FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (First Section) , sitting on 24 October 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above applications lodged on 2 May 2000 (58647/00) and 9 June 2000 (58649/00),

Having deliberated, decides as follows:

THE FACTS

The applicant,  Robert Faugel, is an Austrian 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 applicant , may be summarised as follows.

On 9 March 1996 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 ( Bezirkshauptmannschaft ) 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. He submitted, inter alia , that his last road accident in a state of drunkenness had already occurred four and a half year before the accident at issue and that therefore the fine was unreasonable. Further he submitted that the site of the accident had been wrongly indicated in the decision.

On 13 September 1996 the applicant submitted that the point of time of the accident had been wrongly indicated in the District Authority’s decision.

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 but modified the time of the accident.

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.

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 and that the decisions had not been pronounced in public.

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.

3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the b e ginning of the hearing. ...”

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 complains under Article 6 of the Convention about the length of the proceedings. Further he complains that the members of the IAP were biased as they had decided on his appeal in the first and second set of the proceedings and that the IAP failed to pronounce its decisions in public.

Finally, he complains that the IAP failed to hold a hearing in the second set of the proceedings. He submits that this would have been the first possibility to argue that the requirements of Section 20 of the Code of Administrative Offences had been met.

THE LAW

1. The Court finds that, because of the similarity of the factual and legal issues involved and the applicant being the same in both applications, it is appropriate to join the applications.

2. As regards the complaints under Article 6 of the Convention about the lack of a public hearing the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint.

It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

3. The applicant complains under Article 6 of the Convention about the length and the unfairness of the proceedings. Article 6 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal. Judgment shall be pronounced publicly ...”

a) As regards the complaint about the length of the proceedings the Court notes that the proceedings started on 1 April 1996 when the applicant was summoned by the Braunau District Authority and were terminated on 11 April 2000 when the Administrative Court’s decisions were served. Thus, they lasted a bit more than four years.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see for instance Humen v. Poland [GC], no. 26614/95, 15.10.99, § 60).

The Court observes that the first set of the proceedings was of a certain complexity as the Constitutional Court had to decide on the constitutionality of the applicable law. As regards the conduct of the parties, the Court finds, that no delays can be attributed to the applicant. As regards the conduct of the authorities the Court notes that the proceedings at issue were dealt with at four levels of jurisdiction. It finds that, on the whole, the Austrian Courts dealt expeditiously with the applicant’s cases.

Having regard to these circumstances the Court finds that the overall duration of the proceedings at issue can still be regarded as “reasonable”.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

b) As regards the complaint about the alleged bias of the members of the IAP, the Court reiterates that there is no general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority ( Eur . Court H.R., Ringeisen judgment of 16 July 1971, Series A No. 13, p. 40, § 97; Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 28 § 73; appl . no. 15975/90, Dec. 1.7.91, DR 71, p. 245, O.N. v. Bulgaria, (Dec.), 35221/97, 6.4.2000). Further it reiterates that the mere fact that the same judge had decided on the applicant’s appeal in both sets of the proceedings, does not objectively justify any fears as to a lack of impartiality on his or her part (see mutatis mutandis the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 16, § 38; Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 40, § 97, Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III, p. 819, § 63).

Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (cf. Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 32; Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26). However, the applicant failed to submit any argument to substantiate the alleged bias of the members of the IAP.

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

c) As regards the IAP’s failure to pronounce its decision in public the Court observes that the Court has several times had occasion to rule on the Article 6 § 1 requirement that judgments must be pronounced publicly, holding that “in each case the form of publicity to be given to the ‘ judgment ’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1” (see the Pretto and Others judgment cited above, p. 12, § 26 in fine). In the Sutter v. Switzerland case (see the judgment of 22 February 1984, Series A no. 74, pp. 14–15, § 34) it held that public delivery of a decision of the Military Court of Cassation was unnecessary, as public access to that decision was ensured by other means, namely the possibility of seeking a copy of the judgment from the court registry and its subsequent publication in an official collection of case-law.

In the present case the Court observes that all the decisions of the Upper Austria IAP are published on the internet. The Court considers that, having regard to the above mentioned case-law, the public access to the decisions at issue was thereby properly ensured.

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

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicant’s complaints concerning the lack of oral hearing;

Declares the remainder of the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President