THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32381/96 by Erwin BAISCHER against Austria

The European Court of Human Rights (Third Section) , sitting on 16 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mr L. Loucaides ,

Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 May 1996 and registered on 23 June 1996,

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 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 is a n Austrian national, born in 1947 and living in Pischelsdorf (Upper Austria). He is represented before the Court by Mr Estermann , a lawyer practising in Matti g hofen (Upper Austria).

A. The circumstances of the case

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

On 9 November 1994 the Braunau District Administrative Authority ( Bezir k s ­ hauptmannschaft ) convicted the applicant twice under the Motor Vehicles Act ( Kraftfahrgesetz ) for failure to comply with the instructions of the Authority to inform them who had used his car on specific days ( Lenkerauskunft ), and sentenced him, on each offence, to a fine of 4,000 ATS or six days’ imprisonment in default. The Authority noted that the applicant had given information but found it to be incorrect.

On 29 November 1994 the applicant filed an appeal against this decision with the U p per Austrian Independent Administrative Panel ( Unabhängiger Verwaltungssenat ). He co m plained that the District Administrative Authority had incorrectly applied the law and failed to sufficiently assess the evidence before it or clarify why the information he had given was untrue. The applicant did not request a hearing, nor did he expressly waive this right. No oral hearing was held.

On 2 January 1995 the Independent Administrative Panel dismissed the appeal on the merits but reduced the sentence.

On 28 February 1995 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He complained under Article 6 § 1 of the Convention that the I n dependent Administrative Panel had failed to hold a hearing. Such a hearing would have been necessary because his appeal was not limited to points of law. He had also criticised the Di s trict Administrative Authority’s assessment of evidence. Therefore an oral hearing would have been necessary. In such a hearing the Independent Administrative Panel could have properly assessed this evidence, which had already been obtained at first instance, as well as fresh ev i dence.

On 13 July 1995 the Constitutional Court declined to deal with the applicant’s co m plaint on the ground that it did not have sufficient prospects of success.  Upon a request filed by the applicant on 10 August 1995, the Constitutional Court transferred the case to the A d ministrative Court ( Verwaltungsgerichtshof ) .

On 23 February 1996 the Administrative Court, relying on Section 33a of the Admi n istrative Court Act ( Verwaltungsgerichtshofgesetz ), declined to deal with the applicant’s case, finding that it did not raise important legal issues. On 10 May 1996 this decision was served on the applicant’s lawyer.

B. Relevant domestic law

a. 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. ...”

b. Section 33a of the Administrative Court Act ( Verwaltungsgerichtshofgesetz ) reads as follows:

"The Administrative Court may decline to deal with a complaint against a decision of an Independent Administrative Panel in an administrative criminal case if no prison sentence or a fine exceeding AS 10,000 has been imposed and the Administrative Court's decision would not involve the determination of a legal question of fund a mental importance. A legal question of fundamental importance is involved in pa r ticular if the challenged decision of the Independent Administrative Panel is at var i ance with the Administrative Court's case-law, if no such case-law exists or if the l e gal questions at issue have not been answered uniformly in the Administrative Court's case-law."

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the lack of an oral hearing in criminal proceedings against him relating to administrative offences.

THE LAW

The applicant complains about the absence of an oral hearing in criminal proceedings against him relating to administrative offences. He relies on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

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

The Government concede that the authorities and courts dealing with the applicant’s case had to determine a criminal charge within the meaning of Article 6 § 1 of the Convention and that no oral was held. However, in the Government’s view, the applicant should have requested an oral hearing before the Administrative Court as that court was competent to determine the matter by way of a review satisfying the requirements of both Article 6 § 1 and Article 2 of Protocol No. 7. Since the applicant made no such request, he implicitly waived his right to a hearing.

This is disputed by the applicant. He submits that, under Section 51e of the Code of Administrative Offences, the Independent Administrative Panel has to hold a hearing ex officio, unless the appeal only relates to issues of law or the penalty imposed. In his appeal the applicant had raised issues of law and attacked the assessment of evidence made by the District Administrative Authority. The Independent Administrative Panel should therefore have held a hearing. It has failed to do so and merely decreased the fine. Article 6 § 1 has therefore been violated.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, ther e fore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President