THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38544/97 by Ludwig WEH and Evi WEH against Austria

The European Court of Human Rights (Third Section) , sitting on 30 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 8 August 1997 and registered on 7 November 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants are Austrian national s , born in 1952 and 1954 respectively, and living in Bregenz . They are represented before the Court by the first applicant, a lawyer practising in Bregenz .

A. The circumstances of the case [Note1]

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

1. The first applicant’s proceedings

On 21 March 1995 the Bregenz District Authority ( Bezirkshauptmannschaft ) issued an anonymous penal order ( Anonymverfügung ) against the first applicant in the sum of AS 800. It stated that on 5 March 1995 the driver of the applicant’s car had exceeded the city area speed limit of 50 km/h by 21 km/h.

On 13 April 1995 the first applicant requested the Bregenz District Authority to issue an anonymous penal order with a reduced fine. When the Bregenz District Authority did not decide on the first applicant’s request, he lodged a request for a transfer of jurisdiction with the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ), and later with the Constitutional Court ( Verfassungsgerichtshof ) and the Administrative Court ( Verwaltungsgerichtshof ). All authorities, however, found that the relevant transfer provisions were not applicable to administrative criminal proceedings, and therefore rejected the request.

Since the first applicant did not pay the fine of AS 800, on 27 April 1995 the Bregenz District Authority ordered him, under section 103 § 2 of the Motor Vehicles Act ( Kraftfahrgesetz ), to disclose the name of the person who had driven the car. The first applicant answered that “Craig Kuhner ”, living in “USA/University of Texas” was the person who had used the car.

On 25 July 1995 the Bregenz District Authority issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under sections 103 § 2 and 134 of the Motor Vehicles Act to pay a fine of AS 900 (with 54 hours’ imprisonment in default) for not having duly disclosed the driver. The first applicant filed an objection ( Einspruch ) against this decision.

On 18 September 1995 the Bregenz District Authority confirmed its previous decision and sentenced him to a fine of AS 990 (with 24 hours’ imprisonment in default). The Authority found that the information supplied by the first applicant had been inaccurate. The first applicant appealed to the Vorarlberg Independent Administrative Panel. He argued that the information had been correct.

On 15 April 1996 the Vorarlberg Independent Administrative Panel, after a hearing, dismissed the appeal. It considered that the disclosure of inaccurate information amounted to a refusal to give information. Furthermore, the Panel found that the University of Texas had 14 different locations in Texas. Therefore the information provided by the first applicant had been inaccurate.

2. The second applicant’s proceedings

On 10 January 1996 the Bregenz District Authority issued a provisional penal order in which the second applicant was sentenced, under section 20 § 2 in conjunction with section 99 § 3 of the Road Traffic Act ( Straßenverkehrsordnung ), to pay AS 1,500 (with 81 hours’ imprisonment in default) for having exceeded a city area speed limit of 50 km/h by 22 km/h. The second applicant filed an objection against this decision arguing that, in issuing the provisional penal order, the Authority had unlawfully relied on an “internal decree” (“ Geheimerlass ”) of the Vorarlberg Provincial Government ( Landesregierung ) that fixed the penalties for exceeding speed limits.

On 23 February 1996 the Bregenz District Authority confirmed its previous decision.

Upon the second applicant’s appeal, on 15 April 1996 the Vorarlberg Independent Administrative Panel, after a hearing, confirmed the Bregenz District Authority’s decision. It found that the amount of the penalty had been duly calculated. Furthermore, the “internal decree” was only to be considered as information and not as a legally binding regulation for the subordinate authorities.

3. Joint proceedings before the Constitutional Court and before the Administrative              Court

On 3 June 1996 the applicants lodged a joint complaint against the Vorarlberg Independent Administrative Panel’s decisions with the Constitutional Court and requested the court to hold a hearing. They complained, inter alia , that the proceedings had been unfair due to the lack of an impartial tribunal deciding their cases, the Vorarlberg Independent Administrative Panel lacking a prosecuting authority. Therefore the members of the Panel acted at the same time as judge and prosecutor, which violated the principle of equality of arms. Furthermore, they complained about the fact that their fine had been calculated according to the “internal decree” of the Vorarlberg Provincial Government. The first applicant did not raise the issue of a right to silence. They requested an oral hearing.

On 26 November 1996 the Constitutional Court refused to deal with the applicants’ complaint. It found that it lacked any prospects of success. Furthermore, the Vorarlberg Provincial Government’s scale of penalties was not a legally binding regulation but only of an informative character.

On 27 June 1997 the Administrative Court refused to deal with the applicants’ complaint since the amount of the penalties did not exceed AS 10,000, and no important legal problem was at stake.

B. Relevant domestic law and practice

1. If the person who has committed a minor administrative criminal offence is unknown to the competent authorities, the latter may serve a so-called “anonymous penal order” ( Anonymverfügung ) on the person who is supposed to know the offender. If the fine imposed, which must not exceed AS 1,000, is paid within four weeks, no further prosecution is to take place. If it is not paid, the anonymous penal order automatically becomes invalid and a normal prosecution against the unknown offender is to be commenced (section 49a Law on Administrative Offences ( Verwaltungsstrafgesetz )).

2. Section 103 (2) of the Motor Vehicles Act ( Kraftfahrgesetz ) provides that the authorities may request car owners to disclose the identity of the person who had used the car at a certain time, with no right of refusal on the part of the car owner to provide that information ( Auskunftverweigerungsrecht ). This provision was enacted as a provision of constitutional rank ( Verfassungsnorm ), therefore the Constitutional Court has no competence to review its conformity with constitutional law.

Section 134 of the Motor Vehicles Act provides that a fine of up to AS 30,000 may be imposed on a person who violates the regulations of this Act.

3. Under section 20 (2) in conjunction with section 99 (3) lit. a of the Road Traffic Act ( Straßenverkehrsordnung ), a fine of up to AS 10,000 may be imposed on a person who exceeds the city area speed limit of 50 km/h.

4. Section 51 (1) of the Law on Administrative Offences provides that a person may lodge an appeal against an administrative penal order ( Strafbescheid ) with the competent Independent Administrative Panel. In that case, the person concerned and the authority having issued the order are parties ( Partei ) to the proceedings before the Panel (section 51d). If an oral hearing is scheduled, the absence of the parties does not prevent the Panel from holding the hearing and delivering the judgment (section 51f).

COMPLAINTS

1. The first applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair in that his right to remain silent was infringed. He submits in particular that section 103 § 2 of the Motor Vehicles Act contains a possible obligation for the car owner to incriminate himself.

2. Both applicants raise the following further complaints under Article 6 as regards the criminal proceedings against them. Firstly, they submit that no prosecuting authority participates in the proceedings before the Independent Administrative Panel and that therefore the members of the Panel act as both judge and prosecutor, which violates the principle of equality of arms. Secondly, they complain about the lack of a public hearing before the Constitutional Court and, under Article 2 of Protocol No. 7, about a lack of review by a higher tribunal.

3. Both applicants complain under Article 7 of the Convention that the fines imposed on them were based on a non-public decree and exceeded the amounts laid down in the relevant national law.

4. Finally, the first applicant alone complains under Article 13 of the Convention about the lack of an effective remedy against the anonymous penal order.

THE LAW

1. The first applicant complains under Article 6 of the Convention of a violation of the right to silence.

Article 6, insofar as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public 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 Court consi d ers that it cannot, on the basis of the file, determine the admissibility of this complaint and that 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.

2. The applicants complain under Article 6 § 1 and under Article 2 of Protocol No. 7 of the Convention about the lack of a fair trial before the Independent Administrative Panel, about the lack of a public hearing before the Constitutional Court and about the lack of review by a higher tribunal.

The Court refers to the provisions of Article 6 § 1 cited above. Article 2 of Protocol No. 7,  insofar as relevant, reads as follows:

“Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal.”

The Court consi d ers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this co m plaint to the respondent Government.

3. Both applicants complain under Article 7 of the Convention that the fines imposed on them were based on a non-public decree and exceeded the amounts laid down in the Road Traffic Act. Article 7 of the Convention prohibits retroactive criminal legislation or penalties.

The Court finds that the first applicant’s conviction was based on section 103 (2) in conjunction with section 134 of the Motor Vehicles Act, and the second applicant’s conviction was based on section 20 § 2 in conjunction with section 99 § 3 lit. a of the Road Traffic Act. Therefore the acts at issue constituted criminal offences under national law within the meaning of Article 7 of the Convention. Moreover, the fines imposed on the applicants did not exceed the possible sentences under those provisions.

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

4. Finally, the first applicant complains that he did not have an effective remedy against the anonymous penal order and invokes Article 13 of the Convention which guarantees effective domestic remedies for Convention breaches.

However, the Court considers that the anonymous penal order against the first applicant became invalid four weeks after its service upon him. Therefore, he can no longer claim to be a victim of a violation of his Convention rights within the meaning of Article 34 of the Convention.

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

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicants’ complaints concerning the lack of a fair trial before the Independent Administrative Panel, the lack of a public hearing before the Constitutional Court and a lack of review by a higher tribunal, as well as the first applicant’s complaint concerning the right to silence;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Include information obtained from the Government on the Judge Rapporteur’s request (Rule 49 § 2 (a)) or Chamber’s request (Rule 54 § 3 (a)), with indication of this fact, where appropriate.