, had also spelt it out that foreign citizens were equally required to provide the information at issue. It was, therefore, irrelevant whether or not German law contained a comparable obligation for the registered car owner to disclose the driver of his or her car. In the present case, the applicant had failed to fulfil her obligations under section 103 § 2 of the Motor Vehicles Act, as she had not informed the authority of the complete address of the person who had allegedly been driving the car on 17 January 1997.

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. As to her complaint that she was not obliged under German law to disclose the name and address of the driver of her car at a specified time or to keep records in order to be able to give such information, she relied on Article 7 of the Convention.

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.

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

1. The applicant complains under Article 6 of the Convention 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. 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.

2. Furthermore, the applicant complains that the imposition of a fine for failure to disclose the driver of her car violated Article 7 § 1 of the Convention, as she was not obliged under German law to disclose the name and address of the driver of her car at a specified time or to keep records in order to be able to give such information.

THE LAW

1. The applicant complains about a violation of her right not to incriminate herself and about a violation of the presumption of innocence as regards the imposition of a fine on her for failure to disclose the driver of her car. She 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 complains that the imposition of the fine for failure to disclose the driver of her car violated Article 7 § 1 of the Convention, claiming in particular that no comparable obligation exists under German law. Article 7 § 1 reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court reiterates that Article 7 embodies the principle that only the law can define a crime and prescribe a penalty ( nullum crimen , nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see Streletz , Kessler and Krenz v. Germany [GC], nos. 34033/96, 35532/97 and 44801/98, § 50, ECHR 2001-II with further references).

In the present case, section 103 § 2 of the Motor Vehicles Act obliges the registered car owner to provide information on the name and address of the person who was driving the car as a specified time. According to section 134 § 1 of that Act failure to comply with this obligation constitutes an offence. Moreover, the Administrative Court’s case-law established in 1996 and 1997 made it clear that the place of the commission of the offence (namely failure to provide the requested information) was Austria and that, therefore, Austrian law applied. The applicant was therefore in a position to foresee, if need be with appropriate legal advice, that she was obliged on pain of a fine to provide the required information. Consequently, there is no appearance of a violation of Article 7 of the Convention.

It follows that this complaint 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 her car violated her right not to incriminate herself;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President