CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 septembre 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                                  Application No. 15135/89, 15136/89                                             and 15137/89                                 by J.P., K.R. and G.H.                                 against Austria           The European Commission of Human Rights sitting in private on 5 September 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the applications introduced on 30 May 1989 by J.P., K.R. and G.H. against Austria and registered on 16 June 1989 under files Nos. 15135/89, 15136/86 and 15137/89;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant P. (Application No. 15135/89) is an Austrian citizen, born in 1941 and practising as a lawyer in Vienna.   The applicants H. (Application No. 15137/89) and R. (Application No. 15136/89) are likewise Austrian citizens, born in 1944 and 1945 and both living in Vienna.   They are represented by Mr. P.           All three applicants complain that under Austrian law, namely Sec. 103 (2) of the Motor Vehicles Act (Kraftfahrgesetz = KFG), the registered owner of a car (Zulassungsbesitzer) is obliged to inform the authorities at their request as to who has last driven or parked the car and that they were fined for not having conformed with this obligation.           The applicant P. was imposed two fines of 2,000 AS each or four days of detention for each unpaid fine.           The applicant H. was fined 1,000 AS or 60 hours of detention.   The applicant R. was fined 600 AS or 36 hours of detention.           Mr.   P.'s appeal against the two fines was rejected by the competent Land authority (Amt der Wiener Landesregierung) on 6 November 1987.   It is stated in the decision that the applicant had been named by the registered owner, a leasing company, to be responsible for two cars which on two different occasions were found wrongly parked in Vienna.   He was therefore obliged under the relevant law to indicate the person who had parked the cars.   As he did not furnish this information within the time-limit of two weeks he had to be fined in accordance with the law.           The appeals of the two other applicants were rejected on 22 September 1987 and 29 March 1988.           The applicants then lodged constitutional complaints in which they requested that the Constitutional Court (Verfassungsgerichtshof) annul as being incompatible with the Constitution the relevant provisions in Secs. 103 (2) and 103a (1) KFG of 1986.   Similar provisions in the previous versions of Sec. 103 (2) had already been quashed twice by the Constitutional Court on the ground that they were unconstitutional because they involved an element of self- incrimination (Collection of Constitutional Court Decisions No. 9950/1984 and No. 10394/1985).   In the present case the Constitutional Court again instituted norm control proceedings, but in a decision of 29 September 1988 (G 72/88) pointed out that the ultimate sentence in Sec. 103 (2) KFG had now been enacted as a provision of constitutional rank (Verfassungsnorm).   It provided that no right to refuse to give the information (Auskunftverweigerungsrecht) requested in accordance with Sec. 103 (2) KFG could be invoked vis-à-vis the authorities. Thereby the body competent to legislate on the constitutional level (Verfassungsgesetzgeber) intended to create, for reasons of legal policy, an exception from the general rule that nobody should be obliged under threat of punishment to confess having committed a punishable offence.   As this exception did not violate any predominant principles of constitutional law the Constitutional Court could not review this constitutional norm as to its compatibility with other constitutional provisions, including the internal law aspect of Article 6 of the Convention.           On 29 November 1988 the Constitutional Court rejected the applicants' constitutional complaints against the decisions rejecting their appeals against the fines imposed on them.           The applicants allege a violation of Article 6 of the Convention.   In particular they refer to the principle of equality of arms which they consider violated because Sec. 103 (2) KFG obliges the registered car owner to confess having committed an offence.   THE LAW     1.       The applicants' complaints are analogous.   The Commission therefore finds it convenient to join the applications under Rule 29 of its Rules of Procedure.   2.       The applicants complain of having been fined because they had refused to indicate to the competent authorities who last drove or parked a car which was found wrongly parked in Vienna and belonged to them or had been entrusted to them.   They invoke Article 6 para. 1 (Art. 6-1) of the Convention which guarantees the right to a fair trial.           However, even assuming that Article 6 (Art. 6) applies to the proceedings in question it cannot be found that the obligation in question violated this right or the principle of presumption of innocence as guaranteed by Article 6 para. 2 (Art. 6-2).           The Contracting States are free to define the constituent elements of an offence.   Furthermore, the Convention does not prohibit, in principle, the use of legal presumptions in criminal law (Eur. Court H.R., Salabiaku case, judgment of 7.10.88, Series A no. 143, p. 15 paras. 27-28).   The Commission has already found that criminal liability of a car owner whose car was found wrongly parked without his being able or willing to name the driver or to establish that the car had been used against his will did not violate Article 6 (Art. 6) of the Convention (No. 6170/73, Dec. 26.5.75, unpublished).           The regulation here in question is based on a similar principle, in that it obliges a car owner, or other person named by the owner as the driver of the car, to assume the responsibility for the use or to name the actual driver.           Thereby the person concerned is not under all circumstances obliged to incriminate himself/herself or a close relative, but may, according to the circumstances, also show that he/she is not connected with the offence committed by the driver.   For example, a car may have been used by other known or unknown persons with or without the consent of the owner of the car.           It follows that the regulation in question as applied in the applicants' cases does not disclose any appearance of a violation of the Convention and in particular of the Article invoked by the applicants.   The applications are therefore manifestly ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission   1.       DECIDES TO JOIN APPLICATIONS NOS. 15135/89,         15136/89 AND 15137/89;   2.       DECLARES THE APPLICATIONS INADMISSIBLE.     Secretary to the Commission           President of the Commission              (H.C. KRÜGER)                       (C.A. NØRGAARD)